Know Your Rights
The job of the police is to “serve and protect”. If you are a suspect in a criminal investigation, the job of the police is to protect society from you. The goal of the police is to collect evidence to make the prosecution of criminals easier. They pursue this goal with zeal. In other words, with enthusiasm. Sometimes the pursuit of this goal results in the bending of Charter rights and the bending of rules of investigation established by the courts.
As the Supreme Court of Canada warned in R.v. Dyment, [1988] 2 S.C.R. 417, quoting from Olmstead v. United States, 277 U.S. 438 (1928):
“The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
You must therefore know your rights. There is no obligation on anyone to cooperate with a police criminal investigation. If the police are asking you questions, it is because they are looking for evidence. Even if the questions appear harmless, your answers may be devastating to your defence.
You have the right to remain silent.
The following are some commonly asked questions:
Q: If the police ask me for my name, should I identify myself?
A: Yes. You should assume that the police have the right to know who you are. If you do not identify yourself, you are looking for trouble. The police may detain you until they find out who you are. Also, never falsely identify yourself to the police since this may result in you being charged with a criminal offence.
Q: What if I am pulled over by the police while driving?
A: If you are pulled over by the police while driving, you should provide your drivers’ license, as well as your insurance card and ownership card, as required by the Highway Traffic Act. You may be charged with an offence if you do not do so.
If you were involved in an accident, the Highway Traffic Act requires that you tell the police how the accident occurred. Limit your comments to what happened in the accident.
If the police suspect that you may be committing a drinking and driving offence, the police can demand that you complete a Roadside Breath Test. You do not have the right to speak with a lawyer before taking the Roadside Breath Test. If the police have reasonable and probable grounds to believe that your ability to drive is impaired by alcohol or a drug, or if you fail the Roadside Breath Test, the police will place you under arrest and demand that you accompany them to a police station to complete further and more accurate breath tests. You have the right to speak to a lawyer before providing these breath samples.
If the police have reasonable grounds to believe that your ability to drive is impaired by drugs, they can demand that you go with them to the police station for a drug evaluation. A specially trained police officer will do a series of physical observations and tests. If the evaluation is positive, the officer can demand that you provide a sample of your saliva, urine, or blood for a drug test. You have the right to speak to a lawyer before providing these samples.
If you refuse to complete any of the demanded tests, you will be charged with a criminal offence. Later, the trial Judge will decide whether you had a reasonable excuse for refusing. Be careful. It is usually very difficult to convince a court that you had a reasonable excuse for refusing.
Q: What should I tell the police if they are conducting an investigation and start asking me questions?
A: You have the right to remain silent when being questioned by the police. The police, however, do not have to tell you about this right unless you are detained, which means that you cannot simply choose to walk away from the police, or you are under arrest. Even if you are detained or under arrest, the police do not have to use the words “you have the right to remain silent.” Typically, the police will caution you only after you are arrested by telling you that “you do not have to say anything in answer to the charge” and that what you say will be taken down in writing and can be used against you in court. As a result, many persons who are investigated by the police end up telling the police too much. If you are suspected of a crime, you should probably tell the police very little.
Remember that you should assume that the police are entitled to know who you are. Also, it is a good idea to tell the police where you live and what you do for a living. This will assist the police in determining whether or not to release you or hold you in custody for the completion of a Bail Hearing in the event that you are charged with an offence.
It is usually a good idea to simply identify yourself to the police and then ask for a lawyer. Tell the police that you do not want to answer any questions until you speak to a lawyer. As soon as you ask for a lawyer, the police should stop questioning you until you have spoken to a lawyer.
If you are arrested, the police will tell you that you have the right to “retain and instruct counsel.” Once you arrive at the police station, you may contact your own lawyer or the police will provide you with a toll-free 1-800 telephone number that will put you in contact with lawyers known as Duty Counsel who are paid by Legal Aid Ontario to provide you with free legal advice 24 hours a day. If you are an adult, in other words, if you are 18 years of age or older, you do not have the right to have your lawyer present while being questioned by the police.
If you are under the age of 18, however, the police should also allow you to contact your parents or guardian as well as a lawyer. You do not have to choose between calling your parents or guardian and calling a lawyer. You can do both. You have the right to have your parents or guardian and your lawyer with you when you are questioned by the police, if you want them there.
After you have spoken to a lawyer, the police may continue to ask you questions. Even if you tell the police that you do not want to answer their questions, they can continue to ask you questions. Keep in mind that you have the right to remain silent and do not have to answer the questions of the police.
One common tactic is that the police will try to minimize the trouble you are in and try to convince you that the best thing to do is to tell them your side of the story so that they will know that you are really not the type of bad person that they normally deal with. This is a trick aimed at trying to get you to talk.
If you decide not to speak to the police, simply remain silent or tell the police: “On the advice of my legal counsel, I do not want to answer any questions”. If the police continue to ask questions (as they are entitled to do), simply remain silent or repeat: “On the advice of my legal counsel, I do not want to answer any questions”. Keep in mind that the police, if they want information from you, have the right to keep pressing you with questions and may even try to convince you to answer questions by telling you of other evidence they are aware of or what someone else has told them about what they are investigating. These police tactics are legal and they are common. If you have decided not to speak to the police, do not be fooled. Simply remain silent.
Some people decide to speak to the police because they are afraid that if they choose to remain silent this will look bad in court. This is not true. If you decide to remain silent, you can rest assured that the fact that you chose to remain silent cannot be used against you in court.
After speaking to a lawyer, you may decide to speak to the police. The choice is yours. Remember that you speak to the police at your own peril since anything you tell the police may be used as evidence against you in court. In most cases, a lawyer will advise you not to talk to the police. This is usually the best advice. If you do decide to speak to the police, you should tell the truth since you may otherwise be committing a criminal offence. Also, if you lie to the police, the fact that you lied might be used as evidence against you in court.
Anything you tell the police, even in casual discussions, may be used against you in court. In fact, if you discuss your case with anyone other than your lawyer, including your friends and family, those persons can be called as witnesses against you in court, even at your Bail Hearing.
Q: My employer wants to talk to me about some irregularities at my place of work. Am I required to answer my employer’s questions?
A: No. If you do not want to answer your employer’s questions, you don’t have to. This includes questions from your co-workers such as security or loss prevention personnel or anyone working on your employer’s behalf in investigating the irregularities. Your refusal to answer questions may, however, get you fired. Only you can make the difficult decision of whether or not to answer questions. If you decide to answer questions, the answers you provide can be used against you in court. Only in limited circumstances can your answers be excluded as evidence, such as, for example, if the court finds that your statements were made to what is in law known as a person in authority and your statements were involuntary. Be careful. It is usually very difficult to have an admission or inculpatory statement excluded by a court.
When deciding whether or not to answer your employer’s questions, you should assume that your answers will be used against you in court. Remember, you have the right to remain silent.
It is advisable to speak to a lawyer before answering any of your employer’s questions. A lawyer may be able to speak to your employer on your behalf without incriminating you.
Q: When can the police enter my home?
A: The police can enter your home if they have:
– An arrest warrant
– A search warrant
– Permission from you or from someone else in authority in your home to enter or search your home.
Neither you nor anyone else in authority in your home is ever obligated to provide permission to the police to enter your home or search your home.
Be aware, however, that in limited urgent or emergency situations, the police can enter your home without a warrant or permission. For example, if someone has made a 911 call from within your home that causes the police to believe that someone in your home has harmed or is about to harm someone else, he police can enter your home to investigate. Also, for example, child welfare laws may permit the police to enter your home to remove a child in certain circumstances, if the police have reasonable grounds to believe that the child is neglected or abused and is “in need of protection”.
Also, the police can enter your home without a warrant if they have reasonable grounds to believe that there are drugs, drug related things, or evidence of another offence in your home, which might disappear or be destroyed if they took the time to get a search warrant. These circumstances are referred to as “exigent circumstances” justifying a warrantless entry into your home. The police officers making an exigent entry are permitted to “look around” for safety reasons and then preserve the integrity of the scene while they try to get a search warrant. Anything criminal that the police see in plain view can be referred to in the document used to try to obtain the search warrant. If the search warrant is issued, the police officers can then carry out a complete search of your home.
If the police have a valid warrant, they can use “reasonable force” to enter your home.
If you try to stop a legal search, you can be charged with a criminal offence.
The legality of the search, and the admissibility of any evidence that the police find during the search, will be determined at your trial.
Q: When can the police search me?
A: In general, the police can search you and your belongings only if you are under arrest or if you consent to being searched (there are rare exceptions, such as when you are entering Canada). You are never obligated to consent to being searched. If the police begin to search you, however, you should not try to stop them since this may result in you being charged with a criminal offence.
The legality of the search, and the admissibility of any evidence that the police find during the search, will be determined at your trial.
The police can also search you if they find you in a place where they are searching for drugs and they have reasonable grounds to believe that you have drugs, or if the police have found you in a vehicle in which people are transporting or consuming alcohol illegally and the police have reason to believe that you have alcohol on you illegally, or the police have reason to believe that you have an illegal weapon or a weapon that was used to commit an offence and it might be removed or destroyed if they took the time to get a search warrant.
If the police want to search you for any of the aforementioned reasons, you do not have a choice. If you try to stop the police from searching you, you may be charged with a criminal offence.
The legality of the search, and the admissibility of any evidence that the police find during the search, will be determined at your trial.
If the police have detained you because they have reasonable grounds to suspect that you are connected to a crime, and they want to pursue their investigation, they have limited powers to search you and they can complete a protective “pat down” search for weapons if they believe that their safety or the safety of others is at risk.
Q: Can the police search my cell phone?
A: If you are arrested and you have your cell phone with you, the police can search your cell phone. The police are permitted to search a person under arrest for weapons and evidence and your cell phone may contain evidence. Sometimes only a cursory search of your cell phone is permitted. If the police get a search warrant for your cell phone, a more thorough search can be completed.
If you are invited to go to a police division “to turn yourself in” or be interviewed by the police, you may want to leave your cell phone at home, even if the police tell you to bring your cell phone with you.
You do not have to provide your passcode to the police. You have the right not only to remain silent, you also have the right not to incriminate yourself.
If you are crossing the border back into Canada, these rights may be compromised. Read the next “Q” and “A”.
Q: What can be searched by customs officers when I am crossing the border back into Canada?
NOTE: The following is a summary of the law in Ontario prior to the decision of the Alberta Court of Appeal in R. v. Canfield, 2020 ABCA 383, application for leave to appeal to the Supreme Court of Canada dismissed 2021 CanLii 18037 (SCC). The impact of R. v. Canfield on the applicable law in Ontario is unknown. The decision in R. v. Canfield is not binding in Ontario. Not providing your password for your device to a CDSA officer upon arriving in Canada from abroad may get you into a protracted and expensive legal battle. Proceed at your own risk. A copy of R. v. Canfield is available here.
A: Persons crossing the border into Canada, whether they live in Canada or not, are deemed to have a reduced expectation of privacy at the border. In general, an officer with the Canada Border Services Agency (CBSA) may, pursuant to Section 99(1)(a) of the Customs Act, examine any goods that have been imported, including goods that you have with you at the border, and open or cause to be opened any package or container of imported goods and take samples of imported goods in reasonable amounts. Also, pursuant to Section 99.2(1) of the Customs Act, a CDSA officer may search any person who is in or is leaving a customs controlled area if the officer suspects on reasonable grounds that the person has secreted on or about their person anything in violation of the Customs Act or its regulations or anything that would afford evidence with respect to the contravention of the Customs Act or its regulations or any goods being imported or exported in violation of applicable law. A person who is the subject of a personal search may request that the search of his or her person first be authorized by a senior officer. A person may only be searched by an officer who is of the same sex.
If you are travelling with an electronic device, such as a cell phone, you may be opening yourself up to a very serious infringement of your privacy and possible criminal charges if you are storing or you have accessed data that is considered to be criminal. The CBSA considers electronic documents to be “goods” which are subject to examination pursuant to Section 99(1)(a) of the Customs Act. Accordingly, the CBSA will search electronic devices and look at anything that is on them. The CBSA does not need a search warrant to examine your electronic device. A CBSA officer may also require that you provide your password for your electronic device. A person who does not provide the password for his or her electronic device when requested may be arrested since Section 13 of the Customs Act requires the target of the investigation to “answer truthfully any question asked by an officer with respect to the goods” that are being inspected. Accordingly, if a CBSA officer asks you for the password for your electronic device, you must provide it. The CBSA should only examine goods that are in your possession at the time you cross the border. Accordingly, if you are storing information somewhere other than on your electronic device, and that information can only be accessed by using another password, you may not have to provide that other password to the CBSA officer. The law is not clear on this issue. If you refuse to provide passwords you do so at your own risk. If you do not want the CBSA to look at information that is on your electronic device, or accessible by using your electronic device, you should not be travelling with your electronic device.
Update: Articles, Bulletins And Case Law
Q: What should I know if I am considering being a surety for someone who is criminally charged and wants to get out on bail?
A: Information regarding what you should know if you are going to be a surety for someone on bail is available here.
Update: Articles, Bulletins And Case Law
Q: How will my criminal record affect my ability to travel to the United States and other destinations?
A: If you have been convicted of a criminal offence, you may not be able to travel to some countries, even if you don’t require a visa to travel to that country. For further information, you should contact the local consulate in Toronto for the country that you want to visit. Useful information for persons with a criminal record travelling to the United States is available here.
Update: Articles, Bulletins And Case Law
Q: New Record Suspension Legislation Replaces Previous Pardon Legislation
A: Information regarding obtaining a Record Suspension is available here.
Update: Articles, Bulletins And Case Law
Q: What is a preliminary inquiry? Should I elect to have one?
A: In cases in which a Defendant is exposed to a possible period of 14 years in jail or more, the Defendant will have the right to proceed with a preliminary inquiry in the Ontario Court of Justice and then a trial in the Superior Court of Justice before a court composed of a Judge sitting with a jury or without a jury. In the past, this level of court was referred to as “High Court”.
The completion of a preliminary inquiry is not mandatory. In most cases, the Defendant has the right to waive the preliminary inquiry and to proceed directly to trial in either the Ontario Court of Justice or the Superior Court of Justice. If the trial must be completed in the Superior Court of Justice, the waiver of the preliminary inquiry will require the consent of the Crown.
At a preliminary inquiry, the Crown is required to call some evidence upon which a properly instructed jury, acting reasonably, may return a verdict of guilt. This is an easy test for the Crown to meet in the vast majority of cases. Accordingly, it is relatively rare for someone who proceeds with a preliminary inquiry to be discharged with respect to all of the charges which he or she is facing. The real value in having a preliminary inquiry is not in the hope of being entirely discharged, thereby bringing the entire criminal proceedings to an end, but in being able to better prepare the case for trial. The defence lawyer will have an opportunity to cross-examine and test the evidence of the primary Crown witnesses. An experienced and skilled defence lawyer can discover the strengths and weaknesses of the Crown witnesses and commence building an effective defence strategy. A preliminary inquiry is especially valuable for the defence in cases involving young, infirm, unreliable or unsavory Crown witnesses.
On occasion, I am approached by a potential client who tells me that he or she has spent a considerable amount of money on a lawyer who completed a preliminary inquiry. The potential client is now out of money and wants to apply for assistance from Legal Aid Ontario, however, the lawyer who completed the preliminary inquiry does not accept Legal Aid Certificates. This is unfortunate since what this usually means is that an opportunity for an experienced and skilled defence lawyer to build an effective defence strategy has been lost. The potential client may have wasted his or her money on a lawyer that will not be the lawyer at trial and who may not have uncovered evidence useful to the defence strategy that I would have pursued.
Prior to hiring a lawyer, a Defendant should discuss with the lawyer the lawyer’s entire fee for taking on the case from start to finish. This includes the completion of a bail hearing, the completion of judicial pre-trial conferences, the completion of the preliminary inquiry, the completion of the trial and the completion of a sentencing hearing if one proves to be necessary. The total cost of a defence can be much greater than the Defendant originally anticipates.
For a Defendant to hire a lawyer knowing that there is a possibility that funds will run out is an extremely bad idea if the hired lawyer will then not agree to be paid by Legal Aid Ontario. Spending all one’s money to pay a lawyer for completing only a preliminary inquiry is usually a waste of money. A client is better advised to hire the lawyer that he or she can afford to complete the entire case from start to finish. At the very least, the client is best advised to discuss with the lawyer what will happen if the client runs out of money. I have never started working for a client on a cash retainer and then refused to continue on Legal Aid when the client ran out of money.
Further information on representing a client on Legal Aid is available here.
Update: Articles, Bulletins And Case Law
Q. If the evidence against me includes forensic evidence, linking me to the offence, does that mean that I will be found guilty for sure?
A. No. Forensic evidence is just one type of evidence that the Crown can try to introduce against a person accused of a crime. The defence can challenge the admissibility of forensic evidence on the basis of relevance, prejudice or that there is a lack of a sufficient scientific foundation to make the evidence reliable and worthy of being admitted, in other words, the forensic evidence is inadmissible because it is based on “junk science”.
Over the years, there have been several types of forensic evidence that have been rejected by the courts in the United States and, to a lesser extent, Canada, including voice print identification, comparative bullet lead analysis and several indicators of arson dependent on visual cues.
Likewise, there are various other types of forensic evidence which are possibly unreliable, such as microscopic hair comparison, and “pattern comparison” evidence such as bite marks, tire marks and handwriting.
Even in cases where the forensic evidence is ruled admissible, the defence can still try to weaken the impact of the evidence by arguing, for example, that the results of the forensic testing were the subject of “motivated perception”. In other words, the scientist who did the testing interpreted the results so as to support his or her expectations or the expectations of the police or Crown prosecutors. The defence can argue, or call evidence to show, that the forensic examiner should have first tested the evidence blindly without knowing anything about the case in order to avoid a subconscious bias. Studies have shown that even the opinion of fingerprint analysts can be affected by the analysts’ preconceived notions about the case. Also, there is always a risk of a false positive. Moreover, if the laboratory that completed the testing, such as the Centre of Forensic Sciences, is known to have made errors on occasion in the past, the defence can argue that the error rates should also be entered in evidence.
In appropriate cases, and where funds permit, the evidence can be re-tested by an independent laboratory for verification.
A good defence lawyer should know the weaknesses of specific scientific techniques or seek out an appropriate defence consulting expert to learn about and present evidence regarding those weaknesses.
Update: Articles, Bulletins And Case Law
Q: What are the Sex Offender Information Registration Act (SOIRA), the National Sex Offender Registry and the Ontario Sex Offender Registry?
A: Information on the Sex Offender Information Registration Act (SOIRA), the National Sex Offender Registry and the Ontario Sex Offender Registry is available here.
Update: Articles, Bulletins And Case Law
Q: What is a Section 161 Prohibition Order?
A: Information on Section 161 Prohibition Order is available here.
Update: Articles, Bulletins And Case Law
Q: If my name appears on the National Sex Offender Registry or the Ontario Sex Offender Registry, who can find out about it?
A: Both federal legislation (SOIRA) and provincial legislation in Ontario require a person convicted of a sexual offence to have his or her name placed on the National Sex Offender Registry and on the Ontario Sex Offender Registry. The two registries are kept on separate data bases.
The National Sex Offender Registry database is not linked to other police databases and is not part of the Canadian Police Information Centre (CPIC) database.
The National Sex Offender Registry database is only accessible by accredited police agencies in every province and territory in Canada, either directly or indirectly, through their provincial or territorial sex offender registry centres, but only for the purpose of investigating unsolved crimes of a sexual nature.
Police agencies outside of Canada, including the United States, do not have direct or indirect access to the National Sex Offender Registry database.
Access to the Ontario Sex Offender Registry is much broader. A police force in Ontario may disclose information on the Ontario Sex Offender Registry to another police force in or outside Canada for the purposes set out in the legislation, which include crime prevention and law enforcement.
Accordingly, police forces outside Canada, including the United States, can obtain information on the Ontario Sex Offender Registry by making a request to any police force in Ontario.
Employers do not have direct access to either the National Sex Offender Registry or the Ontario Sex Offender Registry except that organizations dealing with children are allowed to request a local police criminal background check through CPIC for anyone wanting to be involved with that organization as an employee or a volunteer. Information is provided to the organization in accordance with the provincial access to information and privacy legislation.
In 2000, the federal Criminal Records Act was amended to allow the disclosure of the criminal records of sex offenders who have been pardoned or who have been granted a criminal record suspension if they apply to organizations that may put them in a position of trust with respect to children. This disclosure, however, requires the person applying for the position to first provide his or her consent for the criminal record to be disclosed.
Children’s Aid Societies and other child protection authorities are not authorized to access information on either the National Sex Offender Registry or the Ontario Sex Offender Registry unless, of course, the offender consents to the release of such information.
Children’s Aid Societies also maintain their own child abuse registries so that they can, in turn, provide information to both the National Sex Offender Registry and the Ontario Sex Offender Registry.
More information on SOIRA, the National Sex Offender Registry and the Ontario Sex Offender Registry is available here.
Update: Articles, Bulletins And Case Law
Q: What are the minimum penalties (both Provincial and Federal) for a drinking and driving conviction?
A: There are several penalties and consequences for a drinking and driving conviction. A summary is available here.
Update: Articles, Bulletins And Case Law
Q: Is it true that as of August 3, 2010, a new Conduct Review Program allows persons charged in Ontario for the first time with an alcohol related drinking and driving offence to have their licence suspension reduced if they plead guilty?
A: Yes. As of August 3, 2010, persons charged in Ontario for the first time with either alcohol-impaired driving or driving with a blood alcohol level in excess of 80 milligrams of alcohol per 100 millilitres of blood (driving while over 80 mgs.) who wish to plead guilty may be eligible to participate in a Conduct Review Program known as Ontario’s Reduced Suspension with Ignition Interlock Conduct Review Program. The particulars of the Conduct Review Program are available here.
Update: Articles, Bulletins And Case Law
Q: Where can I get a summary of the requirements of the new Conduct Review Program?
A: A summary of the requirements of Ontario’s Reduced Suspension with Ignition Interlock Conduct Review Program is available here.
