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When Police and the People Meet, Down on the Street
The police have as much right as anyone else to ask you to stop and talk. As a general rule, though, you don't have to either stop, or talk. Still, it's always a good idea to be polite and cooperative with police officers:
they're generally well-intentioned, but are doing a difficult job, and are already under a lot of stress without people being difficult with them just for the sake of it - better to help make their day a little easier and try to lighten the load all round.
There may be things that have happened (or that the police believe have happened) that would give them the right to detain or arrest you, and if that's so they're likely to be prepared to use force to get their way (and whether or not they're well-intentioned, they're certainly well-armed!) - better to find out at least what the reason is for their interest in you, before deciding how to react.
Making a big fuss over something you haven't done can sometimes lead to charges for something you have, such as when a dispute leads to your being searched and there's a joint in your pocket - better to stay cool and go on your way.
Sometimes, you can be technically acting within your rights, but get yourself into a lot of unnecessary trouble anyway - better to avoid a confrontation in the first place than be proved right later, when it's too late.
Do the police have the right to ask for I.D.?
The driver of a motor vehicle has to produce identification on demand by a police officer, under provincial laws. Otherwise, there is no general right of the police to demand I.D. from someone who is just going about his or her business on the street. On the other hand, if you have committed a minor offence, providing proof of identity to the police will often mean you will not be taken under arrest to the station, so can be helpful to everyone.
Do the police have the right to question you?
The police always have the right to question you. The real question is whether they have the right to make you stay around and give answers (that is, "detain" you).
So, do the police have the right to detain you on the street?
There is authority under provincial laws for police to detain drivers of vehicles, but generally the detention of a pedestrian is only lawful if there are reasonable grounds to believe the person has committed an offence, or at the very least there is what has been called "articulable cause", which is hard to define but is more than a hunch or suspicion, though less than sufficient grounds to make an arrest.
When do the police have the right to arrest you, but let you go with a "ticket"?
Arrest is a step up from detention. You're still detained when under arrest, but now the police have more control over you, and more rights, like the right to search you (see below).
You can be arrested by a police officer any time you are found actually committing a criminal offence, or if there are reasonable grounds to believe you have committed or are about to commit an indictable offence, or if there is a warrant for your arrest.
When do the police have the right to take you into custody?
If you appear to have committed a serious crime, you can be held by the police until or unless you are ordered released in court, at a bail hearing. For less serious offences (not indictable), the police are supposed to release you if there is no concern about:
- your correct identity;
- the loss or destruction of evidence;
- continuing criminal activity; or
- having you appear in court later.
When do the police have the right to search you?
If you're arrested, the police can search you and the immediate surroundings, including a vehicle if you're in one.
If you're not arrested, but detained temporarily for investigation, the police are probably within their rights to give you a pat-down or frisk search. At the very least a police officer is entitled to do a reasonable check to make sure you're not carrying a weapon. If you're in a car, this could extend to a scan around inside the car, perhaps with a flashlight, but not to an actual full search of the vehicle.
Otherwise, searches of people or places are supposed to be authorized by search warrant, unless there is urgency. Without the warrant, they are unlawful, though about the only remedy you have if you are searched unlawfully is to try to have any incriminating evidence found ruled inadmissible in a trial.
What must the police tell you when you're detained or arrested?
- They must tell you the reason for the detention or arrest.
- They must tell you of your right to talk to a lawyer (counsel), and give you an opportunity to do so.
- They must not question you further until you've had a chance to talk with a lawyer, or have made it clear you don't want to talk with one.
- If you can't afford to pay a lawyer, the police should explain how you can get free advice through Legal Aid.
- If the reason for your detention or arrest changes (particularly if the charge gets more serious), they're supposed to tell you these things again.
When do you have the right to talk to a lawyer?
According to the Charter, you have the right to consult a lawyer "without delay" if you're either detained or arrested. In practice, this doesn't mean "immediately", so much as "within a reasonable time".
Considering that a basic legal consultation is free through Legal Aid, there's really no reason not to take this opportunity.
One standard bit of legal advice you're likely to get is not to make any statements. This is generally very good advice, but is often ignored. Whatever you say to the police, once you've been told about your rights, is a "statement" that might be used against you in court.
What is "entrapment"?
Under-cover police officers often create opportunities for people to commit crimes - especially in the street drug trade - and then arrest whoever falls into the trap. In extreme cases, where the officer actually induces a person to commit a crime they would otherwise not have been willing to commit (this is what is called "entrapment"), the court will sometimes "stay" (set aside) the charge despite a finding of guilt, on the basis that a conviction would be unjust. This is fairly rare, though, and police are entitled to suggest transactions to suspects as part of a good-faith investigation, especially in an area where the crime being investigated is commonly committed.
Further Reading
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FIRST LINE CRIMINAL LAW INFORMATION