The Right to Remain Silent

Many people believe that only a certain kind of person get accused of a crime or a certain type of person ever finds themselves on the wrong side of the law. This is absolutely untrue. It can happen to anyone at any time and is a serious matter that can have lasting negative impacts on your reputation and life. It is of utmost importance that you are aware of at least your basic rights in order to deal with a situation where you are either under investigation, detention or arrest.

Law enforcement is tasked with finding and holding individuals responsible for any type of infraction they may have committed against the law. They are highly trained and skilled in areas such as investigation and interrogation. The police possess a skill set which is designed to break a person down during the interrogation process through persistent questioning, manipulation, guile, cunning, lies and proven interview techniques including the controversial “Reid” technique. Many people have unwittingly implicated themselves through these processes. While most individuals who are accused of a crime will be nervous and scared, for the police it is the opposite. They are in control from beginning to end and will use their skills and tactics to prove their case against you.

The right to remain silent is one of the easiest and most important Canadian legal rights that you should remember and practise if ever the need should arise. This legal right is located in Section 7 of the Charter of Rights and Freedoms. It is something we have heard constantly; from movies to real life, but yet take for granted. Regardless of your plea, whether you are innocent or guilty, YOU SHOULD REMAIN SILENT. Anything you say before you are arrested or after you are arrested, for example, on the street, in the back of a police car, during a videotaped interview at the police station or even in an unsigned statement can all be used against you in a court of law.

For example, many innocent people feel that they are helping themselves by talking to the police and giving their side of their story after they have been placed under arrest. Experience and statistics have proven that providing a statement to the police is to the detriment of even an innocently charged person. Even when you are factually innocent and telling the truth, it is almost impossible to relate the same version of events in precisely the same way a year or two later when you are on the witness stand at your trial. The prosecutor will then aggressively cross examine you regarding these inconsistencies and show that you are not a credible or reliable witness and argue that you should not be believed under oath.

When the police place you under arrest for an alleged crime, they have already made up their mind about laying a criminal charge and nothing you say to them will help you change their minds or assist you in your defence. In fact, an accused is not even allowed to use the fact that he or she immediately protested their innocence and told their version of events to the police as this is a considered to be a self-serving statement under our Canadian criminal evidence rules. However, the prosecutor can and will use the inevitable inconsistencies between the person’s statement to the police and what they eventually say in court at their trial. I have personally witnessed this play out time and time again during my career in the criminal courts all over Ontario even when the person arrested received proper legal advice to remain silent before their police interrogation. Unfortunately, in my experience many people under detention or arrest seems to feel compelled to speak to the police as they want to appear co-operative or try to help their case. It is hard to convince them that they are in fact hurting their case by talking to the police and some lay people will actually argue the point when they are speaking to an experienced criminal lawyer when they are giving them this advice.

Listed below are a few common reasons people have attempted to defend themselves against accusations from the police without legal counsel.

• Although you are allowed to receive legal advice after you have been arrested and prior to any questioning by the police, some people believe that they can try to talk their way around and out of trouble with the police. This may very rarely work for a minor traffic ticket (even in this situation, my advice would be to remain silent), but when faced with more serious criminal accusations, it is one of the worst things you can do when you are under detention or have been arrested by the police.
• Some strongly believe in their innocence and try to convince the police of the same, but even that can damage your case and credibility. As but one of dozens of examples of why an innocent or guilty person should remain silent, just think for a moment about the emotional or psychological condition of any person who is placed under arrest. How can they possibly even be thinking clearly and coherently relate a consistent version of the events to the police? Some accused may choose to lie in a misguided attempt to help their case. In fact, lying can potentially serve to strengthen a weak case and also open you to additional charges such as public mischief or misleading the police. Lying to a police officer during an investigation is a criminal offence.
• Individuals sometimes believe that if they choose not to co-operate with law enforcement during questioning, the charges against them can be inflated or made worse. This is a common misconception that actually works in reverse. Providing the police with any information can in fact lead to more severe charges. The police do not lay more charges because you did not co-operate with them. Seasoned criminals understand this and exercise their right to remain silent. The innocent person or naïve first time criminal offender makes the serious mistake of co-operating with the police time and time again.
• Sometimes, when dealing with aggressive law enforcement, people are intimidated and scared into cooperating. Being afraid of physical violence from police officers when you are in custody is understandable, but not a reason to ignore your rights. Section 12 of the Charter of Rights and Freedoms states that no one should be treated in a cruel or unusual manner. Do your part and be as polite, respectful and non-confrontational as you can to appease the situation if you feel it is volatile in any way, and ask to make a phone call to your lawyer. When you are placed under arrest in Canada you have a right to immediately call a lawyer for free legal advice under s.10 (b) of the Charter of Rights and Freedoms.

Exercising your right to remain silent does not mean you should be smug, flippant, arrogant, or antagonizing in any manner. The police are attempting to do their job, and being disrespectful will only work against your case. Ontarians are given free access to lawyers through legal aid if you cannot afford a lawyer. If you are placed under arrest, you should immediately ask the police to either call your own lawyer or ask them to call the toll-free number to reach a “duty counsel” lawyer for free legal advice at any hour of the day. This is your right and it is important that you call ask to call a lawyer when you are placed under arrest.

If you are arrested or being questioned and detained by the police in connection with a crime, it is wise to be respectful and calm. Being hysterical and aggressive can exacerbate an already tense situation. Alternatively, it is very important to know that even if you do decide to evade arrest (not a very wise choice I might add), the police are required to only use reasonable forceto arrest you. Police are required to use just enough force to restrain and arrest you and are not allowed to hospitalize you out of frustration, anger or to punish you.

Here at Kruse Law, we work on the full gamut of criminal cases and our extensive experience can help you through the entire process. Please help yourself by firstly REMAINING SILENT and secondly calling any one of our local Ontario office numbers or toll-free for no-cost initial consultation.