What Are the Rights of Criminal Defendants?

October 25, 2020

The Canadian Charter of Rights and Freedoms is part of the Canadian Constitution, which is Canada’s supreme law. Knowing your Charter rights is very important when you have been charged with a criminal offence. Some of those rights are as follows: To be informed without unreasonable delay of the specific offence; To retain and instruct counsel without delay and to be informed of that right; Not to be denied reasonable bail without just cause; To be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; To be tried within a reasonable time; Not to be compelled to be a witness in proceedings against that person in respect of the offence.                                                                                                                                                

If the police charge you with a crime, they must tell you what you have been charged with promptly. They must also immediately inform you of your right to retain and instruct counsel and of the existence and availability of Legal Aid. If you indicate a desire to exercise your right to counsel, they must provide you with a reasonable opportunity to do so and not elicit evidence from you until you have had that opportunity. Should you decide to waive your right to counsel, which is never a good idea, you must understand the consequences of doing so.

If the police are opposed to your release, you will get remanded into custody. You then have the right to go for bail and not get denied it without just cause. Canadian case law clarifies that release is the cardinal rule and detention is the exception. Release is favoured at the earliest reasonable opportunity and on the least onerous grounds. That does not mean getting bail is easy. As such, retaining a lawyer to create a bail plan and apply for bail on your behalf is advisable.

Although the media often makes it seem like people are guilty until proven innocent, you are presumed innocent until proven guilty. Should you decide to fight your charges at trial, you must be tried within a reasonable time. Thus, there cannot be an unreasonable delay. The presumptive ceiling between the time you are charged and the end of your trial for provincial courts, without a preliminary inquiry, is 18 months, whereas the limit for superior courts is 30 months. Once the ceiling has been reached, the delay is presumed unreasonable and the Crown has the onus of rebutting that presumption.

An experienced criminal defence lawyer can analyze your case and go over your options with you, advising whether you should take your case to trial. Moreover, that lawyer can represent you at trial and help you decide whether or not you should testify. If you do not testify at your trial, your silence cannot be used against you as evidence of your guilt.  

If you have been charged with a criminal offence, Jason Malloy can explain your rights to you and discuss your options. Call today for a free consultation.

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Jason Malloy is an associate lawyer at the Theodore L. Mariash Law Office in Winnipeg, Manitoba, Canada.

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