The Police Didn’t Read Me My Rights, Will My Charges Be Dropped?

Over the years, I’ve had many clients say to me, Mike, the police didn’t read me my rights. Will my charges be dropped? That’s a pretty loaded question. First of all, the answer is maybe yes and maybe not. Let’s break it down now. 

What do the police have to do when they arrest you? Well, first of all, under our charter, they have to give you your reasons for arrest. First and foremost, they start with that, okay, they arrest you and give you reasons for arrest. Secondly, they’re going to read you right to a lawyer. That is right to counsel under Section 10 (b) of the Charter, you have the right to retain and instruct counsel without delay, and that’s a phone call. They  have to provide you phone call before they start interrogating you or answer questions, but that’s under Section 10 B, and third, they’re going to give you what’s called a police caution. Words to the effect that anything you say can and will be used against the court of law. So those are the fundamental things that the police need to do, aside from other procedures when they arrest you. 

So what if they don’t do those? So let’s, let’s break it down. So what if they don’t properly give you the rights to counsel? Rights to counsel is a very complicated area. The police not only sometimes forget to ask, but they make mistakes. Well, what happens then, if you have a good lawyer, and you bring a right to counsel application, and the lawyer could show that there’s one of a million different mistakes that the police literally may be exaggerating a little bit. There’s 1000s of different issues on rights to counsel. The case law is very complicated, so if you can show there’s a breakdown in that they didn’t read the rights. That’s a simple one. But there’s, there’s branches of those that devolve from that. Then you make an application to exclude evidence under Section 24(2) of the charter that has brought the administration of justice into disrepute. But the thing is, the only thing you can exclude if they breach the right to counsel, is evidence occurring after the breach. So take a look at that. Now that might be a confession. So you’re arrested, you go back to this police station, you confess to a crime. Well, if they didn’t give the rights to counsel, that confession might be excluded under Section 24 (2) and  not heard a trial, but the police may have other independent evidence that you, for example, three witnesses to murder as an extreme example, they’re going to continue with the case so that charge would not be dropped. Let me give you another example, though. Let’s take impaired driving. So an over 80 case you blew over the legal limit. Let’s say there’s a breach of the rights to counsel. Okay, in that situation, one of the many branches or breaches. There’s ton of them. I won’t go through the main but let’s just do a novice one. You could show that they actually didn’t even read it or provide it that’s the most basic one. This more of a rarity. Usually it’s the branches that win the case. The more technical issues. Now in that situation, the breath readings could get thrown out. So those two breath readings that they do in the intoxilizer back to the police station after they arrest you that could potentially get thrown out under section 24(2). Well, if there’s no impaired there’s no bad driving, and all the evidence they have are the breath readings, well you win that case. So there’s an example where the charges would get dropped, but that is probably won at trial, or maybe the crown might offer a deal if ahead of the case for careless or even outright dropping it. So it really, depends that rights to counsel. It’s a loaded question. I’d have to get the disclosure first to see if there’s other independent evidence that can prove their case, aside from the evidence that throws from the breach. In this case, they call this the fruit of the poisonous tree. So that the police screw up in Canada, they don’t give you the rights to counsel, the evidence that they find following that may get excluded, not the evidence before though. Like witness statements, evidence of a crime. So that’s a fundamental point. Impaired driving so a different situation, we often do get it dropped if there’s a right to counsel a breach. 

Now with respect to cautions, cautious is a very tricky area, when they give you a police caution. And what happens here again, the same idea, one of the factors in deciding whether a statement gets in Canada, aside from whether there’s right to counsel, and the main factor is voluntariness. Was it a voluntary statement, or was it induced by threats, promises or inducements, or an oppressed state of mind? Now, one of the factors to determine whether a statement is voluntary, and by the way, the crown has to prove that a statement that the police took from you back at the police station after an arrest was voluntary beyond a reasonable doubt. One of the factors the court will look at is whether you’re properly cautioned. Look you don’t have to say anything. It can be used against you to court. That’s one of the factors. So just because you weren’t cautioned, it won’t necessarily be thrown out, but it’s an important factor in that determination. And other factors are, what happens in the room. Were there? Did they, you know, breach your right to silence? Were there oppressive circumstances? Did they make any threats? But a caution is a big thing. So if the proper caution is not given and your lawyer is successful in getting a confession thrown out, the charges may not be dropped there either, because, again, it’s the fruits of the poisonous tree flowing after the caution, which is the confession. There may be all sorts of other independent evidence to prove the case aside from that. So, so that’s the answer I give clients. It really depends. We need to get the disclosure determine how dependent is their case on the evidence which occurred after the breach of rights to counsel, or after the cautio. If their whole case depends on the evidence which was found after, for example, you gave a confession which you said led to the body, and that’s their only case, and you can get that all thrown out. Well, they may not have a case, but they may have a case before that. So there you have it, a slightly complicated answer to try to break down, you know, a simple answer to a complicated issue under Canadian criminal law. Thank you for joining me today.