Arrested or Charged with a Criminal Offence

If you have been arrested or charged with a criminal offence you’re probably wondering what kind of legal aid or information you need. While not a substitute for legal advice, this article can provide you with some basic answers to your questions about the law and the legal process.

Your first concern is learning what your rights are. The following list is just the starting point. These answers are general and do not apply in every situation.

1.) The Charge

The Right to Be Informed of the Charge: One of your rights is to be informed of the charge against you. Usually, a charge is a formal accusation, made by police, that you have committed an offence. That offence is listed on a piece of paper called an Information. If you are formally charged with a criminal offence, you will get a copy of this.

Appearance Notice / Promise To Appear: On the other hand, it is possible to be investigated before being formally charged. In these situations, the police may give you a piece of paper called an “appearance notice,” or they may require you to sign a piece of paper called a “promise to appear.” The law in this area is tricky. However, if an Information has been laid, you have been formally charged.

Charged Without Getting Arrested: You can be charged with a criminal offence but not be arrested (taken into custody). The formal charge is the accusation laid out in the Information, whereas the arrest involves being taken into custody by police.

2.) The Arrest

When you are arrested (taken into custody), you have several rights. First, the police should identify themselves to you as being police and inform you as to why you are being arrested. You also have the right to be informed that you are not free to leave. In that case, you must go with the police officer.

3.) Force

Use of Force: You have the right not to be arrested using unreasonable physical force. The question of what is reasonable is sometimes a tricky one, but in basic terms, the police are not allowed to use force unless you resist them and even then, they are only allowed to use as much force as is “reasonable” or “reasonably necessary.”

Throughout the process of being charged, arrested and going to trial, you will hear the word “reasonable” used a lot. In this article, you’ll hear it several times too. What police consider “reasonable” force and what the public consider “reasonable” force, can differ.

4.) The Right to Remain Silent

Other than giving the police your name, you have the right to remain silent, the right not to answer questions, and the right not to make any statements verbally or in writing.

This will be familiar to you if you have ever watched American movies or TV. Keep in mind, however, that the law in Canada is sometimes different. In Canada, even if you assert your right to remain silent, the police may still attempt to talk to you and question you.

It is up to you to decide if you will continue to remain silent or not. Most defence lawyers recommend remaining silent, even though it is difficult to do so when police are accusing you. Remaining silent may prevent you from saying something you do not mean, from getting confused by what the police are saying, from saying something that can be used against you in court, and from confessing to something you didn’t do.

5.) Contacting a Lawyer

You have the right to contact a lawyer. Again, keep in mind, however, that unlike what you may have seen in American movies, the police in Canada can still attempt to question you without your lawyer present (and in response to their attempts to question you, you still have the right to remain silent).

If you cannot afford a lawyer, this does not mean you lose the right to have a lawyer represent you. While Canada does not have a “public defender” like in the US, accused people can still obtain legal representation in other ways.

For example, when attending court for bail matters and first appearances, one option is to ask to speak to a free lawyer, often called “duty counsel.” These lawyers are present at the courthouse and are paid by the government to provide free advice to criminal defendants. A duty counsel lawyer is not your own, personal lawyer, but they are available to give one-time advice that day, before your bail hearing or before you enter a plea.

Another option is to obtain a Legal Aid lawyer to represent you. You may be able to access the services of a Legal Aid lawyer if you do not have a lawyer and if you meet certain requirements such as having a low income.

6.) Being Kept in Custody

You have the right not to be kept in custody without being charged with an offence. If you have been arrested (taken into custody) without a warrant (a piece of paper from a judge that allows to police to do something), the police need a good reason to keep you in custody. Those reasons might be to find out your identity, to stop you from committing a crime or destroying evidence, or to make sure you will appear in court.

7.) Habeas Corpus

This is an old Latin word that refers a person’s right to be brought before the court to decide if it is lawful to hold them in custody. It is now a right guaranteed by the Charter of Rights in Canada.

After being arrested (taken into custody), you must be taken before a judge or Justice of the Peace within a certain amount of time. The purpose of this is to determine the validity of your being detained.

Generally, you have the right not to be kept in custody for longer than 24 hours, or as soon as possible, before being brought before the judge or Justice of the Peace. At that time, the judge or Justice of the Peace will decide whether or not you can be released from custody and if there are any terms or conditions of your release.

8.) Police Searches

You have the right not to have your person, car, home, or property searched without the police having a good reason to do so. Searches sometimes happen before being charged or arrested and sometimes after.

So, what is a good reason for police to search your person, place or property? Here are some examples:

Reasons the Police May Search Your Person, Car, Home, or Property

• when you give them consent to the search
• when they arrest you
• when they believe you are carrying a dangerous weapon or illegal drugs or alcohol
• when they have a warrant (a piece of paper from a judge allowing the police to conduct the search)

** Search without a Warrant: Sometimes, police may search your person, place or property, when they have good reason to get a warrant, but it is not practical or possible to get a warrant at that moment.

*** They may be able to search your car without a warrant if they have good reason to believe your car has illegal drugs or alcohol. (This particular area of the law is constantly being tested based on the facts and circumstances of each case. For example, the police are not allowed to pull you over and search your car merely based on a negative stereotype that people of your age or ethnicity often have drugs).

It can be confusing to know whether or not the police can search your person, house, car or property without a warrant. Because there are so many different facts and circumstances involved, knowing both your rights and the police’s rights can be tricky. Your lawyer can help clarify this for you.

9) Fingerprints and Photographs

After being charged with an offence, you may or may not have the right to refuse to give fingerprints or be photographed.

This right generally depends on the type of offence you are charged with. There are different types of offences (words you might hear are “summary,” “dual,” and “indictable”).

You have the right to refuse to give fingerprints or be photographed when you are charged with a summary conviction offence. Usually, however, offences are either indictable or dual, which means the police will have the right to fingerprint and photograph you.

Now you know some of your basic rights when you have been charged or arrested. Of course, being charged or arrested is just the beginning. You have other rights such as when you enter a plea, when you elect a certain kind of trial, throughout the trial and also on appeal. For more information on these rights, consult a lawyer, duty counsel, a government Legal Aid clinic, a pro bono or student legal information clinic or other source of information to ensure you understand your rights.