Guides / BC criminal process

What are my Charter rights if the police arrest me in BC?

Three sections of the Charter do the heavy work the moment the police take hold of you in British Columbia. Section 8 protects you against unreasonable search and seizure, section 9 protects you against arbitrary detention, and section 10 requires the officer to tell you why you are being held and to let you call a lawyer without delay.

Those three sections are the spine of most Charter litigation I run in BC courts. Most people learn the words from American television, and the Canadian version differs in ways that matter to your file. There is no Miranda warning here. There is no right to a lawyer sitting beside you during questioning. What you have instead is narrower, and in the right hands it is sharper.

When does a stop become a detention, and when is it arbitrary?

Section 9 says you cannot be arbitrarily detained. Detention starts earlier than most people expect. You are detained the moment a reasonable person standing in your shoes would conclude he was no longer free to walk away, whether or not the officer put a hand on you and whether or not anyone said the word arrest. The Supreme Court of Canada set out that test in R. v. Grant and applied it in R. v. Le, where officers walked into a private backyard, questioned the young men in it, and told one to keep his hands visible. The Court found a detention from the moment they came through the gate, and found it arbitrary.

Here is the plain-talk version. An officer needs a legal footing to hold you, and the footing changes with how much he knows. Reasonable grounds to suspect you are connected to a recent or ongoing offence support a brief investigative detention. Reasonable grounds to believe you committed the offence support an arrest. A hunch supports nothing. When an officer on the stand cannot say what he knew and when he knew it, the detention was arbitrary. That is a question I ask in some form at almost every trial: what, in your notes, did you have before you told him to stay put?

When do I get to call a lawyer, and what does it cost?

Without delay, and nothing. Section 10(b) gives you the right to retain and instruct counsel without delay and to be told the right exists. In R. v. Suberu the Supreme Court of Canada held that "without delay" means immediately, subject to concerns for officer or public safety. Not once you reach the detachment. Not after a few questions at the roadside.

Once you say you want a lawyer, two duties land on the officer. He has to give you a reasonable opportunity to reach one, and he has to hold off trying to get evidence out of you until you have had that opportunity. In British Columbia the call is available around the clock and free of charge through Legal Aid BC duty counsel, and the officer is required to tell you so. You do not need money in the bank and you do not need a lawyer on retainer at two in the morning.

Section 10(a) is the quieter half and it carries as much weight. You have to be told why you are being held, in terms clear enough that you can decide whether to speak and what to tell counsel. A man who does not know whether he is under investigation for a bar fight or a stabbing cannot give a lawyer a useful instruction. What to do after that call is covered on my page about whether you have to talk to the police.

Can they search me, my car, and my phone?

Section 8 protects a reasonable expectation of privacy, and the starting rule favours you: a warrantless search is presumed unreasonable, and the Crown has to justify it.

The exceptions are real, and I will name them rather than pretend they are not there. Police may search you incident to a lawful arrest, which covers a pat-down and the contents of your pockets. On an investigative detention short of arrest, they may conduct a protective pat-down where there are reasonable grounds to believe their safety is at risk, and nothing beyond. Your phone is its own battleground: the Supreme Court permits a limited search of a phone incident to arrest, on tight conditions including a detailed record of what was searched and why. How long they keep the device afterward runs through section 490 of the Criminal Code, covered in can police keep my phone after seizing it.

Notice the shape of that argument. Once I establish the search happened without a warrant, the burden for the rest of the fight sits with the Crown.

What happens if the police breach my rights?

The remedy lives in section 24(2), and it asks whether admitting the evidence would bring the administration of justice into disrepute. Under R. v. Grant a judge weighs three things: how serious the police conduct was, how badly it hit your Charter-protected interests, and society's interest in a decision on the merits. Breath samples, a statement in the back of a cruiser, drugs out of a backpack, a download off a phone: all of it can be excluded. Where the Crown's case rests on what the breach produced, exclusion ends the prosecution.

What this means for your file

Every Charter argument I run is built out of minutes. What time was the vehicle stopped. What time was the caution given. What time did my client reach counsel. What time did the questions start. The officer wrote those times down or he did not, and either answer gives me something to work with. If you have been arrested in British Columbia, put the timeline on paper while it is fresh, before the memory sands down, and bring it to the first meeting.

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