Interacting with police can be very intimidating and is a stressful experience for most people, but it is important to remember the constitution protects individual from state actions (i.e. a police investigation). There are certain rights that are specified in the Charter of Rights and Freedom that apply if you are detained by police.
When am I detained?
Being detained is not the same as being under arrest. It is a broader concept, and a person can be detained by police long before the handcuffs appear or a person is read their rights by police. Therefore, it is important to know what your rights are. Section 9 of the Charter protects against arbitrary detention, but police can detain someone with just a reasonable suspicion that a person – a suspect, or otherwise – may have some involvement with a criminal offence. Police can detain that person while they investigate what occurred. The key to a detention is that you are interacting with police and you cannot leave. If in doubt, ask the police officers if you are detained. If they won’t let you leave, you are detained.
Rights while detained
Because you cannot leave, detention is an infringement of your liberty. This infringement
triggers certain rights that you should be aware of.
The Right to Remain Silent – The right to silence is a longstanding right that applies to any interaction with police. Aside from answering basic questions to identify yourself, when detained you do not have to answer any questions or provide a statement, whether incriminating or not. Exercising the right to silence cannot be used to infer guilt of a criminal offence. However, the right to silence is not a right to not be asked questions by police. Police have a job to do and are very proficient a getting people to start talking. To assert your right to silence, you have to keep your mouth shut.
There is a notable exception to this right that occasionally intersects with the criminal justice system. Under the Traffic Safety Act, the drivers involved in a traffic accident have a duty to provide information to police as to what occurred, which could result in self-incrimination.
The Right to be Informed of the Reason for the Detention – Police must tell someone why they are being detained. This right is enshrined in section 10(a) of the Charter. A detained person has the right to understand what is happening and the potential consequences of the interaction with police. If police cannot articulate a reason, the detention may be arbitrary and a violation of section 9.
The Right to Consult with a Lawyer, and the Right to be Informed of that Right – This right, protected under section 10(b) of the Charter, is actually a pair of rights. A detained person has the right to speak to a lawyer and the right to be informed of this right by police. Police must tell you that you can speak to a lawyer. If a detained person requests to speak to a lawyer, police must facilitate this right as soon as possible, within practical limits. This consultation with a lawyer usually occurs at a police station where there is a dedicated phone. Depending on the circumstances, police may neither permit the use of cellular phones at the scene nor permit someone to use a police-issued cell phone. Once a detained person has asserted the right to counsel, police are obligated to hold-off any questioning until after that person has had the right to consult with a lawyer. Police cannot ask questions, but they can passively note any statements made by a detained person prior to speaking to a lawyer. Once a detained person has spoken to a lawyer, police can begin asking questions.
A notable exception to this right is during an impaired driving investigation. Unlike during other detentions, this right does not apply to a suspected impaired driver at the roadside due to the serious dangers created by impaired driving. For a suspected impaired driver, this right is only engaged after the police have formed reasonable grounds and have arrested the accused.
The Right to not be Subject to Cruel or Unusual Treatment of Punishment – This right is protected under section 12 of the Charter and can suggest images of medieval torture methods. This right simply requires that police take care of any detained person. If police are going to take custody of person, police must ensure that person gets food, water, medical treatment, use of toilet facilities, protection from harm, etc. Whatever that person needs, the police have an obligation to provide it.
Right to Reasonable Bail – Under section 11(e) of the Charter, a detained person has the right not to be denied bail without justification. If police have charged an individual and determined that continued detention is necessary, that individual has the right to a bail hearing within 24 hours and without unreasonable delay. By default, continued detention is not appropriate – and the detained person should be released – unless the police can justify why a continued detention is required. Police provide their reasons for continued detention to a Crown Prosecutor. The detained person and the Prosecutor then appear before a Judge or Justice of the Peace, and the Prosecutor may attempt to justify continued detention. If the justification is insufficient, the detained person must be released from custody.