What Are Your Rights in Ontario When Being Arrested?

An individual who is accused of a crime and arrested for the first time in Canada may not know what to expect. At such a confusing and stressful time, it helps to understand your legal rights and what you should or shouldn’t say to the police.

In Canada, the actions of law enforcement must precisely follow set protocols determined in part by the provisions contained in the Canadian Charter of Rights and Freedoms. This offers significant protection against judicial overreach, ensuring that certain procedures are followed by the authorities.

Here’s what you need to know about your legal rights if you’re arrested in Canada.

According to Sections 7-14 of the Canadian Charter of Rights and Freedoms, detained or arrested individuals have several important and powerful rights.

These rights are clearly written but many are open to at least some degree of interpretation. For instance, the “right to be secure against unreasonable search or seizure” is open to interpretation about what constitutes “unreasonable” behaviour from the authorities.

The court may be asked to adjudicate on such matters, often relying on case precedents. This makes it critical to hire experienced legal representation if “unreasonable search and seizure” is part of the defendant’s defence strategy. The same applies to many other rights, which can provide a strong defence if argued by a seasoned criminal defence lawyer.

Other important rights covered by the Canadian Charter include:

• The right not to be arbitrarily detained or imprisoned (many legal debates concern the use of “arbitrarily”).
• The right, when arrested, to:
  • Be promptly informed of the reasons for the arrest or detention.
  • Be allowed to consult with and retain a lawyer without delay.
  • Remain silent.
  • Be promptly informed of these rights.
  • Have the validity of police detention assessed by the court and released from custody if the court determines it is unlawful.
• The right to be tried in court “within a reasonable time” frame.
• The right to be presumed innocent until proven guilty, according to Canadian law.
• The right to not “be denied reasonable bail without just cause.”
• The right to not be subject to “any cruel and unusual treatment or punishment.”
• The right to be provided with the assistance of an interpreter if there are difficulties understanding or speaking the language (English or French) under which any criminal proceedings are being held.
• The right to refuse a search without a warrant.
• The right to be treated without discrimination.

As we have seen, you have the right to remain silent, legal representation, and to be informed why you are being held if you are detained or arrested by police in Ontario. You also have the right not to be prevented from moving about (“arbitrarily detained or imprisoned”).

Firstly, it is important to remain calm and respectful when interacting with the police, so you do not inadvertently inflame the situation.

However, you are not generally required to speak to the police other than to identify yourself—unless you have been pulled over in a vehicle (see below). You also have other rights when interacting with the police anywhere in Canada, including the right to know whether you’re under arrest or being detained. If the police officer says “no”, you are free to go.

A police officer who wants to detain or arrest you must either have initiated a legal traffic stop, have an arrest warrant, have reason to suspect that you have committed an offence or have reason to believe you are about to commit an offence.

You also have the right to be informed of any changes to the reason/s for your arrest at any time. This may happen as the police investigation progresses.

If arrested, you should exercise your right to speak to a lawyer at the earliest opportunity. This will serve several purposes. It will prevent you from saying or doing anything that worsens your legal position and help protect your legal rights, while also potentially preserving valuable evidence and allowing work to begin on a defence if you are charged with an offence.

The police must provide you with the means to contact a lawyer, either by allowing you to use a telephone or directing you to free legal services.

Canadian law views driving as a privilege, not a right. As such, the police can enforce compliance with certain requests involving potential traffic or criminal offences when driving.

Importantly, the right to remain silent does not apply if you have been stopped while driving a vehicle or you’ve been involved in a car accident. You should also understand that your rights at traffic stops in Canada are slightly different from other situations.

Police can legally conduct traffic stops to check for proper documentation, whether a vehicle is mechanically sound, whether a driver is impaired by alcohol/drugs or if they suspect that a driving offence has been committed.

In these situations, drivers must generally comply with all reasonable police requests, including producing relevant documentation.

There is a simple rule for this: If the police request that you attend an interview or want to hear “your side of the story” at a police station, consult a lawyer or attend the interview with a lawyer.

If requested to attend an interview, you are within your rights to ask:

• Am I under investigation for something?
• What am I under investigation for?
• Will I be placed under arrest when I attend the police station?

Don’t read too much into the answers to these questions but relate the responses to your lawyer. You have no legal obligation to talk to the police and, if you are not arrested or detained, you do not need to attend a police station interview. Considerable risks are involved in providing a statement or your version of events without first seeking legal advice.

However, depending on the circumstances, the police may follow up on non-attendance with a visit to your home.

If the police visit your home, it is again important to be across your legal rights. Importantly, to start with, you are not legally obligated to answer their questions.

You do not have to grant the police access to your home unless they have a warrant to search or to enter the home to arrest someone. Other urgent circumstances, such as a 911 call or sounds of distress or emergency, also enable the police to legally access your home. Likewise, if they suspect a crime has been committed in relation to property in the home, they can enter.

If police officers turn up at your home with a valid search warrant (you are entitled to check its validity), they must identify themselves and request permission to enter. It’s best to let them in or you may face a criminal charge for obstructing the police. Law enforcement officers must act reasonably when inside your home.

There is no such thing as “off the record” when it comes to talking to the police in Canada. Consider everything you say as “on the record” and usable against you in a court of law.

To understand your legal rights and options if you have been arrested and charged with a criminal offence in Ontario, speak to a criminal defence lawyer in Ottawa during a free consultation.