Being arrested is a frightening and disorienting experience, whether it happens to you or to someone you care about. Ontario criminal law, and the Canadian Charter of Rights and Freedoms, set out rules about how an arrest must happen and what rights a person has once they are arrested. This guide explains, in plain language, what an arrest generally involves, what happens in the hours that follow, and what to keep in mind if it happens to you. It is general information only, and it does not replace advice from a criminal lawyer about a specific situation.
What Does It Mean to Be Arrested?
In Canadian law, an arrest is the act of taking a person into legal custody, usually because police believe there are reasonable grounds to believe that person has committed a criminal offence. An arrest can happen at the scene of an alleged incident, at a person's home, at a workplace, or after an investigation that has been going on for some time. In Ontario, arrests are carried out by police services under powers set out in federal law, including the Criminal Code, and are also shaped by the protections in the Charter.
An arrest is a serious legal event, but it is not the same as being found guilty of anything. Being arrested means police believe there are grounds to hold a person and bring them into the criminal justice process. What happens after that point depends heavily on the nature of the allegation, the evidence involved, and decisions made by police, the Crown, and the courts.
It can help to remember that an arrest is the beginning of a legal process, not its conclusion. Many cases resolve in ways that look very different from how they start, whether through a withdrawal of charges, a resolution short of trial, or a trial that results in an acquittal. None of that changes what a person should do in the first hours after an arrest, which is generally to stay calm, understand their rights, and get legal advice as early as possible.
Arrest vs. Detention
People often use the words "arrest" and "detention" interchangeably, but they describe related yet distinct legal concepts. Detention generally refers to a situation where a person's freedom to leave is meaningfully restricted by police, even briefly, such as during a traffic stop or while police ask questions at the scene of an incident. An arrest is a more formal step in which a person is told, or it is otherwise made clear, that they are under arrest and are being taken into custody in connection with a specific offence.
The distinction matters because certain rights and police obligations can apply differently depending on whether a person is detained or arrested. In both situations, however, Charter protections apply, including protections against arbitrary detention and the right to be informed promptly of the reasons for the detention or arrest.
Arrests With and Without a Warrant
Some arrests happen after police obtain a warrant from a court, based on evidence gathered during an investigation. Others happen without a warrant, which the law generally permits in situations such as when police witness an offence directly, or when they have reasonable grounds to believe a person has committed, is committing, or is about to commit certain offences. Whether an arrest was made with or without a warrant can matter later in the case, since it can affect arguments about whether the arrest itself was lawful. A criminal lawyer reviewing a case will generally look closely at how and why the arrest was made.
Your Rights at the Time of Arrest
When a person is arrested in Canada, they generally have the right to be told, promptly, the reason for the arrest. They also generally have the right to retain and instruct a lawyer without delay, and to be informed of that right. In addition, a person who has been arrested generally has the right to remain silent and is not required to answer questions from police beyond identifying themselves in certain circumstances required by law.
These rights exist so that an arrest does not become an opportunity to pressure someone into giving up information without understanding the process or without the chance to speak to a lawyer first. Exercising these rights, such as asking to speak with a lawyer or declining to answer further questions, is not an admission of guilt and cannot lawfully be held against a person simply for having exercised them.
You do not need to explain, justify, or argue with police at the time of arrest to protect your rights. Calmly stating that you wish to speak with a lawyer and that you do not wish to answer questions until you have done so is generally enough.
Being Searched After an Arrest
Police generally have the authority to search a person after a lawful arrest, often referred to as a search incident to arrest. This type of search is generally connected to purposes such as officer safety, preventing the destruction of evidence, and locating evidence related to the offence. The scope of what police can search, and when, depends on the specific circumstances, and there are legal limits on how far this authority extends. A criminal lawyer can review whether a particular search was conducted lawfully in a given case.
Being Taken to the Police Station
After an arrest, a person is often taken to a police station, where routine steps such as identification, fingerprinting, and photographing may take place, depending on the offence. Personal property, including a phone or wallet, may be held for safekeeping and returned later, generally along with a receipt or inventory. This stage can also involve further questioning, although, as discussed above, a person generally has the right to speak with a lawyer before deciding whether to answer questions.
Being held at a police station can feel isolating, especially if it happens outside of regular business hours. It is generally reasonable to ask when you will be able to speak with a lawyer, and to ask what is happening next, even if a full answer is not always available immediately. Staying calm and cooperative with basic booking procedures, while still asserting your right to speak with a lawyer before answering substantive questions, is generally the safest approach.
How Long You Can Be Held Before Court
Canadian law places importance on resolving the question of release without unreasonable delay, and Ontario operates bail courts to hear these matters promptly, including on weekends and statutory holidays in many locations. Exactly how quickly a person is brought before a court can depend on factors such as the day and time of the arrest, the courthouse involved, and how busy the bail court is on a given day. This is general background information rather than a fixed rule, since the specific timelines that apply can vary. A lawyer or duty counsel can give more specific guidance based on the circumstances.
Release by Police or a Bail Hearing
Depending on the offence and the circumstances, police may release a person directly from the station, sometimes with conditions and a future court date, rather than holding them for a bail hearing. If police do not release a person, they are generally required to be brought before a justice as soon as practicable so that a court can decide the question of release. Our guide to how bail hearings work in Ontario explains this process in more detail.
Access to a Lawyer
A person who has been arrested generally has the right to contact a lawyer, including duty counsel, who can provide free preliminary legal advice over the phone in many circumstances. Police are generally required to facilitate this contact and to hold off on further questioning until the person has had a reasonable opportunity to speak with a lawyer, subject to certain exceptions. If a private lawyer is not immediately available, duty counsel is often a practical first step for basic guidance about the arrest and next steps.
What Police Can and Cannot Do
Police in Ontario have significant legal authority, but that authority is not unlimited. In general terms, police are expected to have a lawful basis for an arrest, to inform a person of the reason for their arrest, to respect the right to counsel, and to use no more force than is reasonably necessary in the circumstances. Whether a specific arrest or the conduct surrounding it complied with these general principles is a legal question that depends on the facts, and it is the kind of issue a criminal lawyer can review in detail.
In general, police are also expected to use only as much force as is reasonably necessary to carry out a lawful arrest, and to arrange for medical attention if a person is injured or has an urgent medical need while in custody. If a person believes excessive force was used, or that a medical need was ignored, that is generally something to document as soon as possible and raise with a lawyer.
Recording Your Arrest
People sometimes ask whether they, or someone nearby, are allowed to record an arrest taking place in public. As a general matter, members of the public are generally permitted to record police carrying out their duties in a public place, provided they do not physically interfere with police or obstruct the arrest itself. A recording can sometimes become useful evidence later, for example if there is a dispute about how an arrest or search was conducted. This is general information rather than advice about any specific encounter, and safety should always come first.
Common Mistakes to Avoid
People who have just been arrested sometimes make decisions in the moment that can complicate their situation later. It is generally advisable to avoid the following:
- Arguing, resisting, or physically interfering with police during an arrest
- Answering detailed questions about the allegation before speaking with a lawyer
- Providing a written or recorded statement without first getting legal advice
- Contacting a complainant or witness directly to "sort things out"
- Assuming that being polite means giving up the right to remain silent, or that remaining silent means being uncooperative in a way that will be held against you
None of this means a person should be uncooperative with basic, lawful instructions from police. It simply reflects the general principle that important decisions, such as whether to give a statement, are best made after getting legal advice.
Mistaken Identity and Wrongful Arrest Concerns
Occasionally, a person is arrested because of mistaken identity, an outdated warrant, or an error in police records. If you believe you have been arrested in error, it is generally important to remain calm, avoid arguing extensively with officers at the scene, and raise the issue clearly with a lawyer as soon as possible. A lawyer can help gather identifying information and documentation to resolve the situation through the proper legal channels, which is generally more effective than trying to resolve it through argument alone at the time of arrest.
What Happens After Release
Whether a person is released by police or after a bail hearing, they will generally be given information about a future court date and, in many cases, a set of conditions to follow in the meantime. Understanding those conditions clearly, and following them, is important, since breaching a condition can lead to new charges and can affect future decisions about release. From there, the case generally proceeds through the steps described in our overview of what happens after you are charged in Ontario, including disclosure, possible resolution discussions, and, if the matter is not resolved earlier, a trial.
Many people find it helpful to write down what they remember about the arrest itself while it is still fresh, including the time, location, and names or badge numbers of officers involved, if known. This information can be useful for a lawyer later, whether the focus becomes preparing a defence, exploring resolution options, or examining whether any part of the process itself may be open to challenge.
Frequently Asked Questions
Do police have to tell me why I am being arrested?
Yes, in general, a person who is arrested has the right to be informed promptly of the reason for the arrest.
Can I call a lawyer right after I am arrested?
You generally have the right to contact a lawyer, including duty counsel, without unreasonable delay after being arrested, and police are generally expected to facilitate this.
Do I have to answer police questions after I am arrested?
In most circumstances, you have the right to remain silent and are not required to answer questions about the alleged offence, beyond identifying yourself where the law requires it.
Will I definitely go to jail if I am arrested?
Not necessarily. Many people are released by police or at a bail hearing, often subject to conditions. Whether someone is detained depends on the charge and the specific circumstances.
What should I do if I think my rights were violated during an arrest?
Write down what happened as soon as you reasonably can, while it is fresh in your memory, and speak with a criminal lawyer, who can assess whether there may be a legal issue with how the arrest or a search was carried out.
Can police arrest someone without a warrant?
Yes, in many situations. Police generally have the authority to arrest without a warrant when they witness an offence directly or have reasonable grounds to believe a person has committed certain offences, though the specific rules depend on the type of offence involved.
Am I allowed to record the police during my arrest?
Generally, yes, members of the public may record police performing their duties in a public place, as long as they do not physically interfere with the arrest or obstruct police.
What happens to my property if I am arrested?
Personal property is generally held by police for safekeeping while a person is in custody and is typically returned upon release, often along with a receipt or inventory. Property connected to the alleged offence may be treated differently and held as evidence.