And then what happens?
January 27, 2010 3:29 PM   Subscribe

Insipred by this recent question and a quick search of older posts I was wondering what are my rights when stopped by the police in Ontario: i) on foot ii) in a car iii) at my door/on my property?
posted by saradarlin to Law & Government (5 answers total) 2 users marked this as a favorite
This is a rule of thumb I learned about law enforcement anywhere, but is not field tested at all, however it makes sense to me. If anyone can educate us both further, that would be great, so here it is:

The police can ask you to do anything. Let them know that you will refuse to do anything unless your refusal will be an illegal/arrestable offense. If they order you to do anything (like get out of the car so we can search it) in that context, let them know that you will not resist in any way, but you do not authorize anything.

It won't do much for you at the time, but if in the worst case scenario they end up charging you for anything, it will be clear they had no permission to do anything that wasn't within their legal rights to do without your consent.
posted by Pertz at 5:18 PM on January 27, 2010

On a side note, I've always wondered if Canadians have the right to remain silent?
posted by musofire at 5:45 PM on January 27, 2010

Musofire, we have the right to remain silent, barring certain exceptions: I know if you're stopped for traffic violations on a bike you can be arrested for not giving your name & address, and you are required to give information relating to a traffic accident report. Things that you must say by law can't be used against you in court.

Beyond that, they can keep questioning you, but you don't have to answer. Just the standard "I would like to speak to a lawyer" blah blah.

So yes, we have the right to remain silent. It's surprising, because we never seem to stop talking!

For homes, they don't generally have the right to enter your property sans warrant, although the standard reasonable exceptions / impaired driver on the driveway will let them.
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posted by Lemurrhea at 5:56 PM on January 27, 2010

Ok, I'm currently looking up the rights of the accused (moot season, yay), and came across some interesting stuff.

From the Charter's s.10(b), everyone has a constitutional right to counsel, and the right to be informed of such, without delay. As well, there is a common law right to remain silent. This principle is a principle of fundamental justice of s.7 of the Charter [which comes out of R. v. Hebert] and thus there is no real way to abridge it. However, there's no obligation to be informed of said silence rights. In practice, they do it at the same time as the right to counsel.

Further, the Court have added to that. In R. v. Brydges, the SCC said that the police warning should also talk about the free duty counsel / legal aid's availability. In fact, in R. v. Bartle [1994], the Court said that even this warning wasn't enough, because they didn't provide a phone number to reach free duty counsel at night [accused was arrested at 1:00 am for DUI]. In Ontario, there is a toll-free legal aid number, 24 hours. Since it existed, there was a duty to inform. If it hadn't existed, there is no such a duty.

There is a requirement to inform them of the "amount" of jeopardy. So you can't tell them they're arrested on traffic warrants, when they're actually suspected of being a drug mule [r. v. Greffe], because then they can't make an informed judgment about the need for the assistance of counsel.

That should be a bit better information. Trust this information over the last comment I made, if they conflict. Honestly, all of this came right out of Hogg. Unless you have a judge giving answers, trust it over anyone else's answers.

Even if it's a judge, make sure it's a supreme court judge.
Even then, I'm not sure. Hogg is probably still right.

posted by Lemurrhea at 12:00 PM on January 30, 2010

Response by poster: Thanks. I guess that I should not be surprised to learn that the Canadian system does not have such clear cut, easy to find information as the original US question. Isn't that always the case, eh? :)
posted by saradarlin at 7:26 PM on February 2, 2010

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