Arrested or Charged in Canada: Your Rights and What to Do
A person who is arrested or detained in Canada has Charter rights to be told the reason, to speak with a lawyer without delay, and to remain silent. Police must tell them about the right to a lawyer and about free legal advice, and must give a reasonable opportunity to contact a lawyer before questioning them about the offence. After an arrest, police either release the person with a document setting a court date, or hold them for a bail hearing, which must generally happen within 24 hours. The most important steps are to use the right to counsel, keep a copy of every document received, follow any release conditions exactly, and never miss a court date.
This article is part of the guide to criminal law in Canada.
The short version
- Ask to speak to a lawyer. Free duty counsel is available 24/7 to people in police custody.
- The right to remain silent applies before and after speaking to a lawyer.
- Do not physically resist an arrest, even one that seems unfair. Challenges are made later, in court.
- Keep every document police give you, and read the conditions carefully.
- Breaking a release condition or missing court is a separate criminal offence.
- Contact a criminal lawyer or legal aid before the first court date.
Detention vs Arrest
| Detention | Arrest | |
|---|---|---|
| What it is | Police stop and hold someone, physically or psychologically, for example for investigative questioning or a traffic stop | Police take someone into custody because they believe on reasonable grounds that the person committed an offence, or find them committing one |
| Rights triggered | The right to be told why, and the right to a lawyer without delay | The same, plus the reason for the arrest |
| Search | Limited protective pat-down if safety is a concern | Search incident to arrest is allowed for safety, evidence and escape risks |
The Charter rights in section 10 apply on both arrest and detention.
Your Rights Under the Charter
| Right | Source | What it means in practice |
|---|---|---|
| To be informed promptly of the reasons | Charter s. 10(a) | Police must tell a person why they are being arrested or detained |
| To retain and instruct counsel without delay, and be informed of that right | Charter s. 10(b) | Police must explain the right to a lawyer, including free legal aid and duty counsel, and give a reasonable opportunity to use it |
| To remain silent | Charter s. 7 | A person does not have to answer police questions about the offence |
| Against unreasonable search or seizure | Charter s. 8 | Evidence found in an unlawful search may be excluded from trial |
| Not to be arbitrarily detained | Charter s. 9 | Police need legal grounds to detain |
| To reasonable bail | Charter s. 11(e) | Bail cannot be denied without just cause |
Once a detained person says they want to speak to a lawyer, police must generally hold off on questioning them about the offence until they have had a reasonable opportunity to do so. The right is to speak to a lawyer, usually by phone. In Canada, there is generally no right to have a lawyer present during a police interview.
Free Legal Advice While in Custody
In Ontario, Legal Aid Ontario runs a 24/7 duty counsel service for anyone detained or arrested by police, regardless of whether they qualify for legal aid. The police call the service, and a duty counsel lawyer should call back within about 30 minutes. The call is free and confidential. Other provinces have similar emergency advice lines through their legal aid plans.
A person can also ask police to call a specific private lawyer. If that lawyer cannot be reached within a reasonable time, the person can choose duty counsel instead.
What Not to Do
These are general cautions, not advice about any specific situation:
- Do not resist arrest or obstruct police. Resisting can lead to additional charges, such as resisting or obstructing a peace officer, and can be dangerous.
- Do not lie to police. Making a false statement can lead to separate charges. Remaining silent is different from lying.
- Do not discuss the case on a jail phone, by text or on social media. Calls from custody, other than calls with a lawyer, are often recorded.
- Do not contact the complainant or witnesses if conditions forbid it, even to apologize or to try to resolve things.
- Do not destroy evidence or ask others to.
Obligations That Still Apply
The right to silence does not cancel every obligation. For example:
- Drivers must provide a licence, registration and insurance when lawfully stopped, and must comply with a lawful breath or drug screening demand. Refusing is a criminal offence. See impaired driving charges in Canada.
- A person who is arrested may need to identify themselves so police can decide whether to release them.
- Police can take fingerprints and photographs from a person charged with an indictable or hybrid offence, under the Identification of Criminals Act.
Ways Police Can Release You
| Document | When it is used | What it requires |
|---|---|---|
| Appearance notice | Given by police, often before or without an arrest | Attend court on a set date, and sometimes attend for fingerprints |
| Undertaking | Given when police release someone after arrest, with conditions | Attend court and follow conditions, such as no contact with certain people or staying away from certain places |
| Summons | Issued by a justice and served later | Attend court on a set date |
| Held for bail hearing | When police do not release the person | Brought before a justice, generally within 24 hours. See bail hearings in Canada |
Police and courts must consider the least restrictive form of release that is appropriate, and conditions must be reasonable, necessary and connected to the risks in the case.
Failing to Follow Conditions or Attend Court
Missing a court date, failing to attend for fingerprints, or breaching a condition of release is a criminal offence under the Criminal Code. It can also make it much harder to be released again. If a condition is unworkable, for example because it prevents someone from going to work or caring for children, a lawyer can ask the Crown or the court to change it. Until it is changed, it must be followed.
After Release: First Steps
- Write down what happened as soon as possible, for a lawyer only. Include times, names, what police said and when rights were read.
- Keep every document police or the court give you.
- Find a criminal lawyer or apply for legal aid before the first court date. See legal aid in Canada.
- Attend the first appearance, or have a lawyer or agent attend if allowed. See the criminal court process in Canada.
- Tell your lawyer about your immigration status, if you are not a Canadian citizen.
Frequently Asked Questions
Do I have to answer police questions?
A person who is arrested or detained has the right to remain silent about the offence. Speak to a lawyer before deciding whether to say anything. Some obligations, such as providing a driver's licence during a lawful traffic stop or complying with a lawful breath demand, still apply.
Can I call a family member instead of a lawyer?
The Charter right is to contact a lawyer. Police may allow other calls, but they are not required to, and calls other than those with a lawyer may be recorded.
Can police search my phone after an arrest?
Police can sometimes conduct a limited search of a phone incident to arrest, under strict conditions set by the Supreme Court of Canada in R. v. Fearon (2014). A broader search usually needs a warrant. A lawyer can assess whether a search was lawful.
How long can police hold me?
If police do not release a person, they must generally bring them before a justice within 24 hours, or as soon as possible if a justice is not available within that time.
What if police did not tell me my rights?
That may be a Charter breach. A court can exclude evidence obtained as a result, depending on the circumstances. Raise it with your lawyer.
Recently arrested or charged? Search LawyerDirectoryCanada.ca for criminal lawyers by province and city, and see how much a criminal lawyer costs.
Sources
- Canadian Charter of Rights and Freedoms, sections 7 to 14, Justice Laws Website
- Charterpedia: section 10(b), right to counsel, Department of Justice Canada
- Criminal Code, section 503: taking before a justice, Justice Laws Website
- Duty counsel services factsheet, Legal Aid Ontario
- Identification of Criminals Act, Justice Laws Website
- R. v. Fearon (2014), summary, Wikipedia
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