Arrest Or Detention
Being under arrest really just means that you are detained by the police and going to be charged with an offence. “Detained” means that the police have taken control of your movements, either by physically restraining you or by commanding you to stay put.
Your Right To A Lawyer
The police have to tell you that if you don’t have a lawyer, they will contact a “duty counsel” for you and you can talk to that person. “Duty Counsel” is a government-funded lawyer who can give you free legal advice while you’re at the station. What you say to the duty-counsel is confidential, just like with a private lawyer.
Who You Can Call
Upon “detention” you have the right to call a lawyer of your choice. The police may be prepared to give you reasonable access to the telephone to call a family member to let them know what has happened to you. A recent series of decisions from the Supreme Court of Canada has made it clear that you are not necessarily entitled to multiple calls to your lawyer. For this reason it is extremely important that the one contact you do have is unrushed and as complete as possible. When they give you access to the telephone to call your lawyer, it must be in a private area where they can’t overhear what you are saying to your lawyer. Don’t waste your chance to call a lawyer before you start answering police questions.
Even if it’s 2:00 AM on a Friday night, call me on my cell phone at (416) 712-3676. It is my business to be available for arrest calls like this. Sometimes the police won’t offer you a chance to call your lawyer, or they will try to persuade you not to bother. INSIST ON THE CHANCE TO CALL A LAWYER, EVEN IF THE POLICE AREN’T MAKING IT EASY FOR YOU TO DO SO.
The police also have to give you reasonable access to the telephone, usually to call a family member to let them know what has happened to you. In my experience, the police don’t always follow through on this, and are likely to limit your use of the phone to calling a lawyer only. If you need to make a second telephone call, you can and should insist on this right.
Your Right To Say Nothing
The police have to let you know that you don’t have to tell them anything, but if you do, it will be taken down in writing or on video and presented as evidence against you. They tell you this by reading you a “caution” from their notebooks. Once they read you this caution, you’re on notice that you better be quiet unless you really want the judge to hear what you say next.
While under arrest or detention, you do not have to say anything to the police about anything. Whether you should tell them anything about the subject of the investigation is entirely up to you. However, this is a decision best made in consultation with your lawyer. In my nearly 20 years of experience in this area of the law, I can remember only a small number of cases where someone actually made things better for themselves by speaking to the police about their case upon arrest. Most have simply dug a deeper hole for themselves.
At the station the police will try to identify you, and learn basic information about where you live, work etc. You are under a duty to identify yourself the police in certain circumstances. It is always the case that if you do identify yourself, you can’t lie about who you are, or what your birthdate is. If you do lie and are caught, you will be charged with further offences. If you refuse to identify yourself to the police, they can hold you in custody for the purposes of determining who you are.
The Breathalizer Test
You may be asked to give a sample of your breath to the police if you are under arrest for a drinking and driving offence. Take advantage of the opportunity to talk to a lawyer before you blow, but be aware that it is a criminal offence to refuse the officer’s proper demand for a sample of your breath. You are NOT required, however, to do any other tests, like touching your fingertip to your nose or walking a straight line. You don’t have to answer questions like: “how much have you had to drink tonight.”
Your Right To An Interpreter
If English is not your first language, be very careful in your conversations with the police. Insist on being provided with an interpreter. It happens that a person who speaks English as a second language reasonably well has a great deal of difficulty communicating properly when under the stress of an arrest and investigation. However, this is precisely the time when every word counts, and confusion can lead to further trouble. If you are speaking with the police and don’t feel you completely understand what they are asking, let them know what language you speak, and ask for an interpreter.
Police Searches Of Your Person
The police have a right to search you incident to your arrest. They are allowed to frisk you to make sure you don’t have weapons. They may also be able to search you for evidence of the crime you are suspected of having committed. In some circumstances they are able to strip-search you. If they do strip search you, it must be done in a private area of the station and in a manner that does not unnecessarily degrade or intimidate you. While under arrest or detention you are NOT required to give personal samples, like dental impressions or a sample of your DNA. However, if you blow your nose and throw away the tissue, it may later be claimed you abandoned the sample.
After their investigation is completed, the police may decide to let you go, on the basis of your promise to appear at court on a later date. If so, you may be required to follow rules governing your behaviour while waiting for your case to be completed. This is called an undertaking to an officer in charge. If you refuse to agree to follow those rules, the police may keep you in custody and take you before a judge to determine whether you should be required to follow the rules.
If the charge is serious or you have a criminal history, the police may take the position that you should be held in jail until your trial. In that case, they will keep you in custody until you can be taken before a judge or a justice of peace. At that time you will have a bail hearing. One of the best reasons for calling a lawyer from the station is to obtain help to get ready for a bail hearing. You will need to have people to sign bail for you at court, with certain financial documents with them. Whether you make bail and how quickly you can do it depends in part on this kind of preparation.
What Else To Do
How you behave with the officers will often have a profound impact on how they treat you. Don’t be a jerk. This doesn’t mean you should make them happy. It doesn’t mean you should throw away your rights. It means you should treat them like you would the driver of a bus on which you are a passenger: politely. Think of them as someone who has a job to do and is in the process of doing it. Much of the time the police have no particular axe to grind with the person they arrest; they are simply acting on instructions from another officer or relying on a statement made to them by a witness. However, if the police are being rude, unfair or aggressive with you, firmly re-iterate your desire to speak to counsel. If this obviously isn’t working, retreat into silence: ride it out with your mouth shut. Don’t rise to the bait, and at least nobody can blame you later for a misstep at the station.
How to Ride Out a Harsh Interrogation
The police are allowed to go surprisingly far to get you to “confess”. They may keep you up for hours, deny your request to go back to your cell, they may yell at you, and cut you off when you try to give an innocent explanation. There is one really clear and simple way to ride this process out: say nothing. I mean, literally do not allow your lips to form an utterance. Can you go for 5 hours and not say one word? Can you put your head down on the table like a kindergarten child at nap time? Can you sit in the corner and wrap your arms around your knees and rock yourself to sleep? This sounds ridiculous, I know, but in those rare cases when the police are not going to let it go without a struggle, this is the only way to handle the situation.