Arrest, Detention, Charge; Constitutional Rights

By: LawInfo

What are my rights when I am arrested and/or charged?
The Canadian Charter of Rights and Freedom, which is the first part of the Constitution of Canada, as contained in the Constitution Act, 1982, establishes rights to protect persons who are arrested or detained by the police, which include the following:

• the right to remain silent when questioned by police;
• the right to be told the reason for your arrest, detention and/or charge;
• the right to be told you can hire a lawyer of your choice for legal advice and representation; if you do not have a lawyer, you can ask for the toll-free duty counsel telephone number;
• the right to be told about the availability of duty counsel, who are defence lawyers paid by the government, and legal aid;
• the right to speak with a lawyer, in private, as soon as possible.

Even if not arrested when charged, you have the rights:

• to be presumed innocent until proven guilty in a court of law;
• to be release on bail, unless there is a valid reason to be kept in custody;
• not to have to testify at your own trial;
• to have the charge brought to trial within a reasonable period of time.

When can I be stopped by the police?
Police may stop you if:

• they see you committing an offence;
• they suspect you may have committed an offence;
• they believe you have witnessed or know facts about the commission of an offence; and,

When you are driving:

• if you have committed a traffic offence;
• to determine if you have consumed alcohol or a drug and may be impaired;
• whether you have motor vehicle liability insurance;
• whether you car is in sound mechanical condition required to be driven.

When must I answer their questions?
Generally you have the right to remain silent when the police ask you questions. You should, however, cooperate by identifying yourself. If you do answer, anything you say may be used as evidence. If you knowingly give false information, you may be charged with an offence. If you think you may be blamed or charged, you should ask to speak with a lawyer before answering questions. If stopped while driving a car, you must if asked show your driver's licence, ownership and insurance documents.

What happens if I talk to the police?
You have the right to remain silent, however, if you talk to the police, voluntarily undergo physical tests or voluntarily supply a sample of blood or urine, whether or not you have been charged or before you have had an opportunity to consult a lawyer, anything you say or the results of any test or examination of a sample, can be used as evidence against you. For your full protection, you should consider getting the advice of a lawyer first.

When can I be charged?
You can be charged by the police if:

• they see you committing an offence;
• they have a reasonable belief, from physical evidence or the evidence of a victim or other witness (Informant), that you have committed an offence.

You may also be charged if a member of the public is able satisfy a Justice of the Peace that you have committed an offence.

Can a member of the public make a charge?
Yes. A member of the public (the Informant) can meet with a Justice of the Peace and give him details of the offence, which will be written up in a document called and information on which will be recorded that the Informant has given an oath before the Justice of the Peace, swearing that the Informant believes an offence has been committed. If the Justice believes that an offence may have been committed, the Justice will issue a summons, which is an order that the accused person shall come to court on a certain day to answer the charge. The Justice may also, if he feels it is necessary, issue a warrant for the arrest of the person charged. If the Justice does not believe an offence has been committed, no legal action will be taken against the alleged offender. If you are not sure if charges can be laid or what other alternatives you may have, you should consult a lawyer.

Once a charge has been laid, the Crown prosecutor will handle the prosecution of the person charged.

If you are a necessary witness, you may receive a subpoena, a document setting out the date, time and place you must attend Court to give evidence.

Can an Informant change his/her mind about laying a charge?
If the police have laid charges, they would not be withdrawn, unless the police believed there was not enough evidence to proceed to trial or the Crown prosecutor decided not to proceed.

If you laid a charge against an offender through a Justice of the Peace, you can generally drop the charge any time before the Crown prosecutor takes over prosecution of the offence.

Can I be charged by the police without being arrested?
Yes. Although police will both charge and arrest you, for some minor offences, they may decide not to arrest you, in which case they will give you a notice of the charge and telling you to keep 2 appointments—one, where and when to go to have your photograph and fingerprints taken, the other where and when to appear in court to set a date for your trial.

If you miss either of these appointments, you may be charged with the offence of failing to appear.

Even if an offence is of a less serious nature, the police may decide to arrest you, particularly if:

• you have not identified yourself;
• they believe you might destroy evidence;
• they believe you might repeat the offence.

Do the police need a warrant to arrest?
No. The police have broad powers to arrest:

• if someone is in the middle of committing an offence;
• if they believe someone is about to commit a serious offence;
• if they believe there is a warrant issued for someone's arrest; or the reasons set out next above.

When will a warrant for someone's arrest be issued?
If the police have a belief that a particular person may be guilty of a criminal offence, they may ask a judge or justice of the peace to sign a document called a warrant which permits the police to arrest the person named in the warrant. The onus is on the justice or judge signing the warrant to have a reasonable belief that the person named in the warrant has committed a criminal offence.

What will happen if I am placed under arrest?
The police have the power to search you and will take you to the police station to be fingerprinted and photographed.