The fundamental right to remain silent

The fundamental right to remain silent

By Vincent Semenuk

The right to silence is rooted in the presumption of innocence, a foundational principle of Canadian criminal law. It is protected by s. 7 of the Canadian Charter of Rights and Freedoms, which reads: “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.”

This right is also protected by s. 11 (c) of the Charter, which states: “Any person charged with an offence has the right … not to be compelled to be a witness in proceedings against that person in respect of the offence.”

To put it another way, any person whose liberty is placed in jeopardy by the criminal process has the right not to speak to police or give evidence that may harm them. In addition, you have the right to seek legal counsel before you are questioned by the police. That right is enshrined in s. 10 (b) of the Charter, which states: “Everyone has the right on arrest or detention … to retain and instruct counsel without delay and to be informed of that right.”

Invoking your right to be silent does not mean you are guilty. Your decision to remain silent cannot be used against you in court and cannot be seen as an admission of wrongdoing.

Police have the right to question you

If police suspect you were involved in a crime, they have the right to question you. You do not have to answer their questions until you have spoken to a lawyer, except to state your name, birth date and address. If they press you for more information, politely say that you cannot tell them anything more until you have consulted with legal counsel.

A 2007 judgment from the Supreme Court of Canada (SCC) discussed the overlap between the right to remain silent and the investigative right of police when it ruled:

“What the common law recognizes is the individual’s right to remain silent. This does not mean, however, that a person has the right not to be spoken to by state authorities. The importance of police questioning in the fulfilment of their investigative role cannot be doubted. One can readily appreciate that the police could hardly investigate crime without putting questions to persons from whom it is thought that useful information may be obtained. The person suspected of having committed the crime being investigated is no exception. Indeed, if the suspect in fact committed the crime, he or she is likely the person who has the most information to offer about the incident. Therefore, the common law also recognizes the importance of police interrogation in the investigation of crime.”

In 2010, the SCC elaborated on this overlap further, noting “police are charged with the duty to investigate alleged crimes and, in performing this duty, they necessarily have to make inquiries from relevant sources of information, including persons suspected of, or even charged with, committing the alleged crime. While the police must be respectful of an individual’s Charter rights, a rule that would require the police to automatically retreat upon a detainee stating that he or she has nothing to say ... would not strike the proper balance between the public interest in the investigation of crimes and the suspect’s interest in being left alone.”

You will not have a lawyer during questioning

Before questioning you, police are required to inform you that you are not required to say anything and whatever you tell them may be used as evidence against you. They may also encourage you to make a statement, saying something like, “This is your chance to clear your name” or “We just want to hear your side of the story.” They cannot, however, lie to you or make promises regarding certain outcomes for being cooperative with them. For instance, they cannot tell you that if you are honest with them and tell them what happened, they will not charge you with any offences.

It is highly recommended that you NEVER give a statement to the police no matter what the circumstances are. Any statement you give, whether inculpatory or exculpatory, may be used by the Crown during trial. If the police are questioning you with respect to your version of events, they are not interested in “clearing your name.” They are only interested in helping their investigation against you. The only reason they want you to talk is to make their job easier.

You also DO NOT have the right to have a lawyer with you during police questioning. You have the right to be advised by a lawyer before the questioning begins but they will not be there during the interrogation.

The SCC supported this position in a 2010 decision involving a man arrested for murder. According to court documents he was advised of his right to counsel and spoke twice by telephone with a lawyer. He was then interviewed by police for several hours. According to court documents, the man indicated he wanted to speak to his lawyer again but police refused to grant that request, telling him he did not have the right to have his lawyer present during questioning.

During the interview, the man “implicated himself in the murder,” the judgment reads. It adds, “the trial judge found … police had not infringed [the man’s Charter] rights. The Court of Appeal agreed.”

A divided SCC also agreed, ruling that the right to speak with counsel is "to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights."

In a dissenting decision, one judge wrote that if the purpose of the right to counsel was just to echo what the police had already said, then the role of a lawyer could be replaced “by a recorded message: ‘You have reached counsel; keep your mouth shut; press one to repeat this message.’”

You do not need to testify in court

Those accused of a crime are under no obligation to prove their innocence. The burden is instead on the Crown to prove beyond a reasonable doubt that you are guilty. This fundamental legal principle is the reason why an accused does not have to testify at their trial.

At the start of a trial, the Crown will present its evidence and call its witnesses. As your legal counsel, we will assess that evidence. If we can see the Crown’s case is weak, we may advise you not to testify. Testifying in court can be a harrowing experience and some people do not perform well under stress. Depending on how you answer the questions, you may come off as evasive or unbelievable in the eyes of the court.

Lack of testimony no indication of guilt

A 2017 Supreme Court of Canada case illustrates how someone accused of a crime can be found not guilty, even though they did not testify.

Court documents state a man was convicted of breaking and entering to steal a firearm and two counts of robbery after an Alberta resident was struck on the head with a baseball bat during a burglary, stunning him as blood obscured his vision. The masked intruders forced him to open a safe and give them cash before they drove away in his truck.

When the vehicle was found, DNA testing on a cigarette butt under the driver’s seat led the police to the suspect. The victim also testified that he may have heard the suspect’s last name spoken during the robbery.

The man was convicted by two lower courts, with those decisions appealed to the SCC, which ruled the Crown’s “evidence was fraught with frailties. [The resident] was struck on the head with a baseball bat at the outset of the robbery and was fading in and out of consciousness. In his testimony, he actively questioned his recollection of what he had heard.”

The nation’s highest court also addressed the accused’s choice not to give testimony on his behalf, stating, “In light of the evidentiary weaknesses of both the DNA evidence and [the complainant’s] recollection, I respectfully disagree with the view that this is an instance in which the appellant’s decision not to testify at trial can be raised against him.”

The judgment also references another SCC judgment, which notes: “The failure of the accused to testify does not undermine his argument that the verdict [he was appealing] was unreasonable.”

Contact us for assistance

Everyone in Canada is presumed innocent until proven guilty beyond a reasonable doubt. We zealously defend our clients to ensure that they receive the best possible legal outcome. If you are under investigation or are facing criminal charges, contact Dunn & Associates. We can advise and defend you at every step of the way to ensure that you get fair treatment before the law.

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Criminal Justice