Rights upon arrest are very important as being detained and arrested is a serious deprivation of your liberty, and there are potentially significant legal consequences that follow being arrested. Without being informed of your rights upon arrest, they become meaningless because you cannot make informed decisions about making a statement, confession, or complying with a breath or blood demand by the police. Your rights upon arrest protect you against self-incrimination.
Do the Police Have to Tell Me Why I Am Being Detained/Arrested?
The Police have a legal obligation under s. 10 (a) of the Charter of Rights and Freedoms to disclose to you why you are being detained or are under arrest. If you are ever unsure if you are in fact being detained, you can ask the officer “Am I free to go?” If they say no, you are being detained and legally they must promptly tell you why. The Police can detain you if they (a) saw you committing a crime or (b) have reasonable and probable grounds to believe you have committed an offence. You must understand why you are being detained and questioned. If you don’t understand your jeopardy (the gravity of the situation), then you will be unable to make an informed choice if you want to participate in the interview process.
Do I Have the Right to Talk to a Lawyer?
Yes, under s. 10(b) of the Charter you have the right to speak to a lawyer. Your right to speak to a lawyer is triggered upon detention/arrest. When you are arrested or detained, officers will advise why you are arrested, and thereafter, your rights upon arrest. They will ask you whether or not you wish to speak to a lawyer. They will then take you to the police station and after the booking process, officers are under a legal obligation to facilitate a conversation with a lawyer. In summary, the accused person being detained/arrested is entitled to: (1) be informed of their right to counsel and (2) given the opportunity to speak to counsel. Officers should hold off on questioning you until you have had an opportunity to speak to a lawyer. If you do not understand your rights after your conversation with a lawyer, communicate this to the police officers. Officers must put you in touch with another lawyer for clarification.
Getting in Touch with a Lawyer
If you know the name of a lawyer, tell the police the name of the lawyer you wish to speak with, and the police have a duty to make reasonable efforts to put you in touch with that lawyer. If you do not have a lawyer, or your lawyer of choice is unavailable and the police have made a good faith effort to get in touch with them, officers will offer the services of duty counsel. Duty counsel lawyers provide free legal advice and are available 24 hours a day. They can provide services in French and English, and have translation services if you require another language. Remember, your conversation with your lawyer is private and confidential.
Waiver of Right to Counsel
You can waive your right to speak with a lawyer, if you so choose. A waiver must be free, voluntary, and informed to be a valid waiver.
The Youth Criminal Justice Act (YCJA) provides legal rights to young persons (i.e. individuals under the age of 18 years old). Young persons have the right to speak with a lawyer upon arrest/detention. The YCJA provides extra protections when a youth is detained such as: right to consult with a parent or adult guardian and have a parent or adult guardian present during the interview. This extra protection is provided to young persons because of their reduced moral blameworthiness and culpability.
Do I Have to Talk to the Police?
You have the right to remain silent under s. 7 of the Charter. Anything you say during interactions with police officers may be used as evidence against you in court. If you do not wish to speak with the officers politely say “I do not wish to give a statement.”, or “I would like to speak with a lawyer before deciding whether to give a statement”. Keep in mind that even though you expressed a desire to remain silent, officers will likely continue to ask you questions. You can repeat “no comment”, as often as you want. Choosing not to speak with the police will not draw a negative inference of guilt. It is your decision whether or not you want to participate in the interview process. Ensure that you understand why you have been arrested, exercise your right to counsel, and this will help you make an informed decision of whether or not to provide a statement.