Do I have to answer police questions if I am arrested?

In general no. You have the right to remain silent, and under section 10(b) of the Charter you have the right to retain and instruct a lawyer without delay and to be told of that right.

Do I have to tell police my name?

It depends on the situation. A driver must carry their licence and surrender it for reasonable inspection on a police officer's demand under the Highway Traffic Act. Outside driving, the rules are different and you should ask a lawyer.

Can I refuse a roadside breath test?

Generally no. Under the Criminal Code, an officer with an approved screening device can demand breath samples from a driver, and refusing without a reasonable excuse is a criminal offence. Get legal advice if this applies.

Should I explain my side of the story to police?

Even if you are innocent, anything you say can be used as evidence. Speak to a lawyer first, because a short explanation can sometimes cause harm.

Do You Have to Answer Police Questions in Ontario?

Q: Can I call a lawyer before I speak to police?

Yes. Section 10(b) of the Charter gives you the right to retain and instruct counsel without delay and to be informed of that right on arrest or detention.

Most people are never arrested, so they are unsure what to do when police ask questions. This guide explains, in plain language, what the Charter of Rights and Freedoms and other laws say about answering police questions in Ontario. It is general information, not advice about your case.

The right to silence

The Supreme Court of Canada has recognized a right to silence as part of section 7 of the Charter, which protects life, liberty and security of the person. In general, you do not have to answer questions about an alleged offence, and you do not have to explain yourself to police. Being polite does not mean you must talk. You can say clearly, "I want to speak to a lawyer and I am not answering questions."

The right to a lawyer

Section 10 of the Charter says that on arrest or detention, everyone has the right (a) to be informed promptly of the reasons, and (b) to retain and instruct counsel without delay and to be informed of that right. Police must tell you about this right, and you can ask to speak to a lawyer privately. Duty counsel is also available for people who do not have a lawyer. See our guide to your Charter rights at arrest.

When you must cooperate

The right to silence is not a right to ignore every police demand. Some situations are different:

Driving and your licence. Under section 33 of the Highway Traffic Act, a driver must carry their licence and surrender it for reasonable inspection on a police officer's demand.
Roadside alcohol screening. Under section 320.27 of the Criminal Code, a peace officer with an approved screening device can demand breath samples from a person operating a motor vehicle. If the officer has reasonable grounds to suspect alcohol or a drug and recent operation of a vehicle, the officer can also demand that a person perform physical coordination tests or provide samples. Refusing without a reasonable excuse is a separate offence under section 320.15. See our DUI lawyer page.
Search warrants and court orders. You cannot stop police from carrying out a valid warrant. You can say you do not consent to a search without a warrant, and then speak to a lawyer.

Why you should be careful about "just explaining"

Anything you say can be used as evidence, including something you meant innocently.
Police are allowed to ask questions in a friendly way and to suggest that explaining will help you.
A short answer can open the door to more questions and mistakes about times or details.
Statements to police are usually reviewed carefully later. A lawyer can advise on what is safe to say, if anything.

What to do if police want to talk to you

Stay calm and polite. Do not resist or run.
Ask: "Am I being detained, or am I free to go?"
If you are detained or arrested, say you want to speak to a lawyer.
Do not answer questions about the allegation until you have spoken to a lawyer.
Do not sign anything or agree to a search without advice, unless police have a warrant or other legal authority.
Write down what happened as soon as you can, including names, times and what was said.

If a family member is arrested

Families should avoid discussing the facts on jail phone calls, since calls can be recorded. Find out where the person is held and the charge, then call a lawyer early. See what to do if a family member is arrested in Peel and our guide on the first 24 hours before a bail hearing.

Statements to police and the voluntariness rule

If a statement is made to a person in authority, such as a police officer, the Crown must prove beyond a reasonable doubt that it was voluntary before it can be used. In R. v. Oickle (2000), the Supreme Court of Canada explained that the court looks at the whole situation, including threats or promises, oppression, whether the person had an operating mind, and police trickery that would shock the community. Police can ask friendly questions and may use some methods of questioning, but they cannot use threats or inducements that make a statement unreliable. A statement can be excluded if it was not voluntary.

After you ask for a lawyer

Section 10(b) of the Charter gives you the right to retain and instruct counsel without delay. In R. v. Bartle (1994), the Supreme Court explained that police must tell you about the right, give you a reasonable opportunity to use it, and generally hold off questioning you until you have had that opportunity. If you ask for a lawyer and police keep asking questions, a court may later look at whether your rights were breached and whether the statement should be excluded under section 24(2). The best protection is to say clearly that you want to speak to a lawyer and that you will not answer questions until you have.

The right to silence is not lost by speaking once

The Supreme Court recognised the right to silence under section 7 of the Charter in R. v. Hebert (1990). Answering one question does not require you to answer the next. You can stop at any time and say you will not answer more questions without a lawyer. Silence is not an admission, and courts are generally careful about drawing conclusions from a person's silence on arrest.

Searches and consent

You do not have to consent to a search of yourself, your phone or your home, and you can say clearly that you do not consent. Police can still search if they have a warrant or another lawful basis, such as certain searches following an arrest. If you do not consent, do not physically resist. State your position calmly and call a lawyer afterwards. A search without a valid basis can be challenged under section 8 of the Charter.

What to say

"I am not answering questions. I want to speak to a lawyer."
"I do not consent to a search."
"Am I free to go?" (If yes, you can leave.)

Talk to us

We act in criminal matters in Mississauga, Brampton and across the GTA, and we offer a free 15-minute phone consultation for criminal matters. See our criminal defence page or call (289) 652-0529.

DISCLAIMER: This article is general information about Ontario and federal law, not legal advice, and no lawyer-client relationship is created by reading it. Laws change and every situation is different, so speak with a lawyer about yours.