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警权摘要

警权十分广泛;与警方交涉时,了解你的权利十分重要。我们的册子提供有关警权几方面的资料,包括如果你被警察拘留、查问、逮捕,以至被警察搜身和进入你的居所搜查时,该怎么办。

你有权对警方的政策、服务和行为作出投诉。投诉人不必是安省居民。有关警员的行为、警方的服务和政策的投诉可以向安省独立警务审查办公室提出。在某些情况下,审查办公室可能决定对警察不当行为的投诉亲自进行调查;然而,当局必须把所有关于警察服务及政策的投诉转交适合的警队,让他们在当局的监督下进行调查。

有关这些内容的详情,请点击此处此处 。这本册子提供有关警权和投诉警方程序的重要资料,由法律援助中心(服务华人及东南亚社区)出版。内容取材自安省社区法律教育中心印制的“Police Powers: Stop and Searches” (警权:截停和搜查),以及安省独立警务审查办公室网站(www.oiprd.on.ca) 的“How to Make a Complaint” (如何作出投诉)。

本册子只提供一般法律资料。如果你对于自己的具体情况有任何疑问,请咨询你当地的社区法律咨询中心、社区服务机构或律师。如果你未满18岁,你受到《青少年刑事法》的规限。你拥有这本册子没有提及的权利,应该寻求法律意见。

索引

给警察截停查问

逮捕和拘留

警察在你的住所里搜查

搜身

投诉警方

Police Powers

Know your rights

This brochure gives general information on police powers and on the police complaint process. This is meant to be a helpful guide and not a substitute for independent legal advice. Should you need further assistance, please contact a lawyer.

1. Being Stopped and Questioned by the Police

In most cases, if you are stopped and questioned by the police, you do not have to answer their questions but should be respectful.

If you are under 18 years of age, you are subject to the Youth Criminal Justice Act. You have rights not mentioned in this booklet, and should seek legal advice.

What if the police ask me who I am?

If the police are thinking of arresting you, they will ask for your identity. You are not required to identify yourself to police unless you are placed under arrest. If the police stop you and ask you questions, you should politely ask the police why they are asking. However, there may be several reasons why you might want to tell police who you are:

  • You wish to prove to the police that you are not the person they are looking for to avoid being wrongfully arrested
  • If the police believe you have committed a crime, but you do not reveal your identity, you may be brought to a police station and detained until the police find out about your identity.
  • If the police suspect that you have committed a minor offence and you tell them who you are, they may give you a document telling you when to attend court instead of arresting you.

If you lie about your name or address, you can be charged with obstructing justice or interfering with police investigation.

What should I do if I am stopped while driving?

If you are stopped and questioned while driving, you must show your driver’s license as well as your vehicle registration and insurance. If you do not produce these documents, you can be charged with offences under the Highway Traffic Act.

If the police suspect that you have been drinking, they may demand that you do a roadside breath test. If they have “reasonable grounds” to believe that your driving ability has been impaired by alcohol or drugs, they can request you to undergo a full breathalyzer test. You are not required to do physical tests. You do not have the right to speak with a lawyer before taking a roadside breath test. However, you do have the right to speak to a lawyer before doing a comprehensive breath or physical test.

If you refuse a breath test, the police may charge you with refusing to provide a breath sample.  Later, a court will decide whether you had a “reasonable excuse” for refusing. But it is hard to show that you had a reasonable excuse. If the court rules that you did not have a “reasonable excuse”, you will be given at least the same penalty as if the police had caught you driving while impaired or with more than the legal limit for alcohol in your blood.

If you are a passengers in the vehicle, you do not need to speak to police or provide ID.

What if the police question me?

By law, only if arrested, not just suspected, should you be obligated  to ID yourself to police. Even if you choose to ID yourself, you do not have to answer any questions.  You can tell the police that you do not want to say anything until you speak to a lawyer.

Anything you say to the police, including ordinary conversation, may be used as evidence against you in court. Even something you said before you were arrested, or while you were in the police car, can be used against you.

The police should stop questioning you as soon as you ask to see a lawyer. You can just say, “I want to speak to a lawyer”, and then remain silent. If the police continue to question you, you do not need to answer, just ask again to speak to a lawyer.

In Ontario, Legal Aid pays lawyers known as “duty counsel” to provide free legal advice, 24 hours a day. Ask the police for the toll-free telephone number for duty counsel or contact a lawyer you know.

Police may continue to ask questions after you have spoken to a lawyer.  Even if you do not want to answer, police can continue to ask questions.  You have the right to remain silent and not to answer.

After you discuss the issue with a lawyer, you may decide you want to speak with the police. Providing false information is a criminal offence. You must keep this in mind when you choose to talk to the police.

If you try to stop other people from co-operating with the police, you could be charged with obstructing justice or obstructing a police investigation.

2. Arrest and Detention

If the police suspect me of having committed a crime, will they arrest me?

Not necessarily. The police cannot arrest you simply because they suspect you of having committed a crime; they must have “reasonable and probable” grounds to believe that you have committed a crime. If the crime is minor, you might be charged without being arrested if you provide the police with your true identity and if the police believe:

  • You will not destroy evidence
  • You will not repeat the offence; and
  • You will go to court as required

If the crime is serious, you will be arrested. The police or a Justice of the Peace may release you at a later time. You may be asked to agree to certain conditions before being released. Or you may be detained until given your first opportunity to attend a bail hearing. This usually occurs within 24 hours of your detention. At the hearing, a judge or justice of the peace will decide if you should be released, and on what terms and conditions.

To find out whether the police are arresting you, you can ask them, “Am I under arrest?” If you are, ask them for reasons for the arrest.

What are my rights if I am arrested or detained?

Your rights are protected by the Canadian Charter of Rights and Freedoms (part of the Canadian Constitution).

If you are arrested or detained, you must be:

  • told why you have been arrested or detained,
  • told immediately that you have the right to a lawyer,
  • told about Legal Aid and your right to free legal advice,
  • allowed to speak to a lawyer, in private, as soon as possible, and
  • given the opportunity to attend your bail hearing within a reasonable timeframe

Once again, if you wish to speak to a lawyer, the police should stop questioning you. If you have been arrested, the police must give you the 24-hour, toll-free number to get free legal advice from duty counsel.

The police might continue to question you even after you speak with a lawyer and tell them you wish to remain silent. It is often hard not to respond to continuing questions. You should politely tell police you do not want to continue discussion. If the police persist in questioning despite you having invoked your right to remain silent, you may want to be more firm about your right, or tell the police to take you to your cell.

3.   Police Searches inside your home

Can the police enter my home?

The police can enter your home if they have one of the following:

  • a warrant that allows them to enter your home to arrest someone,
  • a search warrant, or
  • permission from you or from someone else in your home

In urgent situations, the police can enter your home without a search warrant or your permission. For example, if the police are pursuing someone who has committed or will commit a serious crime and they believe the suspect is in your home, they may enter your home without a warrant. However, they must tell you that they are the police before entering.

The police can also enter your home if:

  • they need to provide emergency aid to someone,
  • they believe there is someone in your home who might harm another person (to protect someone’s safety in the home)
  • they are investigating a disconnected 911 call,
  • they have reasonable grounds to believe there are drugs or evidence of another offence in your home, which may be destroyed if they wait to obtain a search warrant, or
  • they are helping an animal that is injured, ill, abused, or neglected and in immediate distress.

Under child welfare law, the police can enter your home without a warrant to remove a child if they have reasonable grounds to believe the child is:

  • neglected, abused, or in need of protection,
  • a runaway under the age of 16 that was previously in the care of a children’s aid society and the child’s health and safety is at risk, or
  • under 12 years old who has committed something that would be considered an offence if someone 12 or older had done it.

Your landlord also has the right to enter your home in an emergency. Landlords can ask a police officer to come with them.

What are my rights if the police have a search warrant to enter my home?

A search warrant is a written order issued by a judge or a Justice of the Peace. It authorizes the police to search your home. If the police have a valid search warrant, you must allow them to enter your home.

The police must show the search warrant. You can also request that they show it to you. They must be carrying a search warrant before conducting a search.

You should check to make sure that the information on the warrant is correct. Check whether your address is right, and see if the warrant shows the dates and hours when it can be used. The police can only conduct a search during the times specified in the warrant. Also, check the warrant for the signature or name of the judge or justice of the peace who ordered it. The warrant must say who signed it, and the place, date, and time they signed.

If the warrant contains wrong information, tell the police. Usually, a warrant is valid even if there are small problems, such as a spelling error. If the warrant has mistakes in it, you can ask the police to leave, but you should not try to stop them from entering your home.

Police may use reasonable force to enter your home if they have a valid warrant.  If you try to stop a legal search, you can be charged with obstructing the police.

What are my rights if the police ask to enter my home?

If the police do not have a warrant, they need permission from you or someone else in your home that has the authority to permit them to enter (usually an adult).

If you do not want the police to enter, you must refuse them verbally. Otherwise, a misunderstanding may occur and they may think that you are agreeing to let them in.

As with any arrest, if police enter to search your home and they arrest or detain you, they must tell you that you have the right to contact a lawyer. Once again, if the police enter your home without permission, do not try to stop them. Contact a lawyer right away.

In what situations can the police search my home?

The police must have a search warrant or permission from a member of your family before they can search you home.

There are limits to where and how the police can search your home. The police cannot destroy property unless necessary. Police can only look for evidence listed in the warrant and in areas where they might find them. For example, they cannot look for a stolen piano in your cookie jar. However, if the police are searching for evidence that is listed in the warrant and they discover something related to another crime, they can take it and use it as evidence.

Usually, if the police take from your home something that was legally in your possession, they must return it to you within three months, unless a justice of the peace orders that they can keep it longer. If you are not charged and the police do not return your property within three months, you can contact the police and ask them to return it. If necessary, you can apply to a court to have it returned.

4. Body Search

When can the police search me?

The police can search you, your clothes, and anything you are carrying if they arrest you or if you give them consent to search you. The police can also search you if:

  • they find you in a place where they are searching for drugs and they suspect that you have drugs,
  • they find you in a vehicle where people are transporting or consuming alcohol illegally and they have reason to believe you have alcohol on you illegally, or
  • they have reason to believe that you have an illegal weapon that was used to commit a crime, and that it might be disposed of if they took the time to get a warrant.

If the police wish to search you for any of the reasons listed above, you should co-operate even if you are opposed to the search. If you believe that you are being searched illegally or without a good reason, tell the police you object to the search and contact a lawyer as soon as possible.

If police detain you on reasonable grounds that you committed a crime, they have limited powers to search you. They can do a protective pat down search for weapons if they believe that their safety or the safety of others is at risk.

A strip search is not a routine procedure. If the police ask you to agree to a strip search, you should tell them that you want to receive legal advice first. The police cannot request you to take part in a strip search in a public place or in front of someone of the opposite sex.

If the police search you because they think you have committed an offence and find evidence related to another offence, they can charge you with the second offence. For example, if they find illegal drugs while looking for stolen property, they can charge you with possession of illegal drugs.

5. Making a complaint against the police

Police officers have a code of conduct to follow that includes:

  • To act with honesty and integrity
  • Treat people with respect
  • Not to abuse police powers and authority
  • Act in a manner that does not discredit or undermine public confidence in the police service

How to make a complaint?

Police complaints are made to the Office of the Independent Police Review Director (OIPRD).  A complaint form must be filled out and submitted.  You can obtain a form and file a complaint in the following ways:

  • Online
    www.oiprd.on.ca
  • By Mail
    Office of the Independent Police Review Director
    655 Bay Street, 10th Floor
    Toronto, Ontario M7A 2T4
  • By Fax
    Fax # 416-327-8332
  • In Person
    Office of the Independent Police Review Director
    655 Bay Street, 10th Floor
    Toronto, Ontario M7A 2T4
    Phone # 416-327-4965

Complaints before/after October 19, 2009:

Due to proclamation of Bill 103 coming into effect on October 19, 2009, the OIRPD is now responsible for the oversight of police complaints, not the Ontario Civilian Commission on Police Services (the Commission).

If your complaint relates to an event(s) occurring on or after October 19, 2009, you may file it with the OIPRD or with the Chief of Police of the police service involved.  The Chief of Police will forward your complaint to the OIPRD.

If you filed a police complaint before October 19, 2009, the Commission will continue to deal with it until its conclusion.  If you wish to file a complaint on police conduct, policies, or services relating to events that happened before October 19, 2009, you may do so with the Commission or with the Chief of Police of the police service involved.  The Commission will forward your complaint to the Chief of Police of the police service involved for review and/or investigation.  Otherwise, police complaints should be made to the OIRPD.

Who can file a complaint?

There are two types of complaints. They relate to:

  1. The policies of, or services provided by the police
  2. The conduct of a police officer

A complainant is any member of the public who lodges a complaint about the policies, services, or conduct of a police officer(s).  You do not have to be a resident of Ontario to file a complaint.

When can you make a complaint?

You can make a complaint about a police officer if you:

  • Were offended or have a concern about something a police officer(s) said or did to you,
  • Were a witness to an incident involving a police officer(s) that concerned or offended you,
  • Are concerned or distressed over the way a relative or friend has been treated by a police officer(s)
  • Are acting on behalf of an individual mentioned above, who has been given written permission to make a complaint on another’s behalf,
  • Have a complaint that about the proper service at a police department,
  • Have a complaint about a police department’s policy.

 

Reasons for making a complaint:

When a police officer violates proper conduct or mistreats you, you may file a complaint.  For example:

  1. The police officer commits misconduct with actions such as:
    • Discriminating against you based on your race, ancestry, skin colour, ethnicity, citizenship, sex, sexual orientation/preference, age, marital status, family background or disability
    • Insulting or making rude comments towards you based on the grounds mentioned above
    • Committing a crime
  2. The police officer does not comply with the instructions of their supervisors
  3. The police officer fails in his/her duty
  4. The police officer commits dishonest actions such as being negligent in carrying out his/her duties, and deliberately making false records or statements.
  5. The police officer breaches confidentiality and privacy by providing information about individual cases to the media or any other person without having received permission to do so.
  6. The police officer engages in corrupt activities such as accepting bribes, mishandling funds when fulfilling duties, abusing the authority they are granted by using them to deal with personal issues etc.
  7. The police officer uses force or authority illegally or inappropriately, such as when they make an inappropriate or illegal arrest or use excessive force.

What should you include in your complaint?

You should include your full contact information as well as your date of birth. Try to include information on:

Who – Which police officer(s) is your complaint about?
What – Describe what happened in as much detail as possible
When – Date(s) and time(s) incident took place?
Where – Where in Ontario did the incident(s) happen?

Preparing to file a complaint:

You can also prepare your complaint by:

  • Seeking legal advice from a lawyer or local community legal clinic
  • If you suffered any injuries, go to your doctor immediately to request a medical examination and ask him/her to record the injuries. You should also photograph those injuries to use as evidence
  • If there are any eye witnesses, retain their names and contact information
  • Recording any personal and financial loss
  • Recording the details of the incident

How will my complaint be recorded?

Regardless of where you submit your complaint, all complaints will be recorded by the OIPRD. If another police service is investigating your complaint, they will also receive the complaint information.

Consent to Proceed:

You must give your consent to the OIPRD before they can look into your complaint.  You can agree to the complaint process by signing the complaint form.  If you do not sign the complaint form, the OIPRD will not be able to record and proceed with your complaint.

How the information will be kept:

You will have a right to periodic updates on your complaint process.  You will be told how your complaint is being dealt with, what action may be taken, and decisions made.  Updates will be provided by mail, e-mail, or over the OIPRD secure internet page.

How will my complaint be investigated?

The OIPRD is responsible for recording and classifying all public complaints. The OIPRD also decides on who will investigate into the matter.  Your complaint may be investigated by:

  • The OIPRD,
  • The same police service the complaint is about, or
  • Another police service.

Regardless of who investigates the complaint, the investigator should tell the complainant:

  • How the complaint will be investigated,
  • What cooperation is required from the complainant,
  • How a decision will be reached, and
  • What action will be taken at the end of the investigation.

If the Director of OIPRD does not agree with the way an investigation is being handled, it is possible to direct police to take certain action, or the OIPRD may take over the investigation. The Director may also perform a systematic review, without a public complaint, if the OIPRD feels that an issue may result in a public complaint.  The Director may also audit a police service to ensure the complaints process is fair, transparent, and independent.

Reports from OIPRD systemic reviews and audits are posted on the OIPRD website under Publications.

Complaints about policies and services of a police organization are screened by OIPRD, but they are not investigated by the OIPRD.  These complaints are sent to the appropriate police service for investigation with oversight by the OIPRD.

Withdrawing my complaint:

If you have filed a complaint with the OIPRD and no longer want to continue with it, you may withdraw your complaint as long as a hearing has not begun.

To withdraw a complaint prior to a hearing, you must give written notice to the OIPRD using the complaint withdrawal form. Once the OIPRD receives the notification to withdraw, the OIPRD will accept the withdrawal and notify the police service concerned. The police service in question has the authority to continue with an internal investigation, but you will not receive any information regarding the status or outcome of that investigation.

If you seek to withdraw a complaint after a hearing has begun, you will need consent to withdraw from:

  • The OIPRD, and
  • The Chief of Police (in a complaint about the conduct of a police officer other than a Chief of Police or Deputy Chief), or
  • The police services board (in a complaint about  the conduct of a municipal Chief of Police or municipal Deputy Chief of Police.The OIPRD determines whether consent to withdraw will be given.

The withdrawal form is available online on the OIPRD website.  The complaint number will be required for the form.

Complaint outcomes:

Following an investigation of your complaint by OIPRD or the police service, you will be advised of their decision. Possible decisions include:

  • Your claim is deemed unsubstantiated (there was not enough evidence to prove that misconduct occurred)
  • Your claim is deemed substantiated (there was enough evidence to prove misconduct occurred). A determination of whether the conduct complained of is serious or less (not) serious is then required by the Police Services Act.

The possible outcomes are:

  • The police may decide to improve or change their procedures,
  • The police may decide to hold a disciplinary hearing,
  • The police may take disciplinary action without holding a hearing against the officer(s) complained about,
  • Your case may be referred for Informal Resolution if the conduct was deemed to be less (not) serious in nature.

Unsubstantiated complaints:

Complaints may be found to be unsubstantiated following a complete and thorough investigation. There must be reasonable grounds to believe that misconduct has occurred. The belief must be more than just suspicion of misconduct and must be based on factual evidence.

Right to appeal for unsubstantiated complaints:

If the Chief of Police or Commissioner of the OPP has determined that your complaint is unsubstantiated, and you disagree, you may request a review of the finding to the OIPRD within 30 days of receiving the decision. There is no right to appeal on a decision by the OIPRD.

Dismissed complaints:

A complaint may be dismissed if it is frivolous, vexatious, made in bad faith, or not in the public interest.

A complaint is frivolous if the complaint is trivial or lacks seriousness.  A vexatious complaint may be one made out of anger or a desire to seek retribution. The Director may determine that a complaint is made in bad faith if there is clear evidence that the complaint was made for an improper purpose or with an ulterior motive.  A bad faith complaint may be one made with an intention to deceive or mislead the OIPRD or police services.

Less (not) serious complaints:

Matters considered less (not) serious include:

  • Personal property (other than money or a firearm),
  • The use of profane, abusive, or insulting language,
  • Failure to treat or protect a person equally,
  • Acting in a disorderly manner,
  • Neglect of duty,
  • Acting in a disorderly manner,
  • Failure to report a matter,
  • Failure to work in accordance with orders,
  • Omitting to make any necessary entry in a record,
  • Improper dress or appearance, or
  • Conspiring and abetting the misconduct listed above.

Resolutions for misconduct deemed less (not) serious in nature include an apology, an explanation by senior members of the police service, a reprimand, direction for specific counseling, treatment or training, or participation in a specified program or activity. Penalties for officers may also include suspension with pay or time off.

Right to appeal for less (not) serious complaints:

If the misconduct is determined to be less (not) serious by the Chief of Police of the Commissioner of the OPP, and you do not agree with that decision, you may appeal the finding to the OIPRD within 30 days of receiving the decision.  Again, there is no right to appeal on a decision made by the OIPRD.

Serious complaints:

Matters considered to be serious include:

  • Harassment
  • Discrimination
  • Breach of confidentiality
  • Misconduct or conduct that might result in a criminal charge

Complaints found to be serious in nature will have a hearing held by the concerned police service(s) board. Penalties include forfeiture of pay, suspension, demotion, or dismissal.

If during the investigation the Director discovers evidence that an officer may have committed a crime, the matter will be referred to the police for further investigation.

How do I request a review?

OIPRD reviews:

If you are not happy about the way your complaint has been handled, you may request a review by the OIPRD. Again, reviews are only available for unsubstantiated and less (not) serious determinations made by the Chief of Police or Commissioner of the OPP. There is no right to appeal on investigations made by the OIPRD.

You have 30 days from the day you were notified to request a review by the OIPRD.

If you would like the OIPRD to review your conduct complaint, you need to complete a Request for Review form.  A copy of the form may be obtained on the OIPRD website or you may also contact the OIPRD office and ask them to send you a copy. The entire form must be filled out.  Any reasons or evidence to support your request for a review should be included. The complaint number needs to be included, and you must sign the form.

How will OIPRD handle my review?

The OIPRD will send you a letter once they have received your completed review form.  The OIPRD will also contact the police about your request for a review and give them a copy of your form. Once the OIPRD receives your file from the police, they will assess your case and make a decision on it.  If the OIPRD agrees with you, the OIPRD will give instructions to the Chief of Police or Commissioner of the OPP about your complaint. The police must follow these instructions. The OIPRD will tell you about their decision and what happens next.

If the OIPRD agrees with the Chief/Commissioner’s decision, the OIPRD will inform you of why they made that decision. The OIPRD is an independent organization and its decision is final.

Financial compensation:

The complaint process outlined above will not entitle you to any financial compensation. You must file a civil lawsuit to receive financial compensation.

Civil lawsuit:

You can choose either to file a complaint against a police officer or file civil lawsuit to obtain financial compensation, or both. The advantage of filing a civil lawsuit is that you and your lawyer may have more control over the case. However, if you lose the suit, you may have to pay court costs.  Whether you win or lose, you have to pay your own legal fees, unless you are able to get free legal service through legal aid or legal clinic.

How should I seek help?

You should consult a lawyer. If you don’t have a particular lawyer in mind, you can check the YellowPages phonebook or phone the Lawyer Referral Service of the Law Society of Upper Canada at 1-800-268-8326 to receive a list that contains the names and contact information of criminal lawyers for a fee.

If you do not have the financial ability to hire a lawyer, you can try to apply for legal aid. You can check Legal Aid Ontario’s contact information in the “Legal Aid” section of the WhitePages phonebook or at your local community legal clinic. Contact information of community legal clinics is available in the “Legal Aid” and “Legal Clinic” sections of the WhitePages phonebook and the “Lawyers” section of the YellowPages.

 

Reference materials: Police Powers: Stop and Searches produced by Community Legal Education of Ontario
OIPRD Online (www.oiprd.on.ca):  How to Make a Complaint

This booklet provides general information only. Each person’s situation is different and the law can change. If you have any legal issues, please contact a lawyer or local community legal clinic.

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