The Canadian justice system affords criminal defendants with several rights. If you have been charged with a criminal offence, you should be aware of these rights. This article is meant to be a summary of those rights only. If you are facing criminal charges and have questions about your rights, we recommend that you contact one of our lawyers and schedule a consultation.
The starting place as it relates to the rights of criminal defendants in Toronto is the “Charter of Rights and Freedoms”. The Charter has existed since 1982 and codifies several rights that every single Canadian is protected by. Many of those rights apply directly to criminal court proceedings and include the following:
s.7 life, liberty and security of person
Section 7 of the Charter of Rights and Freedoms protects every individual’s right to “life liberty and security of the person” and protects an individual’s autonomy and personal from the actions of the government. Section 7 captures the following:
- The right to remain silent;
- The right to fair trial;
- The right to representation by a criminal defence lawyer; and
- The right to be informed of the evidence against you including the names of the Crown witnesses and a copy of their statement(s) to police.
s.8 search and seizure
This section is what prevents the police from illegally entering your property, from illegally searching you or your property, or from seizing any property. It is a right that applies in any case where a search or seizure took place (with or without a warrant). Section 8 applies only if the search or seizure violated something over which you have a reasonable expectation of privacy, including your person, your vehicle, your home and the contents of your computer or phone.
A search or seizure will be reasonable if:
- it was authorized by law;
- the law itself was reasonable; and
- the search was carried out in a reasonable manner.
If there is a breach of this right, it may be that any evidence obtained through the search should be excluded or in other words, it can no longer be relied upon by the prosecution. The Court will determine whether or not the evidence should be excluded. The Court will consider the seriousness of the offence, the impact of the violation on the defendant and society’s interest in admitting the evidence and adjudicating the case on its merits.
s.9 detention or imprisonment
This right guarantees against being arbitrarily detained or imprisoned by the state. This right applies not only to physical detention (being restrained or placed under arrest), but also investigative detention (being investigated by police). Detention requires there to be either a physical restraint, such as handcuffs, or a psychological restraint, such as a police officer questioning you and you not be able to walk away.
If a detention has no legal basis, it is arbitrary and violates s. 9. Broadly speaking, this means that police officers must have an explicit statutory or common law power that authorizes them to detain an individual.
Of note, random vehicle stops or “RIDE programs” are considered an arbitrary detention. However, they have been justified by our courts as being necessary to protecting public and highway safety.
s.10 arrest and detention
Section 10 of the Charter provides you with your right to understand why the police have detained or arrested you, and provides you with the right to speak to a lawyer. This is an issue that frequently arises in impaired driving cases.
The right to speak to a lawyer has two components. First is the informational component, which is that the police must tell you that you have the right to speak to a lawyer without delay, and second, is the implementational component, which is actually putting you in contact, by phone, with a lawyer if you choose to exercise that right. You have the right to your counsel of choice, and you do not have to speak to “duty counsel”, or a government funded lawyer. Should you have a lawyer in mind, you should assert your right to speak to them.
The right to speak to a lawyer is one of the most important Charter rights for someone who has been arrested for a crime, especially if they have never been arrested before. It is the conversation with a lawyer that provides you with legal information to understand your situation, to understand the process and next steps and to properly understand your other rights, such as your right to remain silent.
s.11 proceedings in criminal matters
Section 11 includes the following rights:
- The right to be informed within a reasonable time of the specific offence that you are charged with;
- The right to be tried within a reasonable time. This has been interpreted by our Courts as having a trial within 18 months in the lower court (Ontario Court of Justice) and within 30 months in the higher court (the Ontario Superior Court of Justice);
- The right not to have to incriminate yourself or to testify at your legal proceedings;
- The right to be presumed innocent until proven guilty;
- The right not to be denied bail unless where it is necessary for the protection or safety of the public, having regard to all the circumstances including any substantial likelihood that the accused will … commit a criminal offence or interfere with the administration of justice; and
- The right not to be tried twice for the same offence if acquitted the first time.
s.12 treatment or punishment
Section 12 of the Charter of Rights and Freedoms guarantees every individual “a right not to be subjected to any cruel and unusual treatment or punishment”. Section 12 has been applied most commonly to challenge mandatory minimum sentences imposed by government legislation. Section 12 is also applicable to extradition. For example, the Charter protects Canadians from being extradited to countries where they may be subject to torture.
s.13 self-incrimination
The purpose of the s.13 of the Charter is to afford protection to a witness who is compelled to testify and risk self-incrimination. In exchange for providing full and frank testimony that may be self-incriminating, s.13 protects the person against the use of that compelled evidence in a subsequent proceeding (criminal or otherwise).
The exception is where the defendant testifies voluntarily at their own trial. Their testimony at the earlier trial may be used in cross-examination by the Crown to both impeach their credibility and to incriminate them.
s.14 interpreter
Section 14 of the Charter provides that a party or witness in any proceeding who does not understand or speak the language in which the proceedings are conducted, or who is deaf, has the right to the assistance of an interpreter. The Court will arrange for an interpreter in whatever native language the defendant speaks. If the defendant is French speaking, because French is an official language of Canada, they will have a right to the entire trial being conducted in French rather than a right only to a French interpreter.
