Under arrest: What are your rights?

You really do have the right to remain silent when you're arrested. Yet sometimes what the police can do can trump your charter rights. Lawyer James Morton answers questions on what happens when you are arrested.

In the weeks before the G20 summit in Toronto, the Ontario government passed a regulation under the Public Works Protection Act giving security officers the power to demand people produce identification and submit to searches without warrants in the area around the site of the summit.

'Being arrested is an emotional experience, especially if it's happening for the first time,' says James Morton, who is a Toronto lawyer and past president of the Ontario Bar Association.
If you couldn't prove you had the right to be in the area, you could be arrested.

The legislation was passed before the Second World War in Ontario. Similar pieces of legislation exist across the country.

James Morton is a Toronto lawyer and past president of the Ontario Bar Association. He has also taught as Osgoode Hall Law School in Toronto for more than a decade. He spoke to about the process of being arrested — under normal circumstances as well as exceptional cases, like the recent G20 summit.

What normally happens when someone is arrested?

In general terms, what you would expect is, that you will be read your rights, which sounds a little bit like the TV shows you get from the States, but it's basically the same sort of thing (you have the right to remain silent and anything you say can and will be used against you, you have the right to consult with a lawyer). You are then taken into custody. You would be transported fairly quickly to a regular holding cell and then the next morning — almost always the next morning — you would be taken in front of a justice of the peace and either waive your bail hearing or have a bail hearing.

How long can I be held under normal circumstances?

There is a general rule that you are to be taken before a justice of the peace for some kind of a hearing within 24 hours. That is not always achieved — it sometimes doesn't happen because there are not enough justices of the peace available.

Legally, you're supposed to be in front of a magistrate of some sort within a day or a couple of days. That doesn't mean you get released. It means you get to ask to be released.

Am I supposed to be informed of the charge I'll be facing when I am arrested?

Quite often I'll meet with someone and they don't know what they've been charged with, but on your arrest or at the time you're charged, even if you're not detained by the police officer, there's an obligation to say what you're being charged with and to give some general sense of what it is. That having been said, the police officer is not obliged to use the precise language of the Criminal Code and can use descriptive language.

Being arrested is an emotional experience, especially if it's happening for the first time. They're aware something has happened but they're so emotionally overwhelmed they don't really have a good memory of anything in particular and that's common.

Do I have the right to contact someone?

You are entitled — it's right in the constitution — you are entitled to legal counsel and the police are obliged to facilitate that. You're not constitutionally entitled to call your wife, your husband or whatever, but the police usually permit that. They don't have to — that's just being respectful and courteous. The only exception to that is someone under the age of majority. Police are supposed to contact the parent or guardian.

The Charter of Rights and Freedoms says we have the "freedom of peaceful assembly" and "freedom of association" coupled with the right to life, liberty and security of the person. That leaves a fair bit of room for interpretation. How have the courts defined those freedoms or placed limitations on them?

The courts have been fairly generous in defining those rights, so freedom of expression and association is not limited to the ability to join a union. It would include organizing together to protest at the G20. Freedom of expression is not limited to things you say, it also encompasses speech acts so, for example, the wearing of special clothes or if you dressed up with a giant George Bush head, that would be included as expressive conduct.

'The question isn't, 'Is there a breach of those rights?,' the question is, 'Is it a justified breach prescribed by law?'—James Morton, lawyer

The limits on the rights really don't come so much from the definition of the rights as from section one of the charter which says that everyone is entitled to these rights. However, these rights can be circumscribed by reasonable limits prescribed by law in a free and democratic society. What the Supreme Court has found — broadly speaking — is that a reasonable limit is the least intrusive limit that is necessary for the achievement of a valid government purpose. It's a very discretionary type of judgment.

You have a right in Canada to go freely without hindrance. Mass street arrests unquestionably violate that right and that freedom. The question isn't, "Is there a breach of those rights?," the question is, "Is it a justified breach prescribed by law?"

Does a police officer have the right to search me or the bag I may be carrying?

In prudence, I tell everyone — especially my younger, angrier clients — you don't have to submit to a search of your backpack especially if you have something in it you don't want them to find. I was stopped Wednesday night walking through St. Michael's College (well away from the security area) and asked to provide identification and I certainly had the legal right to say "take a hike." It seemed to me that was foolish and I just identified myself.

Can an officer generally ask me to stop taking pictures or to stop recording?

An officer can ask you to do anything. This is something people don't understand and it leads to questions of whether a search was voluntary. Most people are unsure of the law and they assume the police officer has the right to do it, therefore they don't want to cause trouble so they say yes. You are perfectly entitled to go walking around with a cellphone or a tape recorder running 24/7 if you like and the officer can say "Please turn it off" and you can say "No, I don't think I will." Again, is that prudent?

There are limited exceptions to that, like the Public Works Protection Act. What that act says and has been upheld in the Court of Appeal, is if you're within a certain distance of a public work an officer can ask you for identification and to state your purpose. It's used to require you be screened before entering a courthouse. The way they deal with you in courthouses is if you don't want to be searched, they don't force you to be. They just won't admit you.

Doesn't the act impinge on my charter rights?

This is the first time I've seen the act used in this way. But it's almost certainly a lawful use. It certainly does breach some charter rights — the right against search and seizure, the freedom of association. But I think it would be upheld in this context as being narrowly focused for an urgent public purpose.

Do you expect it to be challenged?

There are a lot of rumours floating about in the legal profession saying it will be challenged. I wouldn't be surprised if it were challenged, I wouldn't be surprised if it wasn't. At this point it's moot. If there were any charges laid for breaching the Public Works Protection Act, my guess is they'll probably be withdrawn rather than go to trial.