Interactions with police officers can be very stressful and confusing, whether you are being questioned as an arrestee, a witness or a person associated with an investigation. Canada has specific laws and protections designed to ensure fair treatment during police questioning, primarily through the Canadian Charter of Rights and Freedoms, Criminal Code of Canada and various court cases.
Knowing your legal rights while in contact with the police will enable you to make knowledgeable choices and will prevent you from saying anything which may prejudice your case.
1. The right to know why you are being questioned or detained
Police officers have many legal powers such as to stop, question and detain people. The power to detain a person is not unfettered however and police are required, in most cases, to have some reason to detain a person. Some key aspects of this right include:
Police officers are required, where required, to give you the reason why they are detaining you and they need to identify themselves.
You need to know whether or not you are free to leave or if you are actually being detained. Being stopped by police officers for a quick conversation is very different to being detained.
If you are being arrested, police must also inform you why they are arresting you.
Remain calm and do not physically resist the police officers, regardless of whether or not you feel their actions are legal.
What rights you have as a citizen are dependent on the situation in hand. A citizen may be stopped for questioning while police investigate an ongoing situation or while making a general enquiry, the citizen may even be stopped, arrested, charged and processed. The ability to know whether or not you are actually being detained is critical to the level of responsibility you have to that police officer and his/her needs.
2. The right to remain silent while being questioned by police
Perhaps one of the most important rights available to citizens under Canadian law is the right against self-incrimination. Under Canadian law generally, a person has the right to refuse to answer questions and cannot be forced to do so if that answer could incriminate them. Key aspects of this right include:
- You are not obliged to explain what happened during the incident.
- You can refuse to answer any police questions however the officers may ask questions nonetheless.
- You will not be punished for remaining silent.
- Answering false questions can create further problems and liabilities.
- The best course of action in any police interrogation is to tell the police officer that you want to speak with a lawyer before you provide answers to any questions which may incriminate you.
Remaining silent does not mean being disrespectful of the police officer. An individual may state: “I am not going to answer your questions until I speak with a lawyer.” This makes it evident that you intend to use your right to silence.
3. The right to speak with a lawyer
A fundamental protection guaranteed under the Canadian Charter of Rights and Freedoms states that a person who has been arrested or detained has the right to retain and instruct legal counsel without delay. Police must tell you that you have this right, they must provide you the chance to exercise that right, and cannot try to trick you into waiving the right. Other key aspects of this right include:
- Police officers are required to notify you that you have the right to speak with a lawyer.
- You are permitted to speak with and receive advice from legal counsel before and during any police questioning.
- There are free legal aid services if you cannot afford to retain private legal counsel.
- Any conversation which you may have with legal counsel while being processed by police will be protected by solicitor-client privilege, and may not be divulged to police without consent.
- Police officers must afford you with an adequate opportunity to access legal advice.
Your legal counsel will be able to advise you about your legal rights during a police interview and what you can do to avoid saying anything that can be used against you.
4. Your rights during an arrest and subsequent police process
An arrest does not mean that a person is guilty, it simply signifies that the police have reasonable and probable grounds for arresting that individual. Upon being arrested, a citizen has many legal rights such as:
- The right to be informed as to why you are being arrested.
- The right to retain and instruct legal counsel without delay.
- The right to be treated fairly and humanely.
- The right to receive a fair and public trial if charges are proceeded against.
- If an arrestee decides to be processed by police they may be required to submit to police procedures in relation to the taking of their DNA and/or fingerprints. Evidence may be excluded if the process by which it was obtained was improper.
At no point during questioning or if being interrogated, should an individual get upset and say something which may be used against them. The words that you may feel compelled to say to the police officers in frustration can, and often are, used against an individual later.
5. Your actions during a police interrogation in Canada
A citizen being questioned by the police should always take heed to the following. This is not a definitive list of everything you should do but gives you a good starting point for your actions.
- Remain calm and cooperative.
- Ask if you are being detained or if you are free to leave.
- Do not provide police with more information than is requested.
- Demand to speak with a lawyer prior to answering questions during an interrogation and if under arrest.
- Do not sign any documents you do not understand.
- Do not guess at answers to questions; instead indicate you do not know.
It is often the case that individuals feel compelled to answer the questions asked by police immediately. They do so under the assumption that an individual has an obligation to help police with their investigation; however it should be made known that this is not the case under the Canadian legal framework.
The rationale behind these rights is to attempt to establish a level playing field between a citizen and the state when interacting. Police officers do carry out valuable work in the prosecution of criminal acts. However the constitution, and laws, require that a person being questioned be treated in accordance to their rights.
