Arrest and the Right to Counsel

Arrest and the right to counsel are joined in law. From the moment police arrest or detain you they must tell you what for, and they must give you a real chance to speak to a lawyer before they ask you anything about the allegation. What a person says in the first few hours is often the strongest evidence the Crown ever gets, and it is the one part of the case that is still yours to control.

What an Arrest Is

Police may arrest without a warrant under section 495 of the Criminal Code when they find a person committing an indictable offence, or when they have reasonable grounds to believe a person has committed one. They can also detain you for investigation without arresting you. Either way you are entitled to be told the reason in words you can understand. That stated reason matters later, because your lawyer will test whether the grounds behind it existed.

Arrest and the Right to Counsel Are Triggered at the Same Moment

Section 10 of the Canadian Charter of Rights and Freedoms gives you the right to retain and instruct counsel without delay, and the right to be told that you have it. In practice police must hold off on questioning once you say you want a lawyer, and they must give you a private call. Duty counsel is available at any hour in New Brunswick and Nova Scotia if you have no lawyer of your own. Say the words out loud, and repeat them if the call has not happened.

The Right to Silence Is a Separate Protection

Speaking to a lawyer does not oblige you to speak to police afterward. You are required to identify yourself. You are not required to explain, correct, deny, or fill in gaps, and police are allowed to keep asking after you have declined. Declining again is not obstruction. Officers may also say things that are untrue about the strength of the evidence, and that is lawful.

What Happens Next

If the police keep you, they must bring you before a justice, which the chapter on police release and the bail hearing covers. If they release you, you will get a document with a court date on it. Either way you will not see the evidence against you until disclosure arrives, so nothing about the case can be sensibly decided on the night of the arrest.

A criminal defence lawyer at the firm can be reached before an interview, not only after one. If someone in your household has been arrested, contact the firm with the officer’s name and the detachment.