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You and the Police

Q - Where do police get their powers?

A - The police enforce the criminal law and keep the peace. They are given specific powers to enable them to do this. Police powers are set out in federal laws, such as the Criminal Code of Canada, and in provincial laws, such as the Nova Scotia Motor Vehicle Act. The presence of police in the community helps ensure that laws are obeyed. They play a vital role in ensuring public safety, crime prevention and community safety.

The 'police' referred to here are municipal police and the Royal Canadian Mounted Police (RCMP).

Q - Do private security guards have the same powers as police?

A- No. Private security guards do not have powers over and above those of private citizens. They do not have the right to search you or your belongings without your consent. Sometimes, before you are allowed into a building or an event, a security guard may ask to search your purse or bags. You are free to refuse, but you may then be refused entry. Security guards have the same rights of arrest as private citizens. They must contact the police as soon as possible after the arrest.

Q - Do I have to answer police questions if they stop me in the street?

A -Generally, the police do not have power to stop or question you without a reason.

If the police stop you in the street, you are under no legal obligation to answer their questions. You do not have to:

  • tell them your name or address;
  • explain what you are doing there;
  • produce identification such as a driver's licence; or
  • go with the police for further questioning or investigation unless they arrest you.

However, there is an exception, if the police want to give you a summary offence (a less serious offence) ticket or an appearance notice you should give them your name and address. If they want to write a ticket and you refuse to give your name and address, they may arrest you for obstructing them from carrying out their duties.

The police must have reason to believe you have committed an offence before they arrest you. They should not arrest you just because you refuse to answer their questions or give them information.

Although you do not have to help the police, it may make sense to co-operate with them if their request is reasonable. However, if you are being treated as a suspect, you should talk with a lawyer before you make any statement (written or verbal) to the police.

Q - When can the police search me?

A - The police can legally search you if:

  • you agree to the search;
  • they have arrested you;
  • you are in a house or other building which is being searched for drugs, and they reasonably believe you have drugs on you; or
  • they reasonably believe you are carrying a prohibited or restricted weapon.

The Nova Scotia Liquor Control Act allows the police to search you, or your vehicle, if they suspect that you are carrying liquor illegally.

 

Q - When can the police stop my car?

A -The police can stop your car for the purpose of carrying out their duties, for example, to give you a speeding ticket or to inspect for a valid safety certificate.

Both the Criminal Code and the Nova Scotia Motor Vehicle Act allow the police to stop a vehicle if they suspect that the driver is impaired.

The Nova Scotia Motor Vehicle Act says you must carry your driver's licence and vehicle registration, and show them to the police if they ask to see them. You should also be able to show proof of insurance.

Q - When can the police search my car?

A - The police can search you car if:

  • you agree to the search;
  • they have a warrant (a piece of paper that gives them power to search) to search your vehicle; or
  • they reasonably believe that there are illegal drugs in the vehicle; or
  • they reasonably believe that you are illegally carrying firearms, weapons, ammunition or explosives.

The Nova Scotia Liquor Control Act allows the police to search you, or your vehicle, if they suspect that you are carrying liquor illegally.

Q - When can the police search my home?

A - The police can search your home if:

  • you agree to the search; or
  • they have a search warrant.

The police may enter your home to arrest someone if they have:

  • reason to suspect that it is necessary to enter the home in order to prevent immediate bodily harm or death to any person and there is no time to get a warrant; or
  • reason to believe that there is evidence related to a serious offence in the house and it is necessary to enter the home to prevent the immediate loss or destruction of the evidence and there is no time to get a warrant.

If there is a 911 call from your home, when the police arrive they may insist on coming into your home to check that everyone is safe.

Q - What are my rights if the police arrest me?

A - If the police ask you to go with them, you can ask them if you are under arrest. If you are under arrest you must go with them. If the police arrest you, the Canadian Charter of Rights and Freedoms requires them to tell you:

  • why you have been arrested;
  • that you have a right to talk to a lawyer; and give you a reasonable opportunity to contact one. They must also tell you that you can get free preliminary legal advice, and give you a number to call to get it. You should contact a lawyer as soon as possible.
  • that you do not have to say anything, but that anything you say may be used as evidence in court.

Q - Do I have to give a statement to the police?

A - No, you do not have to give a statement to the police. You have a right to remain silent. However, it is usually a good idea to give them your name. Remember 'Statement' includes anything you say as well as written statements. Often police will videotape interviews. If you say anything, or make a written statement to the police, it may be used as evidence in court.

You have a right to talk with a lawyer. You should use that right. If you do not ask for legal help, the police may think you do not want it. If you want to talk with a lawyer, the police must give you a reasonable time to contact a lawyer, and must allow you to speak to the lawyer in private. If you do not understand what the police are saying to you because, for example, you do not speak English very well, tell the police and ask for an interpreter or translator if you need one.

Q - What are Lie Detectors?

A -The technical term for a 'lie detector' test is a polygraph. A polygraph cannot tell if a person is lying. It measures the level of stress a person is experiencing as he or she is asked a series of questions. The polygraph measures changes to the person's vital signs, such as blood pressure and pulse rate. You do not have to take a polygraph even if you are charged with an offence.

The results of polygraphs cannot be used in court, however, the answers given during a polygraph might be admitted into court in some situations.

Q - When can the police breathalyse me?

A - There are two types of breath tests that police use, the Alco-Meter and the Breathalyser.

  • The Alco-Meter is a pre-screening test (sometimes called a roadside screening device), which gives a pass/fail caution indication. If the police have a reasonable suspicion that you have been drinking alcohol they can stop your car and demand you provide a breath sample for a roadside screening device. They do not have to believe you are impaired. You do not have a right to speak with a lawyer before you provide the sample. However, if there is a delay in giving the test, you may have a right to speak with a lawyer first.
  • The Breathalyser is more precise than the Alco-meter. It provides a blood alcohol percentage, and determines whether the blood alcohol level is over .08 (80 milligrams of alcohol in 100 millilitres of blood), which is the legal limit under the Criminal Code. If the police have reasonable grounds to believe you are impaired, they have a right to ask you to go with them to the police station to take a Breathalyser test.

If the police ask you to take a Breathalyser test, you must go with them to provide the sample.  If the police ask you to take a Breathalyser, they must inform you that you have a right to talk with a lawyer, and give you reasonable opportunity to do so.

It is a criminal offence to refuse to provide a sample without a reasonable excuse. The fact that you were not driving the vehicle is not, by itself, a reasonable excuse. For example, you had pulled into your driveway and turned of the engine by the time the police arrived.

If your blood alcohol level is over .08, or you refuse to provide a breath sample:

Nova Scotia's Motor Vehicle Act allows the police to take your license, and give you a temporary seven-day license and notice of intention to suspend your license for 3 months, if they have reason to believe, based on a blood or breath sample, that your blood alcohol level is over .08 (80 milligrams of alcohol in 100 milliliters of blood), or you refuse to provide a breath sample. You may appeal the suspension to the Registrar of Motor Vehicles.

If you get a 'warn' on a roadside screening test, or your breath test is between .05 and .08:

Roadside license suspensions under Nova Scotia's Motor Vehicle Act for drivers who get a 'warn' on a roadside screening test, or whose breath test shows a blood alcohol level between .05 and .08 are:

  •     7 days for a first suspension within 10 years;
  •     15 days for a second suspension within 10 years;
  •     30 days for a third or subsequent suspension within 10 years.

License suspensions under Nova Scotia's Motor Vehicle Act are in addition to any criminal or other charges that may result from the same incident.

You can also be impaired as a result of taking illegal or prescription drugs.

Q - Can the police take my photograph and fingerprints?

A - If you are charged with an indictable (serious) or hybrid offence, the police have a right to take your photograph and fingerprints. A hybrid offence is one where the Crown must decide whether to treat the offence as indictable or summary (less serious). If you are not sure whether the offence you have been charged with is an indictable, hybrid, or summary offence you should talk with a lawyer.

If you have a document (eg. Appearance Notice, Summons, Promise to Appear) requiring that you go to the police station for fingerprints and photograph you must go.  If you do not go you could be arrested, held, and charged with another offence.

Photographs and fingerprints will be kept on police files. If you are found not guilty of the offence, you can ask the police to destroy them.

Q - Can the police keep me in custody?

A - The police can take you into custody if they have arrested you. They must either release you within 24 hours or, if they do not release you, they must bring you before a judge or Justice of the Peace (JP) within 24 hours and without unreasonable delay. You may be in police custody longer if you are arrested on a weekend and a judge or JP is not available.

The judge or JP may release you with or without conditions, or, order that you remain in custody. See also the FAQs on Bail.

The police can also take you into custody if you are drunk in public. Usually they will keep you in custody until you sober up (usually overnight).

If you are taken into custody, you have a right to talk with a lawyer and you should use this right.

Q - If I disagree with the police arresting me what should I do?

A - You can tell the police that you did nothing wrong but it is not a good idea to fight them, as you may be charged with resisting arrest or possibly assaulting a police officer.

There is little point in arguing with the police if after telling them that they cannot do something, they do it anyway. You can ask the officer for his or her name and badge number. In court, the judge will decide whether your rights were denied.

Q - How do I make a complaint against a police officer?

A - If you are stopped or arrested or you or your property is searched and you feel that your rights have been violated, talk with a lawyer. If you do not have a lawyer to represent you when you go to court, you can tell the judge why you think your rights were violated.

You can also make a formal complaint with or without a lawyer. Usually you must lay a complaint within 30 days of the incident that you are complaining about. The RCMP and municipal police forces have procedures for dealing with complaints against a police officer. They have information pamphlets on the procedures and information online. You can also get information from a lawyer.

Complaints about municipal police officers :

You can file a complaint with any member of the police force or the Nova Scotia Police Complaints Commissioner's Office.

Nova Scotia Police Complaints Commissioner's Officer
1550 Bedford Highway
Suite 720
PO Box 1573
Halifax NS B3J 2Y3
Tel. 902.424.3246
Web:  www.gov.ns.ca/just/NSPC.asp

Complaints about an RCMP officer:

The head of your local RCMP detachment, or

You can also make a complaint through the Commission for Public Complaints against the RCMP on-line, by mail or fax. For more information call toll free 1.800.665.6878, or visit their website at www.cpc-cpp.gc.ca

This information was developed with the support of a financial contribution from the Department of Justice Canada.

May 2011

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