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If you are arrested
If the police identify themselves, arrest you, and tell you the reason for the arrest, you must go with them. If the police do not do these things, you are free to leave.
The police must ask questions as part of their job in investigating crime. However, the police cannot force you to answer their questions. Anything you do say to the police or put into writing at this time or later can be used against you in court. You have the right to remain silent when stopped and asked questions, whether or not the police tell you that you have this right. Ask them if you are under arrest and the reasons for the arrest. You should seek legal advice before giving up your right to remain silent.
What if the police stop you when you are driving?
Under provincial law, the police have the right to stop any motor vehicle and to ask the driver to produce a driver's licence, vehicle registration and ownership documents, and proof of insurance. Your condition or the condition of your vehicle may authorize the police to investigate further and even subject you to formal demands, such as for blood or breath samples. You have the right to talk to a lawyer before complying with these demands, but not if you are only asked to provide an ALERT roadside sample.
If you have been involved in a motor vehicle accident, whether or not your own vehicle has been damaged, you must remain at the scene of the accident and give all reasonable aid, particularly if someone has been hurt.
When you are a driver who has been involved in an accident, you may be required to answer some questions (beyond those related to your licence, registration, ownership, and insurance) or make a report about the accident, but you should talk to a lawyer first in order to be certain of your duties.
What can the police do after they arrest you?
The police have the right to search you for weapons and for any evidence relating to the offence. They can take you to the lock-up and book you. If the offence is an indictable or hybrid one, they can fingerprint and photograph you.
You have the right to talk to a lawyer
If you are arrested or detained by the police, you have the right to "retain and instruct counsel". This means you have the right to talk to a lawyer without delay. You should be provided with privacy, a phone, and appropriate phone books to contact a lawyer. If you do not know a lawyer, the police must provide you with a list of Legal Aid duty counsel who can take your call.
Many lawyers are available to provide emergency telephone consultations free of charge, and many criminal lawyers are prepared to provide initial consultations free of charge or for a nominal fee.
Why do you need a lawyer?
You should talk to a lawyer as soon as you can after being arrested or detained by the police. A lawyer can tell you how to respond to formal demands made by the police, such as for blood or breath samples, and whether or not you would be wise to answer police questions or participate in a line-up. You do not have to provide a statement to the police, verbal or written, and your lawyer can advise you whether to provide a statement.
When you appear in court to answer charges, you must make a number of complex decisions. For instance, you must decide whether or not to plead guilty, and if the charges are "indictable offences", which type of trial you should have.
You will need to know what evidence is expected to be called against you to defend yourself. You will need to know if this evidence will be admissible, or on what basis you might object to its admissibility. You may have to testify or call evidence yourself.
The Crown will always be represented by a knowledgeable lawyer. You should assume that your case will be handled by an experienced professional prosecutor. Even though the Crown has the burden of proving your guilt at a trial, the Crown will not necessarily call all the evidence that might help you expthe peace or judge to answer any charges that are being laid against you.
Will you need bail?
After you have been arrested by a police officer, or by any other person who has turned you over to a police officer, you are entitled to appear promptly before a justice of the peace or judge to answer any charges that are being laid against you if you are not released by the police themselves on your written promise to appear in court.
The justice of the peace or judge may decide to order that you remain in custody, or may require that you deposit money or property with the court to ensure that you will appear in court if released. This money and property is often called "bail" although that term is not a formal one in Canadian law. The word you will hear from the justice of the peace or judge is "recognizance" or "undertaking".
If you deposit money or property with the court, it can be forfeited if you do not appear in court or if you commit any further offences or breach any special conditions imposed by the court. If someone else signs as a surety for your appearance, that person may also lose the amount of their surety if you do not appear.
When you appear before a justice of the peace or judge, you are entitled to have a lawyer with you to speak to whether you should be released and, if so, whether there should be bail. As this is important to you, you should have a lawyer speak for you. If you did not arrange to have a lawyer present when you first phoned a lawyer on your arrest, you should ask to speak to the Legal Aid duty counsel who should be available in the cells or court house where you are detained.
If the justice of the peace or judge orders that you remain in custody, there are certain rights of appeal that can be pursued, but you will need a lawyer to carry these out for you.
What happens at the first appearance?
If you need time to speak with a lawyer or relatives or friends before pleading, you may ask the judge to adjourn or remand your matter to another date. Once you explain your reasons, the judge will usually grant your request.
Normally with summary offences you will enter a plea: guilty or not guilty. If the plea is guilty, the court can deal with sentencing right away or set another date to deal with sentencing. The Crown will usually give the judge the information available from the police about the offence, and tell the court if you have a record. You or your lawyer will then be given a chance to speak to provide an explanation or information which will assist the court in deciding what your sentence should be.
With most indictable offences you may choose trial by Provincial Court judge, or by Supreme Court judge with or without jury. Depending on what election is made, either a trial date or a preliminary hearing will be set at a time that is convenient for you and your lawyer. On some indictable offences the trial must be in Provincial Court, so if you plead not guilty a trial date will be set.
This is intended to provide general information only. When you have a legal problem, consult a lawyer.
Courtesy of Richardson's Law Office.
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Much of this material has been taken from the Law Society of Alberta's site and modified to conform to Nova Scotia law. © Kim Richardson. All rights reserved.