Upon arrest or detention, the police are required to read you your rights – specifically your Charter rights. If the police fail to do so, there can be serious legal consequences for the prosecution, but it does not necessarily mean that your case will be thrown out.
Key Charter Rights
When you have been arrested or detained, the police must inform you of the following:
1. The reason for your arrest or detention under section 10(a) of the Charter;
2. Your right to retain and instruct counsel without delay under section 10(b) of the Charter; and
3. Your right to remain silent, implied under sections 7 and 10 of the Charter.
It is the responsibility of the police to ensure that you fully understand what these rights mean, even if it means explaining them to you multiple times or in plain and simple language, and it is also their responsibility to order an interpreter in cases where there are language barriers.
What Can Happen if They Don’t Read You Your Rights?
1. Evidence may be excluded:
· If the police violate your Charter rights – such as by failing to inform you of your right to a lawyer – any statements you make (e.g. confessions) could be excluded from evidence under section 24(2) of the Charter.
· This is especially true if your statements were made without proper legal advice and your rights were not properly explained.
2. Impact on the case:
· If the excluded evidence is crucial (e.g. a confession), the Crown’s case may collapse, and charges could be withdrawn or dismissed.
· However, the arrest itself is not automatically invalid, and the trial can still proceed with other admissible evidence.
3. Legal remedy:
· If you were not properly read your rights during the arrest or detention, your lawyer can file a Charter application to have the evidence excluded.
· If the rights violation is serious and affects the fairness of the trial, a judge might consider dropping the charges or ordering a stay of proceedings, which would end the case.
Real-Life Application
If you are arrested or detained, and you are not informed that you have the right to speak to a lawyer, and you then confess to a crime during police questioning, your lawyer can argue that your Charter rights were violated. If the judge agrees, the confession might be ruled inadmissible – and without it, the Crown might not be able to prove the case.
What You Should Do if This Happens
1. Clearly state that you want to speak with a lawyer or contact a family member or friend to help you obtain one.
2. Remain silent until you have spoken to one. The police are allowed to use trickery and may say things like “this is your chance to explain your side of the story” to get you to talk.
3. Document or remember what was said and done – this can be useful later in court.
If you need consultation on criminal charges don’t hesitate to contact us. Give us a call at (905) 541-2228 or fill out a consultation form.
