Differences between being arrested and being charged


No one ever knows for sure whether they are going to be charged with a criminal offence until they are actually charged. If you are charged, you will know – unless the police are unable to contact you. But what if you have not been charged with a criminal offence, and are concerned that you will be? How can you get a sense of whether you will be charged, and what should you do in the meantime? This will depend on your specific circumstances, and it is always best to get the advice of an experienced criminal defence lawyer.

The following information will provide insight into the process regarding how criminal charges can be filed.

Differences Between Being Arrested & Being Charged

A common misconception people have is that being arrested and being charged are the same thing, However, it is important to understand that being arrested is different from being charged. Generally speaking, you are arrested if you are physically “seized” or touched by a police officer in order to detain you because the police have reasonable grounds to believe you committed a specific criminal offence. You are charged when an “information” is sworn under oath before a judge or justice of the peace. An information is a document stating what offence you are accused of, including when and where the crime allegedly happened, and why the police have reasonable grounds to believe that you did it. Usually, a police officer will swear the information. 

You may be arrested without being charged, and you may be charged without being arrested. Being charged without being arrested is quite common, especially for less serious offences. If you are charged without being arrested, then you will have to appear in court, and you may have to attend for fingerprinting and photographs. The police will give you a release document telling you when and where you have to do these things. The document may be called an appearance notice, or an undertaking. If your release is spoken to in front of a justice of the peace or a judge, then you may be released on what is called a release order. It is very important that you attend court and fingerprinting. Otherwise, you might face another criminal charge for failing to appear. 

Being arrested but not charged is less common, but it does happen. Sometimes, the police will arrest you and decide not to charge you, leaving you free to go. This may be because they determined that you are not responsible for the offence, or because they intend to continue their investigation before charging you. 

WHAT EVIDENCE DOES THE POLICE NEED TO ARREST AND CHARGE ME?

In Canada, with very rare exceptions, the police are only allowed to arrest or charge you if they have reasonable grounds to do so. Reasonable grounds is an investigative standard – a legal standard – that requires evidence that the police can point to in order to demonstrate that they reasonably believed that it was more likely than not that you committed a specific crime. They cannot arrest or charge you based on a hunch, or a suspicion. They do not need to know your identity when they form this belief, but they do need to be able to point to you specifically. If the police have reasonable grounds, then they may charge you. If it seems that the police are gathering that evidence, that is an indication that you may eventually be charged.

THE POLICE DIDN’T HAVE ANY EVIDENCE AGAINST ME

If the police arrest you without having reasonable grounds to do so, they have likely violated your right not to be detained unreasonably under section 9 of the Charter, which could result in a favourable outcome for you – such as evidence needed to convict you being excluded (not “let in”), or the charges against you being withdrawn – which basically means dropped. The police know this, so they are usually careful about gathering as much evidence as they can before they charge you. This can take a long time. Sometimes police spend years investigating someone before they charge them.

THE POLICE MAY STILL BE GATHERING EVIDENCE

Sometimes police will interact with you while they are gathering evidence to use in arresting, charging, and eventually prosecuting you. There are different reasons for this, but it is often because police are required to meet different investigative standards – typically lower than the standard of reasonable grounds – before arresting you, charging you, or even searching you. One of those standards is reasonable suspicion, which is a lower standard than reasonable grounds, but still must be based in objective evidence. Reasonable suspicion is a standard used for many police actions that are considered less invasive than an arrest.

Imagine you are flying from Vancouver to Halifax on a direct flight. You are flying one-way, and you are travelling alone. You paid for your ticket in cash, and you bought it at the last minute. You checked one bag. According to the Supreme Court of Canada, this would allow the police – whose training reasonably tells them that each of these things are suggestive of drug trafficking – to have a reasonable suspicion that you are trafficking drugs. That reasonable suspicion allows the police to deploy a drug sniffer dog to “sniff search” your luggage for drugs. The sniffer dog gives a “positive indication” (usually sitting, as they have been trained to do), which allows the police to open your bag, where they find large quantities of an illegal drug. It is at this point that you are arrested for drug trafficking. You will eventually be charged with the same.

In this example (which is based on a Supreme Court of Canada decision), the police did not have reasonable grounds to arrest or charge you when they observed you travelling in a way that made them suspicious. Even though their suspicion was reasonable, they did not have the reasonable grounds to arrest or charge you when they deployed the sniffer dog, or when they opened up your bag and searched it themselves. But it is easy to see how this kind of an interaction would feel a lot like an arrest. So, what is happening in that circumstance? If that was not an arrest, then what was it? From the time the police stop you to do a sniffer dog search until the time that you are arrested, you are being held under investigative detention.

You May Be Held Under Investigative Detention

Many television shows and movies – especially American ones – have scenes in which a character says to a police officer: “Are you arresting me? If not, I am going to leave – I know my rights!” I am not an American lawyer, so I will not comment on the accuracy of this kind of a claim in America. However, in Canada, it is not that simple. Think about the example above. Imagine if, instead of allowing the sniffer dog to “sniff search” your bag, you simply took your bag and ran away. The police did not have reasonable grounds to open up your bag – much less arrest you – so you took off before they got it. If this were allowed – and it led to avoiding arrest – then the way in which we interact with police would be very different. 

Police are allowed – under specific circumstances – to hold you in “investigative detention”. This means they can detain you while they gather evidence they may use to arrest, charge, and eventually prosecute you. The police must meet different standards to hold someone under investigative detention depending on the situation. For example, new Criminal Code provisions on impaired driving permit police (with approved screening devices) to hold people who are operating a motor vehicle in investigative detention so they can conduct mandatory alcohol screening (MAS). As another example, police may be able to hold someone in investigative detention when they reasonably suspect them of a criminal offence and reasonably believe that detaining them is necessary to protect their safety or that of another. Being held in investigative detention is different from being arrested. If you are being held in investigative detention, then you are not arrested; you have certain rights, but you are not allowed to leave as you please. The police are gathering more evidence before arresting or charging you.

No One Has Reported The Alleged Offence To The Police

You might find yourself in a situation where you have been accused of committing a crime, but you have not been charged, and the police are not gathering evidence against you. One simple reason for this may be that no one has complained to the police. The alleged victim may report you to police tomorrow, ten years from now, or never. This can be an incredibly nerve-wracking experience and there is often not much you can do. How and whether you respond to the allegation, what you say to other people about it, and whether you write down your memory of your side of the story and keep it in a safe place are all things that could impact your defence if you are eventually charged. If you find yourself in this stressful position, one thing you can do is contact a criminal defence lawyer for legal advice. 

The Police Are Not LAYING Charges At This Time

There are some instances in which the police have enough evidence to charge someone, but they have not done so because of the complainant’s wishes. In Canada, it is not up to a complainant or alleged victim to “press charges”. However, the complainant can often influence the decision of whether charges are laid or prosecuted – especially if they are not willing to provide police with a statement about what happened or testify in court. This often occurs in cases of sexual assault or domestic abuse allegations. Sometimes a victim will report an alleged offence to the police, and then decide they do not want to be involved any further, and the prosecution will not have any evidence to make its case. 

Will I Know If The Police Have Charged Me?

Being charged with a criminal offence is an incredibly stressful experience. Not knowing whether or not you will be charged with a criminal offence can be equally painful for different reasons. That kind of uncertainty would make anyone uncomfortable. Maybe your ex-partner has reported you to the police, but you do not know if they will cooperate with the police or not. Maybe someone accused you of a sexual assault at a party, and you do not know whether they will go to the police, or they already have. Maybe the police have been collecting evidence on you, but they have not charged or arrested you. Unfortunately, in many of these cases you will not know if or when you might be charged. If you find yourself in that situation, seek legal advice from an experienced criminal defence lawyer before taking any steps.