What Do I Do If I Am Arrested in Canada as a U.S. Citizen?

You decided to take a trip to Canada and got carried away on one of your nights out. Canadian police arrest you and now you’re incarcerated in a foreign land, facing a justice system you’re unfamiliar with. What are you to do?

You may not know your legal rights when facing criminal charges in another country. After an arrest in Canada, talk to a local criminal defense attorney for legal advice. You can also contact a criminal defense lawyer in the United States for general information about how to clear up your criminal record.

After an Arrest in Canada

“It’s a little more scary when you’re in another country,” says Stuart G. Friedman, a criminal defense attorney in Southfield, Michigan, who practices on the border with a Canadian lawyer. “They can use that sense of isolation to make you feel guilty, even if you’re innocent.”

Despite this, Friedman notes, you don’t need to panic. You have several rights to exercise and olive branches to extend in your favor. “There are differences that people are not attuned to, but mostly the system is for the better,” he says.

If you are arrested at the border, consider the following:

1. Contact a consular officer at the U.S. Embassy or Consulate
2. Contact duty counsel through Legal Aid for free advice
3. Discuss your case with a Canadian criminal defense attorney and, if you’d like, an American lawyer

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Getting Legal Help When You Face Criminal Charges as a U.S. Citizen in Canada

“When a person is arrested in Canada, they have what is called duty counsel, which in most places is an 800 number where you can speak with an attorney who is contracted with Legal Aid. It doesn’t matter if you’re indigent or not. It’s meant as a lifeline outside the police station where you can get an independent opinion.”

Just like the United States, Canada ascribes to the Vienna Convention on Consular Relations. This means you also have a right to access an American consular officer at the embassy or consulate. According to the Government of Canada, consular communications ensure that your welfare and rights are observed in accordance with the law. Between the consular officer and duty counsel, someone will reach out to family and/or friends about your situation and whereabouts, should you request it.

The consular officer can also provide you with a list of attorneys and arrange the transfer of money to pay legal costs, bail hearing costs, and fines. However, the consular officer cannot act in the capacity of an attorney. It is your right to seek out the attorney you want. However, Friedman says there’s reason to be wary of someone primarily familiar with American laws.

“You’ve got different rules about cross examination, search and seizure, evidence rules. You want to have competent Canadian counsel as the primary driver,” he says. “They are every bit as good as ours.”

Having an American Criminal Defense Attorney Involved in Your Canadian Criminal Case

If you have a criminal defense attorney in the U.S. with whom you are comfortable, there are a few things they can do for you. For one, they could serve as an assistant in your defense, though Friedman notes that it will likely drive up the cost.

But a common one, and one in which Friedman has himself done on behalf of Canadian counsel, is helping with discovery — securing any records, testimony, or character witnesses that may aid your defense.

“I want to caution that both drunk driving and simple assaults can be prosecuted as felonies, or as they call them, indictable offenses, in Canada,” Friedman adds. “They’re often not, but some offenses that we think of as Mickey Mouse can, in fact, be more serious over there.”

If You Fear Arrest at the Border

If the Canada Border Services Agency stop you and you have reason to believe they want you for a criminal conviction, Friedman suggests exercising a little-known right.

“Let’s assume they either divert you to secondary, or it doesn’t go all that well — maybe they’re hostile and you foresee problems. Canadian law still allows you to withdraw your application for admission unless they have a reasonable suspicion to hold you,” he says. “So if they catch you with a brick of heroin, it’s probably too late, but if you have hostile questioning, you got a little cute with them, and it’s blowing up in your face, the best thing you can do is withdraw.”

Quite simply, you can say, “I withdraw,” and head back to the U.S. However, there are exceptions. If a police officer suspects you are drunk and asks you to take a breathalyzer, a refusal would trigger an inference of guilt and have a similar result as in the American criminal code for driving under the influence (DUI). It could trigger a suspension of your license.

Finding Legal Help

If you are facing charges for a serious crime in Canada, contact a local defense attorney. For general information about criminal charges and your legal rights in another country, talk to a criminal defense lawyer.