Know Your Rights (Legal Information for Indigenous People)

Government authorities

Think before you speak

The Canadian Charter of Rights and Freedoms (the “Charter”) is part of the Constitution Act, 1982 of Canada. Sections 7 to 14 of the Charter set out rights that protect Canadians when dealing with the justice system. They ensure that individuals who are involved in proceedings are treated fairly, especially those charged with a criminal offence. These sections are where your legal rights come from: right to silence, right to a lawyer, right against unreasonable searches, etc.

What do the RCMP, the MCFD, and ICBC all have in common?
They are all government agencies who investigate situations where there may be fault or liability or safety concerns. They all have jobs to do. However, with each of these agencies you are well advised to know your rights before you speak.

You are always allowed to say,

“I want to speak with a lawyer before I speak with you.”

This is not an admission of guilt or fault, just a way to make sure you are safeguarding your rights. Get legal advice to learn about your rights and responsibilities when you are being confronted by government agencies.

Knowing what each authority does is helpful so you can know why they might be contacting you and how much information you may want to give or when you may want to get legal advice first.

Police encounters

"The RCMP must suspect you of committing a crime, have seen you committing a crime, or you must be driving a vehicle before they can stop you and question you."
– BC First Nations Justice Council, http://www.bcfnjc.com

When responding to a police officer on the street:

• Be polite, note the officer’s badge number or name.
• Ask if you are free to go:
  • If YES – leave
  • If NO – ask if you are under arrest

If you are under arrest:

• Ask WHY: it is your right to know why you are being arrested.
• Ask for a lawyer and then remain silent: you have the right to do both.

Remember
You do not have to answer their questions at any point. You always have the right to silence even if you have to speak to clear something up or be dismissed.

"I want to remain silent. I want to speak to a lawyer."

You do not have to identify yourself to a police officer, unless:

• You are under arrest.
• You are driving – if you do not have your license on you, you can provide your name and date of birth.
• You are issued a ticket.

Police custody and arrests

If you are arrested or detained, you are protected by Section 10 of the Charter.

• You have the right to silence - speak to a lawyer before the police.
• The police must inform you of the reasons for your arrest or detainment.
• You have the right to retain and speak to a lawyer without delay and the police are required to inform you of this right.

Brydges Line at Legal Aid BC

• If you are arrested, or detained and under investigation by the police, call the Brydges Line at Legal Aid BC (24/7) 1-866-458-5500

If you are released on bail or with a Promise to Appear, there may be conditions attached (rules for behaviour):

• Reporting to a bail supervisor
• Not being able to leave town
• Must avoid certain areas or people
• Cannot carry a weapon
• No consumption of alcohol

If you think your conditions are too restrictive (unfair or unrealistic) call your lawyer for help as soon as possible because breaching conditions can mean another criminal charge.

DFO & COS

Government authorities: On land & water

Department of Fisheries and Oceans (DFO)

DFO officers conduct regular patrols on land and sea to catch violations of the Fisheries Act. A DFO officer’s job is to ensure that individuals who are fishing are doing so subject to a recreational or a commercial fishing license. Indigenous people have an inherent and Constitutional right to fish.

Conservation Officers "C.O."

C.O.’s enforce multiple federal and provincial statutes related to hunting, gathering (e.g. wood, medicines), trapping and human-wildlife conflict. Indigenous people have established rights to harvest for food, social and ceremonial purposes in their traditional areas.

Further, C.O.’s have legal powers of search and seizure, similar to those of police officers. In certain circumstances, a C.O.’s conduct may violate your civil liberties. If you believe a C.O.’s actions constitute misconduct you can submit a complaint within one year to the Conservation Officer Service.

If you are questioned by DFO or a C.O. for a harvesting activity, indicate that you are exercising your Indigenous right to harvest and present your status card. Although these are government authorities with a job to do, you have rights same as with any police agency.
https://bccla.org/wp-content/uploads/2019/02/powers-of-conservation-officers.pdf

RCMP complaints

"You deserve to be treated with dignity and respect by all people working within the justice system. Formal complaint processes exist for police, lawyers and judges."
– BC First Nations Justice Council website: http://www.bcfnjc.com

If your rights are violated by the police:
Document the time, place and details of what happened. Document police names or badge numbers. Try to get contact information for witnesses. Take pictures of in juries and upload them, Seek legal advice.

Complaints process: making a complaint about the police

The Civilian Review and Complaints Commission for the RCMP is an independent agency that reviews complaints made by the public about the on-duty conduct of RCMP members. (Information taken from the BC First Nations Justice Council website: http://www.bcfnjc.com)

Complaints can be filed at their website: http://www.crcc-ccetp.gc.ca/en/make-complaint

The Independent Investigations Office of BC (IIO) conducts investigations into on- and off- duty police-related incidents of serious harm and death. Serious harm is defined in Part 11 of the Police Act as injury that may result in death, may cause serious disfigurement or may cause substantial loss or impairment of mobility of the body as a whole or of the function of any limb or organ. The IIO will make a determination whether any officer may have committed an offense. The IIO does not have jurisdiction over conduct complaints against a police officer (such as the Civilian Review and Complaints Commission). Anyone who wishes to provide information pertaining to an IIO investigation can call the witness line at 1-855-446- 8477. (Information taken from IIO website https://iiobc.ca)

Justice system complaints

Processes

Making a complaint about a lawyer in BC

If you have concerns about a lawyer, you may file a complaint. The Law Society reviews all complaints they receive. More information about the complaints process and the kind of complaints the Law Society will investigate can be found at their website: http://www.lawsociety.bc.ca/complaints-lawyer-discipline-and-public-hearings/complaints-en

Making a complaint about a judge in BC

You can make a formal complaint about a provincial court judge or justice (including a judicial justice, judicial case manager and justice of the peace) if you believe their conduct is improper. Please note that you cannot complain about their decision in a case. Complaints can be mailed, faxed, or filed online through their website: http://www.provincialcourt.bc.ca/complaints-and-appeals/complaint-process

Complaints information from the BC First Nations Justice Council website: http://www.bcfnjc.com

MCFD social workers

Investigation process

The CFCSA gives Ministry Social Workers (SW) certain powers when they investigate child protection concerns, up to and including the removal of your child from your home.

• SWs must follow certain rules and policies when they do their work and make decisions.
• If you feel the SW has acted wrongly you can try to resolve your concern directly with the SW or their supervisor.
• You can also call the MCFD dispute resolution person to discuss concerns and learn about your options at 1-877-387-7027.
• Ask a Legal Advocate or Lawyer for help.

Over the course of the investigation, Social Workers can:

1. Contact parents, guardians or other third parties in your child’s life to ask about the child’s safety.
2. Ask to see your child
   • If you don’t let them see your child, they could decide to remove your child from your home, so it is generally best to cooperate. You can ask that a Band representative or other support person be present.
3. Question your children
   • They can talk to your child alone (without you). If you are notified of an intended interview, you can ask that a Band Representative or support person be present for any meetings.
   • They may talk to your child at school or outside of your home without telling you.
4. Interview people who know your child (teachers, friends, family)
5. Examine personal records for information about your child (medical records, school reports, court documents or other records in the possession of governmental bodies)
6. If there is a safety concern Social Workers can look at a range of options to determine if the child stays with the parent or work out an agreement with the parent, family member or community member for temporary care.
7. Remove your child from your home without warning, and without a court order if they think your child needs protection.
8. If a child is removed, there will be a Court hearing where there may be an agreement for care of the child or a Judge will decide what is in the best interest of the child.

Insurance Corporation of British Columbia (ICBC)

If you have been involved in a vehicle accident in some way, you may be contacted by ICBC as they investigate.

ICBC’s job is to assign fault, and you should get legal advice before you speak with an ICBC agent. Anything you say to an ICBC representative can be used against you in the determination of fault and potentially in court.

There can be serious consequences for being assigned fault in an ICBC claim:

• You may be given higher premiums.
• You may be found in breach of your insurance conditions which could void your coverage.
• You could have a claim filed against you by other parties involved in the accident.

If you get an alcohol-related ticket, prohibition or conviction, you will likely be required to do the Responsible Driver Program (RDP) Mandatory Course ($$) and use a Breathalyzer Ignition Lock (more $$) before you can get your license back. Contact a Legal Advocate to help get you legal advice about disputing the ticket and to see if you can dispute the Office of Superintendent of Motor Vehicles’ RDP requirements.

If you are the one injured in an accident, you can file a claim for compensation for injuries sustained during the accident. This includes the drivers and the passengers. Speak with a lawyer to see if you have a claim and to help you negotiate a fair settlement. The lawyer gets paid out of the settlement. Contact a Legal Advocate for information and to connect you to lawyer.

Do not sign anything until you get legal advice.

Rights as a tenant

On and off reserve

Each Band has jurisdiction to create and administer its own housing bylaws. Bylaws can lay out the terms of rental agreements, including the rights and responsibilities of the Tenants and of the Landlord (the Band). Housing policies often cover the responsibilities for repairs or damages, the process for evictions and the Tenant’s procedures to dispute a Band housing decision. If you have an issue with your rental, you can get a copy of the Housing policies from the Band Office and talk to the Housing Manager. If that does not resolve your issue, follow your Band’s dispute processes: for example, you could speak with the Band Manager, Housing Committee and then Chief and Council. For problems you still cannot resolve, call a legal advocate or lawyer.

Learn about the Family Homes on Reserve and Matrimonial Interests or Rights Act. If you are married or common-law and your partner passes away, you have the right to stay in the family home for 180 days (at least), even if you are renting and/or not a Band member.

Caution On Reserve:
When renting a house from an individual Band member who owns the home, it is difficult to assert any rights as a tenant or as the landlord. The Band Housing policies only cover housing rented from the Band. Non-Band (private) landlords and tenants are often left to “work it out.” Contact a legal advocate for help.

Rights as a Tenant Off Reserve are governed by the Residential Tenancy Act (RTA). The best resource to understand your rental rights and responsibilities is the TRAC booklet Tenant Survival Guide.

Note: The RTA does not apply On Reserve.

TRAC

• Call a TRAC (Tenant Resource Advisory Centre) legal advocate at 604-255-0546 or https://tenants.bc.ca/contact
• View TRAC's Tenant Survival Guide at https://wiki.clicklaw.bc.ca/index.php/Tenant_Survival_Guide

Freedom of Information

Access to information and privacy laws

Freedom of Information laws give you the right to access general records and personal information held by government institutions, both federal and provincial. You can request personal information about yourself and about children under 18 (or 19 for provincial government requests) that you are responsible for.

Federal laws

There are two federal laws under which you can make requests for information. “The Access to Information Act gives Canadian citizens, permanent residents and any person or corporation present in Canada a right to access records of government institutions that are subject to the Act… to make government information publicly available. … The Privacy Act gives Canadian citizens, permanent residents and individuals present in Canada the right to access their personal information held by government institutions that are subject to the Act...” - Government of Canada website

To access to Canadian government records:

• Online: You can file most Access to Information Requests or Personal Information Requests online at https://atip-aiprp.apps.gc.ca/atip/ welcome.do
• By phone: For general information about Access to Information or Privacy Act requests, or to ask for a request form to be mailed to you, phone the Canadian government customer service line at 1-800-622-6232
• By mail: complete an Access to Information Request form or Personal Information Request form and send it to the Access to Information and Privacy (ATIP) coordinator for the government body that holds the information you want. The forms and list of all ATIP coordinators, including their phone numbers, are at http://www.tbs-sct.canada.ca/tbsf-fsct/ 350-57-eng.asp and http://www.tbs-sct.canada.ca/tbsf-fsct/350-58-eng.ASP

Provincial laws

BC’s Freedom of Information and Protection of Privacy Act (FOIPPA) gives you access to records that BC government ministries or agencies hold and to personal information about you or dependents under 19.

To access BC government records under FOIPPA:

• Call (toll-free) 1-833-283-8200, or email FOI.Requests@gov.bc.ca
• Or file a request online at https://www2.gov.bc.ca/gov/content/governments/about-the-bc-government/open-government/open-information/freedom-of-information/submit-a-general-freedom-of-information-request
• Call for help to request BC records: Office of the Information and Privacy Commissioner of BC 250-387-5629

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."

In law, response to an allegation of fact or to a claim. Usually refers to documents that reply to the allegations or claims made by the other party, such as a "Response to Family Claim" or a "Reply."

In family law, an antiquated term used by the old Divorce Act to describe the right to possess a child and make parenting decisions concerning the child's health, welfare and upbringing. Replaced in the new Divorce Act with the term decision-making responsibility." See "access," "decision-making responsibility" and "parenting time."

Real property; a parcel of real property and the buildings upon it. See also "chattel," "ownership" and "possession."

Under the Family Law Act, a term that describes the time a person who is not a guardian of a child, including a parent who is not a guardian, has with that child. Under the Divorce Act, a term that describes the time a person who is not a married spouse has with a child. See "guardian" and "parental responsibilities."

With respect to courts, (1) the authority of the court to hear an action and make orders, (2) the limits of the authority of a particular judicial official, (3) the geographic location of a court, or (4) the territorial limits of a court's authority. With respect to governments, (5) the authority of a government to make legislation as determined by the constitution, or (6) the limits of authority of a particular government agency. See “constitution."

A person with direct, personal knowledge of facts and events relevant to the issues before the court; a person giving oral evidence in court on oath or affirmation as to the truth of the evidence given. See "affirm," "evidence," "oath" and "opinion evidence."

A person appointed by the federal or provincial government to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government, or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, subject to appeal.

A judge of the superior courts of British Columbia, being the Supreme Court and the Court of Appeal.

A court official appointed by the provincial government with limited decision-making authority and jurisdiction, usually charged with managing court schedules, the terms of release of arrested persons, and other administrative tasks with a discretionary element. See "judge" and "jurisdiction."

In law, (1) a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application, (2) a judgment, or (3) the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law" and "findings of fact."

(1) In law, a court proceeding; a lawsuit; an action; a cause of action; a claim. (2) A historic decision of the court; case law. See "action," "case law, " "court proceeding," and "precedent."

Processes used to resolve legal disputes, including negotiation, collaborative settlement processes, mediation, arbitration and litigation.

A person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."

In law, the right to have the control and use of a thing. One can have a right to the possession of a thing without owning it, as in the case of a car lease, or ownership without possession, as in the case of a landlord who rents an apartment suite. See "ownership."

In family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "assisted reproduction," "natural parent" and "stepparent."

A mandatory direction of the court that is binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."

In law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision."

In law, to transfer an interest or right in something to someone else. People who go on welfare, for example, are required to assign their rights to apply for child support and spousal support to the provincial government.

In law, someone acting on behalf of someone else, with that person's express permission and normally at their express direction.

(1) The assertion of a legal right to an order or to a thing; (2) the remedy or relief sought by a party to a court proceeding.

A resolution of one or more issues in a court proceeding or legal dispute with the agreement of the parties to the proceeding or dispute, usually recorded in a written agreement or in an order that all parties agree the court should make. A court proceeding can be settled at any time before the conclusion of trial. See "action," "consent order," "family law agreements" and "offer."

An award of money payable by one party to a court proceeding to another, usually as compensation for loss or harm suffered as a result of the other party’s actions or omissions. In family law, damages are usually awarded to one party in compensation for breach of contract or spousal abuse. See "breach of contract" and "tort."

(1) A lawyer or a person other than a lawyer who helps clients with legal issues, or (2) to argue a position on behalf of someone.

In family law, the dwelling occupied by a family as their primary residence. See "family property" and "real property."

Under the old Divorce Act, the schedule of a parent's time with their children under an order or agreement, replaced with "parenting time" and "contact" in the new Divorce Act. Access usually referred to the schedule of the parent with the least amount of time with the child. See "contact," "custody" and "parenting time."