Written By: Ravi Prithipaul

It is very important to know the full scope of your rights under the Canadian Charter of Rights and Freedoms (“the Charter”) if you are ever detained, arrested and/or searched. Section 10 of the Charter deals with legal rights upon detention or arrest and section 8 guarantees the right to be protected against unreasonable search and seizure.1. Detention vs. Arrest.

The concept of an “arrest” is easy to understand. The police will tell the subject that she or he is under arrest for a specific offence or offences and the person is usually handcuffed and taken into custody. For example, “I am arresting you for theft” or “you are under arrest for possession of stolen property and possession of narcotics”.
Everyone who is arrested is obviously also detained. However, detention is a wider concept than arrest and refers to situations where the police restrict our movements short of arresting us. Being stopped for speeding, which is merely a traffic violation, results in detention but motorists are rarely arrested for that reason alone. While routine traffic stops detain people, those detentions are usually short and of little consequence.

The Supreme Court of Canada has said of detention that it “refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply” (R v Grant, [2009] S.C.J. No. 32 at para. 44).
More complicated situations arise when, during what was supposed to have been a brief detention, the police discover evidence, proceed to an arrest, and eventually, conduct more intrusive searches. In these kinds of cases, it becomes important to find out if the police followed their duties under the Charter.

2. Right to be Informed of the Reasons for Detention or Arrest.

Section 10(a) of the Charter gives everyone the right to be told, promptly, of the reasons for his or her detention or arrest. Simply put, the police must tell you why you are being detained or arrested. The police may use terms such as “I have pulled you over for failing to stop for a red light” or “you are under arrest for fraud”.

You can ask the police why you are being detained but you should avoid being rude or confrontational because that kind of behavior could result in your being charged separately with obstructing or resisting the police in the execution of their duties.

3. Right to Retain and Instruct Counsel.

Section 10(b) of the Charter confers a number of rights:

• the right to be informed that you have the right to contact a lawyer, and,
• the right to a reasonable opportunity to contact a lawyer.

The police are obliged to advise you of these rights at the time of arrest. In some cases, the right to a lawyer may also apply on detention. However, this is a more difficult area. Generally speaking, for example, it is not considered necessary to inform motorists stopped for traffic offences of their right to counsel.

Once you are told of your right to counsel, it is advisable to tell the police that you would like to contact a lawyer for immediate legal advice during the investigation. The right to counsel includes the right to use a telephone as well as the necessary resources to search for a lawyer’s contact information (including directory assistance, telephone directories, etc.; the police may, where feasible, allow access to the internet).

Be aware that anything you say to the police can be used against you as evidence in court, so you should reach a lawyer for advice as soon as the police give you access to telephone facilities. As a general rule, we are all required to identify ourselves to the police. However, we are also entitled to remain silent and we are not required to give the police any additional information beyond one’s identification (name, address, date of birth, telephone number, etc.).

4. Right to Have the Validity of Your Detention Determined.

The lawfulness of the detention or arrest is another area in which a lawyer can advise you. One of the fundamental guarantees under the Charter is the right to liberty. Generally, it must be shown that there is cause for a suspect’s detention and where no such cause exists, the suspect released pending his or her court appearances.

In most cases, the police themselves release individuals with documents which explain when they must appear in court. In more serious situations, release may be dealt with in a hearing before a justice of the peace (within 24 hours of arrest), a provincial court judge, or even a superior court judge.

5. Searches and seizures

Section 8 of the Charter protects individuals against “unreasonable search or seizure”. The police, as part of their duty to investigate, frequently need to collect evidence in support of a criminal charge. While the power of the authorities to search for and seize evidence is basic to law enforcement, the Charter imposes limits on that ability.

Search and seizure law is complex and highly fact-specific. Here are just a few examples of the types of searches and seizure that arise in criminal law:

• Demands for breath and blood samples in impaired driving cases.
• Pat-downs and frisks.
• Intrusive body cavity searches.
• Searches of homes, offices, vehicles and other physical places.
• Computer searches.
• Seizures of records from banking institutions.
• Collection of hospital and medical records.
• Wiretaps and other forms of electronic surveillance.

It is said that section 8 protects people, not places. Regardless of the type of search, the place being searched, or the type of information seized, the Charter protects our “reasonable expectations of privacy”. This means that the police must operate within constitutional limits of reasonableness.

Generally speaking, searches must be carried out on the basis of “reasonable and probable grounds”. There must be reasonable grounds to believe in the commission of an offence and that the person, place or thing being searched will afford evidence relevant to that offence. The search and seizure must then be carried out in a reasonable manner.

Where it is feasible to obtain a search warrant, the police must present their grounds for requesting a search to a judicial officer who will then approve or deny the request. However, many searches are not judicially authorized in this manner. Such is the case, for example, in the vast majority of drinking and driving cases where breath samples are requested and obtained. The obligation of showing that a warrantless search was reasonable rests with the prosecution.

In an investigation where you are detained or arrested, the police will sometimes tell you of their intention to search and seize evidence. This is the case where you are being detained for drinking and driving: the police will usually demand that you provide breath or blood samples. In other situations, the police are not required to advise the suspect of their investigative actions. A lawyer can advise you of your rights and obligations when you are under arrest and being asked for evidence in the form of statements, samples, objects, and so on.