What Happens When Police Get it Wrong
When you are arrested in Canada, you have a constitutional right to speak with a lawyer. But what happens when you try to reach one — and can’t? The Prosper warning is the law’s answer to that question.
The right to counsel under the Charter
Section 10(b) of the Canadian Charter of Rights and Freedoms guarantees that everyone has the right, on arrest or detention, to retain and instruct counsel without delay and to be informed of that right. This is one of the most important protections in the criminal justice system — it allows an arrested person to understand their legal jeopardy and get advice before saying or doing anything that could later be used against them.
So where does the Prosper warning come in?
The scenario is a common one: a detainee invokes their right to counsel, tries diligently to reach a lawyer, but cannot get through — their lawyer is unavailable, duty counsel lines are tied up, it is the middle of the night. Frustrated, they tell police: “Forget it, just go ahead.”
That apparent change of mind is exactly when the Prosper warning is required. Before police can treat that as a valid waiver and proceed with questioning, they must stop and deliver a specific caution.
The Prosper warning in plain terms
Police must tell the detainee: you still have the right to a reasonable opportunity to contact a lawyer — and until you have had that opportunity, we cannot take any statement from you or ask you to participate in any process that could incriminate you.
The leading case: R v Prosper [1994] 3 SCR 236
The Supreme Court of Canada established this rule in R v Prosper, a 1994 decision authored by Chief Justice Lamer. The Court held that where a detainee has asserted the right to counsel, been reasonably diligent in trying to exercise it, but has been unable to reach a lawyer, the right to counsel must not be too easily waived. An additional informational obligation falls on police at the moment the detainee expresses a change of mind.
The purpose is straightforward: the detainee may be giving up the right out of frustration or exhaustion — not genuine, informed choice. The warning ensures that any waiver is both voluntary and fully informed.
When is the warning triggered?
Three conditions must be met:
1 The detainee invoked the right to counsel. They must have actually asserted the right — not simply been informed of it.
2 They were reasonably diligent in trying to exercise it. The detainee made genuine efforts to reach counsel. A detainee who was never diligent cannot rely on Prosper.
They then indicate they no longer want counsel
3 This apparent change of mind — not a successful connection with a different lawyer — is what triggers the obligation.
When is the warning not required?
The Supreme Court drew an important line in R v Willier (2010 SCC 37). If a detainee simply cannot reach their preferred lawyer and elects to speak with duty counsel instead, no Prosper warning is needed — because there has been no waiver. Prosper is, at its core, a waiver case. It only applies where the detainee is abandoning the right altogether, not redirecting to a different lawyer.
What happens if police fail to give the warning?
The failure to deliver a Prosper warning is a breach of section 10(b) of the Charter. This is not treated as a technical or minor violation. Courts have described it as a substantial breach going to the heart of a detainee’s right to receive legal advice at the most critical moment of the criminal process.
The consequences are serious. Under section 24(2) of the Charter, evidence obtained in violation of a Charter right must be excluded if admitting it would bring the administration of justice into disrepute. In practice, statements made to police after a missing Prosper warning are frequently excluded — and in many cases, those statements are the lynchpin of the Crown’s case.
A striking example is R v Fountain (2017 ONCA 596), where the Ontario Court of Appeal quashed a conviction and entered acquittals after finding that a detective had failed to give the required warning, leading to a statement that had to be excluded entirely.
Key cases at a glance
R v ProsperSCC 1994 — established the warning requirement
R v WillierSCC 2010 — clarified Prosper is a waiver case only
R v FountainONCA 2017 — acquittals after missing warning led to exclusion
The bottom line
The Prosper warning exists because a detainee who gives up on reaching a lawyer after a frustrating wait may not fully appreciate what they are surrendering. The law intervenes to ensure that the decision is a real one — made with eyes open. For police, delivering the warning at the right moment is not optional, and the consequences of missing it can be the collapse of an entire prosecution.
For anyone facing an arrest or advising someone who has been detained: if you tried to reach a lawyer and couldn’t, and police moved on to questioning after you said you’d just forget it — that may well be a breach of your Charter rights worth examining.
