Police Obligations Upon Arrest or Detention

In the prior blog entry, I discussed the powers of the police in relation to an arrest and investigative detention. This section is designed to advise the public what the police are obliged to do once a person is arrested or detained.

First of all, our system of policing is not the same as it is in the United States, and does not work the same as you may see on TV. Remember from the prior entry that the police can arrest on reasonable and probable grounds that an offence has been committed, but can also detain on a reasonable suspicion of connection to criminal activity. However, despite whether arrested or detained the police have obligations in terms of what they are supposed to say and do.

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The most important and fundamental protection to be afforded to a member of the public either arrested or detained is their right to counsel. Section 10 of the Canadian Charter of Rights and Freedoms deals with the individual right to counsel, and has been interpreted by the Supreme Court as giving an immediate right to counsel upon arrest or detention. This means that the police are required to inform an individual on the reasons for detention, and to immediately advise them that they are entitled to contact counsel. Not only is the individual entitled to contact counsel, but they are entitled to contact counsel of choice. This means that an individual can contact a free legal advice service such as legal aid or duty counsel, or can contact a private lawyer, usually from a phone book. Most lawyers or criminal firms offer a free, after hours advice service, and while it may be difficult to contact someone, persistence will usually find someone available to give advice.

Once advised of the right to counsel, an individual has the choice whether or not to contact counsel. If a person wants to contact counsel, the police are immediately required to facilitate contact with counsel. This usually occurs by transporting a person to a police station and giving them an opportunity to use a telephone in a private setting. However, given the advances in modern cellular technology, there is no reason why an individual could not request privacy at the scene of detention and the use of their cell phone, if they have one. If no cell phone is available, then the option is to accompany an officer to a police station and use the facilities provided.

Given the right to counsel immediately upon arrest or detention, a number of questions arise. One common question is “how do I know if I am arrested or detained”? It is not often difficult to tell when you have been arrested, but even lawyers and the Courts alike wrestle with the question as to whether someone is detained or not. The easiest advice is this: if you think you are detained, attempt to leave, and make the police stop you. Or, simply ask if you are detained. These questions, actions and police responses will signal to the Court whether or not you were detained. Another option is to request to contact counsel. If the police ask you why you would want to, or advise you do not need to, then you are not detained, and can leave. Remember, if you are detained you are immediately entitled to be advised of your right to counsel and to be given an opportunity to contact counsel, if that is your wish.

People are also sometimes concerned that if they want to contact counsel, that will lead to the inference that they have done something wrong. The response to this is that every person needs to understand that this is a fundamental right to be afforded to everyone, regardless of innocence or guilt. Most people simply want to know what they are required to do, and the limits of police power, and this is why the right to counsel at the initial stage of detention is a fundamental protection.

The other difficulty people also foresee is that invoking the right to counsel could prolong an investigative detention beyond what they feel is necessary, because even though they are simply detained, they may have to accompany an officer to a police station to have access to a telephone. This is a valid concern. However, people have to be aware that if the police are investigating you for a potential crime, they are rarely acting in your best interests, or working to protect your rights. Their role is to gather evidence, and unfortunately this evidence can sometimes be misleading. Denying yourself your own rights is done at your own peril…affording yourself fundamental protections is the liberty enjoyed in a free and democratic society, and a half hour contacting counsel can save you potential pain and anguish.

The right to counsel enshrined in the Charter is exactly that: a right. Protect it, and use it. The rights in the Charter are your rights, and they are yours to invoke. Be careful in denying yourself these protections.

Remember, these same rules do not apply to the operator of a motor vehicle! Read the next entry to understand the rights of a detained motorist, and the subsequent limits of police power.

Click here to download a PDF version of the Canadian Charter of Rights and Freedoms

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Posted on March 27th, 2011