People who have been detained or arrested by police officers have certain rights protected by the Canadian Charter of Rights and Freedoms. If the police do not respect these rights, the evidence gathered during the detention or arrest might not be allowed in court.
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Important! People who have been arrested by the police always have the right to speak with a legal aid lawyer for free by calling 1-800-842-2213. |
The Difference Between Arrest and Detention
When the police approach someone to ask them questions, the person can generally refuse to answer or to leave. For example, after a theft, the police can ask witnesses questions about suspicious individuals or noises. This is neither a detention nor an arrest.
Detention happens when the police temporarily take away someone’s freedom. The police can detain someone :
- Physically, like when they lock someone in a cell because they suspect this person of a crime.
- Psychologically, like when a person feels obligated to cooperate. For example, when the police follow a car with their flashing lights on or ask someone to blow into an alcohol screening device, this person is no longer free to leave or to refuse to cooperate.
The police can detain someone if they have reason to suspect that they’re involved in a crime. Detention allows the police to ask questions or investigate further. However, it’s not yet an arrest.
An arrest is a more formal step: it happens when the police have serious reason to believe that someone has committed a crime or is in the process of committing one. Arrest generally leads to criminal charges or legal proceedings.
Detention can become an arrest if, during the investigation, the police discover information that gives them serious reasons to believe that a crime has been committed.
Right to Know the Reasons for the Detention or Arrest
Detained or arrested people have the right to know the reasons for their detention or arrest right away. The police must explain the reasons in clear and simple language.
This information helps detained or arrested people know how serious the situation is. They can then make an informed decision about their other rights. For example, they can decide to speak to a lawyer and can remain silent when questioned by the police.
Right to Speak to a Lawyer
The right to speak to a lawyer is a fundamental right. It allows detained or arrested people to discuss their rights and responsibilities with a lawyer. For example, they can find out what to expect after the arrest and get advice about whether to remain silent when questioned by police.
The police must let anyone detained or arrested person speak to a lawyer.
Immediately after detention or arrest, the police must follow these steps:
- Inform the detained or arrested person of their right to speak to a lawyer of their choice,
- Tell the person that they can get help from a legal aid lawyer at no cost if needed. The person should also be informed about the existence of on-call lawyers who offer free telephone consultations 24 hours a day,
- Stop questioning the person or trying to obtain information from them as long as they have not had a reasonable chance to talk to their lawyer.
As soon as possible after arresting someone, the police must do these things:
- Help the person find a lawyer, for example, by giving the person access to a telephone book or directory,
- Let the person speak to their lawyer in a private room where they will not be overheard.
Detained or arrested people have the right to choose their lawyer. However, if the person’s chosen lawyer is not available within a reasonable time, the police must let them talk to another lawyer. If they refuse to talk to another lawyer when their original choice is not available, the police can continue their questioning.
Detained or arrested people have the right to consult a lawyer only once. But the police must let them consult a lawyer more than once if it is necessary for them to actually exercise their rights. Here are some examples:
- The first lawyer they contacted is unable to advise them.
- The circumstances have changed and the detained or arrested person is suspected of a more serious crime (e.g., drug trafficking instead of possession of drugs).
- The police want to use another method of investigation (e.g., a lie detector).
The right to speak to a lawyer does not include the right to have a lawyer present during police questioning. However, the lawyer can be present if everyone agrees to it.
Detained or arrested people can give up the right to speak to a lawyer, but they must be fully aware of the consequences of this decision. For people with intellectual disabilities the police must make sure they’re able to understand the consequences of giving up this right. If someone waives the right to speak to a lawyer but doesn’t fully understand what this means, evidence obtained against them might not be allowed in court.
Right to Remain Silent During a Detention or Arrest
Detained or arrested people have the right to remain silent. In fact, the police must inform people of this right.
The purpose of the right to remain silent is to prevent detained or arrested people from harming their case by helping the police. In general, when people choose to remain completely or partially silent, this cannot be interpreted as a sign that they are guilty. In Canada, people are presumed innocent until found guilty based on the evidence.
People detained or arrested who know about and understand the right to remain silent can speak to the police if they want to. In this case, whatever they say can be used against them in court.
However, if the police do not respect the right to remain silent, the evidence they gather during a detention or arrest can’t be used in court.
The same applies to evidence against people with an intellectual disability: if they waive the right to remain silent but didn’t fully understand the consequences of doing this, the evidence can’t be used in court.
The Right of a Youth to be Accompanied by a Parent
In general, the police inform a minor’s parents when they arrest or detain them.
If a minor is questioned by the police, they can ask to be accompanied by a parent. However, the parent can’t answer questions on their child’s behalf.