Television has taught many of us that a suspect says “I want my lawyer,” the lawyer rushes in, and the questioning stops. That is American drama. In Canada, a detained person has real and powerful rights, but they work differently. You can decline to answer every question, and the officer may still keep asking. You can speak with a lawyer, but you normally do not get to have one sitting next to you during the interview.
Knowing this in advance can make a large difference, since the most damaging moment in a case is often not at trial. It is the conversation in a Peel Regional Police interview room, or at the side of the road, in the first hour after your world has been turned upside down.
This is general information, not legal advice for any specific situation. If police want to talk to you, speak to a lawyer about your own circumstances before you speak to them.
Are You Actually Detained?
Your rights turn in part on whether you are detained or arrested. Detention can be physical, such as handcuffs or being placed in a cruiser. It can also be psychological: if an officer’s commands or the surrounding circumstances would lead a reasonable person to believe they had no choice but to stay and answer, that person may be detained, even if no one has said so. The Supreme Court of Canada set out this analysis in R. v. Grant.
If you are not sure, a simple question helps: “Am I free to go?” If the answer is yes, you may leave. If the answer is no, ask why, and tell the officer you want to speak with a lawyer. A polite and calm tone serves you well, because arguing on the street rarely improves anything.
Remember that police do not need to detain you to ask questions. They can simply approach and chat. A friendly conversation can still end up in an officer’s notebook.
Sections 7, 10(a) and 10(b) in Plain Terms
Three parts of the Charter work together here.
Section 10(a) gives you the right to be told promptly why you are being arrested or detained. You should be told enough to understand your jeopardy, and that allows you to decide whether and how to get advice.
Section 10(b) gives you the right to retain and instruct a lawyer without delay, and to be told about that right. In R. v. Suberu, the Supreme Court held that “without delay” means immediately, subject to concerns about officer or public safety and to limits prescribed by law. Police must also tell you about free legal advice, give you a reasonable opportunity to call, and hold off on trying to get evidence from you until you have had that chance, unless urgency or safety requires otherwise, or you have clearly waived that right.
Section 7 protects the right to silence. In general, you cannot be forced to give police a statement, and the prosecution generally cannot use your choice to stay silent as evidence that you are guilty.
How to Reach a Lawyer When You Are in Custody
Tell the officer clearly: “I want to speak to a lawyer.” You can name a lawyer or ask to speak to one you have found through a directory or through family. If you do not have one, or you cannot afford one, you can ask for duty counsel. Legal Aid Ontario’s Brydges duty counsel service gives free, confidential legal advice by phone to people who are detained or arrested, regardless of income. The police will connect you, and the service is available around the clock.
Some practical points:
- Ask for privacy. Your call with a lawyer is confidential and should not be overheard.
- Ask for an interpreter if you need one. Many Brampton families speak another language at home. If English is not your strongest language, say so right away, because a right you do not understand is hard to exercise. Tell the lawyer as well.
- You may have to wait a reasonable time. If your chosen lawyer is not available, the police are generally expected to give you a reasonable chance before moving on. If you decide not to wait, you may be asked to confirm this.
- Do not waive the right casually. If an officer asks, “Do you really need a lawyer for this?” the answer can simply be yes.
What a Canadian Interview Really Looks Like
Once you have spoken to a lawyer, the police may begin an interview. Most are video recorded. Two Supreme Court decisions shape what happens next, and they surprise many people.
In R. v. Singh, the Court held that a detainee has a right to silence, but police are not required to stop questioning simply because the person says they do not want to talk. Officers may continue to try to persuade someone to speak, as long as they do not cross the line into denying the person a meaningful choice.
In R. v. Sinclair, the Court held that section 10(b) does not generally give you the right to have a lawyer present during the interview. Normally, one consultation is what the Charter requires. A further consultation may be required if circumstances change in an important way, for example if the jeopardy changes because more serious charges are on the table, a new procedure such as a lineup is proposed, or there is reason to think you did not understand the first advice.
That means your silence often has to be repeated. An interview can go on for a long time. The officer may be kind, sympathetic or friendly. They may show you photographs or a stack of files, tell you that a co-accused has talked, suggest that your side of the story will never be heard if you stay quiet, or say that a judge will look favourably on your honesty. Some of that may be true and some may not. Police are allowed some latitude in how they question people, although threats, promises and oppressive conduct can make a statement inadmissible under the confessions rule from R. v. Oickle.
A short, respectful phrase is enough, and you can repeat it as often as necessary:
“On the advice of my lawyer, I do not wish to make a statement.”
Do not feel you need to be clever. Answering small questions while refusing big ones tends to go badly, as people find it hard to stop once they have started talking. Staying quiet is not rude, and it is not an admission.
Situations Where You Do Have to Say Something
The right to silence is not a right to ignore every legal requirement.
Driving. A driver stopped in Ontario must produce a licence, ownership and insurance on request under the Highway Traffic Act. Passengers are generally in a different position, though they may have to identify themselves in some situations. If you are lawfully stopped by police on Highway 410 or anywhere else, it is usually wise to provide these documents and say little else.
Impaired driving investigations. A roadside breath demand or a demand at the station has serious consequences. An officer who has an approved screening device can demand a sample from a driver in the course of a lawful exercise of powers, even with no suspicion. Refusing or failing to comply without a reasonable excuse is its own criminal offence. Your right to counsel may be limited during a roadside test, and you should be advised when it arises. Our page on impaired driving deals with some of this.
Identifying yourself on arrest. In many cases, refusing to give your name can make release less likely, and giving a false name is a separate offence called obstruction. Giving your true name and basic identification is usually appropriate, and it does not require you to discuss the allegation.
Being honest about what you will not do. You should never lie to police. Deliberately misleading an officer can lead to a charge, and a lie can later be used against you. The safe choice is silence, not a false story.
When the Police Call You
Many interviews begin with a voicemail: “We would just like to get your side of it.” This might come from an investigator with Peel Regional Police, about a complaint from a coworker, spouse or customer. You are often not detained at this point, so section 10(b) has not been triggered, and you are not generally required to attend. If there is an arrest warrant, avoiding the police will not make it go away, and a lawyer can often help arrange a controlled surrender and plan for release.
Before you return the call, speak to a lawyer. Your lawyer can contact the officer, find out your status as a witness or suspect, and advise you on whether any statement makes sense. If you are a witness, the considerations may be different. Do not assume that “witness” is a safe label, because a person can move from one category to the other during the conversation.
Common Mistakes
Some mistakes come up time and time again.
- Trying to explain your way out. Officers are not the people who decide your guilt, and an explanation that sounds harmless to you may supply the missing piece of the Crown’s case.
- Talking in the back of the cruiser or the cells. Cruisers and booking areas are often recorded. So are jail phones, and cellmates can be witnesses.
- Texting friends right after release. Those texts can be seized and read later. Save your account for your lawyer.
- Agreeing to a search to seem cooperative. You may have the right to refuse consent. Ask whether you are required to agree, and say clearly if you do not consent.
- Thinking silence is a sign of guilt. Judges and juries are told that accused people have this right. Staying silent is a recognized choice, and using it is not a reason for anyone to conclude you did something wrong.
Young People
If the person being questioned is under 18, the Youth Criminal Justice Act adds protections. The officer has to explain the rights in age-appropriate language, and the young person must have a chance to consult both a lawyer and a parent or another appropriate adult. Any statement must generally be made in their presence, unless the young person chooses otherwise. Parents should insist on calm and on a call to a lawyer before anything is said.
If Your Rights Were Not Respected
Write down everything you remember, as soon as you can, for your lawyer only. Include the times, the officers’ names or badge numbers, the words used to give you your rights, whether you asked for a lawyer, and how long you waited.
Your lawyer can compare this with officers’ notes and video in the disclosure. If a breach of the Charter is shown, a judge may exclude a statement or other evidence under section 24(2), after considering the seriousness of the breach, its effect on you, and society’s interest in a trial on the merits. Exclusion is never automatic, but these arguments can be important.
If you, a family member or an employee has been contacted by police, a criminal lawyer can talk through what to do next, and you can reach our office to arrange that. Keep the basic message in mind: be polite, identify yourself as required, ask for a lawyer, and then let silence do its work.