Understanding your rights

As citizens, we have certain legal rights such as the right of free speech and assembly as well as certain responsibilities, such as not intentionally harming another person. If you are arrested and/or detained, it is important for you to understand your rights. The following provides information in this regard under Canadian law:

This section is provided for information purposes only.  It does not constitute legal advice or a legal opinion. You should consult with a lawyer regarding any specific legal issue.

 

Frequently Asked Questions

For your convenience, below is as series of questions and answers to provide you with more information around arrests under Canadian Law.

If you are arrested

The police should read you your rights, such as your right to remain silent and your right to consult with a lawyer.  The right to remain silent means that you can refuse to answer questions asked by the police. However, if the police arrest or detain you and ask you to identify yourself, you have to do so by giving your name, date of birth and address. In some cases, you will then be taken into custody and brought to a holding cell, such as in a police station. You would be taken in front of a justice of the peace or judge as soon as possible to determine whether you will remain in custody or be released (known as a bail hearing), although you can waive this hearing, in which case you would remain in custody. The distance of Cree communities from justices of the peace may mean delays in this regard.

How long might you be held?

There is a general informal rule that you are to be taken before a judge or justice of the peace within 24 hours for a hearing.  This may be longer in certain cases, particularly depending on the time and day of the week that you are taken into custody.  Normally, if you are in custody at the first court appearance, a hearing will be held at that time to decide if you will be released.  This hearing can be delayed up to 3 days, however, or longer if you consent. As there are no Cree justices of the peace at present and justices of the peace in the South may not be available, these hearings may be delayed. It is important to note that a bail hearing allows for the possibility of release, it does not mean that you will be released.

Being Charged

On being arrested, you have to be informed promptly of the charges against you. Even if you're not detained by a police officer at the time of being charged, the police have to inform you of the charges.

However, the police do not have to use the exact language of the Criminal Code when informing you of charges. They can use more general language. In any case, the police have to explain the reason for your arrest and/or detention in clear and simple language. It is important that you know what charges are being made against you.

Placing Someone Under Arrest

A person may be placed under arrest with or without a warrant, depending on the circumstances. A warrant of arrest is a document issued and signed by a judge or justice of the peace that allows police officers to arrest a person. The Criminal Code defines the situations in which an officer does not need a warrant to make an arrest. For example, an officer may arrest a person without a warrant when that person has committed a criminal offence, or when the officer has reasonable grounds to believe that the person has committed or is about to commit a criminal offence.

Detention vs Arrest

It is important to distinguish between “detention” and “arrest”. You are being detained as soon as a police officer restricts your liberty, either through physical or psychological means. For example, you're driving your car when a police officer intercepts you by activating the flashing light on the police car and indicating that you must pull over. If this happens, you are being detained but not arrested. If police are placing you under arrest, they must clearly say “You’re under arrest”. For example, if the police officer notices after pulling you over that you have a loaded handgun in your car, she may place you under arrest for illegally carrying such a weapon.

Can police enter a private residence to make an arrest?

Yes. As a rule, a police officer who wants to arrest someone in their private home must obtain a judge’s written authorization to enter that person’s home, in addition to, or as an integral part of, an arrest warrant. This document is called a “warrant to enter a dwelling-house”. A warrant to enter a dwelling-house is not required in emergency situations or in cases where the suspect is hiding in a dwelling during a police pursuit. An emergency exists whenever an officer believes that a person is in danger or that evidence could be destroyed if he does not intervene quickly.

Who can I contact?

You have a constitutional right to legal counsel and the police have to help you exercise that right. You can access a legal aid lawyer who can give free consultation at any time of the day or night. The phone number for legal aid is usually posted on the wall of the police station. If not, the police must give you the number. You do not have the constitutional right to call your spouse or another member of your family, although the police often allow it. However, for someone under eighteen years old, the police must contact the parents or guardians as soon as possible.

Can a police officer search me or things that I’m carrying?

You do not have to submit to a search of your personal property. Police officers can obtain that right if they seek and secure a specific search warrant issued by a judge. However, if they arrest you, the police can perform a search of your person, your pockets, your bag, and even your car. The extent of the search permitted by the law depends on various factors relating to the context and reasons for the arrest. This search is done for the sole purpose of finding any item that may harm the safety of the officers, the accused, or the public or serve as evidence during prosecution.

>> Important Note

The rights noted above are relatively recent, individual-based rights. Although these rights are important, within Eeyou Istchee we can utilize and exercise our collective rights and values which have guided us for centuries. In other words, there may be better practices and guidance and understanding of rights and obligations within Cree society itself in Eeyou Itchee that may differ from these individually-oriented rights, but be more value-based and thus effective and appropriate for certain situations. Contact your local Community Justice Officer for more information on these and related subjects.