Right to counsel

Right to counsel means a defendant has a right to have the assistance of counsel (i.e., lawyers), and if the defendant cannot afford a lawyer, requires that the government appoint one or pay the defendant's legal expenses. The right to counsel is generally regarded as a constituent of the right to a fair trial. Historically, however, not all countries have always recognized the right to counsel. The right is often included in national constitutions. 153 of the 194 constitutions currently in force have language to this effect.

The right to counsel is guaranteed under Section Ten of the Canadian Charter of Rights and Freedoms upon "arrest and detention", as well as the right to habeas corpus. However, there is no right to counsel l during a criminal trial, except in specific situations.

In October 2010, the Supreme Court of Canada ruled that the right to counsel during interrogation is not absolute in Canada. It said that importing US-style Miranda Rights was not in the interests of Canada. The ruling was a bare majority ruling, with a strenuously voiced minority opinion stating that it would lead to more false confessions and bad convictions.

The Napoleonic Code of Criminal Instruction, adopted in France in 1808 and inspiring many similar codes in civil law countries, made it compulsory that the defendant should have a lawyer when tried in the assize courts (which judged severe crimes).

Before the Prisoners' Counsel Act 1836, felony defendants did not have the formal right of being represented by a counsel in English courts although, from the mid-18th century such had been routinely indulged where defendants could afford them. It was thought, at the time, that the presence of defence counsel would serve no purpose in criminal proceedings, where what matters is deciding fact: the defendant should simply tell the truth to the court, without the interference of some counsel. William Hawkins in his A Treatise of the Pleas of the Crown: or a system of the principal matters, relating to that subject, digested under their proper heads Vol. II. of 1721 wrote:

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