Citizen’s Rights CRIMINAL LAW – UNIT 3

Rights on being arrested  Informed of the reason  What is the charge? What are you being accused of?  Right to retain counsel — which includes advising on duty counsel (a lawyer on duty at court) or legal aid (paid for by tax payers if unable to afford lawyer) to initially advise you  Note – must stop questioning you ASAP  Can refuse to answer any questions other than identification  i.e. name, address, occupation, D.O.B  Rights must be conducted in a manner that is understood (if intoxicated the person can be detained (to stop a person from leaving, or confine someone), then arrested and charged after becoming sober or they must provide an interpreter.

Rights on being arrested  Caution: You have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You have the right to free legal aid advice at ###-####. Do you understand? Do you wish to contact a lawyer now?  General Rule - when in doubt - seek counsel … Because the police must stop asking questions, provide access to telephone, and allow the accused to as many calls as reasonable. This must be conducted in privacy. NOTE – one study found that almost 60% of accused persons gave verbal statements and 70% gave written statements to police before contacting a lawyer. All statements volunteered will be used as evidence against the person. Why do people make these statements? 1.Police are good at encouraging people to talk. 2.People believe they can talk themselves out of a situation. 3.People think that not talking creates a bad impression.

R. v. Singh, 2007 SCC  Singh was charged with second-degree murder in April 2002 after an innocent bystander was killed by a stray bullet while standing just inside the door of a pub in BC.  Police never found murder weapon or any forensic evidence linking Singh to the shooting. However, he was identified from a police photo lineup by a doorman and a witness who were shown videotape footage of three Indo-Canadian men who had been in the pub earlier that night.  Singh was advised of his section 10b Charter right to counsel and privately consulted with a lawyer. Although Singh invoked his constitutional right to remain silent 18 times, the officer continue to interrogate Singh.  Singh confesses he was in the pub that night, and that he was indeed on the videotape, but never confesses to the murder.  At trial, Singh’s defence lawyer challenged the admissibility of his statements as they infringed on Singh’s Charter rights. Judge admitted the statements believe that the admissions came freely and were not a result of ‘break down’ the accused.  Jury convicted Singh. He appealed his conviction to the BC Court of Appeal (May 2006). Appeal court upheld the trial judgment and affirmed Singh’s conviction.  Singh appeal to SCC (May 2007). In a 5-4n judgment, the SCC upheld the conviction. The 4 judges were very critical of expanding police interrogation powers and lessening an accused person’s right to silence. Nelson – pg. 163

R. v. Singh, 2007 SCC 1.What specific Charter right did Singh argue was violated?  Section 7 (right to life, liberty, and security) – includes the right to remain silent 2.The SCC stated that the individual has the right to remain silent and that the police were wrong to continue to question Singh after he had invoked his constitutional right. Do you agree? Why/why not? Agree:  Police were wrong to continue questioning Singh once he stated his desire to remain silent. The police should have respected his rights and stopped questioning him.  Courts should not consider statements made by the accused that may have been obtained under pressure or stress. Disagree:  The questions asked after Singh stated his desire to remain silent were proper and should be permitted. Just because he had the right to remain silent does not mean the police officer was not allowed to speak to him.  Singh had the choice whether to provide answer or not. He was not being physically forced or threatened, so his statement were voluntary. He gave up his right to remain silence by answering the police officer’s questions. Nelson – pg. 163

An accused can refuse:  Line-up  Polygraph  Blood and bodily fluids, breathalyzer (except in the case of an impaired driving offence)  It is recommended that the accused seek counsel about refusal. Evidence collected may actually aid in the defence (for example if a murder was committed under the influence of drugs or alcohol, the extent of influence may affect the outcome of the case).

Legal Aid  According to the Charter, all Canadian have the “right to retain and instruct counsel without delay” for criminal cases.  If the accused cannot afford a lawyer, he/she can apply for legal aid (legal services provided free of charge. Appointed lawyers are paid for by tax dollars).  The accused should get an estimate of the cost of legal fees prior to trial. Legal Aid is available for those who qualify.  Duty counsel (court lawyer) assists an accused person who does not have legal representation when he/she first appears in court. Today, most legal aid must be paid back. Supreme court judge claims Canadians lack access to justice

Rights on Being Detained  Section 9 of the Charter states that everyone has the right not to be arbitrarily detained or imprisoned.  In Summary – a person cannot be stopped, held for questioning, arrested, or put in jail unless the police have a good reason to do so.  Detention occurs when a person is stopped by someone, and submits or agrees in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist.  Should lead quickly to arrest or free to go.  Being detained usually is conducted by a police officer or it can be done by a security guard  Reasons must be given for detainment  Cant be: stopped, held for questioning, arrested, or put in jail  unless police have good reason  Note – police are allowed to stop drivers  If detained (stopped and not arrested) you do not have to answer any questions – you can keep walking  Advised of counsel

Rights on Being Detained – cont’d If you have been illegally detained,  File a complaint  File a wrongful detention suit  Use as much force as necessary Vancouver Police Officer Punch Man in Face

R. v. Dillon, 2006  In March 2005, two Toronto police officers became suspicious of a car they saw in the parking lot of a bar (known to police as a frequent trouble spot).  Officers stopped to investigate and found the accused, Duane Dillon, sitting in the driver’s seat with the engine running and car lights on. Officers pulled in behind his car, block it from leaving until they could determine the driver’s sobriety.  After talking to Dillon and seeing his red, bloodshot eyes, the officers believed that he was intoxicated. They arrested him for impaired care and control of a motor vehicle.  As an incident to the arrest, officers searched the vehicle and found large quantities of cocaine, marijuana, crack cocaine and a small digital scale.  Later on at police station, Dillon provided breath samples. Breathalyzer reading were 108 and 105 milligrams. He was charged with possession of cocaine for the purpose of trafficking, and care and control of a motor vehicle with a blood/alcohol concentration of more than 80 milligrams of alcohol per 100 milligrams.  At trial in the Superior Court of Justice in late November 2005, the accused argued that his section 9 Charter rights were violated. The evidence seized and the Breathalyzer should be excluded from trial.  What do you think the court decided? Explain. Nelson pg. 161

R. v. Dillon, 2006 Court’s Ruling:  Court decided that the detention of the accused, which was seen to have occurred at the time that the police blocked the accused’s car, was lawful and did not breach section 9 (the right not to be arbitrarily detained or imprisoned) of the Charter.  The police court considered the factors given by the police to support the detention, including the fact that the bar had along history as a trouble spot for impaired drivers and therefore held that the police had valid reasons to detain the accused.  Since there was no breach of Charter rights, the evidence was admissible. Nelson pg. 161

Cooperating With Police  An informed and responsible citizen may want to cooperate with police  It often shows innocence by volunteering information  It can save time and money

EXIT SLIP 1.Identify 2 legal rights of an accused on arrest 2.Identify 2 legal rights of an accused upon detention