What to do if you are arrested

This information is not a replacement for getting a lawyer. Do not take this article as personal legal advice, because it’s not. Every legal situation is different, and this article is only intended for general information and educational purposes.

1. Do Not Say Anything
2. Do Not Agree To Any Search
3. Do Not Leave Marijuana in Plain View
4. Do Not Smoke Marijuana In Your Car
5. Getting Released
6. Getting a Lawyer
7. Diversion
8. Crossing the U.S. Border

*The term marijuana is used to describe the cannabis plant while the word “marihuana” is used when discussing Canadian statutory matters. Canadian statutes and courts use the word “marihuana.”

1. Do Not Say Anything

Do not talk to the police about marijuana that you may have or not have. Do not say anything about it. Do not tell them your side of the story. Say nothing. You do not have an obligation to explain things. If you have a defence then tell your lawyer.

Usually you should only provide basic personal information (name, date of birth, address) but sometimes even your address might become an issue in the case, so be very careful with the information you provide. You should never lie to the police but you can say nothing.

When you are arrested you should speak to a lawyer. You should clearly and politely assert that right to the police officers. If there is a lawyer you know or a lawyer you have used before then tell the police that you want to speak to that lawyer. If you cannot reach your lawyer then talk to duty counsel (an unaffiliated lawyer who can offer limited legal advice to people who have been arrested) but make it clear to the police that you still want to speak to your lawyer.

2. Do Not Agree To Any Search

Do not agree to let the police search your house, your car or your pockets. They might do it anyway, and they might have the grounds to do it anyway, but do not consent to it. If you consent then they do not have to prove that they had the grounds to conduct the search in the first place. Part of your defence to any charge may be that the method of gathering evidence was illegal, and therefore any charge must be dropped. So, clearly and politely tell the police that you do not consent to the search, and thus you leave open the potential for a defence against an unjust search and seizure. And of course, if they do search and find things, then do not talk about what they found. Tell them you want to speak to your lawyer.

3. Do Not Leave Marijuana in Plain View

If the police see marijuana (even a roach) in plain view then they can seize the marijuana and search the surrounding area (the rest of the car). If the police see rolling papers, paraphernalia, or even a messy car these observations, combined with other observations, may provide grounds to search a car. Be careful about what is visible and open to the public.

4. Do Not Smoke Marijuana in Your Car

The police are entitled to stop your car at any time for the purpose of ensuring compliance with the provincial highway traffic laws (valid licence, insurance, seatbelt, speeding, sobriety, etc.). They do not need any grounds to stop your car for that purpose. When you are driving, you are vulnerable to being stopped at any time for no good reason. This means you must be extremely cautious while driving.

You are obliged to answer the questions posed to you by the police in regards to whether or not you have a valid licence, insurance, seatbelt, speeding, sobriety, etc.) but you are not obliged to answer questions that go beyond that and relate to other criminal investigations that have nothing to do with vehicular safety.

If the police stop your car and smell marijuana they often view that as grounds to search your car. It is not grounds to search your car by itself (see R v Polashek (1999), 134 CCC (3d) 187 (Ont CA) at para. 13 and R v Emsley 2006 CarswellOnt 8821 (OSCJ) at para 31) but when combined with other seemingly innocent facts it could give an officer legal grounds to search. Even if it does not give the officer legal grounds to search sometimes the courts will still allow the fruits of the search to be admitted as evidence, even though the officer did not have sufficient grounds to search.

5. Getting Released

It is within the police officer’s discretion whether to release you or hold you for bail court. After the police arrest you they can release you right away. They do not have to take you to the police station and make you wait overnight for bail court. The police can have you sign an ‘undertaking’ to an officer before they release you from the scene. An officer undertaking is a promise to do certain things, such as attend court as required.

In deciding whether to release you, the police officer will be concerned about whether you will show up to court. So, if you have roots in the community, then you will want the police to know that. Tell the police who you are. If you have a family or employment in the city, then you should tell the officer. You should also usually tell the police where you live. We say ‘usually’ because sometimes where you live will be a fact that the Crown (the prosecution who is trying to convict you) will need to prove at trial. If you are not sure then you should speak to a lawyer before you reveal anything. However, keep in mind, if you do not tell the police where you live you probably will not get released until bail court.


What is a surety?

If you are held for bail court then you need to get a message through to a potential surety to come to court. A surety is someone who knows you well, who will pledge some money on your behalf and who will supervise you. You are much more likely to be released on bail if you have a suitable surety present in court. Sureties are usually required for offences of moderate seriousness.

What does a surety do?

Usually the surety does not have to pay the money into court but only promises to pay if there is a breach. There are rare situations in which the surety or the accused will pay money into court. Non-resident accuseds are often required to pay money into court. A surety must have some assets (money in the bank, RRSPs, own a home, (cars do not usually count)) or have a job with at least a moderate income (probably $35,000 for modest bail).

The surety should ideally have no criminal record but an older record provided there is nothing too serious might be acceptable. For more serious charges you will have to live with your surety or at least live near them. Your surety should be either a Canadian citizen or a long-time resident/permanent resident.

Do not talk about the offence with your potential surety.

When you are first arrested and you talk to your potential surety over the phone, do not talk about the offence. At the bail hearing the Crown attorney is permitted to ask your potential surety if you told them anything about the offence. Those answers can be used against you at the trial. When you first speak with your potential surety they will want to know what really happened. You can tell them the charges that you are facing. You can tell them what the police ‘say’ you did. But you should not tell them what really happened because it may prejudice you later on.

What can you do when you are released on bail?

If you are released on some form of bail, then one of the conditions (if you are charged with a marijuana offence) will be not to possess or consume any non-medically prescribed substance. If are charged with breaching your bail then it is often difficult to get bail again because you will need a new surety. Sometimes the court will cancel your first bail when you are charged with breaching your bail.

Fighting a court case can take over a year. If you want to fight your charges, then you need to comply with your bail conditions. So, if your bail conditions are causing you problems and you fear that you will not be able to meet those bail conditions, then you should ask a lawyer about varying your bail. If you do not have a lawyer, then ask a duty counsel at court. You will need your surety to agree to the change, as well.

6. Getting a Lawyer

You can either pay a lawyer yourself or, if you are eligible, get a Legal Aid certificate which you can take to a lawyer of your choice. In most provinces your income must be below a certain level to get Legal Aid. Also, in most provinces in order to be eligible for legal aid there must be the possibility of jail. This means that legal aid does not cover simple possession but does cover most other marihuana offences. Legal Aid might require you to make monthly payments or put a lien on your house to cover the legal bills.

Legal Aid pays nothing or close to nothing for a bail hearing. Most lawyers will not attend at a bail hearing on Legal Aid. If you want to have a lawyer at court for your bail hearing, then you will probably have to pay them cash. There is a duty counsel at court who represents anybody who does not have a lawyer for their bail hearing.

7. Diversion

In many provinces there are diversion programs and they vary between jurisdictions. Usually diversion means you do not plead guilty or get a criminal record and the charge is withdrawn. You may have to make a small donation or do a little bit of community service. You will also usually have to make an out-of-court admission of responsibility. Diversion is offered to people with no criminal record who are charged with small amounts of marijuana possession. You do not need a lawyer to get diversion. On the first day of court the Crown will tell you if you are eligible.

Does diversion go on my record?

High security jobs and jobs where you work with children can require a vulnerable sector search (a more intensive background search which you must consent to). If you are subjected to a vulnerable sector search the diversion would probably appear. This search would indicate you were given diversion and that you took responsibility.

8. Crossing the Border

At the US border a conviction (US authorities view our discharges as convictions) or an admission (even without conviction) of a crime of moral turpitude will result in inadmissibility. In practice, you will probably be allowed in if you have only a one-time simple possession conviction of 30 grams of marijuana or less. They are not required to let you in but it is their practise. Any drug offence more serious than a one-time simple possession of under 30 grams and you will be deemed inadmissible and subject to deportation if you do get in.

Paul Lewin
Lewin & Sagara LLP
2173 Danforth Ave.
Toronto ON M4C 1K4
Tel.: (416) 499-7945
Fax: 1 (877) 459-9747
[email protected]