***The information provided in this article is meant to be used for informative purposes only and may, over time become outdated. To ensure accurate and up-to-date information, contact Murray Ralston Lawyers, located in Barrie and North Bay, and we would be happy to assist you.***

The Charter guarantees that Canadian citizens will not be subject to unreasonable searches and seizure or arbitrary detention or imprisonment. They also have the right to be informed of the reason for arrest or detention, and the right to obtain and instruct counsel without delay. If any of these rights are violated in the conduct of a criminal investigation, the evidence obtained can be excluded at trial if of the evidence would bring the administration of justice into disrepute.

Knowing your rights is an absolutely critical component when one is faced with a criminal charge. Persons who are accused of crimes must be aware that the outcome of their case depends not only on the merits of the charges, but also on how well their rights have been protected. Upon arrest or detention the right to remain silent and the right to counsel are of paramount important as the violation of these rights may result in the evidence possibly being excluded, or the case being dismissed completely.

There exist various different and important rights, however most notable when facing a potential criminal charge are:

The right against illegal search and seizure

The right to remain silent

The right to counsel

The right to a fair trial

The right against illegal search and seizure:

The right against illegal search and seizure protects not only against police entering your private property and confiscating items, but also to wiretaps and recorded conversations. It is important to understand that police require valid search warrants in order to do this, and there are proper procedures that must be followed. If these procedures are not followed, or the police do not possess the valid search warrant, this right has been violated.

The Right to Remain Silent:

It is important to understand that one has the right to remain silent and avoid implicating himself or herself in a crime. This right exists no matter what the police are saying and no matter how badly you want to tell your side of the story. Prior to being informed of your right to legal counsel, any statements made to the police are considered involuntary and are inadmissible as evidence.

The Right to Counsel:

The right to counsel is similar in effect to the right to remain silent, as counsel plays an enormous part in ensuring that nothing you say will be used against you. If you have not been permitted to retain and instruct counsel or if you have not been advised of your right to counsel, depending on the circumstances of the case, your rights have been violated.

The Right to Fair Trial:

You have a right to a fair trial, which encompasses nine enumerated rights protected against, which include:

  1. The right to be informed of the offence
  2. the right to be tried within a reasonable time
  3. the right not to be compelled to be a witness
  4. the right to be presume innocent
  5. right not to be denied reasonable bail
  6. the right to trial by jury
  7. right not to be found guilty unless action constituted an offence
  8. right not to be tried again
  9. right to lesser punishment

If you are the subject of a search and seizure, or are under arrest or detention, it is advisable that you contact a lawyer who will be able to advise you of your rights given the exact circumstances of your case and ensure you obtain the best possible outcome.  The recognition and protection of your rights play an integral role in achieving an acquittal, and this begins with being informed about your rights.

Detention: What Constitutes Arrest & Detention?:

Because of the severity of repercussions of a violation, it is paramount that one recognizes what rights exist, when these rights are invoked and when these rights are being violated. Most people understand that they have these rights, but they are unsure as to how and when these rights can be used. This is understandable as it isn’t always clear when one is being arrested or detained, and there are certain cases where one is technically being detained but may nevertheless still be required to comply with the officers demands despite not being given the opportunity to consult and instruct counsel first (ie. Roadside stops and breathalyzers). For this reason, it is important to recognize when one is in fact being detained and the Charter protections they have available to them as a result.

Although it is usually easily discernable when one is under arrest, it is not always as clear cut when it comes to being detained. Detention is a complex question of fact and law, and does not necessarily involve some aspect of physical restraint. In fact, courts have recognized situations of psychological detention as being sufficient to invoke Charter rights, and it is therefore crucial that one understands what is meant by detention and its various dimensions.

Psychological Detention:

In order to assist persons with recognizing what may constitute psychological detention, the court has outlined certain factors in consideration of what it means to be psychologically detained:

  1. The circumstances of the encounter
  2. The nature of the police conduct ie. Type, Duration, and Location of questioning
  3. The particular characteristics or circumstances of the person being questioned ie. age, psychical stature, minority status or level of sophistication.

Generally speaking, where the conduct of the police leads a person to believe that he or she has absolutely no choice but to comply, it may be argued that that person was psychologically detained, and they thereby have the right to remain silent, to retain counsel, to instruct counsel etc.

Detention when ‘voluntarily’ attending police station:

Detention may also exist where a person, who is not arrested, attends a police station for questioning. The Court of Appeal has enumerated a set of factors to be considered when determining whether the person who attended the police station “voluntarily”, is nevertheless detained for the purposes of the Charter:

  1. The language the officer used when requiring the persons attendance at the station and whether the person was given a choice as to where the interview should be held
  2. whether the attendance at the station was voluntary
  3. whether at the end of the interview the person was free to go, or was arrested
  4. whether the purpose of the questioning was to obtain incriminating statements and at what stage of the investigation the police are at
  5. whether the police had grounds to arrest
  6. the nature of the questions and
  7. the subjective belief of the person

Do You Need A Lawyer?

If you are the subject of a search and seizure, or are under arrest or detention (psychological or otherwise), or are otherwise unsure, it is advisable that you contact a lawyer who will be able to advise you of your rights as it pertains to the exact circumstances of your case and ensure you obtain the best possible outcome. The recognition and protection of your rights play an integral role in achieving an acquittal, and this begins with being informed about your rights.

*** The information above is not intended to be legal advice. Each situation is different and the information provided above may not provide you with all law applicable to your facts. To ensure you are properly protected under the law applicable to your facts, please contact Murray Ralston Law for a free consultation.