Being charged with a criminal offence is among the most stressful experiences a person can encounter. You will want to discuss your situation in detail with a lawyer as soon as you can. In the meantime, here’s some information you should know.
Many criminal prosecutions begin with an arrest. However, it is not uncommon for police to contact people they intend to charge to ask them to come down to the police detachment to answer some questions. Sometimes police will share information about why it is that they want the person to come down; sometimes they won’t. It is important to realize that you are not required to go to the police detachment just because the police have asked you to; however, sometimes people will decide that it’s best to cooperate and go to the detachment at a convenient time rather than to risk being arrested on their way to work, or in front of neighbours or family.
Whatever you decide, if the police have asked you to come to the police detachment, you should speak to a criminal lawyer immediately once you get off the phone with the police. Like most criminal lawyers, Steve Smith Law does not charge for such conversations. A lawyer can give you advice about whether you should attend, what you should and shouldn’t say to police, and what you can expect to happen once you’re there. Sometimes a lawyer will be able to learn more about what exactly the police want; while police are under no obligations to talk to lawyers, sometimes they will answer questions such as
In Canada you do not have the right to have a lawyer with you during police questioning. For this reason, while we are happy to answer your questions and give you advice, we will not accompany you to the police station.
Whether you are arrested as a result of your attending at the police station voluntarily, as a result of a warrant being issued for your arrest, or in the midst or the aftermath of some kind of incident, police must immediately advise you of your right to contact a lawyer and ask you whether you want to exercise that right. Always say yes. There are several reasons for this:
A reasonable opportunity to contact a lawyer does not mean the “one phone call” from old movies. You are entitled to make as many calls as you need to get adequate legal advice. If you have a specific lawyer in mind and cannot reach them right away, you are also entitled to wait a reasonable period to see if they become reachable later. However, there are caveats:
Depending on the nature of the police investigation, once you get out of the phone room, the police may try to question you. The lawyer will have given you some advice about this possibility and how to respond to it. In the vast majority of cases, that advice will be not to answer any police questions. Arrestees, especially those who feel that they have nothing to hide, sometimes resist this advice. Here are some common concerns they express:
Won’t refusing to answer police questions make me look guilty? If you are under arrest, the police already think that you’re guilty. What is important is not whether police think you’re guilty, but whether the judge or jury at your trial thinks you are. If you don’t answer any questions, the judge or jury won’t even hear about your refusal to answer questions. The only way that the judge or jury will hear about your police interview is if the prosecutor thinks you said something during it that is helpful to them, or if you later say something while testifying that contradicts what you said in your interview (in which case the prosecutor can cross-examine you on it).
I’m a very honest person. Refusing to answer police questions is not the same as lying to police – there is nothing dishonest about saying “On the advice of my lawyer, I’m not answering any questions.” Lying to police is one of the stupidest things you can do – more often than not, you will get caught in the lie, and that will make you look guilty. The lie itself may even be a criminal offence. But refusing to answer questions is both smart and entirely honest.
Right now, police only have one side of the story – it’s important that they hear my side! In trying to convince you to answer their questions, police will often say “This is your opportunity to give your side of the story.” This is nonsense: you are not suddenly prohibited from giving your side of the story once your police interview ends. The best time to give your side of the story is once your lawyer has seen all of the evidence against you and you two have had the opportunity to discuss the benefits and pitfalls of giving your side – there will be plenty of time for that later. Odds are that police don’t actually care about your side of the story – the fact that you’re under arrest probably means they’re already convinced of your guilt, and are just hoping that “your side of the story” will include evidence that they can use against you. No criminal accused has ruined their case by remaining silent during the police interview; many, many have ruined their cases by opening their mouths.
This cop is super reasonable and understanding. Canadian police do not generally use the “good cop/bad cop” technique of fiction. However, they do often use the “good cop” half of it, pretending to be sympathetic in an effort to get you to confide in them. They may even be sincerely sympathetic. No matter their sympathies, however, they have a job to do, and in that interview their job is to gather evidence to use against you.
One common technique used by police is called “blame minimization”: trying to make the interviewee admit to committing the offence by downplaying its seriousness. For example, if they are interviewing a person they believe assaulted another person outside of a bar, they might ask “Did he make a rude comment to your girlfriend? I think anybody would snap after hearing something like that.” They are hoping that the interviewee will seize on that sympathetic explanation, and agree that that is exactly what happened…but at that point, police have their confession.
In closing on the subject of the “good cop” technique, Steve once heard another defence lawyer describe a police interview with his client as “half an hour of ‘my lawyer told me not to say anything’, followed by half an hour of ‘yeah, I really like dirtbiking too!’, and then half an hour of tearful confessions.” Sometimes police are nice to you because they’re nice people. But sometimes they’re nice to you because they hope it will get you talking.
The police say that they already have all the evidence they need against me, so I should just come clean. Police will often tell arrestees that they know that the arrestee did it, and they have all the evidence they need to prove it; at this point, the only question is why the arrestee did it. From that point, they will systematically reject any protestations of innocence, re-affirm that they know that the arrestee is lying about that, and insist on hearing the explanation for why they did it. Their aim with that tactic is to make the arrestee feel like there’s no point to maintaining their innocence, and get them confessing to guilt instead.
This brings up an important point about police interviews: police are allowed to lie to you about what evidence they have. Suppose they have placed two people under arrest, and are interviewing them separately (as they always would). They might tell each arrestee that the other has already flipped on them and told the police everything. If they tell you that, it might be true. Or it might be that they hope that you’ll then flip on your supposed accomplice, and confess your own guilt in the process. Usually, if the police have truly compelling evidence against you, they will show it to you rather than telling you about it.
In closing on this subject, remember that police are interviewing you because they want you to make incriminating statements. The stronger the case they already have, the less important those statements would be. Police going to great efforts to get you to talk may actually be an indicator that they know that they don’t have enough evidence against you…even if they tell you that they already have all the evidence they need.
But I really am innocent! What harm could answering questions do? Plenty. Let’s pretend that you’ve been arrested for assaulting another person in a bar, but the truth is that the other person attacked you and you were acting in self-defence. As soon as you tell that story, you have provided police with proof that you were the person who assaulted the complainant – it may be that without your statement, they wouldn’t even have been able to prove that you were in the bar. You might still be found not guilty on the basis of self-defence, or you might not be. But by confirming that you were involved in an altercation with the complainant, you’ve brought them one step closer to proving their case.
Another danger in answering police questions is that you might inadvertently get details wrong, that can later be used against you. Suppose that, in the hurly-burly of the bar altercation, you thought that the other guy was coming towards you with his three friends, and that is why you felt that you needed to hit him in self-defence. If the surveillance video shows that he only had two friends with him, you suddenly look like an unreliable exaggerator, which will taint the rest of your story.
Finally, you probably aren’t a lawyer. You may think that you were behaving perfectly legally, but you might be wrong. In our bar fight example, you might think that everything you did was lawful self-defence, but the law might see your force as excessive. More than one accused person has inadvertently confessed while they thought that they were explaining their innocence.
There are essentially four ways that an arrest can end. First, you can be released without any charges, and the matter could be concluded. That is obviously the best possible outcome, and usually means that, even following your interview, police feel that they do not have enough evidence to charge you. This doesn’t mean that you’re off scot-free forever – new evidence can always arise – but it does mean that, for the time being, all is well.
Second, you could be released without any charges, but be told that charges will be coming later (the rough parallel to the “don’t leave town” admonishment from police in old movies). This likely means that the police know that they’re going to charge you with something, but they haven’t yet nailed down all of the details. It could also mean that they know what they’re going to charge you with, but they’re not yet ready to disclose the evidence against you, which they have to do once you’re charged, so they’re delaying the laying of charges. It also means that police believe that they will be able to find you once they need to, and that they do not consider you a serious threat to public safety in the meantime, which is good news for your eventual prospects of getting bail (see below).
Third, police could release you on an appearance notice, and possibly also undertakings to abide by certain conditions. This means that there is a date on which you must appear in court (and likely also a date on which you have to attend at the police station to be fingerprinted, unless police already did that before releasing you). This means that the police are ready to charge you with an offence; technically speaking, you won’t actually be charged until sometime before your first court date when police file the necessary paperwork, but, colloquially speaking, at that point you are charged with an offence.
If police do ask you to sign undertakings, read them carefully. If there are any conditions on there that would seriously screw up your life, do not sign the undertakings until you have the chance to speak to a lawyer about them. Sometimes, any difficulties can be cleared up easily – for example, if the police want to put you on an undertaking not to attend within five blocks of a particular address, but your workplace is four blocks away from that address, there is a good chance that police will agree to reduce the undertaking to three blocks. Sometimes, police might be insistent on the condition. However, the worst thing they can do if you refuse to sign the undertakings is hold you for a bail hearing (see below) and, while that is certainly not pleasant, it is better than being released on conditions that jeopardize your livelihood or make you unable to care for your children properly. If you are not comfortable with the undertakings being requested, do not hesitate to ask police to speak to a lawyer about them.
Finally, police may hold you for a bail hearing. This means that police do not believe that you can be released on an appearance notice or undertakings, either because of the nature of the offences with which you’re charged or because of your past criminal history. In that case, they are obligated to have you appear before a Justice of the Peace within twenty-four hours (in Alberta – in some other jurisdictions, you may be held for longer than that). That Justice of the Peace will determine whether you can be released or not, and, if you can be released, whether you should be required to post any cash bail (or promise to post cash if you breach your conditions), and what conditions you should be placed on.
Unlike everything else we’ve discussed so far about your dealings with police, you are entitled to have a lawyer present (usually remotely) at your hearing before a Justice of the Peace. In Alberta, the Legal Aid Society provides a free bail duty counsel service, which means that a lawyer will be provided to you for your hearing (but will not assist you beyond that hearing). These lawyers know what they’re doing – Steve knew many of them when they were working as prosecutors or defence lawyers, and most were excellent. Most of the time, you are just as well off dealing with duty counsel as you are with hiring a lawyer to represent you at the bail hearing (sometimes better, because duty counsel will have a greater familiarity with the justices of the peace, the bail prosecutors, and the process generally than will any other defence lawyer). For this reason, Steve does not generally accept retainers to act at bail hearings before justices of the peace. The one exception is for his regular clients, who might be better off with a lawyer who is already familiar with them, their circumstances, and their criminal history than they would be with duty counsel – even highly skilled duty counsel – who speak to them for the first time hours before their hearing.
Hopefully, at this point you will be released. The two other possibilities are that you will be denied bail – which means that you will be held in custody until you can make an application in the Court of King’s Bench to be released, which will be a matter of weeks – or your bail hearing will be adjourned, in which case you will be remanded until your first court date, which will generally be a few days in the future. At that time, you will be entitled to seek bail before a judge of the Provincial Court.
Note: None of the information under this heading applies if you are charged with murder (or a few other offences, like treason or sedition, that you are definitely not charged with). The rules for murder are completely different, and you should discuss them in detail with a lawyer (if you’re being charged with murder, you should discuss a lot of things in detail with a lawyer), but the short version is that you can expect to be held in custody for at least a week or two, and likely a good deal longer.
If you’ve been charged with an offence, there will be a date on which you must appear in court. If you have retained a lawyer to act for you, that lawyer can generally appear on your behalf without your needing to be there personally; if you have not, you will need to be there yourself.
The most important thing to know about your first court date is that nothing important is likely to happen there. People often call us in a panic after they are released from custody and tell us that their trial is in three weeks. It is not. While it is best to have a lawyer retained by your first court date, it is by no means essential – perhaps you have not yet raised enough money to retain a lawyer, perhaps you are waiting for Legal Aid to process your application for a lawyer, or perhaps you just haven’t yet made a decision about which lawyer you want to retain. If you show up at your first court date without a lawyer, be prepared to explain what steps you’re taking to get one; the court will then give you a new court date a few weeks down the road. If you do not have a lawyer at your first court date, duty counsel will be available to assist you (though the assistance will generally be limited to telling the court on your behalf that you need more time to get a lawyer, and asking the court to give you a new court date).
While it is not essential to have a lawyer by your first court date, you should definitely start calling lawyers as soon as possible after your release. There are few decisions in life more significant than choosing a lawyer to defend you against criminal charges, and we recommend that you talk to several to see who inspires the most confidence and who you’re most comfortable with. While lawyers will not be able to give you a full analysis of your case until they have reviewed the evidence against you – called “disclosure” – which they will only receive after they are retained, they should be able to give you general information about what you should expect and what sorts of techniques can be used to fight the charges you’re facing. Steve, like most lawyers, does not charge for this sort of conversation.
You may qualify for coverage from the Legal Aid Society of Alberta. There are two criteria you must meet to qualify for such coverage: you must be facing charges that are serious enough that you may go to prison if found guilty, and you must lack the financial means to retain counsel on your own (the Legal Aid Society’s criteria for this latter requirement are very strict, and if you have any kind of employment you almost certainly do not qualify). To find out whether you qualify for Legal Aid coverage, call Legal Aid at 1-866-845-3425. Note that, depending on the nature of your charges, Legal Aid may not be able to assess whether the charges are serious enough until you find out at your first court date whether the Crown will be seeking incarceration if you’re being convicted.
If you qualify for Legal Aid coverage, Legal Aid will assign you a lawyer. In Alberta, the vast majority of criminally accused who qualify for Legal Aid will have a certificate sent by Legal Aid to a private defence lawyer, and usually they will send it to a lawyer of your choosing if you ask them to. Subject to Steve’s file load at a particular time, he does accept Legal Aid certificates for matters appearing in court in the Edmonton area (defined as Edmonton, St. Albert, Morinville, Fort Saskatchewan, Sherwood Park, Leduc, and Stony Plain). In exceptional cases, he sometimes accepts Legal Aid certificates in other jurisdictions, but this is unusual.
Whether you retain counsel by your first court date or later, you might think that the next step is for you and your lawyer to sit down and have a detailed meeting about the charges. This actually isn’t true: your lawyer will first want to get a copy of “disclosure”, which is all of the evidence the police and Crown have against you. It is only by reviewing this disclosure andtalking to you that a lawyer will be able to have the full picture of the case, and be able to make recommendations about whether and how to fight your charges. Without seeing disclosure, a lawyer talking to you about the charges won’t know what information they need from you, and won’t be able to tell you what your chances of beating the charges might be. Getting disclosure usually takes a matter of weeks, though it can sometimes be quicker. If your lawyer doesn’t have disclosure by your next court date (whether it’s the first court date or a later one), they should be able to appear for you, explain that to the court, and have your matter put off until they have disclosure. In the meantime, while you’re waiting for disclosure, it is a good idea for you to write down everything you remember about the incident giving rise to your charges while it’s still relatively fresh in your mind.
Once your lawyer has disclosure, they will be able to give you complete advice. That advice is not necessarily as simple as pleading guilty or not guilty; while those are your options with respect to summary conviction (less serious charges), for indictable offences you also need to decide whether you want to be tried by a provincial court judge, by a judge of the Court of King’s Bench, or by a judge of the Court of King’s Bench and a jury. If you are facing charges serious enough to be punishable by fourteen years of jail or longer, you must also determine whether you want to have a preliminary inquiry before your trial. The considerations that go into these decisions are too varied and numerous to go into here, but they are just the beginning of why you will want a lawyer you trust.
As we said at the top of this page, being charged with a criminal offence is likely to be among the most stressful experiences of your life. However, a charge is very different from a conviction, and in fact a majority of the charges laid against our clients are ultimately either withdrawn or dismissed.
This is not to say that you have nothing to worry about; criminal charges are serious business, and you should take them seriously. But don't panic, and don't lose hope...just call us.
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