Procedural & Charter Rights

Say clearly that you want to speak to a lawyer. If you have one, give the name; if you do not, ask for duty counsel. Police must then give you a reasonable opportunity to make the call and must not question you until you have had it (R v Suberu, 2009 SCC 33).

Once you have told the police that you want to speak to a lawyer, they have a duty to help you contact a lawyer as soon as practicable, and to help you reach a particular lawyer if you name one. While you are trying to contact your lawyer, the police cannot interview you (R v Taylor, 2014 SCC 50; R v Willier, 2010 SCC 37).

If police take on the job of contacting your lawyer, they must be as diligent as you would have been: asking whether you or someone you know has the number, letting you check your phone, and trying the lawyer’s other numbers and website rather than simply leaving one message.

No. That is not true in Canada. You are entitled to a reasonable opportunity to get legal advice, and the police might need to make multiple calls to multiple people to give you one.

Yes, for initial advice. Legal Aid Ontario duty counsel give free legal advice by phone to people who are arrested or detained, 24 hours a day, and police must tell you how to reach them (R v Bartle, [1994] 3 SCR 173).

Yes. Police must give you access to a phone, and a private one, to exercise the right (R v Taylor, 2014 SCC 50).

Except in urgent and dangerous circumstances, police must give your lawyer a reasonable time to call back, depending on the seriousness of the charge and the urgency of the investigation. After that you are entitled to call a different lawyer or speak to duty counsel (Willier, para. 35).

Not before a roadside screening test, which must be done immediately (Criminal Code s. 320.27; R v Breault, 2023 SCC 9). If you are arrested or taken for a breath test at the station, police must give you a reasonable opportunity to call a lawyer first.

A failure to provide a breath sample after police have made reasonable attempts to put you in contact with a lawyer can lead to a separate charge under s. 320.15 of the Criminal Code, with the same penalties as impaired driving.

Not as of right for an adult. The Charter does not require a lawyer to be present during the interview, though police can agree to it (R v Sinclair, 2010 SCC 35). A young person has the right to consult a lawyer and a parent and to make any statement in their presence (Youth Criminal Justice Act, s. 146).

Not until you have had a reasonable opportunity to speak to one. After that, they can question you, even if you say you do not want to talk. You still do not have to answer (R v Singh, 2007 SCC 48; R v McCrimmon, 2010 SCC 36).

Only if circumstances change: a new procedure such as a line-up or polygraph, a more serious charge, signs that you did not understand the advice, or police undermining your lawyer’s advice (Sinclair; R v Dussault, 2022 SCC 16; R v Lafrance, 2022 SCC 32).

Yes. You must be “reasonably diligent”: keep telling the police you want your lawyer and suggest how they can reach them. If you are not, the police can stop trying and begin questioning you or insist on breath samples.

The court can exclude the evidence obtained, such as a statement or breath samples, if admitting it would bring the administration of justice into disrepute (Charter s. 24(2); R v Grant, 2009 SCC 32). It is not automatic.

Only in limited cases: with your permission, in hot pursuit of someone fleeing arrest, to protect life or safety (for example after a disconnected 911 call), or where exigent circumstances make getting a warrant impracticable (Criminal Code ss. 529.3 and 487.11). Otherwise a warrant is required.

You do not have to invite officers in. Police may approach and knock under the implied licence that applies to everyone, but that licence ends at the door (R v Singer, 2026 SCC 8). If they have a warrant or another legal power to enter, refusing will not stop a lawful entry, and you should not physically resist.

They may walk up to your front door to knock and speak with you, as any visitor may. Going beyond that, such as into a fenced backyard or searching around the house, needs legal authority. In R v Le, 2019 SCC 34, officers who entered a backyard without it were trespassers.

Yes, if they are there only on the implied licence or your invitation. The licence can be revoked at any time by a clear expression of intent, and an officer with no other legal authority must then leave. It does not work against a warrant, hot pursuit or an emergency entry.

Generally only with a warrant that authorizes entry to the home, not just an arrest warrant (R v Feeney, [1997] 2 SCR 13; Criminal Code ss. 529 and 529.1). The exceptions are hot pursuit and exigent circumstances under s. 529.3.

After a 911 call, including one that is disconnected, police may enter to find the caller and make sure they are safe (R v Godoy, [1999] 1 SCR 311). That entry is limited to protecting life and safety; it does not permit a search of the home.

Urgent situations that call for immediate action to protect life or safety or to prevent evidence from being lost or destroyed, where taking the time to get a warrant would be impracticable, not merely inconvenient (Criminal Code s. 529.3(2); R v Paterson, 2017 SCC 15).

In R v Zargar, 2014 ONSC 1415, a push to remove an officer who was trespassing and refused to leave was found reasonable. But s. 35 of the Criminal Code does not protect force against someone lawfully enforcing the law unless you believe on reasonable grounds they are acting unlawfully, and a court decides that later. Assaulting a peace officer carries up to five years on indictment. Ask the officer to leave and do not physically resist.

The entry may breach s. 8 of the Charter, and the court decides under s. 24(2) whether admitting the evidence would bring the administration of justice into disrepute, applying R v Grant, 2009 SCC 32. Evidence is often excluded after an unlawful entry into a home, but not always.

Justice Nordheimer accepted that Mr. Khattak had a legal interest in the video, but held that access at that time would be premature, given how contingent his interest was and the need to protect Mr. Lisi’s fair trial rights. He left Mr. Khattak free to bring a later application if he started a civil action.

No. The judge found that the longer video, about 90 seconds, featured the Mayor, and that the second was much shorter and “separate and apart” from it, although what it showed might reasonably be concluded to relate back to the first.

According to the Crown in court, he was neither seen on the video nor heard speaking on it. His application aimed to dispel the perception that he was connected to it.

On August 11, 2016, after the Crown withdrew the extortion charge against Alexander (Sandro) Lisi and a Superior Court judge ruled that the video, which had been entered as evidence, could be released.

Once a warrant has been executed, the warrant and the information used to obtain it are presumptively available to the public. Whoever wants them sealed must show that disclosure would subvert the ends of justice (Toronto Star Newspapers Ltd v Ontario, 2005 SCC 41; Criminal Code s. 487.3).

An order prohibiting access to, and disclosure of, information about a warrant or production order. Grounds include protecting an informant, an ongoing investigation or an innocent person. The order can be varied or ended on a later application under s. 487.3(4).

Yes, as a starting point. In Ontario the right to access exhibits includes the right to copy them, unless the party opposing proves with convincing evidence that a limit is justified (R v Canadian Broadcasting Corp, 2010 ONCA 726).

A judge may let a person with an interest in seized items examine them (s. 490(15)). Once the detention periods expire, the person it was taken from can apply for its return (s. 490(7)), and a lawful owner can apply at any time (s. 490(10)).

The person asking must show a serious risk to an important public interest, that the order is necessary because reasonable alternatives will not prevent the risk, and that its benefits outweigh its negative effects (Sherman Estate v Donovan, 2021 SCC 25).

Yes. Justice Wagner on behalf of the unanimous Court recognized that judges are entitled to consider collateral immigration consequences when sentencing an offender provided that “the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender” (R v Pham, 2013 SCC 15, para. 14).

Only within the range of fit sentences. The Court warned that “the flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament’s will” (Pham, para. 15).

Mr. Pham, who was not a Canadian citizen, was convicted of producing marihuana and possessing it for the purpose of trafficking. On a joint recommendation, the trial judge imposed two years’ imprisonment. Nobody raised the fact that a sentence of two years would cost him his appeal against removal from Canada.

The Supreme Court overturned the Alberta Court of Appeal and reduced the sentence by one day, to two years less a day, so that Mr. Pham could appeal his removal order. The Crown had conceded that the shorter sentence was still fit.

It can if the sentencing judge was not told about the consequence and the reduced sentence is still fit. But where the issue was brought to the trial judge’s attention and the judge still chose the longer sentence, “absent fresh evidence, deference is owed to that decision” (Pham, para. 23).

At the time, s. 64(2) of the Immigration and Refugee Protection Act removed the right to appeal a removal order to the Immigration Appeal Division for a sentence of at least two years. Since June 19, 2013, the threshold has been six months.

A permanent resident is inadmissible for serious criminality if convicted of a federal offence with a maximum of at least 10 years, or if a term of imprisonment of more than six months is imposed (IRPA s. 36(1)⁠(a)). If the sentence is imprisonment of six months or more, there is no appeal to the Immigration Appeal Division (s. 64(2)).

Not under s. 36(1)⁠(a). In Tran v Canada, 2017 SCC 50, the Supreme Court held that a conditional sentence served in the community is not a “term of imprisonment” in that provision. The offence’s maximum penalty can still make it serious criminality.

A discharge is not a conviction: the offender is deemed not to have been convicted (Criminal Code s. 730(3)). The inadmissibility rules in s. 36 of the IRPA are based on a conviction.

Yes, on conviction. Impaired driving, over 80 and refusal carry a maximum of 10 years on indictment (Criminal Code s. 320.19(1)), and because they can be prosecuted either way they are treated as indictable (IRPA s. 36(3)⁠(a)). That meets the 10-year test in s. 36(1)⁠(a) whatever sentence is imposed.

If the offence could have been prosecuted by indictment, yes. A hybrid offence is deemed indictable even when prosecuted summarily (IRPA s. 36(3)⁠(a)), and a foreign national is inadmissible for a conviction for an indictable offence (s. 36(2)⁠(a)).

Possibly. Under R v Wong, 2018 SCC 25, an uninformed plea can be withdrawn if you file an affidavit showing a reasonable possibility that you would have gone to trial, or pleaded guilty only on different conditions, had you known. The court tests that claim against the objective circumstances.

Yes. Knowingly making a false police report to mislead the police is public mischief under section 140 of the Criminal Code, if it causes a peace officer to start or continue an investigation. It is a hybrid offence with a maximum of five years in jail on indictment.

The purpose of this law is to discourage the false reporting of offences. In a general sense, this charge is designed to prohibit someone from making false accusations which can potentially implicate an innocent person and usurp precious police investigatory resources.

Where an accused person is charged with reporting that an offence has been committed when it has not been committed, the Crown must prove the following:

1. that the accused reported an offence;
2. that the accused’s actions or words contained in the report were false;
3. that the accused intended to mislead the police; and
4. that the accused’s actions or words caused a police officer to commence or to continue an investigation.

For the other forms of the offence, such as a false accusation against a named person, the Crown must likewise prove the false statement or act, the intent to mislead, and the investigation it caused.

The word "offence" has been given a very broad interpretation by our courts. The term “offence” is not restricted to Criminal Code offences. The term also includes any breach of the law, federal, provincial or otherwise, that involves penal sanction.

Where the Crown Attorney has failed to prove that an offence has not in fact been committed, the accused is entitled to an acquittal.

Where a police officer is not actually misled by the false statements or reports, the accused will be acquitted of public mischief but can nevertheless be convicted of attempted public mischief. An attempt carries a maximum of half the sentence for the full offence (s. 463).

The law is still unsettled in this area. In some cases our courts have held that in order to attract criminal liability, the accused must be found to have made a false report directly to a police officer, or to someone else, with certainty that the person would contact the authorities.

At the very least, the “report” must be a formal complaint, made to a public authority who can effect an investigation in order to constitute public mischief.

In Canada, the maximum punishment for committing the crime of public mischief is five years in jail. However every case and offender is unique and sentencing must be assessed on a case by case basis.

Public mischief is a hybrid offence. On indictment the maximum is five years; on summary conviction it is two years less a day, a fine of up to $5,000, or both. There is no minimum sentence, so a discharge is legally available.

Yes, jail is possible, but it is not automatic. Sentences depend on how serious the false report was, whether someone was arrested or charged because of it, and the person's background. There is no minimum sentence.

Often, yes. Depending on the facts, a charge may be withdrawn, dealt with through diversion under Part XXII.2 of the Criminal Code, or end in a discharge. A person who fully completes an alternative measure is entitled to have the charge dismissed (s. 715.52).

Undercover work and stings are lawful. What the law forbids is offering someone the chance to commit a crime without reasonable suspicion, or inducing the crime. If an accused proves that, the court stays the charge as an abuse of process (R v Mack, [1988] 2 SCR 903).

Entrapment occurs when someone is induced to commit a criminal offence as a result of unfair law enforcement practices such as trickery, persuasion or fraud. It also covers police offering an opportunity to commit a crime to someone they had no reasonable suspicion about, outside a genuine inquiry into a defined place.

The accused must establish on a balance of probabilities either that police provided an opportunity to commit a crime without reasonable suspicion (and outside a bona fide inquiry), or that, even with reasonable suspicion, they went beyond providing an opportunity and induced the offence (Mack).

Yes. The onus falls on the accused to prove on a balance of probabilities that entrapment has occurred (Mack; R v Pearson, [1998] 3 SCR 620).

No. Entrapment must involve the state or its agents, such as police or an informer working for them. Being talked into a crime by a private individual is not entrapment.

Police may offer an opportunity to someone they know nothing about if that person is in a precisely defined area where police reasonably suspect the crime is occurring, and the inquiry is genuine (R v Barnes, [1991] 1 SCR 449).

When the opportunity to commit the offence was given. Reasonable suspicion cannot be built afterwards from the person’s answers (R v Ahmad, 2020 SCC 11).

More than a mere suspicion and less than reasonable and probable grounds. It depends on both the content of the information police had and its reliability; a bare, unverified tip is not enough.

Only once they have reasonable suspicion about that number. They may ask investigative questions first, but if the offer comes before anything confirms the tip, it is entrapment (R v Ahmad, 2020 SCC 11).

Not if police target a precisely defined online space where they reasonably suspect the crime, and offer offences rationally connected and proportionate to it. The Supreme Court upheld York Regional Police’s Project Raphael on that basis (R v Ramelson, 2022 SCC 44).

It applies only to conduct by the state or its agents; it may not apply to crimes of violence, a point raised in Amato v The Queen but never decided; and it cannot be used to resist extradition to a foreign country.

Among others: the type of crime and other ways to detect it, whether an average person would have been induced, police persistence, the type of inducement, whether police started the crime, exploitation of friendship or a vulnerability, proportionality, threats, and whether other constitutional values were undermined (Mack).

After the judge or jury has found the accused guilty but before sentence. The Crown must first prove the offence beyond a reasonable doubt, and the judge then decides the entrapment application.

A stay of proceedings. Entrapment is a form of abuse of process whose only remedy is a stay (R v Ramelson, 2022 SCC 44). Establishing a person was entrapped by police is extremely rare.

Yes. A Highway Traffic Act or criminal conviction can come back to haunt you in your civil lawsuit because it may help determine who was at fault in your accident. If you were injured in an accident that also gave rise to criminal charges, a plea or conviction can affect your right to sue and, in some limited cases, it can even affect your right to claim certain accident benefits.

Yes. Under s. 22.1 of Ontario’s Evidence Act, proof that a person was convicted or discharged of a crime anywhere in Canada is proof that they committed it, in the absence of evidence to the contrary, once any appeal is over. It applies whether or not that person is a party to the lawsuit.

Yes. A guilty plea is an admission of the essential elements of the offence (Criminal Code s. 606(1.1)) and results in a conviction or discharge that s. 22.1 of the Evidence Act makes proof in the civil case. You can’t later say in civil court “I wasn’t drunk” when you already pleaded guilty to impaired driving.

Because relitigating them is usually an abuse of process. The civil courts do not want to relitigate issues that have already been decided in another court proceeding. In Toronto (City) v CUPE, Local 79, 2003 SCC 63, the Supreme Court held that where relitigation is barred, the conviction is conclusive. The limited exceptions are fraud or dishonesty in the first case, new evidence that conclusively impeaches the result, or fairness, for example where the first case was too minor to defend fully.

A discharge is not a conviction (Criminal Code s. 730(3)), but s. 22.1 of the Evidence Act applies to a person “convicted or discharged”, so it can be used in the civil case in the same way.

Yes. An acquittal means guilt was not proved beyond a reasonable doubt. A civil claim only has to be proved on a balance of probabilities (F.H. v McDougall, 2008 SCC 53), so it can still succeed. A withdrawn or stayed charge is not a conviction or discharge, so the civil case is decided on its own evidence.

No. A civil court decides whether someone is liable to pay damages, on a balance of probabilities. It does not convict anyone or impose a sentence, and a civil judgment is not a criminal record.

Not directly. A lawsuit cannot convict anyone. A criminal charge starts with an information sworn before a justice, usually by the police, and is prosecuted separately. The same events can lead to both, in either order, and each case runs on its own evidence and standard of proof.

No. Your insurance company will go by something called “The Fault Determination Rules” (R.R.O. 1990, Reg. 668), relatively simple rules designed to help insurance companies quickly determine who should be listed as the at-fault driver. The fault determination rules are usually not relevant to a lawsuit for injuries.

It can. Under s. 31 of the Statutory Accident Benefits Schedule, a person convicted of a criminal offence they were committing at the time of the accident, including impaired driving, over 80 or a refusal, is not paid income replacement, non-earner and certain other benefits. While the charge is outstanding those benefits are held in trust, and they are paid out if the person is not found guilty.

Yes. Transcripts from a criminal or Highway Traffic Act trial can be introduced in a civil injury trial. What has been previously said at a criminal trial may be looked at very carefully during the civil injury lawsuit process. This applies both to persons who are charged and to persons who are called to trial as witnesses against the driver who was charged.

Yes. A restitution order under s. 738 of the Criminal Code does not, by itself, affect anyone’s civil remedy for the same act (s. 741.2). If the order is not paid, the person owed can enter it as a civil judgment and enforce it (s. 741(1)).

No. The victim surcharge (Criminal Code s. 737) is 30% of any fine, or $100 for a summary offence and $200 for an indictable offence where no fine is imposed. It funds victim services in the province. A judge can waive or reduce it for undue hardship or where it would be disproportionate.

Usually two years from when the claim was discovered (Limitations Act, 2002, s. 4). There is no limitation period for a claim based on a sexual assault, and none for an assault on a minor, an intimate partner or a dependent person (s. 16(1)(h)–(h.2)).

Rarely. A court can stay a proceeding on just terms (Courts of Justice Act s. 106), but Ontario courts seldom pause a civil action only because a criminal charge is outstanding. Get advice before giving evidence in either case.