You’re familiar with the classic police interrogation scene from your favourite crime drama: the trembling suspect sits alone at a desk in a dark, windowless room. A bright light shines down from the ceiling, illuminating their face. The detective walks in. The air is thick with tension. The cop starts hammering the suspect with questions, employing myriad interrogation tactics, but ultimately doing whatever is required to extract a confession.
If you’ve been accused of a crime in Canada and are being questioned by the police, you probably won’t be facing off with Jack Bauer. You may, however, find yourself in a stressful and intimidating situation. It is therefore crucial that you are armed with the knowledge you need to assert and protect your rights. These rights, which are guaranteed by the Canadian constitution and the Canadian Charter of Rights and Freedoms (“the Charter”), will prevent you from self-incrimination (i.e., making statements that could implicate you in a crime) under police pressure.
In this post, we highlight the three essential rights you need to know if you’re ever questioned by the police: the right to remain silent, the right to know the reason for your arrest or detention, and the right to speak to a lawyer.
1. The Right to Remain Silent
Section 7 of the Charter states:
“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
Courts have construed this right to include the right to remain silent. If you ever interact with police, you do not have to answer their questions. This can be challenging because police are allowed to proceed with their line of questioning, even after you’ve asserted your right to remain silent. Nevertheless, you are under no obligation to reveal any information.
Why the Right to Remain Silent Matters
The right to remain silent is based on a fundamental principle in criminal law: the presumption of innocence, which is enshrined in section 11(d) of the Charter. The choice to remain silent does not override that presumption or suggest that you’re guilty.
Furthermore, your right to remain silent helps ensure that you receive a fair legal proceeding. Throughout the proceeding, police will independently gather information about your case to prove that you are guilty beyond a reasonable doubt. But you are not compelled to assist them.
It should be noted that if you do waive your right to remain silent during police questioning by volunteering information, you must tell the truth. Misleading or lying to the police can be viewed as an obstruction of justice and have serious consequences for you and your case.
2. The Right to Know the Reason for Your Detention
If you are being questioned by the police, you have the right to know why. Section 10(a) of the Charter reads:
“Everyone has the right on arrest or detention … to be informed promptly of the reasons therefor.”
This right ensures you understand the nature of the charges against you, which is crucial for your defence.
The Meaning of “Detention”
Section 10(a) of the Charter kicks in upon arrest or detention. But what constitutes a “detention” within the meaning of the section?
The Supreme Court of Canada dealt with this matter in its 2009 decision in R. v. Grant. In Grant, police officers stopped and questioned the accused. Based on the interaction, they concluded he was in possession of a handgun and drugs. The accused argued he had been arbitrarily detained by police and his Charter rights were breached. This led the Supreme Court to clarify the definition of detention within the Charter.
The majority of the Court stated that detention refers to the suspension of an individual’s freedom to act due to the imposition of physical or psychological restraint and set out various factors that help determine where there was indeed a detention:
- The circumstances giving rise to the encounter as the detained individual would reasonably perceive them;
- The nature of the police conduct; and
- The particular characteristics or circumstances of the detained individual, where relevant.
3. The Right to Speak to a Lawyer
One of the reasons to know why you’ve been detained is so that you can make a free and informed choice about seeking legal counsel. Section 10(b) of the Charter states:
“Everyone has the right on arrest or detention … to retain and instruct counsel without delay and to be informed of that right.”
It is your constitutional right to retain counsel upon arrest or detention. Moreover, the police are obligated to inform you of this right. Section 10(b) thus creates a positive duty for the police.
If you have exercised your right to speak to a lawyer but the lawyer has not yet arrived, you would be wise to refer back to section 7 (the right to remain silent) and decline to answer any questions or provide additional information while waiting.
The Meaning of “Without Delay”
Section 10(b) states that the detainee’s right to retain and instruct counsel must occur “without delay.” While no specific time frame is provided, the courts have considered the term’s meaning.
In another 2009 case, R. v. Suberu, the Supreme Court of Canada applied the definition of detention from R. v. Grant and discussed the timing of the requirement that police inform the accused of their right to counsel. The Court reiterated concerns that the accused could self-incriminate during questioning and concluded that “without delay” should be interpreted as “immediately” (subject to officer safety and certain prescribed limitations).
The Critical Role of Charter Rights During Police Questioning
The constitutional rights outlined above are critically important to access to justice within the Canadian legal system. If they are not protected, the consequences can be dire. For example, an accused might offer information damaging to their defence or unintentionally confess to a crime they didn’t commit.
All Canadians should understand that if they are questioned by police, they have the right to remain silent, to know the reason for their arrest or detention, and to speak to a lawyer.
Contact the Criminal Defence Lawyers at Barrison & Manitius if You Have Been Detained by Police in Durham Region
Getting questioned by police can be stressful and intimidating. This is especially true for those not fully aware of their Charter rights, which include the right to remain silent, the right to know the reason for the detention, and the right to speak to counsel. The experienced criminal defence lawyers at Barrison & Manitius are there to guide and support you if you’ve been arrested or detained or are otherwise interacting with police. We will listen carefully to the specific circumstances of your situation and help you build the best possible defence.
We take clients on private retainer and Legal Aid and offer 24/7 emergency phone support. Contact our office online or call us at 905-404-1947 (or toll-free at 1-888-680-1947) to speak with a member of our team.