PUBLISHED ON March 14, 2022
The right to remain silent is one of the fundamental justice principles protected by section 7 of the Canadian Charter of Rights and Freedoms. Simply put, a person whose liberty is placed in jeopardy by the criminal process has the right to choose whether to speak to the police or to remain silent: you cannot be forced to give evidence harmful to yourself. However, if one chooses to speak to a police officer, they must tell the truth. Lying to law enforcement officers may result in criminal charges with one or more criminal offences, including public mischief, obstructing a police officer, or obstructing justice.
What follows is for informational purposes only; for legal advice, you should contact a criminal defence lawyer to discuss your particular case. As well, there are situations where there is a duty to report to the police; those situations are not discussed here.
Can you actually stay silent during a police interrogation?
Yes. The police are expected to caution you that what you say may be taken in evidence and used against you and that you are not required to say anything. This does not mean, however, that the police must not ask you questions. Indeed the police may try questioning you, despite the exercise of your right to silence. The right only allows you to remain silent; it does not prohibit the police from asking you questions.
Can the police use tricks and deceit to try to get you to talk?
This is a complex issue and depends on the relationship between the suspect and the police/informer. Suffice it to say, the right to silence may be violated by the conduct of undercover police officers and state agents and the courts will examine whether the exchange between the accused and the informer would have taken place if not for the intervention of the state. Courts will examine if the agent elicited the information and got a suspect to speak about a given offence. Again, this is a complex area that depends on the relationship between the suspect and the police/informer. Similarly, police are not allowed to use deceit and trickery in order to induce a person into giving a statement where doing so deprives an individual of their choice of whether to speak to the police.
Not required to give evidence
In addition to the right to remain silent, you cannot be forced to testify at your trial. It is often the case where your testimony will be required but the decision as to whether to testify or not is your decision. If you do testify in your case, you are of course obliged to tell the truth. As well, once a decision is made to testify, an individual must answer all of the lawyer’s questions subject to a judge directing otherwise. In other words, an individual does not get to pick and choose which questions they will answer.
When your right to remain silent is violated
If a police officer or other state agent violates a person’s right to remain silent, an application can be brought at the subsequent criminal trial to have any such statement excluded from evidence at trial. If successful, the statement will not form part of the Crown’s case against the individual and often, such an exclusion will result in the dismissal of the charges.
Should you require legal advice or representation for any type of criminal offence, please contact Brain Ross.
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