THE ARREST and CHARGE: Your rights, such as they are, if arrested.
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The Arrest and Charge:What to Expect

Lay Person's Guide to the Criminal Prosecution Process

If you are, about to be or have been charged, you should talk to a lawyer immediately.
These pages are general information only, not legal advice.

Need a lawyer?   Please use the Click here CanLaw Lawyer Referral Services by phone

"Are you going to come quietly, or do I have to use earplugs?" - Spike Milligan
 

The Arrest and Charge: What to Expect

If the police have contacted you, or stopped you on the street, it is because they believe you have committed an offense and intend to arrest and charge you with something. It is not a social call.

Be polite to the police. Angering them will not help your situation and often results in their finding additional reasons to charge you and additional charges.

You are entitled to ask them why they are stopping you. They must have "reasonable and probable grounds." However, cooperate with them at this stage. Do not play lawyer, or be rude or insulting. But be very discreet in answering their questions. Do not lie, but if you do not wish to answer a question, just say so.

You will not talk your way out of an arrest if they intend to charge you.

Identify Yourself

While you do not have to identify yourself unless you are under arrest, it is probably better to cooperate with the police and not to provoke them or make them think you have something to hide

Show them your id when asked. Give them your name, address and birth date. (If you refuse to identify yourself, you can taken to the station and held until they can identify you.) If you lie about who you are, you can be charged with obstructing justice or the police.

Initial Contact Questioning by Police


If the police have stopped you and told you why, they will ask you some basic questions to determine if a crime has been committed and if you are a suspect. You do not have to answer them.

If you are just a bystander, the police may just be looking for witnesses. It is up to you to respond or not.

Signing the Police Note book


The officer may ask you to sign his notes. Decline politely.

Alibi

Disclosure of your alibi is not required. However if it will definitely clear you, you should give them your alibi or at least tell them your lawyer will disclose it.

Click here Refer to "R. v. Cleghorn" if you wish more on the law of disclosing alibis.The Supreme Court of Canada has held in R. v. Russell, 67 C.C.C. 28, that where an alibi is not set up at an early stage in the proceedings, the trial judge is entitled to comment on the fact and the alibi is thereby considerably weakened.

If you disclose your alibi:
Keep it simple. Do not elaborate. Tell them just enough to verify your alibi,and nothing more. Then shut up. If you don't disclose your alibi in a "timely" manner, the alibi can be given less weight

Politely refuse to answer any other questions.

Search
The police can do a pat down search if they arrest you. Do not resist.

Strip Searches
The police cannot strip search you unless there are very good reasons. They cannot just do it to embarrass, humiliate or intimidate you, although they frequently do so in violation of the law

If you have been contacted by the police or if you expect to be charged with a criminal offence, you should seek legal advice from a lawyer.

     

WHAT ARE YOUR RIGHTS IF YOU ARE ARRESTED?

The Canadian Charter of Rights and Freedoms provides these rights.

The police must explain all of these rights to you if you are arrested or detained.

    You have the right:
  • To be informed promptly of the reason you have been arrested or detained.
  • To retain and instruct a lawyer without delay and to be informed of that right.
  • To telephone any lawyer you wish.
  • To free advice from a legal aid lawyer.

The words "without delay" mean once the situation is under control and the safety of everyone is ensured.

If you are under 18 years of age, you have the right to speak with a parent or other appropriate adult as soon as possible.

Arrest and Charge: Detained or Released
The police may formally arrest you at any point. They must tell you, you are under arrest, and the charge and give you your rights.

When a police officer decides to arrest you and lay a charge, you may or may not taken to the police station.

    The police have two options:

  1. Release You: You can be released on your promise to appear. This can be done at the scene or they may take you to the station and then release you.

    If you are released, you will be given one or more of the following documents:

    • A promise to appear
    • An undertaking to an officer
    • A summons to an accused

  2. Detain You: The officer can detain you, take you to the station, and lock you up in a cell pending a bail hearing

If they hold you, you will be locked up in a jail cell for a while and will be brought before the Court or a Justice of the Peace for a bail hearing.

Go to Click here THE BAIL PROCESS for detailed information on bail and bail hearings.


What is an Appearance Notice or Promise to Appear?
When you have been arrested, the office may issue you an appearance notice or similar notice. It is basically a promise that you will appear as ordered in court at a specified date, time and location to answer to the charge listed in the notice

Finger Printing and Photograph
Typically there is also a promise to appear at the police station in order to be finger printed and photographed under Click hereThe Identification of Criminals Act.

People very understandably, often take offence to having their finger prints and photographs taken. Regardless, make certain you attend to have them taken at the appointed time. If you do not attend you will be charged with failure to appear, for which the crown quite often seeks a jail sentence.

Once acquitted, you can ask that the fingerprints and photos be destroyed. However, the local police will keep records of your arrest on file forever.


Request to Come to Police Station
An officer may phone and request that you attend the police station in order to be arrested and charged.

Ask for time to consult a lawyer before coming in. Usually the police will agree.

You do not generally want to turn yourself in on a Friday afternoon or a holiday and be held over in custody until Monday.

If you do not attend the officer may obtain a warrant for your arrest, or may arrest you directly without warrant if he believes you were committing a crime.

    Turning Yourself In
If you are wanted by the police, it is best if you arrange to turn yourself in. First, get a lawyer to find out what the police want and to set up a convenient time for you to turn yourself in so that the police can arrest or book you.

The lawyer may be able to get the police to commit to releasing you after being charged.

If not, the lawyer can usually arrange a convenient time to have the arrest take place so that you can be processed and transferred to court in a timely fashion so that you are likely to get bail the same day. If you get remanded to jail for any reason, it will be extremely difficult to arrange bail, consult your lawyer or reach anyone "outside."


Click here Police Powers: Stops and Searches CLEO has excellent pamphlets on your rights and the law. We recommend them highly

Understand this: Police records and files on you will never be erased. Records of every contact with you, every complaint by a neighbour,
arrest, charge, acquittal, stay, discharge, diversion and conviction are kept permanently by the police regardless of the outcome.


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