Legal Information/ Legal Briefs
Legal Briefs
Until 2010, these legal briefs provide examples of judgments pertaining to everyday situations. Beginning in 2012, they deal with various topics of general interest, such as rental issues, family law, human rights, civil liability, insurance, dealings between spouses and social aid. They are intended to inform and to prevent undesirable situations.
Legal Briefs 2021
December
The age of consent for sexual activities
In Canada, the age of consent for sexual activities is 16. This means that, subject to certain exceptions, a person under the age of 16 cannot consent to sexual activities. It is important to know that the term “sexual activities” includes all activities of a sexual nature (kissing, touching a part
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Novembre
Participating in an Offence: Encouraging and Aiding
John, Felix and Annabelle are talking to each other as they leave school. Felix is thinking about stealing a bag of chips from the local convenience store.
John encourages him to do it and then leaves to go home.
Felix and Annabelle enter the convenience store. They agreed that Annabel
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Octobre
The Youth Protection Act and Its Placement Periods
One of the objectives of the Youth Protection Act is that a child be able to remain with his family or be able to return to his family as soon as possible, if it is in the child’s best interests. At what point does one determine that the objective of returning a child to his family is no long
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August - September
HAS or SARPA, which applies to me?
Homologation assistance service (HAS)
The Homologation Assistance Service is intented for parties residing in Quebec who wish, for whatever reason, to modify arrangements pertaining to child custody or access rights or support involving a child or spouse (or
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May
Moving and the New Divorce Act
The new Divorce Act (hereinafter the “Act”), which came into force on March 1, 2021, governs moves by separated persons with parenting time or decision-making responsibilities in respect of a child of the marriage. There are two regimes that distinguish between a change in the place of residenc
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April
Buying a Vehicle and Third Chance Credit
You’ve been unlucky and you have bad credit. You’ve just declared bankruptcy and are unable to find financing. In these situations, it can be tempting to go to a car dealership offering a second or even third chance at credit, especially since their advertising indicates that no one is refused!
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February
The Right to Remain Silent
The presumption of innocence: It’s a fundamental principle of the Canadian justice system pursuant to which an accused is presumed innocent until proven otherwise, that is, until the person themselves admits their guilt or, at trial, the prosecution shows their guilt beyond a reasonable doubt.
From this fundamental principle, there stems another one that is just as important: the right to remain silent. The right to remain silent applies as much during the police investigation as it does throughout the judicial process. Thus, a suspect, whether or not detained, has the right to remain silent and to decide not to answer questions from the police. However, police officers do not have an obligation to advise all persons with whom they wish to speak that they have the right to remain silent. It is only when they detain a person that the police have an obligation to inform the person of that right.
Detention means the suspension of an individual’s right to liberty through a significant physical or psychological restraint. However, not every contact with the police constitutes detention and nothing prevents the police from interacting with a citizen. A person can be said to be detained from the moment when, through the actions or words of the police, the person is no longer free to leave whenever they wish, whether or not they have been formally arrested.
At this stage, the right to remain silent is intended to prevent a person from having to incriminate themselves by helping the police to gather evidence against them. Thus, apart from the obligation of the person being detained to identify themselves, they have no obligation to assist the police in the search for evidence, including by answering questions or providing a statement. However, a person under arrest or being detained who knows and understands their right to remain silent may nevertheless decide to speak freely and voluntarily to the police. In such a case, what they say may be used against them if a trial is held.
The right to remain silent also applies during the trial of an accused. This means that an accused is never obliged to testify in their own defence. They can simply remain silent and challenge the prosecution’s evidence. They can also call defence witnesses. In addition, at no time can the prosecution force an accused to testify.
As a general rule, the choice to remain silent cannot and must not be interpreted as an indication of guilt. With rare exceptions, a negative inference cannot be drawn from the fact that the accused has not testified. This is because it is never up to the accused to prove their innocence, but rather up to the prosecution to prove the accused’s guilt beyond a reasonable doubt.
However, once again, despite the right to remain silent, an accused may choose to testify in their own defence. This means that the accused agrees to be questioned by their own lawyer, but more importantly, to be cross-examined by the prosecution. In such a case, the accused’s version will be part of the evidence and the judge will have to evaluate this version with the rest of the evidence to determine whether or not the accused is guilty.
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Legal brief *
February
2021
Number
2
Text prepared by Me Matthieu Poliquin
* The information set out in this document is not a legal interpretation.
The masculine is used to designate persons solely in order to simplify the text.
January
How is Child or Spousal Support Paid?
Henriette and Léopaul have three children. After living together for 12 years, they split up. Following a few mediation sessions, both parents agree that Léopaul will have sole custody of the three children since Henriette has a job that requires her to travel out of town for varying periods of time
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