Do You Have the Right to Remain Silent in Canada?

PUBLISHED ON March 14, 2023

Section 7 of the Canadian Charter of Rights and Freedoms allows people in Canada to remain silent when detained by law enforcement. Like ‘Miranda rights’ in the United States, it cements the right of a person not to have to answer questions asked by the police.

But what does the right to remain silent in Canada cover? The following is information that will help illuminate this fundamental right. This is not legal advice. For legal advice on exactly what this right incorporates, how to use it properly, and how to use it if law enforcement charges you with a crime, you will need to seek counsel and can contact Brian Ross for such advice.

What is the Right To Remain Silent in Canada?

Section 7 of the Charter reads:

Everyone has the right to life, liberty and security of the person and the right not to be deprived except in accordance with the principles of fundamental justice.

Section 7 encompasses many different rights, including the right to remain silent. This means that you do not have to respond during interrogations or discussions with the police officers involved in your case. However, if you volunteer to answer an officer’s questions, you must speak truthfully.

If you lie at any point, you could incur additional charges, including:

• Attempting to obstruct justice
• Obstructing a police officer
• Public mischief

Lies can also strengthen the prosecution’s case if/when presented in court. Thus, the prosecution may use false statements to their advantage in multiple ways.

When Do You Have the Right to Remain Silent?

If the police suspect you are implicated in a crime that they are investigating, the Supreme Court of Canada has held that they should advise you of your right to remain silent. That, however, does not mean that you have to speak to the police if you are not a suspect – it just means that the police are not required to advise you of the right before you become a suspect.  Now, there are some situations, traffic accidents, for example, where you must provide a report – this brief memo does not deal with situations where individuals are compelled to speak with police. Again, should you have any questions about whether you are statutorily compelled to speak to the police, you must contact a lawyer.

When You Are Arrested and Detained

First and foremost, you have the right to remain silent in Canada when law enforcement arrests you. You can state your decision to exercise this right when an officer arrests and recites the criminal charges brought against you. You may also request counsel immediately following your detainment.

Do police have to stop questioning you?

No. Asserting your right may not prevent law enforcement from proceeding with the interrogation or questioning process. However, you can still apply this right by simply not answering their questions. The police may continue to ask questions and even use interrogation tactics to elicit answers.

However, police officers are legally obligated to avoid tricks or false statements that deprive the subject of their ability to decide whether they wish to speak to the police. Regardless of your relationship with the interrogators or other officers involved, a suspect is well-advised to exercise their right to remain silent without explicit guidance from your defence counsel. Remember, unlike in the United States, you do not have a right to have a lawyer with you during the interrogation process.

The Benefit of Exercising Your Right to Remain Silent?

Any statement found to have been voluntarily made to a police officer is admissible against the recipient at their trial.  Such evidence can be used to prove the offence charged and also to attack the individual’s credibility.  Should the individual testify at trial to something different than what was said to the police in the initial statement, the prosecution can use the prior statement to impeach the accused. Choosing to exercise the right to remain silent ensures that there is no prior statement that the prosecution could use against you at trial.

Innocent Until Proven Guilty

People often believe that providing the police with information will help their case. They feel they need to say something at the first opportunity, or else the Court will find that they must not be innocent. Your silence signifies neither guilt nor non-compliance with any proceeding. Remember, section 11(d) of the Charter states that everyone is presumed innocent until proven guilty. This presumption remains at trial, and a judge cannot infer guilt simply because an individual has exercised their right to remain silent.

The Right to Receive Counsel

You also have the right to seek counsel with a lawyer of your choice: section 10(b) of the Charter. You can request free legal guidance from the Duty Counsel if you can’t access a lawyer. Although interrogators may not allow you to have counsel present during questioning, you can apply this right before interrogation begins.  In that way, you can get guidance from a lawyer to determine whether answering police questions is in your benefit.

The right applies at trial, too.

Invoking your right to remain silent at the interrogation stage prevents you from providing evidence that officers could use against you throughout the case. But as already stated, the right also applies at trial, too. You do not have to testify at your trial. You may wish to do so – but you are not required. Should you testify at your trial, you must answer each question the prosecution asks during cross-examination unless the judge determines otherwise. You must also provide an accurate and truthful response to each question.

If Agents Violate Your Rights

In some cases, the officers involved in your case may violate your right to remain silent. Some examples of violations include:

• Certain conduct from undercover officers
• Officers using deceit or tricks during interrogation
• Denial of counsel at inappropriate times

When this occurs, the courts should carefully examine your interactions with the officers. In such cases, a lawyer can also assist your case by identifying potentially incorrect conduct and applying to exclude the statement from consideration at your trial.

Exercise Your Rights With Legal Counsel From Brian Ross, Criminal Defence Lawyer

The right to remain silent in Canada is one of your most important rights. Should you have questions about the right to remain silent, please contact Brian Ross, criminal defence lawyer in Toronto at (416) 658-5855 for legal advice.