The first 48 hours after an arrest

Hour 0 to 3: the station

You’ll be searched, booked, photographed and fingerprinted, and placed in a cell. You will be told you have the right to retain and instruct counsel without delay. That right is real, and the moment to use it is straight away. Not after the interview, and not once you have “cleared things up.”

Ask to call a lawyer, then make the call. Duty counsel is free, available around the clock, and reachable from the station. Your call to counsel is private; the police may not listen to it.

What happens next is the interview. It will be recorded, it may run for hours, and it will be run by officers trained specifically to get statements. They may be friendly. They may suggest this is your chance to give your side, that they already know what happened, or that saying nothing looks bad. None of it changes the analysis.

Say the words and only the words: “I want to speak to my lawyer. I have nothing to say to you.” Repeat it as many times as necessary. You must identify yourself, and produce a licence if you were driving. Beyond that, you aren’t required to explain, clarify, or correct anything.

Why an explanation can’t help you

This is the part almost nobody knows, and it’s the single most useful thing we can tell you.

The rules of evidence don’t allow an accused person to enter his own out-of-court statement in his own favour at trial. If you explain yourself to the police and your explanation is exculpatory, the Crown will not play it. If any part of it’s damaging, inconsistent, or later contradicted by other evidence, the Crown will play that part.

So a statement is a one-way instrument. It can hurt you and it can’t help you. That’s not a technicality; it’s the whole reason interviews are pursued so persistently.

And silence costs you nothing at trial. A judge can’t treat it as evidence of guilt, and a jury is instructed that an accused person has the right to say nothing.

Searches, phones and consent

If police ask permission to search your phone, your car or your home, you may decline. Say clearly: “I don’t consent to a search.” Don’t physically interfere, because that creates a new charge on top of the one you have.

If they search anyway, the lawfulness of that search becomes a live issue we can litigate later. Evidence obtained in breach of the Charter can be excluded, and in drug, firearms and internet matters that frequently ends the prosecution altogether. What decides it, months afterwards, is the detail nobody thinks to record at the time: which officer asked, the exact words used, whether anyone told you that you could say no, whether you were under arrest at that moment or merely detained, what was already open on the screen, and how long the whole thing had been going on before any of it was said out loud.

Consenting closes that argument before it starts. There is no upside to it. None.

Hour 3 to 24: release or bail

One of two things now happens. Either the police release you from the station on an undertaking with conditions, or they hold you for a bail hearing before a justice.

If you’re released, read the conditions carefully before you sign, and then follow them exactly. Breaching a condition is a separate criminal offence and is the most common way a manageable case becomes a custodial one. A condition that’s unworkable, one barring you from your home or from contact with your own children, can be varied. That happens by application, though, never by informal agreement.

If you’re held, the bail hearing has to happen promptly, and bringing counsel to it is the single most useful thing that can be arranged tonight. Preparation counts for a great deal and there’s very little time in which to do it. Our guide to bail hearings sets out what wins one.

The 4 things to do before your first court date

1. Write down everything, for your lawyer only. Times, officers’ names and badge numbers, what was said before recording started, what was searched, any injury, whether you asked for counsel and when. Memory degrades fast and this document is valuable. Give it to your lawyer, and to nobody else. Don’t post it, text it or email it around.
2. Stop talking about the case. To anyone. Not on the phone from custody, which is recorded. Not on social media. Not to friends or family, who can be compelled to testify about what you told them. Conversations with your lawyer are privileged; conversations with your brother are not.
3. Preserve what helps you. Messages, receipts, transit or toll records, call logs, dashcam or doorbell footage, the names of people who were present. Much of this is overwritten within weeks. Ask your lawyer before contacting any potential witness yourself. Done wrongly, that becomes an obstruction allegation.
4. Retain counsel. The first appearance is administrative, but the work that decides the case starts the moment somebody is retained: getting disclosure, reading it, and identifying the Charter issues inside it.

What your first appearance involves

Very little, and that’s normal. First appearances are administrative. You don’t enter a plea, nothing is decided, and we or duty counsel can often attend for you. The point of it is to confirm disclosure has been produced and to set the next step.

People routinely arrive expecting to explain themselves to a judge. There’s no mechanism for that and no benefit in it. See how a criminal case works for the full sequence.