Know Your Rights: Interactions with the Police

The police say they’re investigating a crime and are inviting me to go to the police station to answer a couple of “routine questions,” do I have to go?

No. If it is merely an invitation, you are not required to go and you’re never required to answer any questions because you have the right to silence under section 7 of the Charter of Rights and Freedoms. It’s best to consult counsel before making any decisions pertaining to speaking to police – even if you’re entirely innocent.

The police have informed me that I have been detained for investigative purposes, do I have the right to speak to a lawyer?

Yes. Section 10(b) of the Charter of Rights and Freedoms, the right to consult counsel, is triggered upon arrest or detention. If police have formally detained you, you can (and should) communicate with a lawyer immediately. If you’re unsure if you’re detained, you should ask. If they respond affirmatively, contact counsel immediately. If you’re not detained, you can (and should) simply leave.

The police have decided to arrest me. Are they allowed to search me and seize any property?

Yes. Police have the right to perform a search incident to arrest. This is done typically for their own security or to find and preserve any evidence that you may have on you. However, searches incident to arrest are not without their limits. A search of your vehicle, home or office incident to arrest may be overbroad and can be a violation of your right against unreasonable search and seizure. Similarly, penile swabs, strip searches, and searches of your mobile phone all have specific procedures that regulate their scope so this too could be the source of a Charter violation.

The police have placed me under arrest and told me that I have the right to consult counsel. I called my lawyer but they didn’t pick up. The police are telling me that I should call a different lawyer or a Legal Aid lawyer, do I have to do this?

No. The Supreme Court reiterated in R v. McCrimmon that the right to consult counsel encompasses the right to consult your choice of counsel. If for whatever reason, you are unable to reach your counsel of choice (such as when it’s outside of regular business hours), you may continue to assert your right to speak with them and the police have the legal obligation to hold off on questioning, giving your counsel of choice a reasonable amount of time to return your call and give you the advice you need. A failure to do this is a violation of your right to counsel.

The police are interrogating me and I asserted my right to silence just like my lawyer told me to, but they keep asking me questions. Are they allowed to do this?

Yes. The Supreme Court of Canada ruled in R v. Singh that the right to silence enshrines your right not to speak, but it does not shield you from police questioning. In other words, police can continue to ask questions no matter how often you assert your right to silence. No matter how exhausting it is, continue to assert it – loudly and repeatedly – they’ll give up eventually. And if they don’t, there may be a Charter motion we can make because when the questioning is deemed to have been so excessive that your will has become overborne, rendering your right to silence de facto meaningless, the court will rule that your right to silence has been violated.

If I constantly assert my right to remain silent, can my silence or non-verbal reactions to their questions be used against me in court?

No. Our courts have ruled time and time again that deriving any negative inferences from someone asserting their right to silence would largely render the right to silence meaningless. You may always assert your rights with the knowledge that there are no legal consequences for doing so.

The police are interrogating me and told me that they have video evidence of me committing the crime that I’m accused of, but that’s impossible because I’m innocent. Are the police allowed to lie to me?

Yes. Unfortunately, the police have immense leeway in their interrogative techniques. This is why it’s absolutely vital that you continuously assert your right to remain silent and say absolutely nothing.

The police say that they just want to hear my side of the story and they can help me out. Should I tell them everything and clear my name?

No. The police do not want to hear your side of the story; they do not want to help you out. Their sole job at that moment is to provide the prosecution evidence to convict you. Nothing you tell them during that interview will change the outcome of your interaction. Anything you say can and will be used against you at trial (which is why they warn you of that explicitly when the interview first begins). Any entirely exculpatory evidence that you say is inadmissible at trial for the truth of its contents because it’s deemed a prior consistent statement (which is self-serving and without probative value). It is always best to remain silent and speak to your lawyer.

The police want me to take a lie detector test, do I have to do this?

No. You are never required to engage in activity that could incriminate you, especially activity with dubious scientific value. Be aware that should you choose to take a lie detector test at the police station, the results are inadmissible at trial (and the police can and usually will lie to you about the results if you pass the test) but anything you declare in response to their commentary about your test results IS admissible in court. That’s why it’s always best to assert your right to remain silent.

I’m guilty of what they’re accusing me of, should I just make a confession?

No. If you’re guilty of what they’re accusing you of and want to take responsibility for your actions, you can plead guilty at any time before a judge after your lawyers secure a fair plea bargain on your behalf with the prosecution. Giving a statement to the police will only make it more difficult to secure a fair sentence (because the prosecution now has a confession that they can put into evidence if the matter were to go to trial so they’ll be less willing to negotiate a more lenient sentence). It’s always best to stay silent and speak with your lawyer.

Know Your Rights: Detention, Bail & Release Conditions

The police have arrested me because they have reasonable grounds to believe that I’ve committed a criminal offence. How long can they hold me for?

In the vast majority of cases, the police can only hold you for 24 hours. They’ll either have to release you on their own accord by issuing you a summons, an appearance notice or an undertaking, or they’ll have to take you before a justice of the peace to rule on the merits of your release from custody. Section 503 of the Criminal Code mandates that in the latter case, this must be done within 24 hours of your arrest or, in the event that a justice of the peace is unavailable (it’s a weekend or holiday, etc.), as soon as possible.

The police have arrested me and have informed me that I’m being charged with an offence under the Criminal Code. They’re releasing me on the condition that I sign an undertaking. What is that?

An undertaking is an agreement between you and the state that grants you your freedom from police custody in exchange for a promise to abide by various conditions that the officers have set out. The one mandatory condition in the undertaking is that you attend court at the time and place stated in the undertaking. Additional conditions present on undertakings can include but are not limited to: reporting to an officer at a specified time, remaining within a specified territorial jurisdiction, abstaining from communication with a specified individual, residing at a specific address, abstaining from possession of any weapons, promising to pay a certain amount, etc.

The conditions of the undertaking I signed are unnecessarily onerous or unreasonable and I regret signing it. Can my lawyer fix this problem?

Yes. Your lawyer can discuss the terms of your undertaking with the prosecutor assigned to your file and can negotiate new terms. These terms can either be varied on consent by the prosecutor or by order of a justice of the peace.

The police have decided to detain me pending a bail hearing. What’s a bail hearing?

A bail hearing is essentially a court hearing for the purposes of determining whether or not you should be released before your trial. Since it will likely be several months (if not several years) before the trial to determine your guilt takes place, it is now a question of where you will reside pending that trial: at home or in jail, and if not in jail, under what conditions (if any). Your bail hearing has almost nothing to do with your trial – if you are denied bail, that has no bearing on your guilt; you are still presumed innocent.

For what reason could I be denied bail?

You can only be denied bail for one of three reasons: 1) That detention is necessary to ensure your attendance at court. 2) That detention is necessary to protect any alleged victims, witnesses or the public. 3) That detention is necessary to maintain the public’s confidence in the administration of justice. While the third option is a catch-all, it is a tertiary ground and it is not meant to be the sole factor in denying an accused person bail. The Supreme Court of Canada has reiterated repeatedly, most recently in R v. Zora, that being denied bail should be the exception and not the norm. The Charter of Rights and Freedoms explains that you have the right not to be denied bail without just cause. The vast majority of our clients make bail.

Who has the onus to show cause for my release on bail?

In the majority of cases, there is a legal presumption that you will be released on bail and if the Crown wishes for you to remain detained, they have the onus to show cause. However, there are certain scenarios where the onus will be on you to show cause why you should be released. Situations involving reverse onus bail include but are not limited to: where the accused is charged with a crime under s. 469 of the Criminal Code (such as murder), where the accused is charged with an offence that was done on behalf of a criminal organization, or a terrorism offence, or firearm offences, and offences that involved the use of a weapon, as well as when the accused is not ordinarily a resident of Canada, where the charges involve domestic violence and the accused has previously been convicted of a domestic violence offence, various serious drug offences, and most commonly, if the accused has violated the terms of their bail or has been charged with another offence while out on bail.

Is it going to cost me a lot of money if I want to be released on bail?

It shouldn’t. In Canada, we adhere to the ladder principle for bail, meaning that there’s a presumption that if someone is to be released on bail, it should be on the least onerous conditions possible. This means that ideally, there will be no financial commitment attached, but if there is, a promise to pay (by you or your sureties) in the event that you violate your conditions will be favoured over a deposit. In the event that a deposit is required (this is rare), it would be for a reasonable amount of money (an amount that you consider a meaningful sum but not an amount that would negatively impact your ability to live your life normally).

What’s a surety?

Sureties are essentially individuals who undertake the obligation to be responsible for you while you’re out on bail. They’re an added layer of trust; someone who the court can feel confident about. Their job is largely to ensure that you follow all of your bail conditions, and in the event that you do not, they will be held legally responsible. A justice of the peace is far more likely to release you on bail if you provide one or more sureties. Ideal candidates for sureties are close friends or family members who the court would consider law-abiding and responsible adults.

I thought that I could handle my bail conditions but I’m starting to think that they’re unnecessarily onerous or unreasonable. Can my lawyer fix this problem?

Yes. Your lawyer can discuss the conditions of your bail with the prosecutor assigned to your file and can negotiate new terms. These terms can either be varied on consent by the prosecutor or by order of a judge.

I was denied bail. Can my lawyer appeal?

Yes. Your lawyer can apply for a review of the original order for detention. Often it is simply a matter of finding sureties that weren’t present for your first hearing or negotiating with the prosecutor to include more stringent conditions or a monetary deposit. Whatever the case may be, the results of a bail hearing can be appealed and it’s not uncommon to be released after an appeal.

The Trajectory of a Criminal File & Court Procedure

If I hire a lawyer and don’t attend court, will the judge think less of me?

Absolutely not. As long as one of your conditions doesn’t require you to be physically present in court, we’ll attend court on your behalf (as we do for virtually all of our clients). Having lawyers attend court on the client’s behalf is extremely common practice and judges don’t even give the matter a second thought. You’re paying lawyers to resolve your case and alleviate your stress, so why waste your valuable time waiting around in court? We’ll go to court on your behalf and then send you a detailed recap email afterwards – it’ll be as if you were there yourself (but without the need to pay for parking).

Do I need to wear a suit to court?

While you’re certainly welcome to, it’s by no means required (and if you do, you’ll be dressed fancier than your lawyers, who are wearing court robes). We recommend “business casual” or dressing like you would on a first date. A crisp button down shirt and khakis will more than suffice.  

My Charter rights were violated, can the evidence be excluded from trial?

Yes, but you should know that this is a two-step process: you must first prove on a balance of probabilities that your Charter rights were violated, and then you must prove on a balance of probabilities that the inclusion of this illegally-obtained evidence would bring the administration of justice into disrepute. 

What’s a voir dire?

A voir dire, for all intents and purposes, is a mini trial, a “trial within a trial” if you will. The purpose is to decide on an issue that will effect the trial (such as whether a certain piece of evidence should be included or excluded at trial). It follows the same format as a trial (Crown and defence witnesses, cross-examination, closing arguments, followed by judgement on the merits). While, in the majority of cases the results of a pre-trial motion will be determinative to the outcome of the case, this may not always be true. 

What’s a preliminary inquiry?

A preliminary inquiry can be thought of as a pre-trial judicial safeguard. It exists to allow your lawyer to test the state’s case against you by forcing them to present the essence of their case to determine whether there is enough evidence to lead a reasonable trier of fact to possibly reach a guilty verdict. If the state’s case against you is truly paltry, the justice presiding over the preliminary inquiry will stay the proceedings right then and there. However, in most cases, the state will have enough evidence to reasonably convince a trier of fact of your guilt and the matter will be sent to trial. Even if the matter is set down for trial, preliminary inquiries provide your lawyer with a strategic advantage and may be worth pursuing depending on the type of case. Preliminary inquiries are only available for indictable offences whose maximum sentence is 14 years of incarceration or more.

If I go to trial, can the prosecutor call me as a witness and force me to testify?

No. You have the right to remain silent and the right against self-incrimination. Under no circumstances can the prosecutor call you as a witness to testify at your trial. However, if you choose to testify in your own defence, the prosecutor can (and will) cross-examine you.

What’s a joint submission on sentence?

A joint submission is when both the prosecutor and the defence present the judge with a sentence that has been agreed upon by both parties in advance. While judges are technically not bound by the joint submission, they may only interfere with the joint submission if the sentence imposed would bring the administration of justice into disrepute (an extremely high threshold). There are numerous benefits to joint submissions, but the one our clients most appreciate is the near-certainty in outcome; you can walk into court knowing how the file will be resolved prior to even pleading guilty. The vast majority of our guilty pleas are resolved by way of a joint submission.

What’s a contested sentencing hearing?

A contested sentencing hearing takes place after you’ve been convicted at trial or after you’ve pled guilty (forgoing a trial entirely). The purpose of a sentencing hearing is to determine a fit sentence. In Canada, sentencing is a highly individualized process, meaning that we do not simply sentence an individual for the crime that they’ve committed, but rather, take everything about them into consideration in crafting a fit sentence. At a sentencing hearing, the prosecution and defence make arguments before a judge as to the sentence that they believe is fit and the judge makes a ruling accordingly – they are not bound to choose either of the sentences proposed to them. 

I’ve been convicted but I’m innocent. What can I do?

We can appeal. There may be an error of law (or a blatant error of fact) that the first instance judge applied in their reasoning. You always have the option to appeal a ruling. The fight isn’t over just yet.

How We Operate & What to Expect

Why should I book a consultation?

For most criminal cases, we strongly recommend an in-person consultation at our office. The purpose of the consultation is to identify the legal issues that you’re facing, learn about your situation and the potential exposure that you’re facing, outline the trajectory of a criminal charge, and candidly discuss your best options moving forward. This is the beginning of a potentially long journey together.

What will take place at the consultation?

We often begin working on your defence immediately (such as referring you to an immigration lawyer for a legal opinion, referring you to anger management therapy to bolster your profile or requesting supporting documents that can be sent to the prosecutor to aid in your defence). We also use this time to answer any questions you may have, and discuss a fee structure that works best for you. 

What do you recommend that clients do prior to a consultation?

For the purposes of efficiency and to ensure that our meeting is as productive as possible, we recommend writing a detailed version of the incident and sending it to us in advance. This means writing down everything that you remember that took place, from the beginning of your day to the events that led to your arrest up until your eventual release. The more details the better. It would also be a good idea to send us a list of questions that you have in advance. 

Will you keep me up to date on the status of my case?

Absolutely! We pride ourselves on our open and constant communication with our clients. We send detailed emails after every meeting at our office, after each court date, and any time there has been a new development in your file. We also do our best to respond to emails as quickly as possible.

Everything You Wanted to Know about Lawyer Fees

Do you offer free consultations?

We do not offer free consultations (and the cost of a one hour consultation is $350 tax included). However, we would be more than happy to briefly speak with you over the phone to answer any preliminary questions that you may have prior to booking a consultation. Book a consultation today!

Do you charge by the hour or do you work on a fixed fee?

When possible, our preference is to charge on a fixed fee basis with clearly defined steps (a flat rate for the initial steps of the mandate, another flat rate to administer and negotiate the file, a separate rate for trial, a separate fee to draft a Charter motion, and so on). In this sense, clients are paying for clearly defined services and they know exactly how much they will have to pay from beginning to end. However, some cases are more complex or unpredictable and require a by-the-hour fee structure (such as domestic violence or sexual assault). 

When will I know whether a file will be charged by the hour or on a fixed fee?

During our first meeting, we will openly and candidly discuss legal fees (and everything will be put in writing to avoid confusion).

Can we set up a monthly payment plan?

Yes! As soon as a mandate is confirmed, we propose monthly trust payments that are reflective of the nature of the mandate and that are in line with your ability to pay. 

Do you accept Legal Aid?

While we believe that everyone is entitled to a stellar legal defence, and are committed to providing our clients with excellent service at reasonable and affordable rates, at this time we do not accept Legal Aid mandates (but we would be more than happy to refer you to a lawyer who does).

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