The Community Justice Collective has released a podcast addressing some of the frequently asked legal questions that come up in the context of political organizing. This is a transcript of the second episode, which you can listen to here.
Sima Atri: This is Counsel Call. I’m Sima Atri and I’m a lawyer with the Community Justice Collective.
Aliya Pabani: And I’m Aliya Pabani, and I’m an organizer in Toronto. This is Episode 2: what to do if you get arrested.
SA: From my end, the reason it feels important to share more information around this process is because in the first 48 hours, a lot happens, and you’ll face a lot of pressure from the police to make certain decisions. It’s also hard because you’ll be on your own. You’ll get a chance to talk to a lawyer, but you won’t be connected to everyone else around you. And so we’re hoping if people have information on what that process looks like, then you can make a plan for what you want to do if you are to get arrested.
AP: Maybe let’s just start with a basic question, like how do you usually know if it’s an arrest situation?
SA: If you aren’t able to leave, like walk away, you can ask them, “am I under arrest?” At that point they’ll tell you you’re under arrest or they’ll put you in handcuffs.
AP: And what other information do they usually give you?
SA: They should read you your rights, so they should tell you that you’re under arrest. These are the charges that you’re being held for, and that you have a right to speak with a lawyer. So people have said that it can feel really hard when police are asking you questions repeatedly to just stay silent. Instead, what seems to work for people is to just say, “I don’t want to speak with you. I’m waiting for my lawyer. I want to speak with my lawyer.”
AP: Okay. But what do you have to provide them?
SA: The only information you do need to share with the police in order to be released is known as like, “tombstone data.” So your name and date of birth.
AP: Are you allowed to just tell them your tombstone data, or do you have to give them an ID?
SA: You’re allowed to just tell them. If they don’t believe you, they might ask you to verify it. So they might ask someone to come and bring ID. But for many people, they’ll accept you just sharing it with them.
AP: Okay. Do you have to give your name that’s on your ID?
SA: No, you can give the name you go by. I would just make sure your lawyer has that information so they can clarify for the court why there’s a difference in the names.
AP: Okay. One of the things that people generally, whenever they have to leave the house, freak out a little bit about is like, having their wallet on them, and having their phone. Is there any reason why you should bring your phone and wallet with you?
SA: The less you have on you, the better. If you have your phone on you, you won’t have access to your phone once you’ve been arrested, and when you’re in police custody. And so having the phone on you just allows them to then take your phone and possibly try to learn information from it. I would do the same thing with your wallet, like your wallet has a lot of personal information on it. And so if it becomes a problem, instead, your roommate could just come to the police station and bring the ID in.
AP: Gotcha. Okay.
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AP: So, why don’t we start by going through the process of an arrest?
SA: Yeah. The process of an arrest can look different depending on whether the arrest is for what we call administrative charges versus criminal charges.
AP: Okay. So what’s an administrative charge?
SA: It can be a bylaw violation. It can be a violation under the Provincial Offenses Act. It can be a Highway Traffic Act violations. Anything that isn’t criminal wouldn’t give you a criminal record and can’t land you in jail. So for example, if you’re being arrested for a trespassing violation because you’re on private property and the owners want you to leave. Because that’s not a criminal charge, at that point the police will put you under arrest, but a range of things could happen after. All they need to do is give you a ticket. So they’ll need you to identify yourself so that they can write your name and date of birth on the ticket. But they might then just move you off of the location and release you. They might bring you to a different location and release you, or they might bring you to the police station and release you at that point. What they cannot do is continue to hold you if it’s not a criminal charge, unless they can’t identify you. So if you refuse to share your name, then they now have the right to detain you for that reason until they figure out who you are. But if you’ve given your name and date of birth, then they’ll write you a ticket and you get released.
AP: One thing that we’ve seen in certain scenarios is like, on some private property, police have brought people to another space on that property, be it like a secure locked room, and held them there for a certain measure of time. What is the law around doing things like that?
SA: If you’re not under arrest, the police can detain you for a short amount of time to try to get evidence to see if there is anything to charge you with. But they can’t actually hold you indefinitely. So if I was just being held in a room I would, “ask am I under arrest?” If not, you can walk out.
AP: Okay.
SA: The final step if you’re being released with just a ticket, the police might start giving you orders, so they might tell you, “you can’t be around these people.” “You can’t go back to that location.” They don’t actually have the authority, if they just have a ticket, to make any rules on your future behaviour. So all of that is just police talking at you and not enforceable by law.
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SA: If they arrest you and they’re charging you with a criminal charge, what they will do is bring you to the police station. That’ll be the first step. During this entire process, they likely will try to talk to you. So again, important to remember, you don’t share anything except for your name and date of birth. They might ask you many other questions about who you are, why you were wherever you were, what you were doing. All of that is a police interrogation. You can just stay silent or you can continue to repeat, “I don’t want to speak without my lawyer.”
They should tell you what you’re charged with. They’ll likely make you remove belts, shoelaces, sweaters, and they’ll just do like a pat-down search. While you’re in the police station, you should be able to stay in your clothes. But you won’t have access to any of your things until you’re released from the police station.
AP: Okay.
SA: They will also run your name in their database to see if there are any open warrants for arrest, if you are on any other criminal charges. They’re doing all of this to see if they want to charge you with any additional charges, but also to make decisions around whether or not you’ll be released from the police station.
They don’t have access to any closed records So for example, if you have criminal charges from before you were 18, those records are hidden, and so that information won’t come up.
AP: Okay, and if you have any like charges that have been resolved, can that affect your ability to be released in any way?
SA: It shouldn’t. If the police are using it to like, bias them in any way, make sure your lawyer knows what the police might be seeing when they’re running your name so that the lawyer can advocate for you.
AP: Okay.
SA: And then they’ll likely take you to a police cell until they finalize the booking process and decide whether or not they’ll release you, or if they’ll release you but with certain rules.
AP: Okay.
SA: Once you have gone through the initial booking, that’s when you should be given your right to speak with the lawyer. So you should just tell the officer what the name of your lawyer is, and they should bring you to a private room to speak with a lawyer. I don’t assume anywhere in a police station is actually private. They are not allowed to use anything you’re speaking with your lawyer against you in court, but that doesn’t mean they’re not listening to the phone call. So just be aware of that when you’re speaking with your lawyer. The most important thing at this point is just being released with no rules attached, and you can figure out how to fight your charges once you’re out.
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SA: After booking, the last step is the release process. To be released, you’ll have to sign a piece of paper that says what your charges are. It should say when your first court date is, and then it’ll say any rules that apply while you’re being charged. These rules will apply until you either go to trial or they drop the charges against you.
AP: Those rules are the same thing as conditions.
SA: Yeah. So they’re called conditions of release. So for political arrest, the two most likely conditions you’ll be fighting are non-association, so you not being allowed to have contact with people, and not being allowed to go back to a protest. On the first one, the information you want your lawyer to know about is other reasons that are important for you to maintain contact with people that you may have been arrested with. That can range, from they’re your partner, they’re your roommate, they work with you, or you’re engaged in community work together. So the context around who those individuals are is helpful.
On the second one, details around that address that your lawyer realizes, a random address the police are saying is actually a place that’s significant for political activity, and that’s why it’s important for you not to be barred from that area.
AP: Because it infringes on your right to protest.
SA: Exactly.
AP: Gotcha.
SA: For this final step, if you agree to the conditions and you sign it, you’d get released. If you don’t agree to it, then your lawyer can keep negotiating with the police, and if you can’t get the police to change their minds on the conditions, then you’ll be brought to a bail hearing, which means you’ll be brought back to your cell, and they’ll pass you through to the court through the online court system.
AP: Okay, so the choice that people have to make in some situations is that if they agree to even conditions that are unconstitutional, as you’re saying, it might mean that they’re released earlier than if it needs to be negotiated for longer.
SA: I wouldn’t say that it necessarily lessens your amount of time in police custody. The police sometimes hold people for long amounts of time, almost in retaliation for what people were arrested for. And so it’s, there’s really like no rhyme or reason for how long it takes to get out of police custody. The law just says within 24 hours, you need to have a bail hearing, but between like four hours and 24 hours, there isn’t actually good rights that protect people. If you don’t agree to the conditions, your lawyer can just make a call at that point and negotiate with the police. So it doesn’t necessarily take a long time to try to change the conditions, and if they hold you for court, depending on when you’ve been arrested, you could go to court very quickly.
AP: Okay, and do they try to negotiate that stuff with you before they talk to your lawyer?
SA: The police will try to have conversations with you any way they can, so they might decide to try to negotiate with you. The best practice is, just say you don’t want to speak with them directly, you want to first speak with your lawyer about it, and let a lawyer have that negotiation so that no information is accidentally shared with the police.
AP: Okay and so if that’s the case, and you get one counsel call, the name of the podcast, if there needs to be further negotiation, do you get to talk to your lawyer again?
SA: In practice, I’ve been allowed to speak with people in police custody multiple times. You can just say, I want to speak with my lawyer, or you can say, I don’t want to sign this until I just run it by my lawyer, and that’s pretty normal.
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AP: One thing that I want to ask more about is like, what do people expect during the bail hearing? Because all of our reference points are Law and Order so.
SA: (laughing). So, for context, the bail courts are extremely overwhelmed right now, and so the court really just wants to get through as many people as possible in as small an amount of time. Especially because when you’re held for too long, your charges might get dropped. So the first thing that will happen is actually the Crown, which is the government’s lawyer, speaking with your lawyer to try to see if they can just negotiate something so they don’t need to run a bail hearing. The information the Crown has is the police report, which is the story the police is saying about what happened, your criminal record, so if you have either charges that haven’t resolved yet or anything you’ve been found guilty of, and they may have a record if you were injured or if somebody else was injured in the course of your arrest. That’s all the information the Crown has. Then your criminal lawyer can speak with them to give them more context to try to advocate for you to be released without any conditions.
Once that negotiation has happened, either you’ll come to an agreement, and your lawyer should speak with you before they agree to anything. Then all will happen when you go to court in that case is they’ll call you up, they’ll verify your name, they’ll tell you what you’re being charged with, and then they’ll just read out what conditions you’re agreeing to, and at that point, you’ll be released.
If you can’t come to an agreement, or if the Crown wants conditions that you don’t agree with or that are unconstitutional, then what will happen is you’ll have a hearing. So that’ll mean you’ll be a part of it but you won’t need to say anything other than “yes” or “no” to who you are and whether you understand what’s happening. What will happen again is the Crown will read what the police said happened, and they’ll read the charges, and they’ll say what conditions they think should be attached to your release. Then your lawyer will make the case for you, and then the judge makes a decision about any conditions.
And at that point, they’ll ask you if you understand. If you disagree and you say “no,” they’ll just continue to push to make sure you understand, so there’s no reason in this case for you to disagree publicly with it. They’ve already made an order. So this wasn’t negotiated; this was the judge making a decision, and you could try to fight to appeal it if you disagree with it.
AP: Okay. Is there a way, during the bail hearing, if there’s something surprising that the lawyer is saying that you agreed to, to change your mind or alert the court that you didn’t consent to it?
SA: I would just say, “I need five minutes to speak with my lawyer.” It’s much better to clarify something before it gets ordered than to wait, and then now there’s these rules that attach to you that you’ll have to follow or risk more criminal charges.
AP: Right.
SA: I actually think what is important to be ready for is that what happens at your bail hearing is the Crown will read out the police report. So you actually might hear something that’s really upsetting, because it’ll be the police’s narrative of your arrest and things that you disagree with. At this stage, the court isn’t making a decision on whether or not you’re guilty. They’re only making a decision on whether you can be released from police custody, and there’s also just no evidence before the court. This is all just what the cops are saying and putting in a police report. It’s really hard to challenge that narrative at this stage because you’re the only one on the stand, and if you start speaking, then the Crown can ask you anything they want, and you’re really opening yourself up to a harder situation.
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AP: So when you said that you can not speak to the police until you speak to a lawyer, what if you don’t know any?
SA: Yeah. If you don’t know anyone, you will have access to a lawyer called Duty Counsel that’s funded by the government. They don’t work for the court. They don’t work for the police. They’re there to share rights and to represent you if you’ve been arrested. So know that you’ll always have a lawyer that you can speak with. If you want to make sure that you can speak with a lawyer that you have trust with, or that is potentially affiliated with the movement, then the important thing to do ahead of time is to know your lawyer’s name. With the name, the police can look up their phone number and how to reach them, and you will have access to one legal call. And so you can make that call once you’re in police custody with the lawyer’s name.
AP: Right. Are you able to talk about some of the things that you’ve seen police try to ask people during an arrest situation?
SA: Yeah. So we’ve heard the police tell people that if they share information about who organized an action, they’ll be released immediately. If they talk about the names of who else was there, their charges will be dropped. If they don’t agree to certain things, the person won’t be released, and they’ll be stuck in jail until their trial. They’re allowed to say all of this, even though either the police have no control over those situations or won’t actually do any of those things. So what’s important to remember is that you have a right to talk to a lawyer. So if the police are telling you anything, you can stay silent, call your lawyer, and ask them about what to say, and like, what to do in that situation.
Also, you have a right to a bail hearing. So if the police are telling you, you won’t get out without sharing certain information, the fact is, you will, within 24 hours, go to court. So you won’t just be held indefinitely in police custody for them to interrogate you.
AP: Okay. And so what like other things are you able to ask the cops to allow you to do in an arrest situation?
SA: Yeah. So you can ask for blankets. I think the other thing I’ve heard is, if people have food allergies or religious reasons why they can’t eat the food that they’re being given, you should communicate that with the police. They’re supposed to try to address like any of your dietary or health needs. So if you have any injuries from the arrest, I would repeat, “I have been injured. I need to see a nurse.” Whether or not the police will act on that is a different question. I would make sure you’re telling your lawyer so that your lawyer can also be putting pressure on the police.
AP: Okay. So if the police do take your phone or wallet or anything else that you had on you, do they have to give it back? What do they have to give back? How does that happen?
SA: They’re allowed to keep anything that is a part of their investigation for up to three months, and then they would have to ask for permission from a judge to keep it for longer than that. And we’ve seen the police keep people’s things, like their phones and their laptops, specifically to try to get information from it.
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AP: So since it’s true that often the things that police will keep are your electronic devices, we thought we’d do a deeper dive into digital security, and we’re going to do that on the next episode.
SA: Yeah.
AP: In the intro, we talked about people being better prepared for an arrest situation. What does that look like?
SA: So one of the things we mean by planning is to make an emergency plan. And what that looks like is knowing a person who’ll know all of your emergency needs if you are in police custody for anywhere from zero to 48 hours. And so you’ll want to identify someone you can have a conversation with ahead of time and then remember a way to contact them in custody and share that with your lawyer. The types of conversations you might want to have with them ahead of time would be any personal needs that might come up. So, for example, medication or anything else that might be important while you’re in custody, your employer’s contact information, if you want them to contact them, any child care needs, and anyone else that could be supportive if you’ve been arrested.
AP: And I feel like most people should put this into place. Like I think it’s good practice to not wait until you’re sure that you’re at risk of arrest, because you never know.
SA: Exactly.
AP: So this is a lot of information, but what would you say is sort of the main thing to take away from this episode?
SA: If you can remember three things. First, you don’t need to speak to the police. The only thing you need to share is your name and date of birth. The second, you’ll feel alone inside the police station, but you aren’t actually alone. There are people advocating for you to get you out. And third, the police aren’t holding you in jail until your trial. This is just the stage around your arrest. They can’t hold you indefinitely.
AP: Great.