Know Your Rights

While there is a difference between your rights in theory and your rights in practice, it is important to understand your rights when dealing with the police. Asserting your rights when confronted by the police can help protect them. However, everyone must use their own judgement in deciding whether to assert their rights. Knowing your legal rights may, at the very least, help if things end up in court or if you decide to take legal action against the police. This is not intended to serve as legal advice and remember the laws are always changing.

Do’s and Don’ts Before the Protest

- Before the protest, write the lawyer’s number on your body in permanent marker.
- Don’t bring drugs, weapons or your address book with you to a protest; it will make the cops’ jobs easier!
- Let people know if you do not want to be in an arrest-able situation, but always plan for the possibility of arrest. Make sure someone (friend, family, member of affinity group), knows: the legal numbers to find information about you in case of an arrest; if work or family should be contacted; if pets need to be fed; if children or Elders or others need care arranged etc.
- Be aware of which of the following might make you more vulnerable if arrested and be sure to communicate this to your friends e.g. people with disabilities, people of colour, visibly queer or trans/intersexed people, precarious immigration status, psych survivors and people with mental health issues, parents or caregivers, people with criminal records, minors, people with medication needs, and known organizers.

Police Encounters:

Questioning: Regardless of your legal immigration status, if the police or immigration officers are asking you questions for any reason, first ask if you are free to go before you answer anything. If they say yes – then walk away. You are free to leave any such encounter unless you are being detained or arrested. If you feel the police are not being clear, then specifically ask if you are being detained. You do NOT need to provide ID (see the list of enumerated grounds below). Also be aware of answering any questions regarding your immigration status as that is usually how they figure out your status.

Identifying yourself: You do not have to identify yourself (only ever name, address, birthdate) to police or immigration officers unless:
• you are arrested or police are trying to give you a ticket or appearance notice,
• you are driving a vehicle (you must show your driver’s licence , passengers don’t have to identify themselves),
• you are in a bar or movie theatre (you must prove you are old enough to be there), or
• you are in a park (some municipal bylaws might require you to identify yourself to police).

Lying or refusing to identify yourself when you are being arrested or are being issued a ticket or appearance notice can lead to further charges of obstruction. Activists who refuse to identify themselves when being arrested will usually be held in custody until they identify themselves or the justice of the peace orders them to identify. If you are a person of colour, carrying status that shows your permanent residency, Indian, or citizenship status may be a good idea. If you are non-status, it's better to have ID that does not indicate this (i.e. driver’s license).

Detention: If the police stop you and start asking you questions, ask if you are free to go before you answer anything. If the police say “no,” then you are being detained. If you feel the police are not being clear, then specifically ask if you are being detained. Detention means the police are investigating you because they believe you have committed or are about to commit a crime; their reason has to be more than a hunch though there are not sufficient grounds for an arrest. Ask why you are being detained — the police must tell you the reason, remember this reason. Take the officer’s name, department, and badge number. Remember you do not have to identify yourself or answer their questions if you are being detained. The police can pat you down, but only to look for weapons if there are reasonable grounds to believe that there is a safety risk.

Arrest: The police can arrest you only if:
• they have seen you committing an offence or have reasonable grounds to believe you have committed an indictable or hybrid offence,
• they have a warrant for your arrest,
• they have reason to think you have a mental disorder and are dangerous,
• you have breached the peace or are drunk in a public place, or
• they have reason to believe you are a terrorist about to commit a terrorist act.

Remember to ask if you are free to go. If no, ask if you are being detained or being arrested. If you are arrested, you have the right to be told what you are charged with (remember this) and that you have a right to a lawyer of your choice. You have to identify yourself (name, address, birthdate only); do NOT provide additional information. Regardless of your legal immigration status, you are not required to answer any questions about your status to police. Legally, the police are only allowed to use as much force as is necessary to arrest you or ensure that the situation is safe. Any additional unneeded force is considered excessive. Make sure to note the arrresting officer’s name and badge number and document any visible injuries. If you are being arrested, any pulling, running or physical struggle will probably result in charges such as resisting arrest or assaulting a police officer. Using passive resistance or going limp does not count as resisting arrest (see details below). Sometimes people are released right away with an appearance notice for court, but this is usually only for minor charges when they are sure of your identity and appearance in court and that you will not continue to break the law.

Dealing with the Police: Always try to get the police name, department, and note the date and time of police interaction. Beyond identifying yourself (in the circumstances listed above), you do not need to answer any other police questions or make a statement to the police. Tell them that you wish to remain silent and consult your lawyer. Choosing to exercise your right to remain silent will not be held against you by the court, although the police might try to convince you otherwise (by threatening you with more serious charges). Anything you say to the police will be used as evidence against you. Trying to say you were not at fault may not help you. Never speak to the police about other people. Police officers are allowed to lie in questioning; they may claim that your friends have told them what happened etc. The police are also not allowed to promise you anything for your cooperation or confession. You are not required to take a lie detector test, they are inadmissible in court and unreliable, and the police will not release you just because you pass such a test. It is better not to say anything to the police than to lie – lying can lead to charges of obstruction. So it is always best to remain silent, especially under arrest, and ask to speak to your lawyer.

Search and Seizure: The police cannot search you unless:
• you are arrested (the police can do a full search of you and your possessions, but only to find and prevent the destruction of evidence, and for the safety of officers – searches must not be abusive),
• you are detained (the police can pat you down to feel for weapons that they have a reason to think you might use against them or yourself),
• you have a search clause as a condition of probation or the police have a search warrant,
• you consent to a search (so never give consent to a search).

The most common way police overstep their powers with searches is by asking for your consent to search your belongings or person. So always tell the police you are not consenting if they try to search you, even if you think the search might be legal. This includes you turning out your own pockets or giving yourself a pat-down; do not consent to searching yourself. It is probably not a good idea to physically resist a search, make sure witnesses hear you refusing the search. Your refusal may make anything they find inadmissible and may allow you to pursue sanctions for illegal search and seizure. Strip searches should not be done by an officer of the opposite sex or in a public area, and the police are not supposed to conduct strip searches routinely.

The police are allowed to stop you for any reason if you are driving, but are only allowed to search your car if
• you consent (so never give consent to a search of your car),
• you have committed a criminal offence, you are arrested, or there is something in your car that gives them a reasonable cause for doing a search, such as the smell of pot or beer bottle caps.

The police can seize your property only if it is connected to a crime. This includes property used in committing a crime or property that could be used as evidence of a crime, such as videos.

Common Charges

Breach of the Peace: This gives the police the right to arrest you to prevent or stop a breach of the peace but isn’t a charge in itself. There is no record of the charge. They will usually release you soon after the action unless they are going to charge for breaking some other law, and in any case within 24 hours. It is a commonly used police tactic to use breaching charges so the police can round people up, put them in police vehicles, drive them far from their original location, and release them there.

Causing a disturbance: This offence includes fighting, screaming, shouting, swearing, singing, using insulting language, impeding or molesting people, or loitering in a public place and obstructing people. It has to be in or near a public place.

Unlawful assembly: You can commit this offence by getting together with at least two other people, intending to carry out some common purpose, in a manner that causes people nearby to fear that you will “disturb the peace tumultuously”, or without a reasonable cause, provoke others to “disturb the peace tumultuously”. Tumultuous involves an element of violence. Although the police will usually announce that an assembly has become unlawful (usually by ordering you to disperse) it is not essential.

Riot: This is an unlawful assembly that in fact “has begun to disturb the peace tumultuously”. If a sheriff or sheriff’s deputy etc., reads these certain magic words – even if you cannot hear them- after a riot has started and you are still around after 30 minutes you will have committed a much more serious offence.

Note: Both riot and unlawful assembly are crimes of mere presence. All the Crown needs to demonstrate is that you were part of the “common purpose” (e.g., you were participating in the demo or action), and that you stayed when it became an unlawful assembly. You don’t actually have to have done anything to contribute to the “tumultuous” nature of the assembly.

Contempt of court: Contempt of court covers a number of things that are considered disrespectful or disobedient of the court. These can range from things done in the courtroom (like swearing at the judge) to disobeying a court order (eg: an injunction). Civil Contempt: Usually, when someone disobeys a court order, the court will just assess damages against the person. Criminal Contempt: The court has the power to convict someone for contempt under criminal law. In the case of an injunction, the court will only convict you if you knew about the injunction and you disobeyed it in a public, flagrant and continuous way.

Intimidation by blocking a road: Involves blocking or obstructing a highway without lawful authority, to prevent people from doing something they have a lawful right to do.

Resisting or obstructing a peace officer: You can be charged with this if you resist or wilfully obstruct a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer. This includes resisting arrest – but going limp or refusing to unlock is not resisting. Holding onto a pole or struggling against arrest is resisting. Locking down when the officer has placed you under arrest is resisting. As a general rule, anything you do more than you would do if you were unconscious that is not cooperating with the arresting officer is probably resisting arrest. Anything you do to interfere with an officer in the execution of their duty is considered obstruction, e.g. laying down in front of a police car or getting in the way of an arrest.

Assaulting a peace officer/resist arrest: This is an assault of a peace officer engaged in the execution of his or her duty or a person acting in aid of such an officer. This offence includes resisting or preventing the lawful arrest or detention of you or another person. If the officer exceeds his or her powers so far as to exceed his or her duty and authority, the officer is no longer acting in the execution of duty.

Mischief: Includes wilfully destroying or damaging property, rendering property dangerous, useless, inoperative or ineffective, or obstructing, interrupting or interfering with the lawful use, enjoyment or operation of property. This would include spraypainting, chaining doors shut, or blockading entrances.

Assault by trespass: You are deemed to have committed assault if you trespass on property and resist an attempt by the owner or someone acting under the owner’s authority, to prevent your entry or to remove you. While this does not apply to public spaces, many government buildings and offices as well as malls are considered at least partly private, thus this charge would apply. If you do not resist removal by going limp or voluntarily leaving, your trespass is just a provincial ticketable offence, not a criminal charge.

After An Arrest

Custody: If you are being taken into custody, ask to speak to your lawyer immediately and tell the police you want to remain silent. The police may keep asking questions, but you do not have to answer them. Do not make any statements or sign any declarations. Do not discuss your case with anyone while being held in jail, and do not ask others about their cases. The police may have someone planted in the cells posing as prisoners, or a prisoner may act as an informer to get some benefit for themselves. Custody may also involve strip searches though that is usually selectively done. Strip searches must be conducted by an officer of the same sex as you and in private. Any violation of this, such as a woman being stripped in an area where male prisoners or officers can observe you, should be recorded and reported. Supposedly, police can only strip-search you if they have reason to believe you are concealing something, but these searches are often done to intimidate and punish.

Court Appearances You must be brought before a justice of the peace “as soon as practicable” and in any case within 24 hours. You might be released from the police station either by the “officer in charge” or by a justice of the peace if one is brought to the station or by teleconference. You may be released in the following ways:
• by the police once you have identified yourself . A notice to appear will be sent to your house by the police and you may be asked to sign a promise to appear (these releases often come with conditions, don’t sign any conditions you can’t live with for the following months, they’re very hard to change)
• by the justice of the peace, possibly with conditions on your promise to appear, or after a bail hearing in court- you may have to post bail, have a surety sign for you or agree to conditions

If you decide not to identify yourself or to provide your address when you are arrested, you will likely be held for a bail hearing in court and will likely have additional charges of obstruction laid. You may also be held until your trial, but if you don’t have a prior record and the charges aren’t too serious, you will undoubtedly be released, but not until you identify yourself. You have a right to reasonable bail, and unless there are special circumstances (if you have another case pending or you are non-resident of Canada) it is up to the Crown to demonstrate why you shouldn’t be released. The court may refuse release if it believes: you are likely to commit an offense, you will not show up for your trial, or releasing you would bring the justice system into disrepute.

Release Conditions: People arrested at political events are sometimes given release conditions that restrict what they can do after leaving custody, even if that action would normally be legal. These include non-association orders with others or not being allowed to participate in any further (even lawful) protest. These can later be challenged, with some difficulty, but you may be kept in custody until you sign them and if they are violated you may be taken back into custody even if you have not broken any laws, other than the release conditions. It’s always a good idea to speak to a lawyer before signing any conditions.

Additional Important Information

Legal observers: The BC Civil Liberties Association and Pivot Legal Society will have teams of trained legal observers during most public demonstrations and assemblies to witness and document rights violations by the more than 7,000 police officers, 5,000 private security guards and 4,500 members of the Canadian armed forces.

Police complaints: The VPD investigate complaints against themselves. The results from such complaints are nearly always favourable to the police, however, you do have the right to report an officer who abuses you, swears at you or uses prejudicial language, or violates your rights. That’s another good reason to always collect and write down the name, branch, and badge number of police and the date/time/location/details of the encounter. Write this down on your body since your belongings may be removed during processing or searches.

Olympic Security Zones: There will be buildings, sporting venues, practice areas, and Olympic events under fenced security zones. Security at these zones will entail heavy security and personal screening of attendees (ID and belongings checks will be conducted by Vancouver Integrated Security Unit made up of RCMP, VDP and other security members). There are also extended security zones in the surrounding areas that will include additional police, private security, and public video monitoring through closed-circuit television. The VPD is responsible for security within these extended security zones and outside the fencing generally. When dealing with the police, take note of what branch they are working for. There are secure locations in nearly every downtown and eastside neighbourhood, so even if you are not planning to attend an Olympic event, you will be under increased scrutiny and restricted movements. It is also common for Olympic security to demand IDs and searches of people outside venues where they have no legal right to do it, so remember to always ask if you are free to go and never give consent to a search. If you go into a venue, providing identification or being subject to a search are legal requirements of entry.

Undercovers: Undercover police officers are allowed to lie about being police officers, no matter how many times you ask them if they are police. They are also allowed to lie about their name, background and anything else. They can also break the law in some situations, so simply seeing someone break the law, does not mean that they are not an undercover police officer. You can also be charged for publicly revealing the identity of an undercover officer, so be careful how you address any suspicions you may have.

Postering: The selectively-enforced postering bylaw in Vancouver prohibits putting posters on public property. If you are ticketed for postering, remember that the police may only: give you a ticket, give you a warning, or go to court and get an injunction to prevent you from future postering. (Again, if you are getting a ticket you are required to provide ID, name, birth date, and address.) They cannot: arrest you for simply postering, or for continuing to poster, or seize your posters or equipment. Police occasionally try to seize your postering gear, but reminding them that you know your legal rights will often rein them in.

Private Security or Citizen Arrests: Property owners, security guards, or people on the street can make arrests in some situations, but they do not have the same powers as police. They can only arrest you if they actually see you committing an indictable or hybrid offense or if you are running away from the police. Unlike police, if they only have reasonable grounds to believe that you broke the law, they cannot arrest or detain you. People who own property or are guards protecting property can arrest you if they see you committing a crime related to that property. Privately owned property includes things open to the public, like malls, stores, restaurants and bars. If you are asked to leave private property and do not, you become a trespasser and they may use reasonable force to remove you.

Youth protestors: Youth have the same basic legal rights as adults do. Like adults, police cannot detain youth unless the police “reasonably suspect” there are grounds to investigate the youth for involvement in a criminal offence. Upon arrest, young people have the same rights as adults to be informed of the reason for arrest and the right to contact legal counsel of their choosing. However, if you are aged 12 to 17, you are a “young person” under Canadian criminal law. When dealing with a young person, a police officer must first consider measures that do not involve arresting and formally charging the young person, such as a warning or talking to the young person’s parents. If the young person is detained or arrested, he or she must be kept separate from adult detainees. The police must also take extra caution in making sure the young person understands his or her right to call a lawyer and must give the young person an opportunity to do so, and to have a parent or adult friend present before trying to get the young person to give a statement or talk about what happened with the officer. Police officers must also contact the young person’s parent or guardian and let them know the reason for arrest and the place that the young person is being detained if the young person is not released on scene.

Non-citizen protestors: Non-citizens include foreign nationals (with or without status) and permanent residents. Regardless of your legal immigration status, if the police or immigration officers are asking you questions for any reason, first ask if you are free to go before you answer anything. You do not need to answer questions about your status to the police. You have the right to contact counsel regardless of status once detained and you should contact criminal counsel as well as immigration counsel.

Although non-citizens are generally subject to the same criminal laws and protections as Canadian citizens, the consequences of being arrested and charged can be much more serious. If a non-citizen is arrested, it is important to clarify whether the arrest is made under the Criminal Code or for immigration-related reasons. If English or French is not the primary language, the non-citizen has a right to a language interpreter upon arrest. A non-citizen charged with a criminal offence should immediately seek legal assistance to avoid losing their immigration status. Non-citizens may lose their status, including long-time permanent residents or landed immigrants, if they are found "inadmissible" for criminality or security reasons. Persons who are inadmissible to Canada for criminality may be denied entry into Canada or face deportation proceedings.

Non-citizen protests and immigration officers:
• Citizens cannot be arrested by immigration officers under any circumstances
• Protected Persons (People who have won their refugee hearings) and Permanent Residents (landed immigrants) can only be arrested by immigration officers if they have a warrant. Ask to see the warrant, make sure your name is on it and it is signed.
• People without status can only be arrested if the immigration officer knows your name, and has reason to believe you are inadmissible (i.e. are here without status)and they have reasons to believe you are either a danger to the public or unlikely to show up for hearings, appointments or removal.
• If you are stopped by immigration officers, ask why they are stopping you. If they do not have a reason to stop you as above, then tell them you want to leave.
• If you are arrested, ask them why. Tell them you want to speak to your lawyer, immigration consultant or a community member who can help you without charge (someone from your community group, mosque, church etc.) before you answer any questions or sign anything. If you ask to talk to a lawyer, consultant or community member, they are supposed to stop asking you questions (though they can hold you in the meantime).

You have a right to legal counsel. If you are detained by immigration and are a citizen or permanent resident, you are not required to answer any questions other than to prove your status. If you are not one of these, you are required to answer the immigration officer's questions truthfully and fully. however, you can talk to counsel before doing so. If detained under immigration law, the non-citizen has a right to a detention review within 48 hours or so. In many cases, this can mean detention for four or five days before a hearing is actually held. Anyone facing a detention review can access free legal representation through the Legal Aid Duty Counsel service. Always talk to legal counsel before any interview or signing anything, sometimes these may result in a removal order being placed on you or you waiving your rights. Lying to an immigration officer can be grounds to remove you, and may make it so you cannot come back to Canada for two years. So always exercise your right to remain silent and talk to a lawyer first.