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Your Rights and Detention

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.

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Some of Our Google Reviews

I had my first trouble with law couple of months and we found Edmund Chang. He helped me through all the process professionally moreover, he really cares about my best interest, he will check if I comfortable with all decisions we were going to make and if not, he will not push it. Other things that really stand out, he is approachable as well as responsive to follow up. In the end, we settled the case and I can move more
Krystal Stacy
17:19 15 Jun 18
I was charged with over 0.80 and Impaired Driving charges. I didn't think I had any chance, but Justin Marchant managed to get me out with a careless driving charge. Thanks to him, I don't have a criminal record!!! Very friendly, sharp, professional, and dedicated individual. He did a great job prepping me for the trial, and prepping for the case. I highly recommend this firm, as if it wasn't for them, I'm not sure what would have happened to my life. I made a nasty mistake, one which I will never ever make again. Some lessons have a big price to be more
Sean Jamali
15:20 07 Jun 18
Recently I was charged with over .80, Justin Marchand help me WIN this charge, from the moment I contacted him, he was very professional and upfront, He always responded to my calls and answered all my questions, He prepared me really well before trial. I would 100% recommend him and his team, Job Well done… “Sometimes good people make mistakes”read more
17:16 07 Jun 18
Mr. Marchand is an amazing lawyer. He is very personable and professional. My case was a very long and drawn out case, but Mr. Marchand always kept up with everything and I was always well informed. I really appreciated that he would take the time to fully explain his thought process/strategy and was never condescending. Even though this was a stressful time, Mr. Marchand made it a great experience and took care of more
Rochelle Jenifer
17:30 15 Jun 18
Once again amazing ! I am writing this review as I always refer my friends to this firm. THEY ARE THE BEST ! My friend was pulled over at the us border on a random check and in turn got charged with a refusal. My friend did not know that refusing to take a breathalyzer was a criminal offence. In fact as soon as he realized it he asked the officers to take it but they refused him. In turn he was charged with a refusal. Aitken Robertson specializes in DUI and cases such as this.. so it was an immediate call to them that i put in for him. Right then and there they took over. As usual, they offered a payment plan and of course they took care of everything all the pre-trial meetings etc. Justin was the laywer for him and not only is he the MOST thorough he is the most out for justice. He found the errors that the officers made and he used it to my friends advantage. He went above and beyond to find the best resolution with the crown. He went above and beyond to give my friend all his options. And the best part is that NO CRIMINAL CHARGES. It was reduced basically down to a speeding ticket as a result of Justins hard work. The whole firm is stellar. They take time to go through your disclosure to confirm any and all details are correct.The justice system is a corrupted one and im thankful these lawyers know how to find a way to help us through that. Justin once again did an amazing job. Susan at the firm is great she helps out with payment plans etc. Brenda is great. Robert of course its just a great team of laywers. Do not go anywhere else ! I will recommend them time and time more
19:28 26 Jun 18
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