Right to Know Column – Oct. 28, 2011

My firm (Edelson Clifford D’Angelo LLP) is writing a bi-weekly column for the Ottawa Citizen on the topic of legal rights and the criminal law, entitled, “Right to Know”.
The principal partner, Michael Edelson, wrote the first piece, introducing the column and some of the forthcoming topics.
This week, it was my turn to write about citizens’ rights during the “casual” police interaction:
Right to Know:
Meeting the police: An informed citizen won’t be intimidated
SOLOMON FRIEDMAN, OTTAWA CITIZEN

Whether you are protesting in an “Occupy” demonstration or simply making your way home from a late night Halloween party, the “casual” police interaction is a regular feature of our lives.
Such a meeting can be intimidating. The dark uniforms and polished shoes lend an air of unquestioned martial authority.
Not to mention the holstered sidearm and mirrored sunglasses.
Even the most confident individual can be reduced to a stammering mess in the face of a police officer saying: “I asked you a question, sir.”
But, in fact, under most circumstances, you don’t have to answer the question.
As a general rule, you have no obligation to speak to the police or to provide any information whatsoever. Similarly, you have no obligation to identify yourself, either through providing your name or by showing an officer a piece of ID. It’s another story if you are operating a vehicle or are otherwise subject to another statutory regime, such as the Liquor Licence Act or the Trespass to Property Act.
That said, your right to refuse to answer does not translate into the right to mislead or deceive an officer. Knowingly providing the police with false information can lead to a criminal charge for obstructing police. In the same vein, although one is not obligated to provide an officer with proof of identification under most circumstances, it can be a criminal offence (personation) to lie about your identity.
Your legal status and accompanying rights will also depend on the precise nature of your interaction with the police. For example, a person who is compelled by an officer to remain on the scene may be subject to “investigative detention.”
While the police do have the ability to temporarily detain you for investigative purposes, this power has been closely circumscribed by the courts.
First, the detention must be short. Second, there is still no obligation on the part of the citizen to co-operate with police or to provide identification or other information. Also, while the police may be able to perform a “pat-down” for weapons, an investigative detention does not give the police the right to search you or your belongings.
Finally, the longer the detention, the more likely it is that you are constitutionally entitled to consult a lawyer and seek legal advice.
So, if you find yourself in a situation where you feel that you are being detained by police – whether through physical restraint or by psychological compulsion – it is critical that you find out the nature of the police inquiry.

■ Am I free to go?

■ Am I under arrest? If so, why?

■ If I am not under arrest, am I being detained?

■ If I am being detained, can I consult legal counsel immediately?

Knowledge is power. A firm grasp of your legal rights will be the difference between a confident interaction with the state and a cowed and compliant citizen.
Of course people shouldn’t be afraid of co-operating with officers making inquiries about innocuous matters or seeking witnesses to further an investigation. However, it goes without saying that, in a free society, one’s choice to co-operate with the authorities must be voluntary. And to be a truly free choice it must be an informed one.
There is also a difference between confidently asserting your rights and being belligerent. The former is the mark of an informed citizen, while the latter is at best unproductive and at worst a recipe for disaster.
It is not, however, untoward to remind police officers that their powers are limited and that you know, and intend to assert, your constitutional rights. As a free and democratic society, we are the better for it when the coercive power of the state is tempered by an educated and knowledgeable public.
Solomon Friedman is an associate with Edelson Clifford D’Angelo LLP. He practises criminal defence law in Ottawa and the surrounding areas. Follow Solomon on Twitter @Firearmslaw.
Read the column on the Citizen site.