In Canada, the Canadian Charter of Rights and Freedoms, section 7, protects our right to silence. This right guarantees that only statements that are made voluntarily to police after we have been informed of our right to counsel can be used as evidence. This means, if we freely answer questions asked by police after we are informed of our right to call a lawyer, those statements may be used as evidence against us.
Even when we provide a seemingly innocent statement or a description of events, if we are later charged with a criminal offence, the prosecution can choose to include only those comments that incriminate us as part of the evidence against us, and they may exclude any details that put our story in context or support our innocence.
Section 7 of the Charter states,
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Essentially, this means that we cannot be forced to speak with a law enforcement officer if we don’t want to do so. However, it is a good idea to provide police with your name and address, when you are asked. Also, if you are a witness to an incident such as a motor vehicle accident, common sense suggests that we should provide details of what we witnessed that may help police in their investigations. Beyond that, if questioned in connection with a criminal inquiry, it is in our best interests to ask to speak with a lawyer before providing any information.
Contrary to what we see on American television shows when an accused person is given a ‘Miranda warning”, police in Canada may continue to question you even though you said you don’t want to answer their questions. This can become a difficult situation as law enforcement officers in Canada are not prohibited from interrogating a person after they have said they don’t wish to make a statement. Also, police in Canada are allowed to be quite aggressive and persistent in their questioning. However, even in such situations, you can be just as persistent as police in continuing to refuse to make a statement and to answer any questions, preferably in a calm and polite manner. Sometimes, this can create an awkward situation as police continue to ask questions and you continue to refuse to answer them, but it’s important not to allow frustration with these circumstances erode our right to be silent and protect our best interests.
One of the problems when we are questioned by police is that it is difficult to know whether we are a suspect, or just a witness who is being asked questions to help police in their investigation. A tricky aspect in a police investigation, for the person undergoing questioning, is that someone may become a suspect while they are being questioned, or perhaps they were a suspect all along but not aware of that fact. This grey area in questioning witnesses is one reason why it is always a good idea to ask to speak with a lawyer before providing any detailed information about yourself.
Another important point to remember is that you should always be honest in any information that you chose to share with police. One of the most harmful things that you can do to your credibility is to lie to law enforcement personnel. You can also be charged with an offence, such as obstructing justice or obstructing a police investigation, if you are found to be lying to police.
Anyone who was not charged with an offence has the right to discontinue the interrogation by police and leave at any time. If you are placed under arrest, the maximum amount of time that you may be questioned is 24 hours and you aren’t free to leave during this time. After that, police will hold you only if they believe they can convince the Crown Attorney that there is sufficient evidence to make a case against you.
Keep in mind that aggressive questioning by police often causes people to disclose incriminating information about themselves; that’s why the police use this strategy of questioning. Recent cases have been brought to light where innocent people confessed to crimes or actions they didn’t commit after being forcefully interrogated for many hours. That’s why the best strategy is to always politely decline to make a statement when you are being interrogated.