Know Your Rights
Your rights as an individual are enshrined in the Charter of Rights and Freedoms.
These rights protect us from arbitrary and unreasonable exercises of police power, such as illegal searches or unlawful intrusions into our privacy.
The Charter is crucial where an accused person is being prosecuted based on illegally obtained evidence. When police breach Charter rights, the illegally obtained evidence can be excluded from the trial, meaning that the prosecution is not allowed to rely on it to prove guilt.
Most people do not fully understand the importance of our rights until they are charged with a crime. Below you can find explanations of the practical protections that our rights provide. This should not be taken as legal advice for any specific situation. When in doubt, contact one of us to determine what your options are in dealing with an interaction with police.
Your Rights in Your Home
A man’s home is his castle. This is not just a common saying; it is a centuries-old principle which is enshrined in our Charter of Rights and Freedoms. The police or other law enforcement authorities can only lawfully enter your home under certain circumstances – otherwise they are the same as any trespasser. The home is seen under our law as the most private place, but there are exceptions to your protection against police intrusion.
Police Coming to Your Door: Any person, including a police officer, has your implied consent to walk onto your property for the purpose of communicating to you at your front door. If the police have a legitimate reason for communicating with you, such as responding to a call or seeking information for an investigation, then there is nothing wrong with this. Police are not, however, entitled to abuse this ability by using it to conduct a “sniff” test – just going to the front door to see whether there is any sign of criminal activity when someone answers the knock. There is also no obligation to answer the door when the police come knocking. There is no obligation to speak to the police at your door, and you can end any conversation with them whenever you choose.
Police Entering Your Home by Invitation: The police may come to your door to speak with you and in the process ask if they can come inside. You do not have to let them enter, but they are allowed to under law if you give them permission. If you are not sure whether to grant this permission, contact one of us before making this decision.
Giving the police permission to enter your home is not the same as giving them permission to search your home, but police may ask to do this as well and you may grant it. If you give police permission to search your home, then they can do so without a warrant. A search of your home by police is a serious intrusion of your constitutionally protected privacy interests and you should consult a lawyer for legal advice before making this decision.
Search Warrants: A search warrant is a judicial authorization to enter and search a place for evidence of a crime. They are often used for the search and seizure of illegal drugs or firearms, but may be related to a search for evidence of any crime. It may authorize the police to enter at night, and it may authorize the police to use force in making their entry. Police can detain the people found in the home while the search is being conducted, and may make arrests or lay charges based on what is found. The police may also seize any number of items found during a search in pursuit of their investigation. The validity of search warrants can be challenged later in court, and issues related to the release of items that are seized can also be dealt with later. Anything that is seized as evidence will likely be held at least until the related charges are over.
Arrest Warrants: In certain circumstances, police will obtain a warrant to enter a home where a wanted person is believed to be in order to arrest that person. The validity of these warrants can be challenged later in court.
“Hot Pursuit”, Destruction of Evidence, and Other Circumstances: Even without a warrant and without consent, police have authority under law to enter your home in certain circumstances. Police officers may be entitled to enter your home to pursue a fleeing suspect, even if the suspect is entering a home that is not his own. This is sometimes referred to as hot pursuit, and may include a drunk driver pursued by police who pulls into his driveway and runs into his home.
Police may have grounds to believe that entering a home is necessary to prevent the destruction of evidence of a serious crime. This may include flushing drugs down the toilet or burning or destroying DNA evidence related to a sexual assault or a murder.
Other emergencies may justify a warrantless entry by the police, such as responding to a distress call made over 911, an ongoing domestic assault, or some other circumstance where police reasonably believe that someone’s life or safety is in danger.
Outside of Your Home: Your gated backyard is also a private a place, but the trash that you leave on your driveway is not private. Once you leave trash out to be collected, you give up your privacy in the contents, meaning that police are as free as the garbage man to pick it up and take a look inside.
Whatever the case, contacting a lawyer directly for legal advice at the earliest opportunity is the best way to know what your rights are in protecting the privacy of your home.
Your Rights in a Vehicle
Getting pulled over by the police while in your car is a common experience for many Canadians. Despite how frequent this experience is, most people aren’t sure about the scope of the powers of the police to stop, question, search or otherwise interact with them during a stop of their car. Be it on the highway or a side street, your Charter rights apply to you and anyone else in your car. However, there are a few things that you should know to ensure that you are able to exercise your rights in the car if you need to.
Firstly, the law recognizes that there are a few issues that the police should legally be able to investigate in almost all driving situations. These issues include: whether or not the driver of the vehicle is licensed to drive; whether or not the motor vehicle is properly insured and registered; and whether or not the vehicle is in good working order. Unlike other situations, the police do not need grounds to believe that your licence, insurance or registration documents are not up to date in order to pull you over to investigate these issues. The rationale for this is that driving is not a right, but a privilege, and the power for a stop of this kind comes from the Highway Traffic Act.
However, this power does not allow the police to pretend to stop a car for a legitimate investigation of a Highway Traffic Act offence. If the real reason the police have chosen to stop your car is because they don’t like the way you look or are just curious to stop you and see what you are doing, they will be breaching your right not to be detained, or arrested, arbitrarily, under s. 9 of the Charter.
Similarly, the police power to stop your car to investigate your licence, insurance, registration, or the safety of your car does not permit a wholesale search of your car or an investigation into the identity of your passengers. Since your passengers are not driving the car, they are not required to identify themselves to the police, unless the police have some other reasonable suspicion or belief that they are involved in a criminal offence. It stands to reason the police do not need to look into your trunk to see whether or not you have valid insurance or to determine whether or not you are wearing your seatbelt. Searches that go beyond the purposes of a Highway Traffic Act investigation will breach your right not to be unreasonably searched, protected by s. 8 of the Charter, unless the police can demonstrate that they otherwise had reasonable grounds or authority to search you.
The police may request that you allow them to search your vehicle over the course of a vehicle stop. A word to the wise: this ‘request’ does not need to sound like a request, but can sound a lot more like an order. You do not need to consent to allow the police to do this. If the police are asking or demanding that you let them search your car, make sure you insist on calling a lawyer right away, before you make any decision or give any permission.
Of course, if the police have grounds to believe you have committed a criminal offence, or if they observe you committing a Highway Traffic Act offence, they may have a right to stop your vehicle and conduct further investigations of you, and in some cases, your passengers. If you are stopped by the police, insist on your right to speak to a lawyer without delay and to be told why you are being stopped. This is the best way to ensure that your rights are protected.
Your Rights on the Street
You are enjoying a walk in your area and a police officer tells you that he wants to speak with you. Most people who encounter this situation will stop and speak to the police officer until it becomes clear that the conversion is over. Most people believe that when a police officer asks to speak with you that you have no choice but to comply with the request. In reality, the Canadian Charter of Rights and Freedoms (Charter) affords everyone with many protections in these situations.
Section 9 of the Charter protects individuals from arbitrary detentions. A “detention” occurs when the police through words, or actions, force you to stop and remain with them. An obvious example of a detention is an arrest; the police by force ensure that you remain in their custody. However, a detention need not be so obvious; the police could simply say “stop” or “don’t move” and a detention would occur. Further, even less intrusive police conduct can cause a detention to occur such as a group of police officers surrounding you, an officer blocking your path in an intimidating manner; in these situations the police conduct can cause you to reasonably believe that you are not free to leave and these situations amount to “detentions” in law. Simply put, a detention occurs when the police's actions cause you to reasonably believe that you are not free to walk away. The police are only permitted to detain you when they have reasonable grounds to believe, or suspect, that you are engaged in criminal activity. If the police do not have the required grounds the detention is illegal and any evidence they obtain can be excluded at trial.
The difficulty for you, and all other the citizen, being asked by the police officer for a conversation is that you do not know if the police have reasonable grounds to force you to remain. The ambiguity caused by this reality can easily be resolved, simply tell the police officer that you do not wish to speak to him or her and ask “Am I free to leave?” If the police officer tells you that you are free to leave, you can simply walk away. If the police officer tells you that you are not free to leave you are now detained and have to remain until they allow you to leave. When you are detained, section 10(a) of the Charter requires the police to tell you why you are being detained, and section 10(b) of the Charter requires them to provide you with the opportunity to speak to a lawyer in private as soon possible. When you are detained, you are also under no obligation to say anything to the police, you do not have to answer any of their questions or even give them your name and address; you are free to say absolutely nothing to the police. The police may make you feel like you have to answer their questions but the law allows you to remain silent. If you do chose to speak to the police anything you say must be the truth to avoid being charged criminally.
When you are detained the police have certain powers that allow them to search you. If you are being arrested the police can search you and your clothing if they have reasonable grounds to believe that evidence will be found. If they police are stopping but do not have grounds to arrest you they can conduct a pat down search of the exterior of your body (they are not entitled to search your pockets) when they have reasonable grounds to believe that you pose a safety risk to them, yourself, or the public.
During your next walk in your community you now know how to respond to a police request to speak to you. Remain calm, ask the correct questions and the situation will become clearer. The situation will be stressful but there is no need to feel helpless – you know your rights.