Understanding Canadian Criminal Law

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What are my legal rights?

Knowing Your Legal Rights:

Whether or not you have been charged with a crime, it is important to know your legal rights, particularly when it comes to dealing with the police. The most important thing to remember is the right to remain silent and the right to retain and instruct counsel without delay. Remaining silent or asking to speak with a lawyer does not mean you are guilty. Even people wrongly accused of a crime require the help of a professional to guide them through the process and help them avoid the pitfalls of the criminal justice system.

If you are facing a criminal charge, or currently under investigation by police, you should consult with a criminal lawyer as soon as possible for advice on how to proceed. The following are a list of important rights and protections afforded to all Canadians:

The right to remain silent:

While the police have a right to ask questions of anyone during their investigation, you are under no legal obligation to answer any of their questions. This applies not only to people under arrest but also people under investigation and even to witnesses of a crime. The right to silence in Canadian law is a principle of fundamental justice constitutionally guaranteed by section 7 of the Charter of Rights and Freedoms. The purpose of this protection is to allow a person to make meaningful choices about whether to speak with the police or remain silent in the face of a criminal allegation. Anything said to the police may find its way before the court as evidence. The rules of evidence are such that statements favourable to the accused in a criminal trial rarely get before the court, but incriminating or ambiguous statements often end up as part of the evidence against the accused at trial. It is important to rely on the right to silence until you have met with a criminal lawyer to obtain the best legal advice you can find.

The right to retain and instruct counsel without delay upon detention or arrest:

If you talk to the police, then they will almost always be able to use what you say as evidence against you in court. Expressing your desire to speak with a lawyer upon a detention or arrest legally obligates the police to refrain from asking you questions until they provide you with the opportunity to speak to any lawyer you choose. If you do not have a lawyer, then the police will have an obligation to provide you with a free “Legal Aid” lawyer for advice.

The right to counsel is one of the most important rights in Canadian criminal law because it guarantees that individuals can have the opportunity to have matters explained to them by an experienced criminal defence lawyer to ensure you understand what your rights are in the circumstances, and advise you on how to best defend the charges. After you have spoken with a lawyer, the police can continue to ask you questions and it will be up to you to decide whether or not you wish to answer them. Remember that anything you tell the police can be used in court to prosecute you or someone else.

The right to be promptly informed of the reason for detention or arrest:

If there are reasonable grounds to suspect a person is connected to a particular crime, the police may detain an individual for further investigation. Upon detention, The police must inform the detainee of the reasons they are being detained. An “investigative detention” must be brief as it is not an arrest. What all of this means is that the police are not allowed to stop a person on the street for no reason to question them. Detained individuals are under no obligation to answer any questions posed to them by the police.

Any person arrested by the police also has the right to be informed about all of the charges they are facing. A person under arrest also has no obligation to speak with the police.

The right to be secure against unreasonable search and seizure:

Everyone in Canada is guaranteed not to be subject to a search or seizure unless it is done in accordance with Canadian law. This means that we should be free from having the police search our houses, vehicles or our personal property without a good reason for doing so. The police need more than mere speculation or a hunch to search – they need lawful authority to do so. In the case of a home, the lawful authority usually comes in the form of a search warrant authorized by a judge which permits them to enter and search a specific place for a fixed period of time.

Unreasonable searches can also include a search that was conducted in an excessive or abusive manner. Examples include unjustified strip searches or the executing search warrants which result in excessive and unnecessary damage to one’s property.

If a search is “unreasonable”, a defendant can apply to the trial judge for a remedy. The usual remedy is to exclude at trial the evidence that flows from the violation of this right. A judge may also stay (dismiss) the charges on account of the unreasonable police conduct.

The right to a trial in a reasonable amount of time:

Every criminal case has a potential expiry date. Depending on the type of charge, the complexity of the case and the speed in which it passed through the court system, a person may argue to the trial judge that the case took too long to prosecute and should be stayed as a result.

A stay (dismissal of the charge) for unreasonable delay is a significant remedy granted by the judge and will only be given where it is clear that the accused person’s fair trial rights have been compromised by the excessive delay. Before granting a stay, the court will look at the reasons why the case took so long to come to trial in addition to examining how that length of time that has already passed has affected the accused person and their case. The right to a reasonable trial ensures that a person accused of a criminal charge will not unduly wait for an outcome to their criminal law matter.

The right to be presumed innocent until proven guilty:

The police and the prosecution bear the burden in law of proving the crime alleged against you beyond a reasonable doubt. You are guilty only if you plead guilty, or if you are found guilty after a trial. A person charged with a crime is never asked to prove their innocence. If a judge has a reasonable doubt regarding your guilt (ie: you might not be guilty), you cannot be convicted because you are presumed innocent unless proven guilty beyond a reasonable doubt by the prosecutor.