Every criminal case begins with an accusation and a police investigation. Sometimes, for instance, in the case of an individual stopped at a RIDE checkpoint (impaired driving investigative stop), the investigation of an individual precedes the accusation. In either case, once the police have reasonable and probable grounds (RPG) to believe that an individual has committed a criminal offence, either the person is arrested or a warrant (“in the first instance”) is issued for their arrest.

The police have broad powers to stop and investigate a motor vehicle driver under the Highway Traffic Act to ensure compliance with laws relating to the driving of motor vehicles. These same powers do not allow the police to use the pretext of a motor vehicle stop to pursue an agenda related to a criminal investigation.

The police have no authority to stop and investigate individuals at random without cause on the basis of some hunch or suspicion. Ordinarily, the police must act on the authority of a judicially sanctioned search warrant before they are permitted to enter any home or office or search any place. However, there are exceptions to this rule. For instance, in exigent circumstances, where there are reasonable grounds to believe that an individual/victim may require immediate medical attention or be in a state of duress, the police have the authority to enter without a warrant.

The average citizen may become the target of a police investigation for any number of reasons. A person may be in the wrong place at the wrong time, in close proximity in time to the scene of a crime. A person may be in innocent association with an individual that the police have reasonable grounds to investigate. A complainant may have contacted the police and made an accusation against another individual. There may be forensic evidence that connects an individual to a crime scene.

In all of the above scenarios, an individual who finds themselves in investigative detention, should attempt to contact legal counsel at their earliest opportunity. They should not provide information to the police beyond their identity. It is a criminal offence (“obstruct peace officer”) to provide a false name to the police. Certainly, there are cases where individuals have provided false names to police officers and avoided further consequences, but, generally, most individuals who provide false names are identified after further investigation, and ultimately charged with the offences of “obstruct police” and, if released, “acknowledge bail in a false name”. In numerous cases, individuals who have provided false names have created arrest warrants for other family members.

The bottom line, insofar as any investigative contact with the police, an individual should provide their true name to the police and immediately request access to legal counsel. The police are duty bound to offer access to a criminal lawyer upon arrest or detention. The lawfulness of their “reasonable and probable grounds” or their “request to identify” oneself can be challenged at a later date in a judicial forum.

Anyone in detention or under arrest, should immediately tell the police:

I want to speak to a lawyer immediately.

A lawyer will advise any individual in detention or under arrest to exercise their right to remain silent. It is the rare case that an innocent explanation from a person who is in police detention will change the course of a police investigation. Any statement (oral, written or videotaped) given by an individual who is detained or under arrest may be used as evidence against them at their trial. A police investigation may be an exercise in tunnel vision. Any words that are capable of substantiating any aspect of an allegation can be misconstrued or distorted to the detriment of the individual charged. That is why there is only one safe response to police questioning, namely:

My lawyer has instructed me not to say anything in respect to the allegations.

There will be plenty of opportunity to advance your side of the case later. For the time being, don’t say anything in response to the allegation. It will only come back to haunt you.

Call Kostman and Pyzer, Barristers, for the strongest defence!