What are my rights during a police interrogation?
By Vince Semenuk
Few things are more stressful than a police interrogation. Your liberty and freedom could be at stake depending on how you conduct yourself.
That is why you must understand your rights, as granted by the Canadian Charter of Rights and Freedoms, before getting into that situation.
The right to legal counsel
Section 10 of the Charter states that “Everyone has the right on arrest or detention … to retain and instruct counsel without delay and to be informed of that right.”
As the Supreme Court of Canada stated in a seminal case in 2010, the purpose of the right to counsel is “to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights … the emphasis, therefore, is on assuring that the detainee’s decision to cooperate with the investigation or decline to do so is free and informed.”
The judgment adds that “Section 10(b) does not guarantee that the detainee’s decision is wise; nor does it guard against subjective factors that may influence the decision. Its purpose is simply to give detainees the opportunity to access legal advice relevant to that choice.”
The important thing to understand is that police cannot start an interrogation until you have been informed of your right to speak to legal counsel and given an opportunity to do so. It is crucial that you remain silent while waiting to speak to your lawyer. If police want to start the questions, remain respectful and decline to answer until you are given legal counsel.
Your lawyer will not be there
While Canadians have a right to speak to a lawyer before the interrogation, legal counsel will not be at your side during the questioning itself. The only exception is if the person is a minor.
This can lead to anxiety, as police interrogations can be stressful since they can last for hours as investigators use a variety of techniques to obtain information.
The best advice I can give clients is to remain silent. You do not have to answer the questions you are asked, other than to confirm your name and address.
Speaking with a lawyer before the interrogation is vital in understanding your rights, receiving guidance and making informed decisions to protect your interests during questioning.
The right to remain silent
Section 7 of the Charter grants you the right to remain silent when police question you. It states that “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.”
That means you do not need to answer questions during the interrogation. That is because people are presumed innocent until proven guilty. The entire burden of proving beyond a reasonable doubt that you are guilty lies with the Crown. You are not required to assist with their efforts in any way.
Say nothing to the police during the interrogation is the best advice I can give my clients. They will not charge you unless they feel they have sufficient evidence. However, if you answer their questions in an attempt to clear your name, you may inadvertently provide evidence that they can use against you in court.
Refusing to talk to the police does not imply that you are guilty. On the contrary, it shows that you are aware of your legal rights.
If you choose to speak to investigators, tell the truth. Misleading officers or providing false information could lead to obstruction of justice charges that could result in a two-year jail sentence.
And keep in mind you cannot speak to officers “off the record.” Anything you say can be used against you, including off-handed comments, phone messages, written statements or any audio or video tape recordings they have.
Common interrogation tactics
Even if you tell investigators that you do not wish to talk to them, there are various tactics they can use to get the dialogue going. They include:
- Asking leading questions, which contain information the examiner is looking to have confirmed. For example, they might ask, “You were speeding, weren’t you?”
- Using intimidation, including shouting at you or slamming their fists on the table.
- Establishing an emotional connection with you, such as acting like your friend and saying they have your best interests at heart. Or they may seem disappointed in you in an attempt to guilt you into talking.
- Hinting that they have evidence that shows you were involved in a crime without confirming what that evidence is or if it even exists.
- Engaging in small talk to make you feel comfortable, with lines such as, “This is your opportunity to tell your side of the story.”
- Claiming that the Crown will prosecute you more harshly if you do not talk to them.
- Minimizing the seriousness of the crime to get you to confess.
- A good cop/bad cop scenario, where one engages in aggressive or intimidating interrogation tactics. After they leave the room the other officer acts like they are on your side and encourages you to tell them your side of the story.
Being questioned as a witness
If an officer says they want to interview you as a witness to a potential crime, it is a good idea to first seek legal advice from a criminal lawyer. People have been called into a police station to be questioned as witnesses. Then at some point during that interview, the focus shifts to them as a suspect in the crime.
Call us for assistance
The team at Dunn & Associates has decades of experience with representing people accused of criminal acts. We know what works well and what doesn’t when it comes to defending against different types of charges. Contact us for a free consultation.