What Happens If I Get Arrested?

You are probably wondering, “what happens if I get arrested?”  In the criminal law context, an arrest is simply the apprehension and detention of an individual.  A detention can be physical or psychological and most commonly results in charges being laid. The police have the common law power to detain individuals for investigative purposes – this is referred to as an “investigative detention”.

In the absence of an arrest warrant, a police officer (or private citizen) may arrest you if you are found committing an offence.  Alternatively, a police officer may arrest you if he/she has “reasonable and probable grounds” to believe that you have or are about to commit an indictable offence.  What this means in court is that there must have been a “credibly based probability” that you either committed or were about to commit an indictable offence. Otherwise, the Court may deem the arrest unlawful and you may be entitled to relief.

Section 10 of the Canadian Charter of Rights and Freedoms (“Charter”) takes effect upon the arrest of an individual.  The Charter states:
10. Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right;

The police have the power to arrest and detain people during the course of criminal investigations.  These are extremely important powers as they can have a direct effect on the liberty or freedom of an individual.  The Charter provides individuals with certain legal rights in these scenarios.  Section 10 of the Charter exists to ensure that individuals facing legal jeopardy are informed of their rights.  An individual who is not aware of or informed of their rights is unable to make an informed decision as to whether they should exercise those rights.  

If you are arrested the police must advise you of the following:

1) why you were arrested or detained;
2) you have the right to speak with and hire a lawyer;
3) you can telephone any lawyer you wish;
4) you can apply for Legal Aid (if charges are laid);
5) if you don’t have a lawyer, you can speak with a Legal Aid lawyer for free (duty counsel).

The police must also do their best to ensure that you understand each of the above.  Everything we’ve covered so far relates to INFORMATIONAL obligations the police have.  If you request to speak with a lawyer, be it duty counsel or otherwise, an IMPLEMENTATIONAL obligation takes effect and the police MUST comply with your request.  

The common law recommends that police officers also provide “secondary police cautions”.  Think of police officers on television advising suspects, “anything you say or do can be used against you in court”.  Secondary police cautions are designed to advise arrestees of their constitutional right to silence and to preserve inculpatory evidence in court.  If you make a statement or confession to the police during the course of your arrest, the Crown Attorney must be able to provide that it was voluntary, beyond a reasonable doubt.  Secondary cautions assist Crown Attorneys in establishing voluntariness, which may result in your confession being admissible against you in court.  

If you have been arrested and detained by the police it is very important that you exercise your constitutional right to silence.  This means that you do not provide a statement to the police without first speaking to a criminal lawyer. Anything you say to the police may be used against you in future court proceedings and an experienced criminal lawyer can advise as to whether a police statement will help or hurt you.  

Following an arrest, the decision to lay criminal charges depends on the discretion of the police as well as the evidence they have gathered.  Evidence can be either physical, documentary or testimonial.