The Investigation Phase: What Happens Before a Charge Is Laid
The period before a charge is laid is the one stage where what you do has the largest effect and the least legal supervision. Most people get through it without advice, and most of the damage in a criminal case is done in it.
The investigation phase runs from the moment police begin looking into an allegation until a charge is laid or the file is closed. During it you have the right to silence, and on arrest or detention the right under section 10(b) of the Charter to retain and instruct counsel without delay.
What Are Your Rights If Police Want to Speak to You?
Section 10 of the Charter provides that everyone has the right on arrest or detention to be informed promptly of the reasons, to retain and instruct counsel without delay and to be informed of that right, and to have the validity of the detention determined by habeas corpus.
Two things follow. The right to counsel attaches on arrest or detention, not only on charge. And the right to silence exists independently of it — you are not obliged to answer police questions, and declining to do so is not evidence of anything.
If you are detained, say that you want to speak to a lawyer, and then stop. Police are permitted to continue asking questions after you assert the right, and they are permitted to be persistent. Repeating that you want your lawyer, and saying nothing else, is not obstruction.
Should You Give a Statement?
Almost never, and not without advice. People give statements because they believe explaining will end the matter. In practice a statement is a permanent, recorded account given without disclosure, without knowing what the allegation is, and without knowing what else the police have.
An innocent explanation can still damage a case. It can lock you into a version before you know the details, supply an element the Crown would otherwise have to prove, or contain a small inconsistency that becomes the centrepiece of a cross-examination months later.
The asymmetry is the point: police know what they have and you do not. Nothing about declining to be interviewed prevents you from giving a full account later, with advice, if that turns out to be the right course.
There are limited situations where the law does require you to provide something — identifying yourself in defined circumstances, or complying with a valid breath demand under section 320.27 or 320.28. Those are specific legal obligations and are different from answering questions.
What Should You Not Do?
- Do not contact the complainant, directly or through anyone else. It can produce a further charge and it will be treated as consciousness of guilt.
- Do not delete messages, photos or accounts. Deletion is recoverable, and the attempt is far more damaging than the content usually is.
- Do not discuss the allegation on a recorded line. Calls from a police station or jail are generally recorded.
- Do not post about it, and do not let anyone else post about it.
- Do not agree to a polygraph on the assumption it will clear you. Polygraph results are not admissible to prove innocence; the interview around them is where the risk lies.
- Do not assume that because nothing has happened for weeks, nothing will.
What Should You Do?
- Get advice as early as you can, including before any charge is laid. Advice at this stage is often the most valuable advice in a case.
- Write down your own account privately, while it is fresh, and keep it for your lawyer.
- Preserve anything that may help — messages, photographs, receipts, location data, names of people who were present.
- Note dates, times and the names and badge numbers of any officers you deal with.
- If police have searched anything or taken property, note exactly what happened and when.
Preservation matters because evidence that helps you disappears quickly. Surveillance video is frequently overwritten in days, and a phone's data can be lost with a routine upgrade.
What Happens at the End of the Investigation?
Either a charge is laid or it is not. If a charge is laid you may be arrested and released with conditions, released on an undertaking, or held for a bail hearing. In Ontario, police lay charges and the Crown then decides whether to continue the prosecution.
Disclosure follows the charge, not the investigation. You are not entitled to see the police file while they are still investigating, which is precisely why giving a statement during that period means speaking without knowing what is being alleged.
If you are released with conditions, those conditions bind immediately and are visible to any officer who queries you on CPIC. Breaching them creates a separate offence that is often easier for the Crown to prove than the original allegation.
Frequently asked questions
Browse every answer on this siteNo. You have the right to silence, and declining to answer questions is not evidence of guilt. Limited specific obligations exist, such as identifying yourself in defined circumstances or complying with a valid breath demand.
Section 10(b) of the Charter gives the right to retain and instruct counsel without delay on arrest or detention — not only once a charge is laid.
Yes. Police may continue asking questions and may be persistent. Continuing to say that you want your lawyer, and nothing else, is not obstruction.
Polygraph results are not admissible to prove innocence, and the interview conducted around the test is where the real risk lies. Get advice before agreeing to one.
Yes, and it is often the most useful point to get one. Advice during the investigation can shape whether a charge is laid at all and what evidence still exists by the time it is.
Facing This Charge Yourself?
This page explains the law. If the question is what happens in your own case, these are the places to go next.
Other Parts of the Law Explained
This page is general information about Canadian law, not legal advice, and reading it does not create a lawyer-client relationship. Statutes are amended; provisions are described as at the consolidation reviewed when this page was written.
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