After Arrest – Silence is Golden
If you have been charged with a criminal offence, it is generally not a good idea to give up the right to silence until or unless you have retained legal counsel. Generally, you will not talk your way out of being charged or released on bail. The decision to charge you or not is based on the evidence that the police gather. The easiest way for the police to collect evidence against you is to get you to talk to them. If the police want to talk to you, they probably are looking for a confession or for you to implicate yourself. You don’t have to talk to the police. You do not have to give in to their pressure to provide information once you have been charged with a criminal offence. This is referred to in Canadian criminal law as the right to silence. It is a principle of fundamental justice guaranteed by Section 7 of the Charter of Rights and Freedoms.
The purpose is to allow a person to make meaningful choices about whether to speak or remain silent. Anything that you say may find its way before the Courts as evidence against you. But don’t think that you will be able to have a Court consider your explanation to the police by making a statement. The rules of evidence are such that statements favourable to the accused in a criminal trial rarely get before the Court, but incriminating or vague or ambiguous statements are often used against you in Court. Being arrested or questioned by the police is a stressful situation and out of your fear and confusion you may misstate things. It is best to rely on your right to keep silent until you’ve met with your criminal lawyer and obtained the best legal advice you can find.
In Canadian law your silence cannot be used to prejudice you. No presumptions or negative connotations can be made against a defendant because he or she remained silent. The Canadian Charter of Rights and Freedoms states that every Canadian has the right to remain silent until they obtain legal representation. This means when you are arrested under the suspicion of having committed a crime, you are under no legal obligation to answer questions by the police. That doesn’t mean that you won’t be pressured by the police to provide information.Nor does it mean that the police will stop asking questions or making insinuations, once you tell the police that you do not wish to speak without your lawyer, But the right to silence is yours! Questioning of persons in Canada before or after arrest is permitted. Statements from accused persons form an important part of any police investigation and therefore persons being investigated for or charged with a criminal offence in Canada are best advised to remain silent. You may feel that a statement may help you or be in your interests but it usually is not.
This legal right is intended to prevent confessions obtained by law enforcement through threats, violence or torture from being admitted as evidence in a Court of law.
Police are allowed to use all sorts of techniques, including tricks, during the investigation to encourage a person to talk about the circumstances of an alleged criminal offence. Therefore accused persons must be strong in responding to continued questioning by repeatedly saying they want to exercise their right to silence. The Courts in Canada have said that the obligation is on the person being questioned by the police not to say anything – not for the police to stop asking questions. It’s sometimes very difficult to be silent because the natural desire is to respond to questions about wrongdoing. Speaking to police during the investigation of an alleged offence, at the very least, gives the prosecution advance notice of your defence and more importantly, can provide evidence that will be used against you in your criminal trial. What you must remember is that from the first moment the police talk to you, they will be looking for evidence to use against you to present to the Court at trial. Anything you say to the police can end up being used against you in Court. Many times silence is golden!