La loi vos droits

Offenders and Accused Persons

Your Rights During an Arrest

The Canadian Charter of Rights and Freedoms ensures that your rights are protected during an arrest. Police officers cannot arrest you at will; they must obey certain rules. They may need to get a warrant from the court to arrest you or enter your home. The police must carefully consider the particular circumstances surrounding every single arrest.

In this Infosheet, Éducaloi explains your rights during an arrest and your right to a lawyer.

When is a police officer allowed to place 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 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.

At what moment can I consider myself under arrest?

You are “under arrest” when a police officer says something like, “You are under arrest for having committed the following offence…”.

When placing you under arrest, the police officer deprives you of your physical liberty, restricts your movement, and may put you in handcuffs.

What does “detention” mean?

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 to the side of the road. If this happens, you are being detained but not arrested.

If police are placing you under arrest, they must say so. For example, if the police officer notices after pulling you over that you have a shotgun in the backseat of your car, she may place you under arrest for possession of a prohibited firearm.

Besides the police, who can arrest me without a warrant?

Aside from the police, any citizen can arrest you without a warrant in the following situations:

• the citizen catches you committing a criminal offence;
  
• he has reasonable grounds to believe that you have just committed a criminal offence and you are eluding the police, who are attempting to arrest you;
  
• he catches you committing an offence involving property in his possession.

A citizen who arrests someone must turn that person over to the police as soon as possible.

Are police officers allowed to search me during an arrest?

Yes, when they arrest you, the police can perform a search of your person, your pockets, your bag, and even your car. 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;
  
• serve as evidence during prosecution.

Police officers are not obliged to search you if they believe the arrest can be made safely and effectively without a personal search. In practice, however, a search is conducted during every arrest.

Can police officers enter a private home and make an arrest?

Yes. As a rule, a police officer who wants to arrest someone in their private home must obtain, in addition to the arrest warrant, a judge’s written authorization to enter that person’s home. 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.

What are my rights during an arrest?

If arrested, you have the following rights:

• to be informed of the grounds for your arrest as soon as possible;
  
• to speak with a lawyer without delay and to be informed of this right;
  
• to remain silent and to be informed of this right.

If the police officers do not respect your rights, the evidence obtained after your arrest may be deemed inadmissible in court.

What is the "right to counsel"?

Keep in mind that your “right to counsel” is your fundamental right to consult a lawyer immediately after your arrest or detention. To protect your right to counsel, the arresting officers (or the ones detaining you) must, without delay:

• inform you of your right to consult a lawyer of your choice and about the services available to you (legal aid or duty counsel);
  
• enable you to contact a lawyer by providing you with a telephone and a phone book;
  
• provide a room where you may speak privately with a lawyer;
  
• refrain from questioning or trying to get information from you until you have had an opportunity to consult a lawyer.

Can I waive (renounce) my right to counsel?

Yes, you may waive (renounce) your right to counsel. However, this decision must be an informed one; that is, you must have a sufficient understanding of your situation and you must appreciate the consequences of your decision not to consult a lawyer.

What is the right to remain silent?

The right to remain silent is the right of every person who is arrested or detained to say nothing to the police. The only information that a person who is arrested or detained is obliged to provide to the police is her identity, i.e. name, address, and date of birth. Aside from this, a person in this situation may remain completely silent. As with the right to counsel, you can renounce your right to remain silent.

Useful Links :

1. Canadian Charter of Rights and Freedoms on the Department of Justice Canada site  [http://lois.justice.gc.ca/fr/charte/const_en.html]