A person who is “arrested” or detained by a police officer is deprived of his liberty. She then undergoes physical or psychological stress. That person therefore enjoys certain rights protected by the Canadian Charter of Rights and Freedoms .
If the police do not respect the rights of the arrested or detained person, evidence obtained against them at the time of arrest or detention may be refused at trial.
Here are some of these fundamental rights.
The right to know the reasons for arrest or detention
A person arrested or detained has the immediate right to know why the police put him under arrest or detention. The police must explain to him in plain language the nature of the behavior that is blamed on him.
This information is intended to help him see the seriousness of the situation. She can then make an informed decision about her other rights. For example, she may decide to speak to a lawyer and remain silent with the police.
The right to talk to a lawyer
The right to speak to a lawyer is a fundamental right that allows anyone arrested or detained to consult a lawyer for advice on their rights and obligations. This right may allow him to know, among other things, the steps that will follow the arrest and to obtain advice on whether or not to remain silent in the face of the police.
The police must allow the arrested or detained person to exercise his right to speak to a lawyer . Immediately after arrest or detention, police officers must comply with the following rules:
- inform the arrested or detained person of his right to speak to the lawyer of his choice;
- help him in his efforts to find a lawyer. For example, give him access to a phone or allow him to consult a phone book;
- inform her that she can use the free services of a legal aid lawyer, if needed, and the existence of 24-hour duty counsel plans offering free telephone services;
- allow her to speak privately with her lawyer (that is, in a room where she can speak without being heard); and
- stop questioning her and do not attempt to extract information from her until she has had a reasonable opportunity to speak to a lawyer.
In addition, the person arrested or detained may choose his lawyer. On the other hand, if the lawyer is not available within a reasonable time, the police must allow the person to speak to another lawyer. If the person refuses to consult another lawyer despite the unavailability of the lawyer that she has chosen, the police can continue their interrogation.
In general, the arrested or detained person has the right to consult a lawyer once. However, the police must allow her to consult a lawyer more than once if it is necessary for her to actually exercise her right. This is the case, for example, if:
- the lawyer contacted was unable to advise her;
- the situation has changed and the person is then suspected of a more serious offense (eg drug trafficking rather than possession of drugs);
- police want to use new investigative methods (eg a lie detector).
The right to speak to a lawyer does not include the right to have his lawyer present with him during the interrogation with the police. However, this may be possible if all parties agree.
An arrested or detained person may also waive their right to speak to a lawyer. This choice must be made in full knowledge of the facts . For the person with a mental disability (also called “developmental disability”), police must ensure that they have the ability to give up. If the person waives the right to speak to a lawyer without having the capacity, the evidence may not be available at trial.
The right to remain silent during arrest or detention
When someone is arrested or detained, they have the right to remain silent. The police even have the obligation to inform the person of this right.
This right exists to prevent a person from being harmed by helping the police. As a general rule, the fact that an arrested or detained person chooses to remain silent, in whole or in part, should not be interpreted as an indication of his guilt. In Canada, a person is presumed innocent as long as the evidence does not allow a judge to convict.
An arrested or detained person who knows and understands his or her right to remain silent may still decide to voluntarily speak to the police. In such a case, what she says to the police can be used against her at the trial.
On the other hand, if the police do not respect this right, the evidence obtained at the time of arrest or detention may not be available at trial. This is also the case for the evidence collected against a person with a mental disability, if the person has waived their right to silence when they did not have the capacity.