When interactions with police lead to your arrest or even temporary detention, it’s not unusual to feel apprehension due mainly to your loss of freedom. The loss of freedom that comes with an arrest typically begins with the restraint of your arms with handcuffs and then transportation by police car to the nearest police station. Depending on the charges, subsequent loss of freedom could entail being placed behind bars for what could be an indeterminate amount of time.
Even when police temporarily detain you for questioning, you’ve lost your freedom of movement and action for the near term and face the threat of a further freedom-limiting arrest. Freedom is precious, and even its temporary loss is a daunting prospect for most people.
Fortunately, Canadian law protects our freedom and limits the extent to which police can hinder it. Historically, an arrest typically led to much more restrictive and extended losses of freedom, along with harsher conditions of incarceration while awaiting one’s day in court. This holds true today in many countries around the world, but the Canadian Charter of Rights and Freedoms protects those detained or arrested from overbearing, overreaching, abusive, and invasive actions from law enforcement.
The highly skilled criminal defence lawyers of the Greater Toronto Area’s Mass Tsang know all about Charter Rights and how they protect people detained or arrested by police. Read on to learn more about your rights, the limits to what police can do when detaining or arresting you, and how you should respond when dealing with an arrest or temporary detainment.
Your Rights According to the Canadian Charter of Rights
Interactions with police that involve temporary detention or arrest are addressed under Sections 7-14 of the Canadian Charter of Rights and Freedoms, the dictates of which have been more clearly defined over the years by court precedents. Consider that Section 8 of the Charter states that “[e]veryone has the right to be secure against unreasonable search or seizure.” However, the Charter does not clearly explain what might be unreasonable, leaving this question to court interpretation. Any defendant might argue that a search and seizure was “unreasonable,” but the courts assess “reasonableness” on a history of judicial precedents established by previous courtroom decisions.
A similar situation exists with Section 9, which provides everyone “the right not to be arbitrarily detained or imprisoned,” with courts responsible for determining what constitutes “arbitrarily.” In fact, the subjective language used to describe most rights granted under Sections 7-14 inherently requires judicial interpretation. For this reason, anyone who feels their rights have been violated during an arrest or temporary detainment should consult with an experienced criminal defence lawyer. In addition to knowing the letter of the law, competent defence lawyers know how courts have interpreted the Charter of Rights and whether alleged rights violations can be used in a criminal defence.
Section 10 of the Charter explicitly addresses a person’s rights when being arrested or detained. They are:
- To be promptly informed of the reasons for the arrest or detention.
- To be allowed to consult with and retain a lawyer without delay.
- To be promptly informed of this right to speak to a lawyer.
- And to have the validity of police detention assessed by the court and released from custody if the court determines it is unlawful.
Other related rights under Sections 7-14 include:
- To be tried in court “within a reasonable time” frame.
- To be presumed innocent until proven guilty according to Canadian law.
- To not "be denied reasonable bail without just cause.”
- To not be subject “to any cruel and unusual treatment or punishment.”
- To be provided with the assistance of an interpreter if there are difficulties understanding or speaking the language (English or French) under which any criminal proceedings are being held.”
And to recap, any subjective nuances within these rights have generally been addressed through court precedents. Thus, for example, the Supreme Court of Canada ruled in 2016’s R v. Jordan 1SCR 631 that most criminal trials should be heard within 18 months in provincial courts and within 30 months in superior court, absent delays caused by the defence.
What These Charter Rights Mean in Practice
Based on Charter Rights and court precedents, police are only allowed to legally stop people under three distinct scenarios:
- When they’ve witnessed someone committing a crime.
- When they suspect someone has committed a crime.
- Anyone who is driving to inspect their driver’s license, insurance, vehicle safety, and determine if they are driving while impaired by alcohol or drugs.
When police stop you, it is considered temporary detainment unless they place you under arrest. Whether detained or arrested, police are legally obligated to inform you why they stopped you and advise you of your right to speak to a lawyer. They are also allowed to conduct a reasonable search based on the circumstances. If detained, they can perform a protective pat-down search for safety purposes to ensure that you are not hiding a weapon. If arrested, they are allowed to conduct a more thorough search.
Police detainments are supposed to be brief, and a significant time lapse between detainment and arrest can be challenged as a Charter Rights violation. While the concept of “brief” with regard to temporary detention is subjective, Ontario courts have dismissed DUI charges when police have detained drivers absent an arrest for more than an hour while waiting for another officer to arrive with a roadside screening device.
If you are detained or arrested, you have the Charter Right to remain silent, which is important because anything you tell the police can be used as evidence against you if you are charged with an offence. For this reason, you should always invoke your right to speak to a lawyer before making any statements to the police. That said, at the very least during a temporary detainment, you should provide police with basic information, such as your name and address, as failing to identify yourself can lead to charges of obstructing police.
Your right to consult with a lawyer becomes more important if you are arrested. Police are legally obligated to allow you to speak to a lawyer and provide you access to free legal advice from duty counsel if you do not have a lawyer. After you have spoken to a lawyer, police can continue to question you, but you retain your right to remain silent. In most cases, your lawyer will advise you to invoke this right until they have had a chance to investigate the charges further.
Your Rights to a Bail Hearing
While police release many defendants they arrest based solely on the promise that they will appear for their court hearing(s), the severity of some criminal charges — in particularly indictable offences — carries the possibility of pre-trial incarceration. No matter the charges, anyone facing potential pre-trial incarceration has the right to a bail hearing before a judge within 24 hours or as soon as otherwise possible. Anyone facing pre-trial confinement should secure the services of a skilled bail hearing lawyer to ensure the likelihood of pre-trial release under the most favourable terms.
Turn to Toronto’s Mass Tsang for Your Criminal Defence
If you feel that your Charter Rights may have been violated during an arrest in the Greater Toronto Area, consult an experienced criminal defence lawyer to review your options. The criminal defence lawyers of Mass Tsang are intimately familiar with Charter Rights and have extensive experience helping their clients mount successful Charter Rights challenges. To schedule your free consultation, contact Mass Tsang Today.