It is essential for every Canadian citizen to know their rights and freedoms in the event of arrest. What are your rights under the Charter of Rights and Freedoms with respect to arrest?
Arrest vs. detention
It is rather simple to recognize an arrest. Generally, a person is arrested when the police believe they have committed a crime. This person will normally be handcuffed or taken to a police station.
On the other hand, a person will normally be considered detained when he or she cannot leave his or her whereabouts, even without a police officer handcuffing him or her or taking him to the police station. Canadian jurisprudence recognizes three forms of detention :
- Physical detention;
- Legal detention (for example, the right of the police officer to request a breath sample because he or she believes he or she has stopped a drunk driver);
- Psychological detention (for example, feeling compelled to answer a police officer’s questions even though the individual has the right to leave the premises).
Section 9 of the Charter guarantees the right to protection from arbitrary detention. While an accused may deny being arbitrarily detained, a peace officer may argue that he or she simply asked questions of the alleged victim, without necessarily detaining her. The courts will then apply the reasonable person test to determine whether the alleged victim has been arbitrarily detained.
In determining whether a reasonable person in the same situation would conclude that he or she could not leave the premises because of detention, the court may consider, among other things, the following factors:
- The circumstances that led to the contact with the police (for example, were the police conducting a general investigation into a particular incident, or were they specifically targeting the individual involved as part of a targeted investigation?);
- The nature of the police conduct, including the words used, the use of physical contact, the location of the interaction, the presence of other persons and the duration of the interaction;
- The person’s particular characteristics, including age, stature, minority status, and other.
What are my rights?
Here are the main rights to keep in mind at all times (sections 7 and 10 of the Charter):
- The right to be informed of the reasons for his arrest or detention;
- The right to challenge the lawfulness of one’s arrest or detention;
- The right to consult a lawyer;
- The right to remain silent.
Right to consult a lawyer
The right to consult a lawyer following arrest or detention is a fundamental right protected and guaranteed by the Charter. Immediately after the arrest or detention, the peace officer must inform the arrested person of his or her right to consult a lawyer.
The arrested person may avail himself or herself of the free services of legal aid lawyers, or may choose his or her own lawyer. The conversation will usually take place over the phone.
A peace officer may not legally attempt to extract or question information until the arrested or detained person has given the arrested or detained person a reasonable opportunity to consult with counsel. The arrested person has the right to speak privately with his or her lawyer. If the chosen lawyer does not respond within a reasonable time, the arrested person must choose another lawyer. Obviously, the arrested person has the right to refuse to consult a lawyer.
Generally, the arrested person may consult his or her lawyer only once, unless:
- The lawyer contacted was unable to advise her;
- The situation has changed and new facts are presented (for example, the police accuse the arrested person of a more serious offence or new evidence has been found);
- Police officers want to use new investigative methods (for example, a lie detector).
Right to remain silent
A peace officer who arrests a person has a duty to advise the person of his or her right to remain silent. The right to remain silent exists in order to prevent arrested persons from incriminating themselves.
Indeed, peace officers use a variety of tactics to extract information from those arrested. Unfortunately, even truthful information shared by an innocent person can be used against them, or in ways that incriminate them, since anything the arrested person reveals can be used against them.
It is important to note that the choice to remain silent is not interpreted as an indication of guilt or an indication of innocence. In all cases, in Canada, a person is presumed innocent until proven guilty.
It is important to note that the right to remain silent can be exercised from the moment of arrest or detention, until the end of the trial. There is no obligation on the arrested person to testify during the trial or to answer questions.
Constitutional remedies
If a peace officer arrests a person without notifying them of their rights in the event of arrest or detention, that person should consult a lawyer to inquire about their constitutional remedies.
In some situations, this type of error may lead a judge to exclude evidence that he or she would otherwise have used to incriminate the arrested person (see section 24 of the Charter).
Search during arrest or detention
Section 8 of the Charter states that everyone has the right to be free from unreasonable searches.
Generally, a search can only be authorized if there are reasonable and probable grounds to believe that the search will uncover evidence related to an offence that has been committed. In addition, the search may be carried out incidental to an arrest, in order to ensure the safety of the peace officer. Otherwise, the search conducted without a warrant is presumed to be unreasonable.
Incriminating statements
A peace officer cannot use information or confession that has been extracted in a manner that violates your right to silence or your right to counsel.
Indeed, in R. v. Hebert, the accused consulted a lawyer following his arrest and then decided to exercise his right to silence. Hebert was placed in a cell with an undercover agent posing as another arrested suspect. This officer spoke with the accused and managed to obtain a confession from him. Once at trial, the Supreme Court found that the manner in which the peace officer obtained the accused’s incriminating statements violated his right to remain silent, as well as his right to counsel.
If you believe your Charter rights have been violated, call our lawyers for a consultation now.