Arrested in Ontario: Your First Hours

You must be told promptly why you are being arrested and that you have the right to a lawyer, and you must be given a chance to speak to one, free through Legal Aid Ontario's duty counsel line if you have no lawyer. Police must release you as soon as detention is no longer needed, and if they do not, you must be brought before a justice within 24 hours where one is available.

The first hours after an arrest are when people say the most and understand the least. This guide walks through what the law requires from the moment of arrest until the person is either released by police or brought to a bail hearing. It is written for the person arrested and for the family waiting outside, often a parent or spouse who speaks Persian (Farsi) better than English and does not know who to call. What happens at the bail hearing itself is covered on our page about bail hearings in Ontario. Our other guides on rights before and at a charge are listed on our services page.

What must happen in the first hours, step by step?

From arrest to release or a bail hearing in Ontario
Moment	What the law requires	Source
At the arrest	You are told promptly the reason for the arrest, and of your right to retain and instruct a lawyer without delay	Charter s. 10(a), (b); Criminal Code s. 29(2)
If a warrant is used	The officer has it where feasible and produces it when asked	Criminal Code s. 29(1)
After you ask for a lawyer	A reasonable opportunity to call your own lawyer or duty counsel; Legal Aid's Brydges line is free, 24 hours, in any language through an interpreter	Charter s. 10(b); Legal Aid Ontario fact sheet
At the police station	The officer must release you as soon as practicable by summons, appearance notice or undertaking, unless detention is needed for listed public-interest reasons or to make sure you attend court	Criminal Code s. 498(1), (1.1)
Any time before the 24 hours run out	An officer who is satisfied that continued detention is no longer necessary must release you on an appearance notice or undertaking (except for the most serious offences listed in s. 469)	Criminal Code s. 503(1.1)
Within 24 hours	If not released, you are taken before a justice without unreasonable delay and within 24 hours where a justice is available, otherwise as soon as possible	Criminal Code s. 503(1)
At the justice	The bail hearing; an adjournment cannot exceed three clear days without your consent	Criminal Code s. 516

Three other Charter rights sit behind these steps. Everyone has the right not to be arbitrarily detained (s. 9). Everyone arrested or detained can have the lawfulness of the detention tested by habeas corpus and be released if it is unlawful (s. 10(c)). And a person charged has the right not to be denied reasonable bail without just cause (s. 11(e)).

What exactly is the right to a lawyer?

Section 10(b) of the Charter gives everyone arrested or detained the right to retain and instruct counsel without delay and to be told of that right. In R. v. Sinclair, the Supreme Court of Canada explained that its purpose is to let a detained person get legal advice before deciding whether to cooperate with the investigation. It does not require a lawyer to be in the room for the whole interview. A second consultation may be required when circumstances change, for example new procedures involving the detained person, a change in the jeopardy they face, or reason to believe they did not understand the first advice.

You can name your own lawyer. If you do not have one, or cannot reach one at night, ask for duty counsel. Legal Aid Ontario's fact sheet says its Brydges duty counsel service gives quick legal advice to every person detained or arrested in Ontario, whether or not they qualify for legal aid, 24 hours a day, 365 days a year, in English and French and in any other language through an interpreter. The officer places the call, and duty counsel calls back within 30 minutes. A Persian speaker can ask for advice through a Persian interpreter.

After the call, the most important advice is usually the simplest: do not discuss the facts with police, in the cell, or on the phone to family. Our guide on police interview requests explains the right to silence in more detail, including what happens when an officer keeps asking questions.

How can you be released without a bail hearing?

Most people are not held for court. The Criminal Code expects police to release a person arrested without a warrant as soon as practicable unless detention is needed to establish identity, preserve evidence, prevent another offence, protect a victim or witness, or make sure the person attends court (s. 498(1.1)). The release comes in one of three forms:

Ways police can release you after an arrest
Form	What it means	Source
Summons (later)	You are released and a summons to attend court is served afterwards	s. 498(1)(a)
Appearance notice	A document requiring you to attend court on a stated date, and perhaps for fingerprinting under the Identification of Criminals Act	ss. 497, 500
Undertaking	A signed promise to attend court, which may add conditions such as no contact with named people, staying away from places, depositing all passports, staying in an area or a promise to pay up to $500	ss. 498(1)(c), 501

Read an undertaking before you sign it, with an interpreter if needed. Breaking a condition is a separate offence (s. 145(4)), and conditions such as a no-contact condition can mean you cannot go home if the complainant lives there. A passport condition matters for anyone with family abroad; see travelling outside Canada while charged. Renewals are covered in our guide on Canadian passports and pending charges. If the conditions turn out to be unworkable, an undertaking can be varied with the written consent of you and the prosecutor, or by a justice (s. 502).

What if you do not understand English well?

Say so immediately and ask for a Persian interpreter. The right to counsel is only real if you understand the advice, and Sinclair recognizes that reason to believe a person did not understand can require a fresh chance to consult a lawyer. In court, Charter s. 14 guarantees an interpreter to a party or witness who does not understand the language of the proceedings, and Ontario provides one in any language in criminal matters. Our guide to Farsi interpreters in Ontario courts explains how to ask, including for a family member who will act as surety.

What changes the answer?

The offence. For offences listed in s. 469, such as murder, police cannot release under s. 503(1.1) and a justice must order detention (s. 515(11)), so only a judge of a superior court of criminal jurisdiction can release the accused (s. 522(1)).
Reverse onus situations. For some charges, including an indictable offence allegedly committed while already on release, or an indictable offence by someone not ordinarily resident in Canada, the accused has to show why release is justified (s. 515(6)).
Domestic allegations. When violence against an intimate partner is alleged, the justice must consider it, along with any prior conviction for violence (s. 515(3)). Our page on domestic violence charges describes the usual conditions.
Driving allegations. Breath and blood demands after a driving stop follow their own rules; see our page on impaired driving.
Age. For a young person under 18, a statement to police is generally admissible only if the officer explained the rights in age-appropriate language and gave a reasonable chance to consult a lawyer and a parent or other adult (Youth Criminal Justice Act s. 146(2)).
A search at the same time. If police also search a home or seize phones, those rules are separate; see search warrants at home.

A worked example

For example, imagine a 22-year-old in Thornhill arrested late on a Friday after a fight outside a restaurant in Toronto. His mother, who speaks mainly Persian, gets a call from a friend and does not know where he is. This is a hypothetical walk-through of the rules, not a description of any real case or result.

At the scene he is told he is under arrest for assault and that he can speak to a lawyer. At the station he asks for duty counsel, who calls back and advises him not to discuss the facts. Overnight, the officer decides whether to release him. If he is released on an undertaking, he reads the conditions, which include not contacting the other man and not going to the restaurant, and he signs. If he is held, he must be brought before a justice within 24 hours where one is available. Meanwhile his mother calls a lawyer, collects his health card and a list of people who could act as surety, and does not contact the other man or his friends. The lawyer asks for a Persian interpreter for her if she will speak as surety.

What mistakes do people make in the first hours?

Explaining "what really happened" to the arresting officer. Get advice first.
Declining the call to a lawyer to get things over with. Duty counsel is free and calls back within 30 minutes.
Signing an undertaking without reading it. Conditions can stop you going home, contacting family or travelling.
Family members contacting the complainant to "smooth things over". It can make release harder and create new problems.
Struggling on in English. Ask for an interpreter and say if you did not understand the advice about counsel.
Posting about the arrest online. Anything published can reach the police and the Crown.

What to do this week

Keep the appearance notice, undertaking or release order and read every condition.
Put every court date and fingerprinting date in your calendar.
Write down, for your lawyer only, what happened during the arrest: times, what you were told, when you asked for a lawyer.
If you hold more than one passport and have a passport condition, check that all were deposited.
Identify possible sureties in case a bail hearing is needed.
Book a consultation; you can discuss your matter in English, Persian (Farsi) or French.

Frequently asked questions

Can I call my family after an arrest?

The Charter guarantees the chance to contact a lawyer. If you cannot reach your family, ask your lawyer or duty counsel to let them know where you are and what happens next.

How long can police hold me?

If police do not release you, they must take you before a justice without unreasonable delay and within 24 hours where a justice is available (Criminal Code s. 503(1)). They must release you earlier if continued detention is no longer necessary (s. 503(1.1)).

Do I have to give police my name?

Establishing identity is one of the reasons the Criminal Code gives for holding a person instead of releasing them (s. 498(1.1)(a)(i)). Ask duty counsel what to say beyond your identity.

Will I be fingerprinted?

An appearance notice or undertaking can require you to appear at a set time and place for the purposes of the Identification of Criminals Act when the alleged offence is one that act covers (ss. 500(3) and 501(4)). Failing to appear for that is an offence (s. 145).

Can my lawyer be with me during questioning?

Not as of right. Sinclair holds that s. 10(b) gives a chance to consult a lawyer, not a lawyer's presence through the interview, with a fresh consultation where circumstances change.

What if I was arrested at home and police also searched it?

The search has its own rules about warrants, what can be seized and how to get property back. Tell your lawyer about anything taken.

Arrested in Ontario: what are your rights in the first hours?