Legal Matters
Stopped by Police! Don’t fret, just know your rights
BY NANA ADJEI-POKU
In light of the recent tragedy in the United States regarding George Floyd, I was speaking with one of my adult sons, and he advised me of a time when he was approached by an officer at his school. I had intentions of writing about another issue for this week’s article but felt the urgent need to get this information out there for those of us who do not know what our rights are under the Charter of Rights and Freedoms. Please Note: This is not to be taken as legal advice as every case is different and you must consult a lawyer to obtain legal advice.
The Charter is part of our Canadian Constitution and it guarantees our various rights and freedoms. The important sections of the Charter in this article are found in the Legal Rights ss.7-14.
If you find yourself detained or arrested, please remember that you have the right:
- to remain silent at all times;
- to be informed why you have been arrested;
- to contact a lawyer and speak to him/her in private; and
- not to be arbitrarily detained.
The only time police have the right to pull you over is pursuant to a Highway Traffic Act violation. The police may investigate your driver’s license, insurance, registration and to ensure your vehicle is in proper working order. If you have passengers with you in the car, they are not required to identify themselves nor is the officer allowed to search your vehicle, even if they ask you, unlike if you are under arrest.
Police are not allowed to detain you without reasonable grounds. Reasonable in the sense that, an officer cannot just suspect, he/she must be able to establish, on a balance of probabilities, that more likely than not, there is evidence to warrant detaining you. If you are detained under reasonable grounds, the officer can only pat you down with their hands. This is known as a “pat down search.” The police are not allowed to go into your pockets, purse or backpack and empty their contents. If you are arrested, they are allowed to then search your belongings and/or your vehicle if your vehicle is at the location of your arrest.
A good way to determine whether you are being detained to politely ask the police officer if you are free to leave. If the officer advises you that you are not, then this means you are being detained. You can then ask why you are being detained. If you have not been advised, they must tell you thereafter. If you notice that the officers have unlawfully detained you, ensure to advise your lawyer of this as it does happen.
If it ends up that you have been arrested, please be aware that police can only do so if: you are caught engaging in a crime, if there are reasonable grounds to believe you have committed one or about to commit one, or have a warrant our for your arrest. An important thing you must remember is to refrain from resisting arrest. Police must inform you that you are under arrest and what you are being arrested for. If you do not understand what you are being arrested for once you have been given the opportunity to speak with your lawyer, you may ask to speak with another lawyer.
If you have an encounter with the police at your home, they are only able to communicate with you at your front door, or at best, you may go outside and speak with them on your porch. You do not have to allow them into your home if they ask. You are also not obligated to answer your door if the police ring your bell. If it so happens that they are allowed into your home and ask you to search and you say, “Yes” they do not require a warrant, so remain mindful of this.
A search warrant must be obtained by judicial authorization by either a judge or justice of the peace. The only time police are able to enter into a home is when: they are pursuing a suspect, have a fear that a suspect will destroy evidence and, in this instance, they do not require a warrant. An example of this would be a drunk driver who runs into his home to avoid being charged for drunk driving.
If you feel your incident with the police warrants a complaint, you can contact the Office of the Independent Review Director. This is an independent body that was launched back on October 19th, 2009 that conducts investigations into police complaints. The decisions are public record and are posted on the site. Other than that, you may pursue a lawsuit after speaking with a civil litigation lawyer.