Know Your
Legal Rights
Remember: Your rights aren't preventative.
Having legal rights under the Charter of Rights & Freedoms doesn’t protect you from being wrongly arrested, injured, or illegally searched. Police have most or all of the power in an arrest or detention situation and it’s not uncommon for them to overstep.
Legal rights are best relied on as fixative – or repair after the fact. In other words, your legal rights may not stop the police from searching you when they shouldn't, but it may help your lawyer get a charge thrown out later.
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You have the right to know your charges.
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You have the right to remain silent - the only information you need to share is your name, date of birth, and current address.
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You have the right to speak to a lawyer of your choice, or duty counsel.
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You have the right to be brought before a court within 24 hours, where possible.
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You have the right to have a parent or guardian present during questioning.
Racism, Ableism and Your Rights
Racism and ableism impact even the most fundamental elements of the criminal legal system. This is because at its core, racism and ableism both devalue and dehumanize those who are racialized and/or disabled.
Racism and ableism in this area might look like:
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Withholding why you are being arrested, assuming you can't understand it or to hold power over you
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More agitation and harassment if you choose to remain silent and not share personal information
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Delays in being brought before a court, or being able to speak with your lawyer
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Trying to get you to speak with them before a parent or guardian can be present, by harassing or angering you. Information that is "blurted out" before you can speak with someone or have a parent there CAN be used against you!
If you are under 18, police will also contact a parent or guardian whether you'd like them to or not. Your parent or guardian is allowed to be present during any questioning.
Police must also notify you that you can contact a lawyer, and they must tell you all this information in a language you can understand.
Police vehicles and the police station are under audio and video surveillance - so don't discuss any details with others in these areas.
If arrested, legally you only need to provide police with your name, date of birth, and current place you live. Lying or withholding that information can cause police to press more charges.
What do I Need to Tell Police?
If you are under arrest, the only information you have to share with the police is your name, date of birth, and address.
They may also ask questions about your phone number, next of kin or medical history: you don’t have to answer any of them if you don’t want to.
They may ask other questions related to events or places you may have been at. You do not need to answer these questions. Your answers may verify you were there or provide information the police need to charge or convict you, or others.
In some cases, yes. Police can search your phone when they arrest you if they believe it will protect the safety of someone, preserve evidence, or contain evidence.
If your phone is locked, you do not have to provide police the password. If it is locked with facial recognition or your fingerprint, they may be able to unlock it by holding it in front of your face or using your fingerprint.
If your phone is locked or encrypted, police will need to obtain a special warrant to seize and search your phone.
Arrested While Disabled
Under the Ontario Human Rights Code (OHRC), people with different abilities may require and request accommodation from police.
If you require accommodation from police, request it as early in the arrest as possible. Use the term “accommodation” or “disability” and make the request "under the Human Rights Code”.
The police may not accept your request. You may be asked to provide supporting information about your disability-related needs. Always consider whether revealing your need for accommodation may lead to targeting or harassment– by the police or others around you.
It is likely that personal aid/mobility devices will be taken away if you are arrested, at least in the short term.
People with serious health issues, including anaphylactic allergies, may be put in segregation if they are remanded or sentenced to jail.
Arrested While Trans
Toby’s Act and the Ontario Human Rights Code have impacted the most recent legislation in Ontario concerning the treatment and placement of trans folks. Trans people are now supposed to be “housed” according to their self-identified gender OR their housing preference, unless it can be proven that there are health and safety concerns that cannot be resolved in other ways. Prison staff are also to use an individuals' preferred name and pronouns orally and in documentation, unless their legal name is required for identification purposes.Trans folks are also allowed to:
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choose the gender of personnel searching upon admission
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access personal items or prosthetics necessary to express gender
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access private bathrooms and showers for safety
It’s important to note that despite this trans folks still face a lot of violence from and within the justice system: intense questioning and harassment by prison staff, misgendering, deadnaming, administrative segregation, and placement in facilities based on assigned sex at birth. Rights and policies won’t prevent mistreatment, but may remedy them – especially with pressure from lawyers and supporters.
There is a resource called JusticeTrans, run for and by trans and gender diverse people in so-called Canada which provides accessible legal info for trans folks across different areas of law, provincially and federally.
Arrested Without Status
If you are arrested at a time you do not have citizenship (on a visa, non-status, or permanent resident) an immigration officer will be notified of your charges. The situation can get complicated quickly, and initiate a review of your presence in so-called Canada.
If a Canada Border Services Agent or police officer asks you questions when you are not in an immigration inquiry, you do not have to answer them - although you should identify yourself. Do not rely on CBSA staff to be truthful about the law. Have a lawyer on standby, and try not to sign any papers before speaking with them.
For more detailed information, see No One is Illegal
Click to play the below video about your rights if you’re detained or arrested in Ontario, Canada.
Video by CLEO (Community Legal Education Ontario / Éducation juridique communautaire Ontario)