What is an arrest?

An arrest is when the police take a person into their custody to charge them with a criminal offence.  Not everyone arrested for a criminal offence will be charged.

Depending on the circumstances:

• The police can decide to tell the person that a charge will be laid and a summons to go to court will be given to the person later; or
• The police can give a person an appearance notice, a written notice of the charge that says when the person has to go to court; or
• The police can arrest the person and take them to the police station.

When will criminal charges be laid?

In some provinces/territories, the police lay charges.  In others, the Crown prosecutor does.  In some situations, the police will consult with the Crown prosecutor and the complainant.

Criminal charges are laid when:

• The police have talked to the complainant/victim
• There is enough evidence to show that a crime was committed
• The police are able to determine who is responsible for the crime
• The police have spoken to the Crown prosecutor

While there are guidelines to follow when deciding to charge a person with a criminal offence, some discretion exists.  For example, the police may decide not to lay a charge if the victim does not want to pursue the matter.

With crimes such as child abuse and domestic violence, the police have specific guidelines to lay charges.  In some areas, there are special units who assist with these types of offences.  The officers of those units have specialized training to investigate these types of crimes.

Where there is enough evidence and a decision is made to charge the person responsible, the person is now an accused and is taken before the court.

What does custody mean?

Being in custody means that the accused is not free to leave.  The accused may be released to wait for a court date or held for a bail hearing.  The accused person needs to appear before a Justice of the Peace within 24 hours.  During the time of the arrest, the accused person has the right to remain silent.  The accused can share their name, address and date of birth with the police.

The accused also has:

• The right to a lawyer
• The right to legal advice in the accused's first language and to an interpreter
• The right to privacy when the accused calls a lawyer
• Access to legal aid

The accused will be allowed to speak to a private lawyer or a duty counsel.  Duty counsel is a lawyer who is part of the Legal Aid Ontario staff.  The duty counsel provides advice to people who do not have their own lawyers.