Interacting with police is usually the first stage of the criminal justice system and can be very intimidating for many Canadians. Police have the authority to maintain order and protect society, but that authority must be executed within the law. As such, Canadians have rights which police are obligated to respect. Your rights when speaking to police are drawn primarily from the Canadian Charter of Rights and Freedoms.
The Charter enshrined a number of rights. However, these rights are not absolute. The first section of the Charter is a caveat explaining that rights are subject to “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” This caveat includes the rights specific to interactions with police. To understand your rights when speaking to police, it is also important to understand when the police have the authority to infringe upon those rights.
To be clear, what follows is primarily applicable to adults. While many of the rights of young people (under 18 years of age) are similar and sometimes identical in scope, there are some significant differences that will come into play. For example, sometimes they have enhanced versions of certain rights, such as their access to counsel. In other cases, police (and certain adults) may have a greater than usual ability to interfere with their rights, such as when dealing with a disruptive child.
In the criminal law context, police interactions with adults usually occur on roughly three different levels. This post will describe those three levels generally. However, it is important to note that there are many exceptions to much of what follows – Canadian law can be surprisingly complicated, depending on the situation in which you find yourself.
No suspicion of illegal activity
The first level of police interaction is primarily about situations where police have neither suspicion nor a belief that you have been involved in any illegal activity. During these interactions you usually have several rights:
- The right to remain silent – This was not created as a standalone Charter right, but the courts have found that it does, in particular, fall under the broad section 7 of the Charter. At its core, it is a very important principle when dealing with police, as it is one of the first protections against incriminating yourself. Police officers ask a lot of questions to gather information in order to effectively do their jobs – you should always remember that the answers you give can potentially be used against you. At this first level of police interaction, you usually do not have to answer questions from police.
- Section 8 – The right to be secure against unreasonable search and seizure. This right goes beyond what most people think of as ‘searching’ and ‘seizing’ property, and is more about infringements upon your reasonable expectations of privacy. At this first level of interaction, police officers usually cannot search you, as they will typically have no legal basis to infringe upon your privacy at this point.
- Section 9 – The right not to be arbitrarily detained. At this initial level of interaction, police officers typically have no authority to stop you and restrict your movement, which means that you can usually walk away. However, if it any point you feel as though police are infringing upon this right, you can ask them if you are being detained. If the answer is “no”, then the interaction is still at this first level and you can usually walk away. If the answer is “yes” the interaction has escalated to the second level.
As mentioned earlier, it is very important to note that there are sometimes exceptions to the above. They usually relate to certain, regulated activities – the most common being traffic safety.
For example, the police have the ability to randomly stop vehicles to check documentation, and other traffic safety-related matters. As a result of a recent change to impaired driving law, a new provision grants the police the power to conduct a breath test in a handheld device even when they have no reason at all to suspect that person may have alcohol in their body.
For the non-traffic context, another simple, everyday example may include an activity such as using the LRT – as many people have experienced, the police can check tickets.
As such, like these examples, there are some types of activities during which the police have greater than usual powers by virtue of what they are meant to achieve. If an individual refuses to cooperate during some of these police operations (such as, to use the examples above, by refusing to provide driving or vehicle documentation, refusing to provide a roadside breath sample, or refusing to show an LRT ticket), they run the risk of being charged. As such, unfortunately, these issues are not always as simple as they first sound.
Involvement in illegal activity
The second level of police interaction usually occurs when police have reasonable grounds to suspect that you have been involved in illegal activity (most courts have held that this relates to suspected criminal activity, although some courts have extended it to non-criminal, regulatory offences).
- You still usually have the right to remain silent. However, it should be noted that, as was discussed earlier, there are some circumstances where you may be required to provide certain information – for example, providing documentation when stopped while driving or providing your identity if the police have observed you committing a ticketable offence.
- Section 8 – Police officers usually do not have sufficient grounds to search you to a very invasive degree. In most cases, they can conduct a “pat down” search to ensure you are not carrying any objects that could threaten officer safety. That would usually be about the extent of it, unless they have a particular reason for a more invasive search.
- Section 9 – Police have grounds to suspect you may be involved in illegal activity and detaining you is no longer arbitrary. They can legally restrict your movement and prevent you from leaving. If you are detained, additional rights are triggered.
- Section 10(a) – The right to be informed promptly of the reason for detention or arrest. Police must explain why you are being detained, or at least provide enough information that they can reasonably expect you to know why you are being detained.
- Section 10(b) – The right to retain and instruct counsel without delay and to be informed of that right. This is actually composed of a series of different rights. The first category deals with the obligation on police to inform you of this right and ask whether you do want to access counsel. The second category usually applies where if you do want to speak to counsel, and includes the obligations of police to provide you with a reasonable opportunity to do so and to hold off from trying to question you until then.
As noted earlier, there are sometimes exceptions to the above. Returning to the most common, the traffic-safety scenario, during most traffic stops a number of rights are suspended for a limited amount of time, including section 10(b). This means that the police can question you, demand a breath sample into a handheld device, demand that you do coordination tests, and more, even when they have not yet advised you of your right to counsel.
Committed an illegal act
The third level of police interaction occurs when police have reasonable and probable grounds to believe that you have committed an illegal act. This will often lead to an initial arrest – another form of detention – and a charge.
Once police have reached this stage, if you fail to identify yourself when they request that you do so, you very likely will be committing an offence – either criminal (for example, obstruction of a peace officer) or, in some cases, regulatory. However, it is very important to stop talking once any mandatory information like this has been provided. For example, if police start to ask you details about the offence that they believe you committed, you can almost always remain silent, subject to certain very specific exceptions.
- Section 8 – Police officers now have greater power to search you, both to take you into custody and to find evidence. However, subsequent searches must usually be connected to the alleged offence. As an example, if you are arrested for a breach of a probation condition that required you to report to a probation officer, it would typically not be reasonable for the police to then search your vehicle for drugs.
- Section 9 – The nature of the detention can change significantly. For example, in many cases, police will actually transport you back to a police station to do further investigation (such as attempting to question you), prepare paperwork, provide access to a lawyer, and more.
- Sections 10(a) and 10(b) – If the reason for your detention has changed in a substantial way since you were previously informed of the reason, the police usually must inform you of the change and provide you with your right to counsel again. If the police did not advise you of your right to counsel during an initial detention (for example, in the traffic-safety scenario noted earlier, because some of your rights were suspended), they should do so at this point. If you are being arrested, it is usually wise to take the opportunity to speak to a lawyer (for some offences, this can result in an overall delay to when the police release you; however, the reality is that it is usually better to err on the side of caution when it comes to speaking to a lawyer at this time).
As can be seen above, these issues are surprisingly complex, and your rights may be different in one situation from the next. If you are ever uncertain about what you can or can do, the safest approach is to call a lawyer wherever that is possible – they will always be in the best position to advise you based upon the specifics of your situation.
Need help? Contact DDSG Criminal Law today to speak to one of our attorneys.