How does the Canadian Charter apply?

A lot of times, clients and other members of the public have asked us the question “Do I have any rights even after I have been arrested?”. Surprisingly enough, most people believe that once you have been handcuffed and arrested – that is the end of their rights. It is important to know that this is not the case, and your rights extend very well into the arrest procedure, detention, and all the way to the conclusion of your case.

It is quite easy to fall into the trap of succumbing to police trickery and practically giving the prosecution their case on a silver platter.  However, there exists a blanket of protection for all Canadians, irrespective of whether or not they have been charged with a criminal offence; in the form of the Charter of Rights and Freedoms. These rights are guaranteed to anyone on Canadian soil by the Constitution of Canada.

It can be easy to identify when you have been arrested, whether it be that you suddenly find yourself in the back of a cop car with handcuffs on your wrists or there is police officer advising you that you are under arrest. On the other hand, it is not as easy to describe the concept of being “detained”. Detention is a more extensive area, and can occur in situations where you are under some sort of restraint. The 2009 Supreme Court of Canada decision in R. v. Grant was instrumental in defining detention to include “a significant physical or psychological restraint”. This also includes situations where a reasonable person would believe that he or she “had no choice but to comply” with a direction from the Police. Even something as small as if the Police block your way and question you in such a way where you feel like you cannot escape the situation and are obliged to stay there, could be classified as detention, similarly to what happened in Grant.

You need to remember that section 10 of the Canadian Charter of Rights and Freedoms, gives everyone the right to be told the reason for his/her detention or arrest. This right must also be exercised promptly, and in most situations, you can ask the Police Officer as to why you are being detained, but you must be careful to do so in a very polite and non-confrontational manner.

Now, as you have all seen in movies and a number of TV shows, you have the right to a lawyer. This right is, again, pursuant to section 10 of the Charter, that not only gives you the right to a reasonable opportunity to contact your lawyer; but also requires the Police to advise you that you have such a right.

This being said, is not an absolute right, in that the words “reasonable opportunity” can mean that you can’t contact your lawyer until a phone is available at the Police station while you are transported, or just simply that the opportunity is genuinely not available yet, for any other legitimate reason. Anything that you say to a Police Officer during this time may be harmful to your case. Worse yet, any evidence collected against you as a result of search and seizure, can make or break the whole defence. For this very reason, it is imperative that you demand to contact a lawyer as soon as you can. A knowledgeable lawyer is well versed in advising you what the “right” thing to do is when you are arrested or detained.

It can prove to be a tricky concept to find the balance between cooperating and not obstructing the police; and protecting your own rights. The well versed trial lawyers and paralegals at Aitken Robertson boast years of experience defending our clients’ Charter rights. The very knowledge and exercising of your Charter rights can mean the difference between your freedom and a criminal conviction. Contact us today for a free no obligation consultation for all your criminal matters in Ontario.