You have rights when being investigated by police

By Greg Dunn

A police tactical squad recently used a battering ram to break down the door of an Edmonton home before officers entered with guns drawn as they investigated a supposed kidnapping incident in the home.

While the police later admitted the kidnapping tip they acted on was a hoax, the incident provides an extreme example of what powers Canadian police hold.

In most cases, police will not use a battering ram to enter your home. If they feel a need to investigate your premises, they usually first obtain a search warrant. According to s.487 of the Criminal Code, the court must be satisfied that there are reasonable grounds to believe a search “will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence.”

The search warrant has to spell out what or who police are looking for. If they do not have a warrant, officers can ask to enter your home but you can deny that request.

If they have a search warrant, they are required to give you a copy. They must also act reasonably during a search and not use excessive force or damage your property without reason. If they seize any of your belongings but do not charge you with an offence, the property has to be returned within three months, unless they have permission from the court to keep it longer.

What to do if an officer stops you

Police are not allowed to randomly interrogate people. If an officer wants to speak to you, they must tell you the reasons why. They must identify themselves and you have a right to know the officer’s name or badge number.

You do not need to answer any questions they ask, other than giving your name and address. However, always maintain a polite attitude while dealing with an officer. If they ask to search your bags or belongings you can say no, unless you are under arrest. If they are not arresting you, you have the right to walk away.

The Edmonton Police Service (EPS) has addressed the issue of citizens’ rights versus police officers’ rights, noting “everyone has the right to feel safe. The foundation of police legitimacy is the public’s trust in police.”

It continues by noting that conversations between a civilian and a police officer are important because they give “information that can help solve and prevent crimes. When faced with a police interaction, a person is generally free to leave and continue on their way. This does not prevent a police officer from trying to speak with a person, but a person is always free to leave unless the police officer has a reason to arrest or detain them.”

To detain or arrest you, police must either:

• have an arrest warrant;
• have reason to suspect that you have committed an offence; or
• have reason to believe you are about to commit an offence.

What to do if you are stopped while driving

Police can stop vehicles to check a driver’s breath for alcohol. You must provide your driver’s licence, car registration and proof of insurance. It is a crime to attempt to deliberately confuse or mislead the police about your identity.

In Alberta, police can impose Immediate Roadside Sanctions (IRS) when an officer has reasonable grounds to believe that a driver has committed an impaired driving offence. Click here for more information on the IRS program and why it is unfair.

When a police officer asks you to blow into their device you MUST blow. Failure to blow will result in being charged with a refusal which carries the same penalties as if you are impaired, with fewer defences. You DO NOT have the right to refuse to provide a sample of your breath when a police officer demands that you provide a sample of your breath. Even if you know that you will blow over, you are far better off blowing and getting a “fail” reading than you are if you refuse to blow outright. The defences for refusal in SafeRoads Alberta are exceptionally limited compared to the defences available should you blow a “fail” reading.

What to do if arrested

Police may arrest you without a warrant if they believe you committed an offence or saw you committing an offence. Police can also search a lawfully arrested person and seize anything in their possession.

Upon arrest, officers must tell you that you have a right to remain silent and that any statement you make can be used against you. They must also inform you of your right to speak to a lawyer and provide you with the means of making contact, such as letting you use a telephone. If you cannot pay for the services of a lawyer, the police must tell you about the free legal services available and provide you with their phone numbers.

Unless you have an opportunity to speak to a lawyer of your choice, police cannot legally ask you questions or attempt to gather evidence from you. You can also waive your right to speak to a lawyer.

A lawyer can advise you on the charges and legal process you are involved in. They will not be with you when police interrogate you. However, you can politely decline to answer any questions officers ask except about your identity.

Unfortunately, during most impaired driving investigations being conducted in Alberta today, the police are most likely to ignore your right to counsel because they are proceeding with a Traffic Safety Act investigation instead of an actual Criminal Code investigation. This is something they may or may not inform you of at the time of their investigation as well. This means that although you may be arrested for impaired driving and they may very well read you your right to counsel, very rarely, if ever, will you actually be afforded the opportunity to contact a lawyer prior to being asked if you would like to provide further samples of your breath.

Police must respect your Charter rights

Every Canadian enjoys rights contained in the Canadian Charter of Rights and Freedoms. They include:

• Section 8: Protection against unreasonable search and seizure.
• Section 9: Protection against arbitrary detention or imprisonment.
• Section 10(a): A suspect’s rights upon arrest or detention, including the right to be informed of the reason.
• Section 10(b): the right to retain and instruct counsel without delay and to be informed of that.

If officers abuse their powers during an arrest there may be grounds for your lawyer to argue that the charge should be thrown out.

Generally speaking, a police officer is not permitted to:

• Stop or detain you based on your skin colour, sexual orientation, political opinions or ethnic origin.
• Insult you or show a lack of respect or politeness.
• Threaten or intimidate you.
• Damage something that belongs to you.
• Use force or threaten to do so when it is not necessary.
• Refuse to provide their names and badge numbers when asked.

How to file a complaint about police

If you feel you were treated unfairly by police, you can file a complaint with the relevant police force one year from when the incident took place. The police service will review your complaint and may offer informal resolution and investigate as required.

• Click here for information about filing a complaint about the Calgary Police Service (CPS).
• Click here for information about filing a complaint about the EPS.
• Click here for information from the province about how to file complaints about other municipal or Indigenous police services.

According to the CPS, “On average, about 0.11 per cent of the calls for service we attend result in formal complaints … the vast majority of these concerns are dealt with informally, typically by explaining police procedures, facilitating an informal conversation between involved parties, or by the officer’s supervisor addressing the issue. These informal resolutions allow citizens to learn why officers responded the way they did and provide officers with immediate correction if they have made a mistake.”

The CPS adds that approximately 14 per cent of conduct concerns “require a formal investigation and disciplinary process to properly be resolved.”

Contact us for assistance

The administration of justice often involves the conflict between police power and the maintenance of civil liberties. If you are under investigation or are facing criminal charges, contact Dunn & Associates. We can advise and defend you at every step of the way to ensure that you get fair treatment before the law.