When can the police arrest me?

Under what circumstances can I be arrested?

Too frequently these days, we see examples of police misconduct reported in the media. Last year, for example, Ontario’s Office of the Independent Police Review Director (OIPRD) found a constable engaged in "serious misconduct" by arresting a man without legal authority and making disparaging remarks about him and his mother, CBC News reports.

An audio recording of the incident was captured on the suspect’s phone. It contained proof that the officer committed two types of misconduct: unlawful arrest and discreditable conduct, the news agency reports.

In the current climate, it’s important to point out that the Canadian Charter of Rights and Freedoms protects everyone from cruel and unusual punishment, including torture, excessive or abusive use of force by law enforcement officials. If you believe an officer has used excessive force, it’s critical to communicate this to your lawyer as soon as possible.

Even a casual interaction with law enforcement can be an intimidating and stressful experience for most people. If you’ve ever been detained at a border crossing or stopped during a routine RIDE check, you know how it can make your pulse race, even when you haven’t done anything wrong.

That anxiety reaches a whole other level when a police officer detains or arrests you in connection with a criminal offence. The police can detain you for questioning if they have reasonable grounds to suspect that you are connected to a crime, either as a perpetrator or a witness.

When a person is detained, they’re in a middle ground between freedom and arrest. Many people don’t understand their rights in this situation: Can you, for example, simply walk away and refuse to answer an officer’s questions or are you obliged to answer anything the police pose to you? Because of this uncertainty, people often feel obligated to answer questions from police to eliminate themselves as a suspect. But that’s not necessarily the best course of action.

For a variety of reasons I will elaborate on later in this article, it’s important that you not provide the police with more information than they are allowed to have in the circumstances. As a criminal defence lawyer, I have successfully defended many cases stemming from unlawful detention or police arrest. In these types of cases, I have argued in court that police went beyond their rights and that any evidence they gathered should be excluded.

What are my rights if the police detain me?

The Canadian Civil Liberties Association’s handbook, Know Your Rights: A Citizen’s Guide to Rights when Dealing with the Police, is a valuable resource for understanding your rights during interactions with police.

During detention, the police will ask questions and gather as much information as possible about a crime that has taken place or an ongoing investigation. In many cases, it unfolds like this: individuals are detained, questioned by an officer and, depending on the outcome of the interview, either released or arrested.

When you are detained or arrested by the police, you have rights that are safeguarded by the Charter, including the right to:

  • be told why you’re being detained or arrested
  • be searched in a reasonable manner
  • remain silent
  • consult with a lawyer within a reasonable period

If you have been detained by police, you should ask the officer if you are free to go and if they say no, ask them why you are being held –– if it isn’t obvious to you. It’s important to make a mental note of the reason they provide and as well as the name and badge number of the officer, as this information may be relevant at a future date or in the event you want to file a complaint. The Charter also states that law enforcement agencies cannot take action against individuals that are random or not supported by good reasons. If you believe you have been illegally detained, The Charter also protects your rights to challenge it in court.

I always advise clients to be polite during any interaction with a police officer but to avoid answering their questions before they have an opportunity to consult with a lawyer. Conversations with police, however friendly they may appear to be, are not casual. Anything you say can later be used against you in court, so it’s essential to consult with a lawyer before any in-depth conversation or interview with the police.

What are my rights if police arrest me?

If you have been formally charged with an offence, you are under arrest. When you are placed under arrest, the police may do a pat-down search of you or anything you are carrying. Police officers can also search your immediate surroundings, to ensure your safety or theirs, or to preserve evidence.

At this point, the officer must clearly identify the reason for your arrest. They aren’t required to provide all the details, but they must tell you the nature of the offence, whether it’s a fraud, sexual assault or some other crime.

The same rules around your rights apply when you have been arrested. In addition to those noted above in the detention section, the Charter outlines your rights if you have been charged with an offence under federal or provincial law as follows:

  • be told quickly of the offence you are charged with
  • be tried within a reasonable amount of time
  • choose not to testify at your own trial
  • be presumed innocent until proven guilty beyond a reasonable doubt in a fair and public hearing by an independent and unbiased tribunal
  • only be denied reasonable bail with cause
  • be tried by a jury for serious charges
  • be convicted only for an act or omission that was a crime at the time it was committed
  • only be tried or punished once for an offence
  • receive the lesser punishment if the punishment for the crime changes between the time it was committed and the time of sentencing

Your right to counsel

After an arrest, a person has the right to speak to a lawyer as soon as reasonably possible. That doesn’t necessarily mean you can speak to a lawyer as soon as you’re arrested or taken to the police station, which is how it is often portrayed in television dramas.

Most people don’t have a criminal defence lawyer on speed dial, but the officer will provide a list of local lawyers who take on criminal cases. Typically, in Ontario, lawyers are not allowed to see clients at the police station, but you will be able to have a private call with your lawyer. The ideal timing for this call is as soon as possible after your arrest and before the police interview takes place, which will allow you to explain the details of your case and receive legal guidance for how best to respond to questions during the interview.

Typically, a suspect will only have one opportunity to speak to a lawyer while they are at the police station. I can’t emphasize enough how important it is to make this call before the interview with an officer. The only time a person would be allowed to have a second call with a lawyer is if, during the interview, police advise the person that they intend to lay additional charges for a new offence.

What constitutes an unlawful arrest?

Anyone who pays attention to the news knows that police officers are fallible and sometimes wield power beyond their legal authority. The average person won’t necessarily recognize if they have been illegally detained or arrested, which is why it’s important to seek out legal counsel early.

An experienced criminal defence lawyer will ask you several questions to determine that police followed proper procedures during your detainment or arrest. I have successfully represented clients in many cases where the police failed to properly inform a person of their rights or detained or arrested them without reasonable grounds. In cases of this nature, charges are often thrown out.

When an arrest warrant is issued

If a warrant is issued for your arrest, you need to prepare for an eventual bail hearing before turning yourself into the police. The most important aspect of preparation is identifying a person who would be willing to be a surety for you.

A surety is someone (often a family member) who comes to court and promises to a judge or a justice of the peace to supervise an accused person while they are out on bail, according to LawFacts, a legal information resource from Legal Aid Ontario. I always interview the person who will act as my client’s surety to confirm they will agree to supervise them and make sure they comply with the conditions of their release while they await trial.

After the arrest

If you have been arrested and taken into police custody, the police must release you with or without conditions and give you a court date or bring you before a judge or a justice of the peace for a bail hearing within 24 hours to decide if you should be released.

At a bail hearing, the Crown prosecutor will explain the alleged offence to the court and sometimes argue against the person’s release, pending trial. As a criminal defence lawyer, my job is to be a zealous advocate and explain to the court why my client should be released and that there is a plan in place to ensure they will not breach the conditions of their release.

It is the foundation of our legal system that an accused person is presumed innocent. Securing a person’s release in a bail hearing ensures that they can continue to be productive members of society while they await the outcome of a trial.

Choose experienced legal counsel

Dealing with the police and the criminal justice system is a serious matter. If you have been arrested, you have a right to a skilled and experienced legal advocate who can help you navigate this complex process. I have successfully represented numerous clients in a variety of criminal cases involving allegations of sexual assault, fraud, impaired driving and other offences. If you have been charged with a criminal offence, call me for a free consultation.