Top 3 Things Not To Do If Police Tell You They Will Be Charging You With a Criminal Offence

Perhaps the most shocking point of the criminal process for anyone accused of an offence could be the moment you’re told by the police they’ll be charging you. Getting a call out of the blue that you have two hours to turn yourself in to the police or be arrested could shake your being to its core.

You might have a reflexive reaction at the time of that call to do whatever your can to stop that process cold, or to hide the process from others, or to spring into action preparing your defence. All these reactions are natural enough. But the way you might implement them could be completely contrary to your best interests.

As a lawyer who had spent the last decade in criminal defence practice and close to a decade before that as a Federal Crown prosecutor, here are my top three things NOT to do if the police tell you they will be charging you with an offence, based on my experience with hundreds of cases

1. Offer Long Convoluted Explanations of How You Didn’t Do Anything

Many people erroneously think they can talk the police out of charging them with an offence, just by making a statement. All your statement is going to accomplish is you incriminating yourself. Even an exculpatory “I didn’t do it” statement can be incriminating, as it can pin you down on your story, and be used later by the prosecution to cross-examine you at trial. It can also undermine your credibility if you later change your story.

You’ll be told by the police at the time you are being charged that you have the right to remain silent. Take advantage of that right. It’s there for a reason.

Give the police your name. Give them your address. If you need to agree to some reasonable conditions to not be held for a bail hearing - like not to contact someone who has made a criminal complaint against you - do that.

But don’t say anything substantive at the time you are charged. Even if the police ever so politely offer you a chance to tell your side of the story. You might think it will do you some good. It won’t. Trust me. I served for long enough as a prosecutor, and liked nothing better than to see that an accused had given a lengthy statement at the time of arrest that I could later pick apart and prove wrong at trial years later.

2. Think & Say You Don’t Need a Lawyer

Some think they’re best off keeping the charges quiet, hoping they will all just go away. Or that if they just explain everything to the police (see thing NOT to do #1 above), the police be so overwhelmed by the compelling story that a lawyer won’t be required.

Trust me, you need a lawyer when you’re being criminally charged, more than even for something like a family law or civil damages claim. While in family and civil claims, lawyers are extremely helpful, not having one usually won’t lead to you being locked up for day, months or even for years. Not so in the world of criminal law. And don’t think that just because you didn’t do anything, you don’t risk jail. Or a criminal record that could impair your future employment and ability to travel.

Be aware that contrary to what you might perceive from TV, criminal lawyers are actually amongst the cheapest and best value lawyers you can find. They usually charge in block fees, meaning you can predict costs and don’t need to worry about hourly charges where there is a ticking clock for every minute you spend on the phone with them.

3. Immediately Start Contacting Everyone in Your Phone’s Contacts to Be a Witness

Immediately contacting everyone you know who might have some involvement or relevant evidence to provide in your case, asking them for help, and potentially telling them what to say, could be perceived as the offence of obstruction of justice or breach your release conditions. Certainly making a list of potential witnesses and giving that to your lawyer to follow up on is a great idea, as is pulling together all the documents including text messages, emails, social media messages and the like that you can find which could be relevant to your defence.

But directly reaching out to people who it might be alleged are co-accused, or victims, or just witnesses with independent stories could be alleged to be improper conduct if those people say you tried to influence them, or there is a court order limiting who you can contact. You need a lawyer to insulate yourself from allegations of impropriety with witness and third party contacts.

Avoid doing the foregoing top three things NOT to do, and at least you won’t be behind the game when your case first comes up in court. You’ll be able to get full disclosure from the Crown so as to understand what exactly it is alleged your did, and what evidence supports those allegations. You’ll still have ample time to tell your side of the story at any trial, though probably only under about 5% of cases ever make it to trial. Most are resolved. Avoiding those Top 3 Things will put you in the best position in order to negotiate an optimal resolution from a position of strength.

Gordon Scott Campbell practices criminal, regulatory and professional conduct defence law at trial and appellate levels throughout Ontario up to the level of the Supreme Court of Canada. He previously served as Federal Crown Prosecutor and is author of The Investigator’s Legal Handbook series of books.