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What to do if you are arrested in Canada.

Quick answer. Say nothing about the alleged offence. Comply with lawful demands. Ask for a lawyer immediately and ask to speak privately. Do not consent to searches. Do not waive any right in writing or otherwise without counsel.

In the first sixty seconds

Stay calm. Identify yourself by name and date of birth where required. Do not resist. Do not answer any questions about the alleged offence. Police are trained to extract admissions during the first sixty seconds of contact, often before formal rights are read. You can say: "I am exercising my right to remain silent and would like to speak to a lawyer."

Your Charter rights

Section 10(a) of the Charter is the right to be informed of the reasons for arrest. Section 10(b) is the right to retain and instruct counsel without delay and to be informed of that right. Section 11(c) is the right against self-incrimination. The implementational duty is on police. They must facilitate access to counsel, not just inform of the right. If they question you before counsel is accessed and any statement can be excluded later under section 24(2).

The call to counsel

Ask for a lawyer immediately. You have the right to a lawyer of choice if reasonably available, otherwise duty counsel (free, available by phone 24 hours). Ask to speak privately. The privacy of the call is a critical component of the right. After the call you are entitled to remain silent. Police do not stop questioning after the call, but you do not have to answer.

Roadside stops and breath demands

For impaired driving investigations, police can demand a roadside breath sample without the section 10(b) right applying first. After the roadside sample, full Charter rights attach. If a screening device produces a Fail, you will be arrested and brought back to the station for further breath testing on an evidentiary instrument. The section 10(b) right applies fully at that point.

Bail and the first appearance

You must be brought before a justice for a bail hearing within 24 hours of arrest where practicable. A defence lawyer can present a release plan and a surety the same day or the next. Many releases happen on undertaking or with conditions without contested bail. Where the Crown opposes release, the defence brings the bail hearing on the merits.

Searches and seizures

You can refuse consent to a search of your home, vehicle, or person beyond what is incidental to arrest. Refusing consent is not a crime. Police may still conduct searches under specific authorities (incident to arrest, with a warrant, under the Highway Traffic Act, etc.). Refusing consent preserves your Charter arguments later. Comply physically with the search; argue legally afterward.

Questions readers ask

Will refusing to speak make me look guilty?

In law, no. Your silence cannot be used against you at trial. In practice, speaking without counsel almost always hurts the defence and rarely helps.

What if police promise me a deal if I cooperate?

Only the Crown can offer a binding resolution, and only after charges are laid and disclosure is reviewed. Police promises during arrest are not enforceable.

How fast can I get bail?

Bail must occur within 24 hours of arrest where practicable. Where there is enough disclosure for the Crown to position, release on undertaking can happen the same day.

Will speaking to duty counsel be enough?

For the first conversation in custody, often yes. For ongoing representation, no. Retain private counsel as soon as practicable, or pursue Legal Aid certification if you qualify.

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