There is no absolute right to silence in Canada

By Daniel Henderson

 

There is no absolute right to silence in Canada. In Canada, the fact that you choose not to give a statement to the police cannot be used against you at the subsequent trial. However, at the time of the statement, you may have no choice but to give statement to the authorities.

Following are some examples.

  • You must answer all questions put to you by a border officer truthfully when you cross the border.
  • You must provide your licence, insurance, and registration information to the police and properly identify yourself if you are operating a vehicle, although you are entitled not to admit guilt to any motor vehicle offence or other offence.
  • You must properly identify yourself and you cannot lie about your identification or tell other lies if you are stopped by the police or questioned by the police. Please be aware: lying to the police could result in a charge of obstruction of a police officer or public mischief (if making a false complaint).
  • You are required to file tax returns truthfully.

The right to silence particularly refers to situations when you are being investigated for a criminal or quasi-criminal act or regulatory offence. If you are compelled by law to provide a statement such as reporting a motor vehicle accident, that compelled statement usually cannot be used to subsequently prosecute you in a criminal proceeding.

However, if you lie during a compelled or other statement, you are generally not immune to the consequences of dishonesty.

The right to silence is invoked by a suspect as a right not to answer a question put forward by police or government investigators. The police however, are entitled to use all sorts of trickery, including lying to the suspect in order to overcome their reluctance to give a statement. The degree of trickery could be quite liberal, including recruiting the suspect into a fictional criminal organization; and in extreme cases, telling the suspect that their continuing employment in the fictional organization is contingent on admitting a criminal act. The police can use extraordinary techniques, except that they cannot use torture, threats or any act of oppression which overcomes the will of the suspect to force the suspect to confess.

As a general rule, it is never a good idea to give a statement to the police unless you are doing so only as a witness. When an accused person gives an inculpatory statement, that statement can be used as the sole basis for conviction. On the other hand, if the accused provides an exculpatory statement, the prosecution controls the admission of that statement, not the defence, and typically the statement will only be used by the prosecutor to attack the credibility of the accused. If a suspect gives an out-of-court exculpatory statement which is inconsistent to his in-court testimony, this will damage his credibility in court. As a result, suspects are nearly always better off to give no statement at all to the police, so that their credibility in court cannot be attacked in this way.

In Canada, you are not entitled to have lawyer present when questioned by the police. You are entitled to consult with a lawyer if the police have detained or arrested you. This opportunity to speak to a lawyer must precede any interrogation. Note that, with limited exceptions, once an interrogation begins you will not be able to re-consult counsel and while you are not required to answer any questions, the police are permitted to ask you as many questions as they like for as long as they like, provided the interrogation does not become oppressive. Therefore, make sure to exercise your right to speak to a lawyer and make sure that the lawyer answers any and all questions you may have before the police begin to question you. Remember the subsequent interrogation may be long and the advice you get in advance will typically be the only advice you will receive.

There are ways to protect yourself in situations you are not obliged to give a statement:

  1. Consult a lawyer before you have any contact with the police if you are under investigation for an offence. During the investigation stage, retain a legal counsel. The counsel can give you detailed advice about your obligations regarding any statement as well as the expected line of investigation. Your lawyer can also act on limited capacity as an agent for the suspect with the investigator.
  2. If you are arrested or detained without prior notice, and the police seek to interrogate you, then exercise your right to speak to legal counsel. You are entitled to consult by telephone with a free lawyer if you have not already retained counsel.
  3. Do not engage with the police. Do not lie. Be honest when identifying yourself; do not give a false name. But otherwise, do not answer their questions no matter how trivial the questions are. Simply repeat, “I do not want to give a statement.” Do not physically engage or resist the police unless doing so in self-defence, as you may be charged with assaulting a peace officer. However, passive resistance, such as turning to face away from an interrogator can be effective. You are not required to look at them, you are not required to acknowledge them, and you are not required to answer their questions. The police are not entitled to physically force you to provide a statement or even to look them in the eye.
  4. Finally, speak to no one about your case, except your lawyer. That includes your spouse, doctor, members of the clergy, or anyone else. There are special rules regarding communication between spouses which is outside the purview of this article. The most legally protected communication from disclosure to the court, for any offence, is what you tell your lawyer. In fact, the police will often, in serious cases, use police agents such as a friend to attempt to obtain a statement from the accused.

If you are faced with a situation as outlined above or have any criminal defence needs please contact Chen Shen or Dan Henderson.