By: Ruth Roberts

If you have the misfortune to be arrested, you are protected under a constellation of sections of The Canadian Charter of Rights and Freedoms.

Sections 7 – 11 deal with many of those legal rights. Perhaps the most important ones when you are first arrested are sections 9, 10 and 11: the right not be arbitrarily detained or imprisoned (s.9); the right to retain and instruct counsel without delay.(s.10); and the right to be informed without reasonable delay of the specific offence (s. 11). The right to retain and instruct counsel is the one that will probably be stressed most often by your lawyer.

When you are arrested, the police will read you your rights to counsel within a short time. The caution, as it is called, is read from the officer’s notebook, and may be repeated a number of times over the course of the arrest. You will be given access to a telephone to call either the lawyer of your choice, or duty counsel. Duty counsel services are staffed 24 hours a day, seven days a week. These are publicly funded defence lawyers. You will be able to make the call in private. Duty counsel will remind you of the right to remain silent – and the importance of exercising that right. You will have an opportunity to tell your side of the story, but that is best done after your lawyer has received and reviewed the evidence against you.

It is important to remember that once you have spoken to a lawyer, the police are permitted to continue questioning you. The safe course of action is to repeat the phrase: “On the advice of counsel, I have nothing to say.” Any statements you make to police could be used if your matter eventually goes to trial. For example, if you choose to testify at your trial, you could be cross-examined about prior statements you have made.

In criminal cases, silence really can be golden.