Rights in Criminal Law arise in the relationship individuals have with the government, the police and the justice system. Some of our Rights exist because of tradition. Other Rights are guaranteed by the Canadian Charter of Rights and Freedoms. Your Rights are most often engaged in contact with the police.
Right to be Presumed Innocent
The practical effect of the Right to be Presumed Innocent has its greatest impact at trial. Simply put, if a reasonable doubt is before the court at the trial, an accused cannot be convicted because they are presumed innocent unless shown guilty beyond a reasonable doubt.
Right to be Promptly Informed of the Reason for Detention / Arrest
If there are reasonable grounds to suspect a person is connected to a particular crime and the detention is reasonably necessary, the police may detain an individual for further investigation, provided the detention is necessary to the performance of the officer’s duty. The police must inform individuals upon detention of the reasons for their detention. An investigative detention must be brief and not become a de facto arrest. What all of this means is that the police are not allowed to stop you for no reason and jerk you around. If they do, any evidence they obtain may be thrown out by the court.
Right to Silence
The Right to Silence in Canadian Law is a principle of fundamental justice guaranteed by section 7 of the Charter of Rights. The purpose is to allow a person to make meaningful choices about whether to speak or remain silent. Anything said 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 before the court, even when unlawfully obtained. It is important to rely on the Right to Silence until you have met with your Criminal Lawyer and obtained the best Legal Advice you can find.
In Canadian Law your silence cannot be used to prejudice you because of the protection provided by the Right to Silence. No presumptions can be made against a defendant because they remained silent.
Right to a Lawyer
The Charter of Rights guarantees the right to obtain and instruct counsel, i.e. a lawyer, without delay. The police or investigating agency must tell you about this right without delay. What this means is that the police must tell you that you are allowed to contact a lawyer and be represented by a lawyer. Once a person has indicated that they wish to obtain qualified legal advice, the police have a duty to hold off from questioning or attempting to secure evidence that would involve the assistance of the accused until the person has had a meaningful opportunity to get proper legal 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 Lawyer, including an explanation of their options and how to protect themselves from the police. An experienced Criminal Lawyer can provide valuable legal advice that can help your case. A lawyer can explain what your rights are in the circumstances, and advise you on how to best defend the charges.
There are limits on the Right to a lawyer. For example, if a police officer makes a lawful demand under section 254(2) of the Criminal Code to test for the presence of alcohol using an ASD (Approved Screening Device) the suspected drinking driver is not permitted to contact a lawyer before providing a sample. Nor is the officer required to inform the individual of this right before demanding and obtaining the sample. If the officer tells the person of their right to a lawyer, the right may immediately be engaged.
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. “Unreasonable” means without a justifiable reason, but the police need more than a reason to search – they need lawful authority to search. In the case of a home, this is usually in the form of a search warrant that gives the police the legal right to enter and search a specific home for a fixed period. With respect to compelling someone to provide a sample of their breath, the lawful authority comes from provisions of the Criminal Code which, if met, permit the police to compel an individual to provide samples of their breath.
If a search is unreasonable, a defendant can apply to the court for a remedy. The usual remedy is for exclusion of the evidence that flows from the violation of this right. Our Canadian Courts have been firm in their approach when this right has been clearly violated, often dismissing charges after ruling the evidence inadmissible. The difficulty is that the courts have been less than courageous in finding that the police action constituted a violation of this right.
The Right to Drive
Is driving a privilege or a right? Driving is a right as is the right to hold a driver’s licence. Like all rights, there are restrictions and limits. The Right to Drive is limited in that the government may specify qualifications that must be met by potential drivers, including that they maintain a respectable driving record.
If a driver meets all of the requirements to obtain a license, the government cannot restrict that person’s right to obtain a driver’s licence and drive. In such a case, an experienced lawyer can apply to the court to get an order forcing the government to give them a driver’s licence.
Right to a Fair Trial
This is guaranteed by the Charter of Rights and it is a principle of fundamental justice under section 7. Fairness is limited to a trial that follows acceptable procedure. Where the procedures themselves lead to unfair results, it becomes clear that this right is often illusory.