After an arrest and once in police custody: the next steps

For whatever reason you're arrested and put into police custody, the next steps you take could be key to helping or hindering a legal case against you. Here's how.

When police determine you’ve committed a crime, the arrest occurs only after describing the charge and reading you your Charter rights. Similar to the well-known U.S. Miranda warning, it contains the right to remain silent and the right to counsel. There is one key difference, however. In Canada, a five-minute phone conversation with your own lawyer or a court-appointed duty counsel is considered sufficient to satisfy that right. After that, you no longer have the right to invoke silence and must continue to be interviewed, regardless of if your lawyer is present.

If the matter is not serious, the officer may release you at the scene with a summons to appear in court. If you are detained, however, you will be taken to a police holding cell. Usually within 24 hours (or as soon as reasonably possible) you will be taken before a magistrate for the formal reading of the charges. This is where you really ought to have a lawyer, because this is the first opportunity on your part to request your freedom. There are numerous avenues for negotiation, but not if you’re unaware of them.

Like a traffic ticket, it requires you to appear in court at a particular time. It is a sign that the police are convinced of your identity, that you are unlikely to flee or tamper with evidence, and that they respect your promise to show up at the court date.

In addition to the summons and your promise to appear, you are asked to pledge up to $500 should you fail to appear, although, unless you’re from out of province, a verbal guarantee works in lieu of a deposit.

In legal parlance, an undertaking is where you promise to do or not do certain things. Some conditions set prior to release may include avoiding certain people, drinking, drugs, or other activities deemed to put you at risk of re-offending.

Canadians have the right to reasonable bail in most circumstances. Bail is a refundable monetary sum you post in exchange for your temporary freedom. Your first appearance before the judge is where the bail hearing takes place. The onus is not on you to prove you’re “good for it,” it’s on the Crown to show cause that there are circumstances, such as a previous failure to appear, which would cause the court to increase the sum of your bail or deny it altogether.

You may adjourn a bail hearing for up to three days. If you deem the facts revealed in a bail hearing to be prejudicial to your reputation, you may request a publication ban, although the ban does not extend to the judicial outcome of the hearing, nor anything police may tell reporters.

Lawyer up

Maybe you’ve watched enough tv tothink you can handle this traumatic phase fairly well on your own, but the chances of that are almost nil. Get yourself a good lawyer, pronto.