LEGAL RIGHTS UNDER the CHARTER (Learning About Law, Buckingham, Pp169-175)

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Law 12Policing and ArrestMs. Ripley

LEGAL RIGHTS UNDER THE CHARTER (Learning About Law, Buckingham, pp169-175)

Key legal rights of Canadians are written in the Charter of Rights and Freedoms, which is entrenched in the Constitution. This means two things. First, the Charter cannot be ordinarily amended, or changed, by an Act of Parliament like other laws. It can be changed only by using a complex amending formula. Second, the Charter is the supreme law of Canada. This means that if the rights and freedoms guaranteed in it conflict with another law enacted by either provincial or federal legislatures, then the courts can strike that law down, making it of no legal effect. The Charter guarantees these legal rights:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

8. Everyone has the right to be secure against unreasonable search or seizure.

9. Everyone has the right not to be arbitrarily detained or imprisoned.

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right; and

(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

11. Any person charged with an offence hasthe right

(a) to be informed without unreasonable delay of the specific offence;

(b) to be tried within a reasonable time; (c) not to be compelled to be a witness in proceedings against that person in respect of the offence;

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

(e) not to be denied reasonable bail without just cause;

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international

law or was criminal according to the general principles of law recognized by the community of nations;

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and

(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

RIGHTS AND RESPONSIBILITIES DURING DETENTION AND ARREST

When people are stopped by a police officer, most realize that they are under no obligation to answer questions unless they are in a particular circumstance or unless they are placed under arrest. An example of a particular circumstance in which we must reply honestly to an officer’s questions occurs when police are conducting a random spot check of vehicles on a road. Although we may have been acting in a perfectly lawful manner, when asked to produce a licence and registration we must comply or face legal consequences. This son of circumstance illustrates the legal concept of detention. To detain someone means that a peace officer or some other person attempts to stop and question that person.

If the person is not under arrest or in a particular circumstance as mentioned above, then she or he need not stop or answer any questions. All people in Canada have the right not to be arbitrarily detained as guaranteed according to section 9 of the Charter. An arbitrary detention occurs when a person is stopped or held for a purpose that does not meet the test of "reasonableness.” In other words, is the detention what the typical person would have considered reasonable under the circumstances? If there is no lawful reason to detain a person, she or he must have the freedom to leave.

If a person chooses not to comply with directions given and questions asked by a peace officer, she or he may be complicating matters that are not readily apparent. For example, an officer may be investigating a break and enter on a residential street. During the investigation, the officer may wish to ask questions of individuals who may have observed something suspicious. By not answering questions, individuals limit the ability of the officer to investigate.

Or, to change the situation slightly, assume the officer has received a description of a person seen leaving the home that was broken into. On investigating the scene, the officer sees a person who fits this description walking down the street. When the officer questions the person, he or she could establish an alibi, which is a lawful excuse or explanation that demonstrates it was not possible or probable for him or her to have committed the crime. If the answer can be quickly established as truthful, then that person will have spent only a few minutes answering questions and will have assisted the investigation.

If, on the other hand, the person decides not to reply to the officer's questions, he or she may be arrested on the suspicion of having committed a criminal act. It could then take several hours to establish the person's identity and alibi. Put simply, it may be in the best interests of everyone to answer questions truthfully, even though we are not required by law to do so when detained.

If it can be ascertained that there is no reasonable need for detaining, then the person is under no obligation to answer questions, go anywhere, or be searched. If an officer persists, it is a good idea to get the officers name and badge number and the names of any people witnessing the event. People who are touched, threatened, or prevented from leaving by an officer while being detained have several options. They can file an assault complaint at the police station, which may lead to the officer being charged with assault, or they can bring a civil action for false arrest, unlawful detention, and assault against the officer and her or his employer.

One right that is generally the same during detention and arrest is the right to remain silent and not answer questions. The exception to this rule is that people must give certain information to police to complete the charge forms, such as name and address. An arrested person can make voluntary statements to the police, but what is said may be used in evidence at the trial.

Section 10 of the Charter outlines the rights of people being detained or arrested. All Canadians have the right to be promptly informed of the reason for the detention or arrest. Similarly, if a warrant for arrest has been issued, the arrested person has the right to examine the warrant. This means that the reason for the arrest is made clear, usually at the time of the arrest or very soon after.

All arrested people have the right to retain and instruct counsel without delay and to be informed of that right. That means that an arrested person must be given access to defence counsel promptly. If a lawyer has been requested by the accused, the police may not continue questioning the accused until after she or he has discussed the situation with the lawyer. Police must facilitate the meeting between the arrested person and her or his lawyer and allow them to speak or meet privately. In addition, the police must inform the accused of the availability of legal aid. Legal aid refers to a system of providing all accused people with access to legal counselling throughout the legal process even if some cannot afford a lawyer.

People who are detained have the right to challenge the legality of their detention by way of a writ of habeas corpus. A writ of habeas corpus requires the Crown prosecutor to bring the detained person before the courts to determine whether the detention is valid and fair. If adequate evidence is not presented to show that the accused person should be detained, he or she must be released. This right to challenge detention dates back to the Middle Ages in Britain.

R. v. Brydges (1990), 53 c.c.c. (3d) 330 (S.c.c.)

William Brydges was arrested in 1986 for a murder that took place in 1979. He was informed of his right under section 10(b) of the Charter to retain and instruct counsel. Brydges indicated that he understood what was meant by the information. He then stated that he did not know any lawyers and asked whether Manitoba had free legal aid. The police officer indicated that he did not know. The accused then stated, "Won't be able to afford anyone, heh? That's the main thing." The officer then asked the accused if there was a reason for him wanting to talk to a lawyer and the accused said, "Not right now, no."

Brydges was questioned by the police officer and a recording of the conversation was made using a hidden tape recorder in a briefcase. Following some questioning, the accused again indicated that he felt he should talk to a lawyer. The officer checked with other police officers about the availability of legal aid. A consultation with a legal aid lawyer followed and the accused decided to say no more to the officer.

The trial judge held that the accused's right to counsel under section 10(b) of the Charter had been infringed. The statement he made to police was essentially a request for the assistance of counsel. The accused believed that because he was unable to afford a lawyer, he was limited in his right to exercise his right to retain and instruct counsel. The trial judge excluded the statements the accused had made during his discussion with the police officer after his arrest, and the accused was acquitted.

Although an appeal by the Crown to the Alberta Court of Appeal resulted in a new trial being ordered, this ruling was overturned in a further appeal to the Supreme Court of Canada. The final decision was to support the original judgment made at trial - the accused was acquitted.

1. Why did Brydges not retain and instruct a lawyer promptly?

2. Is it reasonable to assume that accused people should understand their legal rights without the benefit of a lawyer's advice?

After consulting with a lawyer, the arrested person may have to participate in a line-up. A line-up is used to help decide whether a person under investigation should be charged with the crime being investigated. A number of people are lined up to be viewed by a witness to the crime for identification purposes. Line-ups typically include people of the same gender, height, build, and other general characteristics as the accused person. The witness, or witnesses, then attempt to point out the person responsible for committing the crime.

The arrested person does not have to provide blood, urine, hair, or any other type of sample to police unless required by warrant to do so. If a sample is required, the opportunity to meet with defence counsel is generally given before the sample is taken. The exception to this rule is the requirement to provide a breath sample to determine alcohol intake when a driver is detained by an officer. Refusal to provide a breath sample under these circumstances without lawful excuse can result in a separate charge under the Criminal Code.

R. v. Dedman (1985), 20 C.C.C. (3d) 97 (S.C.C.)

Dedman was stopped by a police officer involved in the RIDE (Reduce Impaired Driving Everywhere) program. This program involves random checks of vehicles and drivers by police in order to detect impaired drivers. Prior to being stopped, there was no reason to suspect that Dedman had committed an offence. When he was asked to produce his driver's licence, the police officer detected the odour of liquor on Dedman's breath. The officer made a demand under the Criminal Code that Dedman take a breathalyzer test for alcohol analysis. Dedman refused to supply the breath sample and was charged with failing to comply with a roadside demand contrary to the Criminal Code.

He was acquitted at trial, but the acquittal was appealed to the Court of Appeal by the Crown. Dedman was found guilty by the Court of Appeal, and he then appealed this decision to the Supreme Court of Canada. The Supreme Court dismissed Dedman's appeal. The Court found that the officer had probable cause to require a breath sample from Dedman based on the fact that the odour of alcohol had been detected on his breath.

1. Was it reasonable for the police to stop Dedman even though he had done nothing wrong? Explain.

2. Whose interests were protected in establishing a random road check for impaired drivers? Is it reasonable to protect these interests by randomly checking drivers for alcohol consumption? Explain.

In addition to these rights, an arrested person has several obligations. When arrested, the person must accompany the police to the police station. There, he or she must submit to fingerprinting and photographing if the offence is indictable. A search of the arrested person is often done at the time and place of the initial arrest, but a more thorough search may also be done at the police station. The arrested person must submit to this search as well, usually by an officer of the same sex. However, under section 8 of the Charter, everyone is secure from unreasonable search or seizure. Any items in

the arrested persons possession may be taken by the police and held either in safekeeping until he or she is released or as evidence for the trial.

R. v. Dyment, (1988] 2 S.c.R. 417

Dyment suffered a head wound as a result of a motor vehicle accident. While at the hospital, the doctor attending him took a blood sample that was not required for treatment. This sample was taken without the consent of Dyment, and he was not informed that the doctor intended to give the sample to police. The sample was analyzed for its blood/alcohol content. It showed a blood/alcohol content in excess of the limit provided in what is now section 253 of the Criminal Code.

The judge noted that both at the scene of the accident and at the hospital, neither the police officer nor the attending physician had any reason to believe that Dyment was impaired. The judge excluded the evidence since it had been obtained in violation of Dyment's right to privacy and autonomy. In other words, it violated Dyment's right to security of the person , under section 7 of the Charter.

The doctor who held Dyment's blood sample had a duty to respect the patient's privacy. This was sufficient to qualify the police officer's taking of the sample as a seizure. The officer had no warrant to seize the sample and the Crown had no probable cause to seize the sample. Because the seizure was unlawful and unreasonable under section 8 of the Charter, the Supreme Court of Canada ruled that the results of the analysis of the blood sample were inadmissible.

1. In your opinion, did taking blood from Dyment violate his right to be secure from unreasonable search or seizure under section 8 of the Charter? Explain.

2. In Prince Edward Island, where this case took place, the public was very concerned about the issue of drunk driving because of the number of recent deaths caused by drunk drivers. Explain how the public's right to safety conflicts with the individual's right to security of the person.

3. How would you resolve this case if you were a judge on the Supreme Court of Canada?

Focus

1. What is the difference between being detained and being arrested?

2. Why is it usually a good idea to answer a police officer's questions?

3. What can a person do if a police officer insists on detaining her or him without a lawful reason to do so?

4. List the rights in the Charter of Rights and Freedoms guaranteed to an arrested person.

5. List the responsibilities of an arrested person.

Apply

1. In R. II. Alderton (1985), the accused was arrested and asked to provide hair samples to police. He was told that he could give the samples freely or the police would take them. He complied with the request. The hair samples were analyzed and used as evidence at trial to prove that Alderton was the masked person who had sexually assaulted a woman after breaking into her apartment. He appealed his conviction on the basis that his right to security of the person had been violated under section 8 of the Charter. The conviction was upheld.

In this case, do you think there was an appropriate balance between the rights of the society to investigate and prosecute a crime and the right of the individual to maintain dignity and privacy? Support your answer.