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Know Your Rights if You Are Charged or Arrested!

If you are ever arrested and charged with a criminal offence in the Greater Toronto Area, you need to be aware of the specific rights provided to you under the Canadian Charter of Rights and Freedoms . In particular, the Charter gives you the right:

  • To be “promptly” informed about the reason(s) for the arrest and/or detention.
  • To seek and retain legal counsel without undue delay.
  • To be informed of your right to have a lawyer.
  • And, to remain silent and refuse to answer any questions.

In addition to knowing about these rights, it is also important to take advantage of them to the extent possible. How you address your Charter Rights during your arrest could prove instrumental in securing a favorable outcome to your criminal case. Thus, if you are arrested you should always ask to speak to a lawyer and never volunteer information to the police absent counsel from a lawyer. Additionally, if arrested—or detained for questioning or other purposes—make sure that you have been properly advised about the justification for the arrest or detainment.

Know that anything you say to the police can and likely will be used against you in court. This includes any statements made during a detainment, if such detainment later leads to an arrest. Know also that if you are arrested for a criminal charge, hiring a skilled criminal defence lawyer offers the best means for securing a favorable outcome.

Right to a Lawyer the Most Important Charter Right When Arrested

Your right to have a lawyer is well established through legal precedence, with courts generally putting the onus on law enforcement to ensure that your ability to get legal advice is not hindered in any way. As noted by a judge in one precedent-setting case— R. v. Manninen, [1987] 1 S.C.R 1233 —the purpose of the right to legal counsel is “to allow the detainee not only to be informed of his rights and obligations under the law, but equally if not more important, to obtain advice as to how to exercise those rights.” In short, your right to a lawyer is designed to protect you from self-incrimination. By talking to a lawyer, you gain a better understanding of what the arrest entails and how to best begin defending yourself from any charges.

Legal precedence has essentially established that law enforcement has to be somewhat proactive in ensuring your right to a lawyer. This means that not only do police have to advise you of your right to a lawyer, but also make a concerted effort to help you get legal counsel. And not just any lawyer, but “your” lawyer if you specifically make such a request. Canadian and Ontario courts have held that absent any urgent and dangerous situations, police must allow for a “reasonable opportunity” for suspects to speak to their chosen lawyer.

This typically means that police must be diligent in helping you track down your chosen lawyer by calling all potential phone numbers and then allowing a reasonable amount of time for the lawyer to return any messages. Additionally, police usually must allow you to call a different lawyer should you not be satisfied with any legal advice initially received.

The question of what constitutes a reasonable opportunity and amount of time needed to contact a lawyer is subjective and may vary depending upon the charges and other factors. This means that it’s important to maintain your own diligence in repeatedly requesting a lawyer and, if you have not been able to contact your chosen lawyer within what has been deemed a reasonable period of time, be willing to get in touch with another lawyer of your choice or talk to duty counsel, which offers free legal advice.

Know that no matter what legal counsel you secure, police must let you consult with them in private. Police should also refrain from questioning you until you’ve exercised your right to speak to a lawyer. Also, even if you initially decided against speaking to a lawyer (not smart!), if you change your mind and request a lawyer, the police are then obligated to help you contact one.

Your Charter Right To Remain Silent

Your right to remain silent and refuse to answer any questions is protected under Section 7 and Section 11(c) of the Charter, which prevents the police from compelling you to be a witness against yourself. However, unlike your Charter right to legal counsel, police do not have to be as diligent in preserving your right to be silent. This means that while police usually caution those they’ve detained or arrested about this right, they can keep asking questions unless the right to consult with a lawyer has been specifically invoked.

In fact, if you’ve declined your right to a lawyer, police will often keep asking questions after they have cautioned you about your rights but know that you do not have to answer their questions. In such situations it is best to keep repeating that you do not wish to make any statements or answer any questions. If you do answer any questions or make any statements, they can be used against you as evidence during any subsequent trials. Additionally, if you lie to the police you might be charged with an obstruction-related crime. Overall, the best means for protecting this right is to invoke your right to a lawyer.

Your Right to be Informed About the Reason for Arrest or Detention

Section 10(a) of the Charter requires that police always provide a reason for why someone is being arrested or detained. This right is important because it lets you know how serious the situation is and enables you to better respond to the situation. Whether you’ve been arrested or detained, you maintain the rights to legal counsel and keeping silent. However, there are certain limitations to your right to a lawyer when detained due to a potential Highway Traffic Act reason, such as a request for an impaired driver roadside breath test. A police request for a roadside breath test or field-sobriety test supersedes your right to legal counsel due to public safety considerations. Refusing to provide a roadside breath sample is a criminal offence, but police must request and secure such samples in a timely fashion. In fact, Ontario judges typically consider unreasonable delays in requesting and/or securing roadside breath samples as excessive detentions and thus breaches of Charter Rights.

Contact the Expert Criminal Defence Lawyers at Mass Tsang

If you or a loved one is facing criminal charges, your best defense starts with a criminal lawyer , a crucial right provided to you by the Canadian Charter of Rights. Your criminal lawyer will help you navigate the complexities of criminal law and carefully examine all elements of the case to strategize effective defence initiatives that can lead to acquittals, withdrawn charges, reduced charges, mitigated penalties, or dismissal. Whatever you do, don’t try to mount a criminal defence without expert legal help— contact the highly experienced lawyers at Mass Tsang to ensure that you fight the charges with the most effective defense.

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