Your Rights on Arrest
The moment you are arrested or detained, the Canadian Charter of Rights and Freedoms protects you. Three rights are immediately engaged:
Section 10(a) — Right to be informed. The police must tell you, promptly and in plain language, why you are being arrested. You have the right to know the specific offence and the factual basis for the arrest. A vague statement like “you’re under arrest” without more is not sufficient.
Section 10(b) — Right to counsel. You have the right to retain and instruct a lawyer without delay. The police must inform you of this right, tell you about the availability of duty counsel (a free lawyer available by phone 24 hours a day), and tell you about Legal Aid. Most importantly, the police must give you a reasonable opportunity to actually speak to a lawyer before continuing the investigation — including before taking a breath sample in impaired driving cases.
Section 7 — Right to silence. You are not required to make any statement to the police. You do not have to answer questions, provide an explanation, or give your side of the story. The right to silence means exactly what it says: you can remain silent, and the Crown cannot use your silence as evidence of guilt.
The Most Important Rule: Do Not Make a Statement
This cannot be overstated. Do not give a statement to the police without first speaking to a lawyer. Statements made to police are frequently the strongest evidence the Crown has — stronger than forensic evidence, stronger than eyewitness testimony, and far harder to challenge at trial.
Police officers are trained to build rapport, create a sense of urgency, and make you feel that cooperating will help your situation. It almost never does. Even statements that seem exculpatory (“I was there but I didn’t do anything”) can place you at the scene and undermine your defence. Casual remarks in the back of the police cruiser are recorded and admissible.
The correct response to any police question after arrest is: “I want to speak to a lawyer.” Say it clearly. Say it more than once if necessary. Then stop talking.
Do Not Resist Arrest
Even if you believe the arrest is unlawful, do not physically resist. Resisting arrest is a criminal offence under section 129 of the Criminal Code (obstructing a peace officer). It will result in additional charges and may lead to the use of force.
The legality of the arrest is a legal question that your lawyer will address in court. If the arrest was unlawful — made without reasonable grounds, based on racial profiling, or executed in violation of your Charter rights — your lawyer can bring a Charter application to have the evidence excluded. You cannot achieve the same result by resisting at the scene.
Call a Lawyer Immediately
When the police inform you of your right to counsel, exercise it. You can call a specific lawyer if you have one in mind, or you can call duty counsel — a free lawyer available by phone through Legal Aid Ontario, 24 hours a day, 7 days a week.
The police are required to hold off on the investigation — no questioning, no breath samples, no lineups — until you have had a reasonable opportunity to speak to a lawyer. If the police continue the investigation before you have spoken to counsel, any evidence obtained may be excluded under section 24(2) of the Charter.
If you want to speak to a specific lawyer and that lawyer is not immediately available, the police must give you a reasonable amount of time to reach them. However, this is not unlimited — if your lawyer cannot be reached after reasonable attempts, the police may suggest you speak to duty counsel in the interim.
What Happens at the Police Station
After arrest, you will be transported to the police station for booking. This process includes:
- Personal information. The police will record your name, date of birth, address, and other identifying information.
- Fingerprinting and photographs. For indictable and hybrid offences, the police are authorized to take your fingerprints and photograph under the Identification of Criminals Act. You are required to comply.
- Right to counsel. You will be given access to a phone to call a lawyer or duty counsel. The police must hold off on the investigation until you have had this opportunity.
- Search. You will be searched incident to arrest. The police can search your person and your belongings for weapons, evidence, or anything that could facilitate escape.
In impaired driving cases, the station is where breath samples are taken on the approved instrument. The procedures at the station — the right to counsel, the timing of the breath tests, the calibration of the instrument — are all potential grounds for challenging the evidence.
Release or Bail Hearing
After booking, the police will decide whether to release you or hold you for a bail hearing.
For most offences, the police will release you on an undertaking — a signed document promising to attend court on a specified date and comply with conditions. Common conditions include reporting to the police, not contacting the complainant, not possessing weapons, and sometimes a curfew. Breaching any condition is a criminal offence.
If the police decide not to release you — typically for more serious offences, where there is a risk of flight, danger to the public, or the accused is already on release for another charge — you will be held in custody for a bail hearing. Under section 503 of the Criminal Code, the bail hearing must occur within 24 hours of arrest, or as soon as possible thereafter.
At the bail hearing, a justice of the peace will decide whether to release you and on what conditions. The quality of your release plan — including a surety (someone who agrees to supervise you and pledge money), your ties to the community, and your criminal record — will determine the outcome. Having a lawyer at your bail hearing is critical.
Your First Court Appearance
If you are released, your undertaking will specify a date for your first court appearance. This appearance is procedural. You will not enter a plea, and the case will not be decided.
The purpose of the first appearance is to confirm your identity, note that you have a lawyer (or need one), and set a date for the Crown to provide disclosure — the evidence the Crown intends to rely on at trial. Your lawyer will then review the disclosure and assess the strengths and weaknesses of the Crown’s case.
Do not plead guilty at your first appearance. The disclosure has not been reviewed, the defences have not been assessed, and there may be Charter violations, evidence problems, or resolution options that are not yet apparent. Pleading guilty before reviewing the evidence is one of the most common mistakes people make — and it is almost always irreversible.
What the Police Can and Cannot Do
Understanding the limits of police power protects your rights:
Police can: arrest you with reasonable grounds, search you incident to arrest, take your fingerprints and photograph for indictable offences, demand breath samples in impaired driving investigations, detain you briefly for investigative purposes (an “investigative detention”), and question you (though you do not have to answer).
Police cannot: arrest you without reasonable grounds, search your home without a warrant (with limited exceptions), strip search you at the roadside, deny you access to a lawyer, continue questioning after you invoke your right to silence, use physical force beyond what is reasonably necessary, or compel you to participate in a lineup.
When police exceed their authority, the evidence they obtain is vulnerable to exclusion under the Charter. This is why the details of what happened during your arrest matter — and why you should tell your lawyer everything, no matter how minor it seems.
Common Mistakes After Arrest
Beyond making a statement, people commonly make these mistakes after arrest:
Contacting the complainant. If your release conditions include a no-contact order, any contact with the complainant — even if they initiate it — is a separate criminal offence. Do not respond to calls, texts, or social media messages. If the complainant contacts you, inform your lawyer.
Posting on social media. Anything you post on social media can be used as evidence. Posts, messages, photos, and check-ins can all be disclosed to the Crown. Refrain from discussing your case or your activities on any platform.
Delaying in retaining a lawyer. The earlier a lawyer is involved, the more options are available. Early involvement allows your lawyer to preserve evidence, challenge bail conditions, begin reviewing disclosure, and negotiate with the Crown before positions harden.