The Right to Remain Silent in Canadian Law

You have likely heard about “Miranda Rights” in the United States and the right to remain silent. In Canada, we have a similar right codified under section 7 of the Canadian Charter of Rights and Freedoms, cementing the right of a person not to have to answer questions asked by the police.

What exactly does the right to remain silent in Canada cover? This blog will help shed light on the right itself, when you have the right, what to do if your legal rights are violated and more. Please note that the following information is not legal advice but only intended to be informational. If you require legal advice and need to seek counsel, do not hesitate to contact Farjoud Law today.  

What is the Right To Remain Silent in Canada?

Section 7 of the Charter of Rights and Freedoms 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.

This section includes the right to remain silent, meaning you don’t have to answer questions in interrogations or discussions with any police officers, regardless of whether you are a witness or suspected of committing a criminal offence. The right to silence is a right that you must exercise diligently. This does not mean, however, that if you choose to answer a question, you don’t have to answer it truthfully.

Lying to a police officer can lead to additional charges, including:

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

Any lies also can strengthen the prosecutor’s case if and when presented in court. So, any false statements can be used against you in several ways. That’s why criminal lawyers generally advise their clients not to speak to the police. 

When Do You Have the Right to Remain Silent?

The Supreme Court of Canada has held that if the police suspect you are implicated in a crime they are investigating, they should advise you of your right to remain silent. If you are not a suspect, the police do not have to advise you of your right before you become a suspect, but this does not mean that you have to speak to the police. 

However, there are some exceptions to this rule, such as traffic accidents, where you must provide a report. This being said, this report does not deal with situations where individuals are compelled to speak with police. For further questions, like whether you are statutorily obligated to talk to the police, you must consult a criminal lawyer.

When Should You Exercise Your Right to Remain Silent?

Exercising your right to remain silent is not an implication that you admit your guilt. It can be essential to developing a winning defence strategy because any statement or answer could be used against you and jeopardize your defence case. If anything, exercising your right shows that you are aware of your legal rights.

Police officers might pressure you or use manipulative tactics to get you to talk and provide self-incriminating statements, which can make remaining silent challenging. In most cases, a detainee can benefit from exercising their right to remain silent immediately after being detained.

You should request to speak with a lawyer of your choice in private immediately after informing the police that you want to exercise your right to remain silent. Section 10(b) of the Charter of Rights and Freedoms guarantees your right to counsel.

It is critical to remain silent while waiting for your lawyer to answer or arrive. Your right to remain silent extends beyond immediately after being arrested or taken into custody. We advise our clients to stay respectful and never be rude but to keep quiet and repeat, “You can speak to my lawyer” if you have to say anything. Never make a statement to the police without the guidance of your legal counsel. Regardless of any promises made or what they tell you, keep quiet, do not make any statements, or answer any questions.

When Your Legal Rights Are Violated 

If your right to remain silent is violated by a police officer, any evidence obtained under such circumstances could be excluded by a trial judge. This would require a pre-trial motion to allege a breach of your right under the Charter of Rights and Freedoms, and ultimately try to advance the argument that the admission of the evidence would bring the administration of justice into disrepute.

Not Required to Give Evidence

A person cannot be required to give evidence against him or herself. However, if a person does testify, they must tell the truth. Not doing so can result in a charge of perjury.

When You Are Arrested and Detained

When law enforcement arrests you, you have the right to remain silent in Canada. You can exercise this right when an officer arrests you and recites the criminal charges brought against you. Immediately after you are arrest or detained, the police must advise you of your right to retain and instruct counsel. It is crucial to exercise your right by confirming that you do wish to speak to a lawyer.

Do Police Have to Stop Questioning You?

If you exercise your right to retain and instruct counsel, then the police have to cease questioning. If police proceed with the questioning or interrogation process even if you have asserted your right to remain silent, it is crucial that you exercise your right to remain silent by not answering their questions. Be aware that they may continue to ask questions and even use interrogation tactics to get you to answer. The police are permitted to use trickery and deceit in an effort to get you to speak.

Remember that, unlike in the United States, you do not have the right to have a lawyer present during interrogation. The presence of a lawyer is entirely at the discretion of the police.

The Benefit of Exercising Your Right to Remain Silent?

Any statement you make that is found to have been made voluntarily to a police officer is admissible in court to be used against you at trial. Any such evidence can be used to prove you are guilty of the offence charged and/or attack your credibility. If you testify something different than initially stated to the police, the Crown prosecutor can use the previous statement to impeach you and possibly suggest that you are not credible. Exercising your right to remain silent ensures no previous statements could be used against you at trial.

Innocent Until Proven Guilty

Section 11(d) of the Charter of Rights and Freedoms states that everyone is presumed innocent until proven guilty. This presumption extends to trial, where the judge cannot infer guilt because an individual has exercised their right to remain silent. 

Often, people believe that providing information to the police will help their case, misled by the belief that if they don’t say anything, the Court will assume they are not innocent. Remembering that your silence implies neither guilt nor non-compliance with proceedings is critical.

The Right to Retain Counsel

As mentioned above, as per Section 10(b) of the Charter of Rights and Freedoms, you are entitled to retain and instruct the lawyer of your choice. You can request free legal guidance from the Duty Counsel if you can’t access a lawyer. While interrogators may not allow you to have a lawyer present during the interrogation, you can exercise this right before the questioning begins. This way, you can receive guidance from a criminal lawyer before the police commence their interrogation.

The Right Applies at Trial

During the interrogation stage, invoking your right to remain silent prevents you from providing any evidence that could be used against you later. This right also extends to the trial, where you also have the right not to testify. Should you wish to do so, you must accurately and truthfully answer each question the prosecution asks during cross-examination. Testifying at your own trial is a crucial decision that should be carefully considered with the assistance of a criminal lawyer.

If Police Violate Your Rights

A criminal lawyer can assist you by identifying potential issues in terms of the police advising you of your right to remain silent or your right to retain and instruct counsel as well as facilitating an opportunity for you to contact a lawyer. These issues will vary on a case by case basis and will ultimately turn on the specific facts of each case. It is crucial that you consult with a criminal lawyer prior to making any decisions in your case.