I am Being Investigated for a Crime

I am Being Investigated for a Crime

Finding out you are being investigated for a crime can be an extremely stressful experience and you should not do it alone. If you believe you are being investigated for a criminal offence, it is recommended that you contact an experienced Criminal Lawyer in Edmonton immediately. At Liberty Law, our lawyers are available 24 hours per day, 7 days a week for immediate and free legal advice and can be reached at 1-833-784-7500.

Detention for Criminal Investigation

One way you might find out that you are being investigated for a criminal offence is if you have been arrested or detained. Everyone knows what it means to be arrested. A detention, however, is less commonly known. Essentially, if you have been stopped by the police and are not free to leave, you are being detained.

When you are detained or arrested, your right to retain and instruct counsel (i.e. to call a lawyer) is triggered. Some exceptions arise when the cops are unable to provide you your rights because of urgent circumstances that pose a danger to public safety. Your right to counsel is also suspended during traffic stops, when you are briefly detained for traffic purposes and/or for impaired driving investigation (for more information on impaired driving, visit our blog posts on Checkstops and Drug-Impaired Driving). In most cases however, once you are detained or arrested, the police have to tell you the reasons for detaining or arresting you, and that you have the right to speak to a lawyer.

What are your rights if you were detained or arrested?

The Canadian Charter of Rights and Freedoms [the “Charter”] is a part of the Canadian Constitution. The Charter requires that anyone in Canada who is detained or arrested be told that they have the right to “retain and instruct counsel.” Simply put, they have to tell you that you may speak to a lawyer. They must also inform you of any legal aid or duty counsel services available. If duty counsel is available, police must tell you how to get in touch with them (usually by giving a toll-free number). This applies whether or not you are Canadian, a permanent resident, or some other foreign status.

The Charter further states that upon detention or arrest, police must tell you that you have the right to speak to a lawyer “without delay.” This strictly means that the police should inform you about your right to counsel immediately upon detention, unless the police are unable to do so because of exigent circumstances such as a dangerous situation. Furthermore, if you have been detained initially for an offence, and the nature of the detention changes significantly, the police have the duty to re-issue your right to counsel. For example, if you were initially arrested for simple possession of drugs, and the police begin investigating for drug trafficking, the police have to tell you about this and they have to tell you again about your right to speak to a lawyer and provide you with that right a second time (if you have already exercised it the first time). This ensures that you know the extent of your jeopardy and are able to obtain the proper legal advice, should you so choose. On that note, it is always recommended that you exercise your right to counsel (i.e. call a lawyer) even if you believe you are innocent.

A person who has been detained or arrested must understand their right to speak to a lawyer. A person’s right to speak to a lawyer may be worthless, even if they are told about it, if they truly did not understand what they have been told. For example, a person whose first language is not English may sometimes have difficulty understanding what the police are telling them. This misunderstanding can be compounded by the fact that being arrested or detained by police is something that is already confusing and distressing. In such cases where the person who was detained or arrested does not understand his or her right to lawyer, the police have a duty to take steps to ensure the person being detained or arrested understands their rights. In some cases, this may mean obtaining a translator so that the individual understands. This applies not only to persons who state that they do not understand, but also to individuals who appear to have difficulties understanding their right to a lawyer. Furthermore, the police must ensure they have taken such reasonable steps before they begin to question the subject about the crime under investigation or try to obtain any other evidence against them.

If a person then decides they want to call a lawyer, the police have two further duties: first, they must hold off from questioning that person or gathering evidence from the detainee. Second, the police must provide the detainee a “reasonable opportunity” to contact and speak to a lawyer. The police can begin to gather evidence or question a detainee, only after they have taken reasonable steps to facilitate contact with a lawyer. If you wish to exercise your right to counsel, you must make a clear positive assertion that you want to talk to a lawyer. The duty of the police to hold off and to facilitate access to a lawyer is only triggered if you invoke your right to a lawyer. Silence will not amount to invocation and ambiguous responses may also not be enough.

If you choose to exercise your right to counsel and you have a particular lawyer you would like to contact, you must be diligent in doing so. Once your “reasonable opportunity” to contact your lawyer has expired, and you have not been diligent in contacting your lawyer, the Court may find that your Charter right to counsel was not breached.

Once you have been given a reasonable opportunity to contact a lawyer, police can then question or otherwise elicit evidence from you even if you have not actually talked to a lawyer. The police are not required to have your lawyer present when you are being interrogated nor do you have the right to have a lawyer present, assuming you are an adult. However, you may be entitled to consult your lawyer again if the cops begin investigating you about an unrelated or more serious offence. Re-consultation with your lawyer is also necessary if you are subjected to non-routine procedures such as a photo line-up. They must also let you consult with your lawyer again if they undermine the legal advice that was previously given to you.

Being detained or arrested by police can be distressing and quite confusing as things can happen very quickly. Being aware of your rights and obligations can assist in making sure that your rights are not violated. Issues about a person’s detention or arrest can arise in many cases because of the implications that it has on Charter-protected rights. If you feel that you have been detained, or if you are arrested, it is encouraged that you contact a lawyer for advice.

For additional information about your rights upon detention or arrest, give us a call toll- free at 1-833-784-7500 or email us at consult@libertylaw.ca.


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