Being arrested is frightening, and it is not the same as being convicted. Most people have never been through it, and in the moment they do not know what they are required to do or what they are allowed to refuse. What you say to police, and whether you follow your conditions, can affect the case from the first day. This guide walks through the process step by step, from the arrest itself to your release, so you know what is coming and what your rights are.
The process is the same across the province, including at the Orangeville courthouse and other detachments where Foote Law operates.
The Difference Between Arrest and Detention
Police can hold you in two different ways, and they are not the same. They can detain you briefly to investigate if they have a reasonable suspicion you are connected to a crime, or they can arrest you, which is a full taking into custody and requires the higher standard of reasonable grounds.
The difference decides what police can do. Upon an arrest, they can search you and your immediate surroundings. On a detention, they may only pat you down for weapons if they have a safety concern, not search you for evidence. A detention also generally does not appear on a criminal record check, while an arrest can be recorded even if the charge is later withdrawn.
If Police Ask You to “Come In and Give Your Side”
Not every case begins with handcuffs. Often police call and ask you to come to the station to give a statement or tell your side of the story. This feels voluntary, and it is: if you have not been arrested or detained, you do not have to go, and you do not have to speak to them.
This is one of the most dangerous moments in a criminal case, because it seems harmless. Before you agree to anything, speak to a lawyer. What you say in a “voluntary” interview is evidence, exactly like anything you would say after an arrest.
What Police Must Tell You
When police arrest you, they must tell you why, in clear language, and a vague reason such as “outstanding matters” is not enough. They must then read you the caution: that you have the right to speak to a lawyer without delay, the right to free legal advice, and the right to remain silent.
If police do not give you a clear reason or do not advise you of these rights, that failure can become the basis of a Charter challenge to exclude what police found.
Your Rights After Arrest
The Right to a Lawyer Without Delay
You have the right to speak to a lawyer before police question you, either your own lawyer or free duty counsel, available 24 hours a day. Ask for it early, and ask clearly: “I want to speak to a lawyer.”
In practice, police give you a telephone and a private space to make the call, and they provide a toll-free number to reach free duty counsel any time of day or night. This first call is legal advice for the moment you are in. It is not the same as hiring a lawyer to handle your case, which comes later.
This right has one limit. You are entitled to a reasonable opportunity to reach the lawyer you choose, not an unlimited one, so if your lawyer does not call back within a reasonable time, police can require you to call another lawyer or duty counsel.
The Right to Remain Silent
You do not have to answer police questions, and your silence cannot be used to suggest guilt. This is the right people most often misunderstand, so two points matter.
Before you have spoken to a lawyer, once you clearly ask for one, police must stop questioning you until you have had that chance. After you have had your call, they are allowed to keep asking, and at that point repeating “I want my lawyer” will not force them to stop again unless something material changes, such as new evidence or an offer of a polygraph. At that point, your only protection is to not answer.
What You Must Tell Police, and What You Can Refuse
You are required to give your name, date of birth, and address only in specific situations, such as when you are lawfully stopped while driving, when police are issuing a ticket for a provincial offence, or when a release document requires it. Outside those situations, you can decline to answer.
You do not have to explain, justify, or give your side of the story, but you must never lie to the police, because that can create a new charge.
What Police Can Search
On Arrest
When police arrest you, they can search you and your immediate surroundings without a warrant.
On Detention
During an investigative detention, police can pat you down for their safety if they have a reason to, but they cannot reach into your pockets or search you for evidence. A search that goes further than safety can be challenged.
Your Phone
Police cannot force you to unlock your phone or give up your passcode, and you should not. While there are narrow situations in which they can search a phone on arrest, the general rule is that they need a warrant to get into its contents, so if they ask you to unlock it, you can decline.
Booking at the Police Station
If you are taken to the station, you go through booking, where police:
- Record your personal information and assign a file number
- Take your fingerprints and photographs
- Catalogue and hold your personal property, including your phone
- Place you in a holding cell
Because your own phone is taken from you, the free duty counsel line is often how you reach a lawyer.
Speaking to a Lawyer Before Questioning
Police must give you a real and private opportunity to speak to a lawyer before they question you. If you cannot reach your own lawyer, duty counsel is free and available around the clock, and if your situation changes in a significant way, you can ask to call again.
A lawyer will tell you what you are facing and, in almost every case, advise you not to give a statement.
The Police Interview
Police may interview you after you have spoken to a lawyer. They are allowed to keep asking questions and to use lawful tactics to get you to talk, and the interview is recorded, so anything you say becomes evidence.
You are not required to have a lawyer in the room, and you are not required to answer. Staying silent remains the safe course.
What Police Decide After Booking
After booking, police decide whether to release you or hold you for a bail hearing. Release from the station is common for people with no record who are charged with a nonviolent offence. If police hold you, you must be brought before a justice, usually within 24 hours.
If You Are Released From the Station
Appearance Notices and Undertakings
You will be given a document that sets your first court date and, in most cases, conditions. Common conditions include no contact with the complainant, staying away from a specific address, and no possession of weapons. These conditions bind you the moment you sign, and a breach is a separate criminal offence.
Your Fingerprint Date
If your charge is indictable or hybrid, your document usually includes a date to attend for fingerprints and photographs. Attendance is mandatory, and missing it is itself an offence. If your charge is later withdrawn, you can apply to have the fingerprints and photographs destroyed.
If You Are Held for Bail
If police do not release you, your case moves to a bail hearing, where a justice decides whether you are released and on what conditions. That process, including sureties and how release conditions are set, is covered in full in our complete guide to the criminal court process in Ontario.
Special Situations
Domestic Arrests
In a domestic case, police will usually remove you from the home regardless of whose name is on the lease. Release conditions in these files almost always include:
- No contact with the complainant, in person or through others
- No return to the shared residence
- No attendance at the complainant’s workplace
This can put you out of your own home while the case is open.
If You Are Under 18
A young person’s case follows a separate process with added protections, and a parent or guardian is notified. A youth also has the right to have a parent or a lawyer present during questioning.
If There Is a Warrant for You
If you learn there is a warrant for your arrest, the safest step is to speak to a lawyer and arrange to turn yourself in, rather than risk being arrested unexpectedly.
What Mistakes Can Weaken Your Case
- Explaining or apologizing to police instead of staying silent
- Unlocking your phone when you are not required to
- Missing your fingerprint date or a court date
- Breaching a release condition, even a minor one
- Posting about the case or the incident online
What to Do First After You Are Released
- Read your conditions closely, and follow them exactly
- Write down every date, including your fingerprint date and first court date
- Record what you remember about the arrest while it is fresh
- Keep anything that could be evidence, including messages and receipts
- Stay away from the complainant, in person and online
- Call a criminal lawyer
Frequently Asked Questions
Do I have to answer police questions after I’m arrested?
No. You have the right to remain silent, and your silence cannot be used as evidence of guilt.
Can police search my phone after arrest?
Generally no. Police need a warrant to search the contents of your phone, and only narrow exceptions apply. You are not required to give up your passcode.
What’s the difference between being detained and being arrested?
Detention requires only a reasonable suspicion and allows a pat-down for safety; it generally does not appear on a record check. Arrest requires reasonable grounds, allows a full search, and can be recorded even if the charge is later withdrawn.
Should I go to the police station if they just want to “talk”?
You don’t have to, and you don’t have to speak once you’re there. Anything said in a “voluntary” interview is evidence, just like a formal statement, so speak to a lawyer first.
Speak With a Criminal Lawyer in Orangeville
Early legal advice protects you before you say something that hurts your case, and it helps you meet your conditions and your court dates. Acting early also lets a lawyer preserve evidence, such as surveillance video that is often overwritten within days, before it is lost.
Foote Law defends criminal charges at the Orangeville courthouse and across Ontario, in person and virtually. We accept Legal Aid Ontario certificates. Contact Foote Law today to schedule a confidential consultation.
