Arrested in Ontario? Your Rights When Police Question You

Being arrested is frightening and disorienting, and most people learn their rights from television — which is American, and wrong. Canadian law gives you real protections at the moment of arrest, but some of them only work if you speak up and use them. Here is what actually applies in Ontario.

The two things police must tell you immediately

Section 10 of the Canadian Charter of Rights and Freedoms says that everyone has the right, on arrest or detention, to be informed promptly of the reasons for it, and to retain and instruct counsel without delay and to be told of that right.

"Without delay" is not a loose phrase. In R. v. Suberu, [2009] 2 S.C.R. 460, the Supreme Court of Canada held it means "immediately" — the moment you are detained, not once you arrive at the station. Police can delay briefly where there is a genuine safety concern, but not as a matter of routine convenience.

The two rights work together. You need to know what you are suspected of before you can get useful advice about it. If the investigation shifts to something more serious than what you were originally told, police must caution you again.

Say it out loud: "I want to speak to a lawyer"

This is the part people most often get wrong. Under R. v. Bartle, [1994] 3 S.C.R. 173, police have three duties: to tell you about your right to counsel and about legal aid and duty counsel; to give you a reasonable opportunity to contact a lawyer; and to stop trying to get evidence out of you until you have had that opportunity.

Only the first duty is automatic. The second and third are triggered when you indicate that you want to exercise the right. Silence or ambiguity does not trigger them. Say clearly that you want to speak to a lawyer, and then be reasonably diligent about it — if your chosen lawyer cannot be reached within a reasonable time, you are expected to call another one rather than stall.

Free legal advice is available at any hour, whatever your income

Since R. v. Brydges, [1990] 1 S.C.R. 190, police must tell you that free preliminary legal advice exists and how to reach it. In Ontario that is Legal Aid Ontario's duty counsel telephone service, available around the clock to anyone who has been arrested or detained — there is no financial eligibility test for this first call, and interpreters can be arranged.

Tell the officer you want to speak to a lawyer and they will place the call. You are entitled to speak privately — not within earshot of the investigating officer. Ask for that if it is not offered.

You do not have to answer questions — and police do not have to stop asking

The right to silence is protected by section 7 of the Charter. Apart from identifying yourself in certain situations, such as a traffic stop, you are generally not obliged to answer an officer's questions.

But here is the part that surprises people. In R. v. Singh, 2007 SCC 48, the Supreme Court held that police are not required to stop an interview just because a suspect says they do not want to talk. They may keep putting their case to you and use legitimate means of persuasion. Asserting the right once does not end the conversation — you have to keep declining. The interview is almost always recorded, and anything you say can be used.

Your lawyer will not sit beside you in the interview room

Another difference from what people expect. In R. v. Sinclair, 2010 SCC 35, the Court held there is no constitutional right to have a lawyer present throughout a police interrogation, and no automatic right to a second phone call. In most cases one proper consultation satisfies section 10(b).

There are exceptions where circumstances change in a way that objectively alters the choice you face — for example, you are now facing a more serious charge, or police want you to take part in a new procedure such as a lineup or a polygraph. In those situations you are entitled to speak to counsel again. Ask.

Situations with extra rules

• Young people. Section 146 of the Youth Criminal Justice Act adds protections before a statement by someone under 18 can be used, including the right to have a lawyer and a parent or other appropriate adult present.

• Language or understanding. Police cannot simply recite the caution. If you say you do not understand, or it is apparent you do not — because of language, age, intoxication or a mental health condition — they must take steps to make sure the warning gets through.

• In hospital. In R. v. Taylor, [2014] 2 S.C.R. 495, the Court confirmed that police must take proactive steps to give a detained person access to counsel at the earliest practical opportunity, even during medical treatment.

• At the roadside. Impaired driving is the main exception. Courts have accepted that the right to counsel is limited during roadside sobriety screening, because screening has to happen promptly. The full right applies once you are taken to the station.

What happens if police get it wrong?

A breach of your rights does not automatically end the case. The usual remedy is an application under section 24(2) of the Charter to exclude evidence obtained as a result — often a statement or a breath sample — on the basis that admitting it would bring the administration of justice into disrepute. Whether that succeeds depends on how serious the breach was and what the evidence is. That argument is made by your lawyer, on the record, which is one more reason to say little and remember a lot.

Practical takeaways

• Do not physically resist, even if you believe the arrest is unlawful. That argument belongs in a courtroom, and resisting can create a new charge.

• Ask what you are being arrested for, and listen to the answer.

• Say plainly: "I want to speak to a lawyer." Name one if you have one; ask for duty counsel if you do not.

• Ask to make the call in private, and say if you need an interpreter.

• After the call, you can politely decline to answer questions — repeatedly, if necessary. "I have nothing to say" is a complete answer.

• Write everything down as soon as you can: times, officers' names and badge numbers, what was said, when you asked for a lawyer and what happened next.

Ken Wise & Associates practises in criminal defence.

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.