Arrested in Ontario? What Your Right to a Lawyer and Right to Silence Actually Mean

Most of what people believe about being arrested comes from American television. Canadian law is different, and the differences matter a great deal in the first few hours. This article explains what your rights actually are when you are arrested or questioned by police in Ontario — and, just as importantly, what they do not cover.

Your rights begin the moment you are "detained"

You do not have to be handcuffed to have rights. Section 10 of the Canadian Charter of Rights and Freedoms applies on arrest or detention, and detention can be psychological as well as physical. In R. v. Grant, 2009 SCC 32, the Supreme Court of Canada held that a person is detained when a reasonable person in their position would conclude they were not free to walk away. A few exploratory questions on the street are usually not detention. Being singled out, told to wait, and questioned about an offence often is — and at that point your rights are engaged whether or not anyone has said the word "arrest."

Two things police must tell you, immediately

Section 10(a) of the Charter gives you the right to be told promptly why you are being arrested or detained. Section 29(2) of the Criminal Code says much the same thing: anyone making an arrest, with or without a warrant, has a duty to give the person notice of the reason for it where it is feasible to do so. You are entitled to know the case you have to meet.

Section 10(b) gives you the right to retain and instruct counsel without delay, and to be informed of that right. In R. v. Suberu, 2009 SCC 33, the Supreme Court held that "without delay" means immediately, subject only to concerns such as officer or public safety. Police also have a duty to hold off on questioning you until you have had a reasonable opportunity to reach a lawyer.

Free legal advice, at any hour of the night

Asking for a lawyer is not an admission of anything, and it does not require money or a lawyer you already know. Legal Aid Ontario funds a duty counsel service — often called Brydges duty counsel — that provides free legal advice to anyone detained or arrested in Ontario, 24 hours a day, 365 days a year, in English, French, or another language through an interpreter. Police are required to tell you that this service exists. If you ask for it, the officer should place the call and let you speak to counsel in private.

Use it. A short call before an interview is one of the most valuable things available to a person in custody, and it costs nothing.

The right to silence is real — and it is a decision you have to keep making

Section 7 of the Charter protects the right to remain silent when you are dealing with the state. There are limited situations where you must identify yourself — a driver stopped under Ontario's highway traffic legislation, for example — but beyond that, you are not obliged to explain yourself, justify yourself, or give your side of the story.

This is where people get into difficulty. Canadian police are permitted to keep asking questions after you say you do not wish to speak. They may be persistent, may suggest they already know what happened, and within limits may be less than forthcoming about the strength of their evidence. Saying "I am not going to answer questions" once does not end the interview. Many statements that later become the Crown's best evidence were given by people who intended to stay silent and simply grew tired.

What the right to counsel does not include

Two limits surprise almost everyone.

First, you do not have the right to have your lawyer in the room while police question you. In R. v. Sinclair, 2010 SCC 35, the Supreme Court held that section 10(b) entitles a detainee to consult counsel, not to have counsel present throughout a custodial interrogation.

Second, one consultation is usually all you get. Sinclair holds that police must provide a further opportunity to speak with a lawyer only where there are objectively observable changed circumstances that make it necessary — for example, a new procedure such as a lineup or polygraph, a significant change in the seriousness of the jeopardy you face, or reason to believe you did not understand the first advice.

The rule cuts both ways. In R. v. Dussault, 2022 SCC 16, the Court found a breach of section 10(b) where police conduct had the effect of undermining the legal advice already given: the accused was led to believe his lawyer would attend at the station, then told otherwise and interviewed. Undermining need not be deliberate to matter.

There is also a well-known exception at the roadside. A driver who is lawfully required to provide a breath sample into an approved screening device generally has no right to call a lawyer first; that right is triggered if an arrest follows and further samples are demanded at the station.

What happens if police get it wrong

A Charter breach does not automatically end a prosecution. Under section 24(2) of the Charter, evidence obtained in a manner that infringed your rights is excluded only if admitting it would bring the administration of justice into disrepute. Grant sets out the three lines of inquiry a judge follows: the seriousness of the Charter-infringing conduct, the impact of the breach on your Charter-protected interests, and society's interest in having the case decided on its merits. Statements taken in breach of the right to counsel are excluded relatively often; physical evidence is a harder argument.

Practical points

• Ask why you are being arrested or detained, and remember the answer you are given.

• Ask to speak to a lawyer, clearly and out loud — and if you do not have one, ask for duty counsel by name.

• Do not try to talk your way out of it. An explanation given at three in the morning without advice rarely helps and frequently hurts.

• Be polite and do not resist, even if you believe the arrest is unlawful. The place to challenge it is in court, not on the sidewalk.

• Write down what happened as soon as you can: times, officers' names and badge numbers, what you were told, when you asked for a lawyer and what the response was. These details often decide Charter applications months later.

• If you are released on conditions, read them before you leave the station. Breaching a condition is a separate criminal offence.

Ken Wise & Associates practises in criminal defence, including Charter applications arising from arrest and police questioning.

This article is general information only and is not legal advice. Reading it does not create a solicitor-client relationship. Every situation turns on its own facts — speak with a qualified Ontario lawyer or licensed paralegal about yours.