People 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.
Right to Know Reasons for the Detention or Arrest
People detained or arrested have the right to know the reasons for the detention or arrest right away. The police must explain the reasons in clear and simple language.
This information helps people detained or arrested 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 people detained or arrested 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 people detained or arrested of the right to speak to a lawyer of their choice
- tell them that they can get help from a legal aid lawyer at no cost if needed and about on-call lawyers who offer free telephone consultations 24 hours a day stop questioning them and trying to obtain information as long as they have not had a reasonable chance to talk to their lawyers
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 his lawyer in private in a room where they will be overheard
People detained or arrested have the right to choose their lawyers. However, if the lawyer chosen is not available within a reasonable time, the police must let them talk to another lawyer. If they refuse to talk to another lawyer even if the original choice is not available, the police can continue their questioning.
People detained or arrested 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 really exercise their rights. Here are some examples:
- The first lawyer they contacted is unable to advise them
- The circumstances have changed and the person detained or arrested 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.
People detained or arrested can give up the right to speak to a lawyer, but they must be fully aware of all consequences of this decision. For people with mental disabilities (also called “intellectual disabilities”), the police must also make sure they understand the consequences of giving up this right. If they waive the right to speak to a lawyer but do not fully understand what this means, evidence obtained against them might not be allowed in court.
Right to Remain Silent During a Detention or Arrest
People detained or arrest 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 people detained or arrested from hurting their cases by helping the police. As a general rule, when people choose to remain completely or partially silent, this cannot be interpreted as a sign that they are 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.