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What
are my rights upon arrest? The primary right you have upon arrest is your right to counsel. This is enshrined in section 10 of the Canadian Charter of Rights and Freedoms: Arrest or detention 10. Everyone has the right on arrest or detention
This does not mean that you have the immediate right to counsel, this will vary depending on the circumstances of the arrest. You are entitled to receive legal advice free of charge if you do not have your own lawyer. You entitled to have a reasonable opportunity to contact a lawyer before the police continue with their investigation.
If
the police arrest me, am I required to provide a statement? No, you have the right to remain silent and are not required to provide police with a statement. In some circumstances, you may be required to identify yourself with your name and date of birth.
If I
am arrested, will I be released on bail? In most cases, if you have no previous criminal record, you will be released on an appearance notice, a promise to appear, or an undertaking, which is issued by the arresting officer. This is a piece of paper that compels you to appear for fingerprinting and in court. For example, most individuals charged with impaired driving who have no previous criminal record, and in some cases, may have criminal previous criminal record, are released on an appearance notice. If however you are charged with a more serious offence such as cultivating marijuana, trafficking in cocaine, or possession of a narcotic for the purpose of trafficking, is most likely that you will be brought before a Justice of the Peace for a bail hearing. It may well be that the police are not opposed to your release but want a cash bail posted in addition to conditions of your release. For example that you not possess a cellular telephone, you not have contact with co-accused, that you report in person or by telephone to a probation office, that you not leave the province where you reside. These are examples of conditions that may be imposed upon you. If you have a lengthy criminal record and are charged with a very serious offence such as aggravated assault, murder, conspiracy to traffic in narcotics, the Crown may oppose your release. It is critical that you contact a lawyer before your bail hearing. If you proceed with a bail hearing without counsel, and your bail is denied, you will have to appeal the first ruling and it could be far more difficult for you to be released from custody pending your trial. Usually, a lawyer can arrange for some form of release with the arresting officer or the Crown Prosecutor for all but the most serious cases.
If I have provided a breath sample which is over the legal limit, should I fight my impaired driving charge? There are many potential defences to an impaired driving charge. You may not have been in care and control of the motor vehicle, you may not have received your right to counsel. You may have had a lawful excuse to refuse to provide a breath sample. These are just basic examples of possible defences to an impaired driving charge.
If the police search my residence, vehicle, or other place, and seize items, is that evidence automatically admissible in a trial? Depending on the circumstances, the police may be authorized to conduct a search with or without a warrant; however, if the police or other government agency do not have reasonable and probable grounds to conduct a search, either with or without a warrant, that evidence may be ruled to be inadmissible. First, the Crown has the onus to prove that a search without a warrant is reasonable. If, however, the police execute a search with or warrant, you must establish that they did not provide proper reasonable and probable grounds to the Justice of the Peace, Judge or Justice who issued the search warrant. If the Court finds that the search was unreasonable, the Court may rule that the evidence is inadmissible. This is dealt with in sections 8 and 24 of the Canadian Charter of Rights and Freedoms: Search or seizure 8. Everyone has the right to be secure against unreasonable search or seizure. Enforcement of guaranteed rights and freedoms 24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. Exclusion of evidence bringing administration of justice into disrepute (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
Am I
entitled to see the Crown Prosecutor’s case? Subject to only a few very narrow exceptions, you are entitled to copies of the Crown Prosecutor’s file as part of your right to disclosure. This includes copies of police reports and witness statements. You need this information to properly defend your charges.
How
does the Crown prove I was in possession of stolen property or
narcotics? The Crown must prove knowledge control and sent of an item in order to prove possession. In other words, the Crown may try to prove you were an actual control by physically possessing an item or that an item in the possession of another individual was done so with your knowledge, control and consent. Section 4 (3) of the Criminal Code defines possession: SECTION 4. Possession
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What
are my rights upon arrest?