Know Your Civil Rights (Legal Information for Indigenous People: National Edition)

Government Authorities

Think Before You Speak

The Canadian Charter of Rights and Freedoms (the "Charter") is part of the Constitution Act, 1982 of Canada. Sections 7 to 14 of the Charter set out rights that protect Canadians when dealing with the justice system. They ensure that individuals who are involved in proceedings are treated fairly, especially those charged with a criminal offence. These sections are where your legal rights come from: right to silence, right to a lawyer, right against unreasonable searches, etc.

Q: What do the RCMP, Provincial police, child protection agencies, and the DFO/COS all have in common?

A: They are all government agencies who investigate situations where there may be fault or liability or safety concerns. They all have jobs to do. However, with each of these agencies you are well advised to know your rights before you speak.

You are always allowed to say, "I want to speak with a lawyer before I speak with you."

This is not an admission of guilt or fault, just a way to make sure you are safeguarding your rights. Get legal advice to learn about your rights and responsibilities when you are being confronted by government agencies.

If you are charged with a criminal offense

• Do not speak to the police
• Get legal advice as soon as possible
• You are not required to make or sign a statement with police
• Do not talk in public or on any social media such as Facebook about the charges

Police Encounters

"The RCMP must suspect you of committing a crime, have seen you committing a crime, or you must be driving a vehicle before they can stop you and question you."
- BC First Nations Justice Council, https://www.bcfnjc.com

When responding to a police officer on the street:

• Be polite, note the officer's badge number or name
• Ask if you are free to go:
  • If YES – leave
  • If NO – ask if you are under arrest

If you are under arrest:

• Ask WHY: it is your right to know why you are being arrested
• Ask for a lawyer and then remain silent: you have the right to do both

If the police say you are not free to go, but that you are not under arrest, you're being detained:

• You should only be detained briefly.
• The police are only allowed to detain you if they have reasonable grounds to suspect you've been involved in a crime.

The police have different powers depending on whether they have detained or arrested you (see https://stepstojustice.ca/questions/criminal-law/what-are-my-rights-if-im-detained-or-arrested/).

Remember: You do not have to answer their questions at any point. You always have the right to silence even if you have to speak to clear something up or be dismissed.

"I want to remain silent. I want to speak to a lawyer."

You do not have to identify yourself to a police officer, unless:

• You are under arrest
• You are driving – if you do not have your license on you, you can provide your name and date of birth
• You are issued a ticket

Police Custody and Arrests

If you are arrested or detained, you are protected by Section 10 of the Charter.

• You have the right to silence - speak to a lawyer before the police
• The police must inform you of the reasons for your arrest or detainment
• You have the right to retain and speak to a lawyer without delay and the police are required to inform you of this right

If you are released on bail or with a Promise to Appear, there may be conditions attached (rules for behaviour) such as:

• Reporting to a bail supervisor
• Not being able to leave town
• Must avoid certain areas or people
• Cannot carry a weapon
• No consumption of alcohol

If you think your conditions are too restrictive (unfair or unrealistic) call your lawyer for help as soon as possible because breaching conditions can mean another criminal charge.

For more information about your rights with the police see https://www.cleo.on.ca/en/publications/polpower/what-are-my-rights-if-i-am-arrested-or-detained

Youth Rights

If you are a youth charged with committing a crime, you should be aware of your rights, including the right to:

• Be told why you are being charged and what your rights are in a way that you understand
• Talk to a lawyer, parent or other adult about your situation before you give a statement to police
• Have a lawyer, parent or other adult with you if you give a statement
• Not answer any questions about the crime and be warned that, if you do say something, it may be used against you in court

The Youth Criminal Justice Act (YCJA) is the law that governs Canada's youth justice system. It applies to youth who are at least 12 but under 18 years old, who are alleged to have committed offenses. Youth who are charged with a crime and identify as Indigenous are entitled to the same rights as other young people and, as well, at all stages of the youth criminal justice system, the courts must consider the unique circumstances of Indigenous peoples and of the particular Indigenous youth.

YCJA has special provisions that allow police and Crown to deal with a youth without using the formal youth court system. These are called extrajudicial measures and extrajudicial sanctions. Also, ask about local Restorative Justice or Indigenous Court.

Youth are automatically eligible for Legal Aid to pay for a lawyer.

Personal information of a youth offender is kept confidential. This means the identity of a youth offender cannot be published and access to youth records is very limited.

RCMP Complaints

"You deserve to be treated with dignity and respect by all people working within the justice system. Formal complaint processes exist for police, lawyers and judges."
- BC First Nations Justice Council, www.bcfnjc.com

If Your Rights are Violated by the Police

Document the time, place and details of what happened. Document police names or badge numbers. Try to get contact information for witnesses. Take pictures of injuries and upload them. Seek legal advice.

Complaints Process

Making a complaint about the police: The Civilian Review and Complaints Commission for the RCMP is an independent agency that reviews complaints made by the public about the on-duty conduct of RCMP members.

Complaints can be filed at their website: https://www.crcc-ccetp.gc.ca/en/make-complaint

Civilian Oversight in Canada

Most provinces in Canada have some form of civilian oversight of law enforcement. Although agency size, statutory authority and responsibilities vary from province to province, civilian oversight agencies share a common goal: a positive relationship between the public and the police.

This is achieved through an accessible and transparent complaint process, conscientiously monitored by independent and impartial civilian agencies. Commissions and provincial agencies responsible for civilian oversight of investigations into alleged police misconduct are mandated to ensure complaint investigations are thorough, fair and balanced to both the complainant and the respondent.

Canadian Association for Civilian Oversight of Law Enforcement: https://cacole.ca/resources/links/civilLin-lien-eng.shtml

Criminal Records & Pardons

If you have been charged with or convicted of a crime, you will have a criminal record. A criminal record can have many impacts on your life.

• Employment: Employers, volunteer agencies may require criminal record checks to use in hiring decisions
• Insurance: Insurers may choose not to insure you
• Education: You may be disqualified from attending or graduating college/ university
• Children: You may be subject to vulnerable sector search, not allowed to adopt children, or a Judge may consider criminal record in family law, child custody disputes
• Immigration: You may be denied citizenship if applying, you may be deported if not a citizen
• Travel: You may be rejected entry to other countries. Need to obtain a waiver to enter USA with a criminal record
• Future: If charged with another crime, criminal record often leads to harsher sentences

Record Suspensions/"Pardons"

After a certain waiting period, you may apply for a record suspension which removes your record from the Canadian Police Information Centre database so that it does not appear in a criminal record check. This will remove almost all of the restrictions of having a criminal record, though it does not guarantee entry into other countries and sexual offences will still appear in a vulnerable sector check.

The waiting periods are:

• 10 years for indictable offence
• 5 years for summary offence

If you were convicted only of simple possession of cannabis, you are exempt from these waiting periods.

In deciding whether to approve your application, the parole board considers the nature of the offence, your conduct since release, and whether the suspension will help your continued rehabilitation. The fee to apply for a suspension is $50, but you are also responsible for costs involved in your application such as requesting fingerprints and criminal record checks.

You are ineligible for a record suspension if you have committed 3 or more indictable offences each with a sentence of 2 or more years, or if you were convicted of a schedule 1 offence and do not fit the exception criteria.

Parole Board fact sheet on record suspensions: https://www.canada.ca/en/parole-board/corporate/publications-and-forms/applying-for-a-record-suspension.html

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