The Charter of Rights and Freedoms grants Canadians specific legal rights designed in large part to protect them against unjustified government overreach. Section 10(b) of the Charter guarantees the right, upon arrest or detention, to retain and consult with a lawyer without delay and to be informed of this right. Section 7 of the Charter inherently provides Canadians with the right to remain silent in the face of police questioning.
Thus, if you ever wonder whether you should talk to the police without a lawyer, the answer is usually a definitive “no.”
That said, the Greater Toronto Area criminal defence lawyers at Mass Tsang note that this advice should be applied in the context of any police investigation that may involve you as a potential suspect. Otherwise, should the police greet you on the street or interact with you in casual passing, feel free to respond and perhaps even thank them for their service. As often maligned public servants, our police officers have a rather thankless yet critical job and deserve our respect, courtesy, and support.
On the other hand, if the police detain, arrest or start questioning you in relation to any apparent criminal offence, politely invoke your right to legal counsel and then exercise your right to remain silent. Let’s further examine the issue of why you should not talk to the police without a lawyer.
| Charter Right | What It Means |
|---|---|
| Right to counsel (s.10(b)) | You can speak to a lawyer without delay |
| Right to remain silent (s.7) | You do not have to answer investigative questions |
| Protection against unreasonable search | Police powers are limited by law |
| Right to know why you are detained | Police must explain detention or arrest |
| Situation | Recommended Response |
|---|---|
| Police ask investigative questions | Politely remain silent |
| Police ask for ID during lawful stop | Provide required identification |
| Police ask if you want a lawyer | Say yes immediately |
| Police try casual conversation about offence | Do not discuss details |
| Police ask for explanations or alibi | Speak to lawyer first |
Many criminal suspects believe that explaining their side of the issue may help resolve their situation or that cooperation may lead to leniency. Given that police and prosecutors are far more interested in investigating the case to steer it towards a conviction than in helping you, openly talking and answering their questions may compromise your position.
Consider that if the police have enough evidence, they’re going to charge you no matter what you might say. If they lack sufficient evidence, your statements could supply them with missing information they need to solidify their evidence.
Thus, invoke your right to remain silent and consult with your lawyer, who can assess the case and best advise you on whether and when cooperating with the police may be strategically beneficial for your position.
Knowing that “anything you say can and will be used against you” in legal proceedings should provide enough impetus for anyone facing police questioning to keep their mouth shut. However, innocent people under stress frequently start talking, providing police with apparently harmless details that may be misinterpreted, create inconsistencies with other evidence, or give them new investigative leads. Additionally, those who lie to the police or exaggerate details may face additional charges. Last, anything said may also strengthen the prosecution’s case by giving them a preview of the defendant’s possible defence and openings to cross-examine discrepancies at trial.
If you’re going to engage with police in conversation about a crime, know that you are not on equal footing. They might make it look like a casual conversation to “clear things up” or absolve you of responsibility, but it is likely a structured interrogation designed to build a case against you. Police are legally allowed to lie to you about the evidence they have, minimize the seriousness of the offence, and use psychological tactics to elicit as much information out of you as possible. In short, it’s a no-win situation!
Section 10(b) of the Charter gives you the right to retain and consult with legal counsel “without delay,” and to be informed of this right. However, the Supreme Court of Canada in R. v. Sinclair SCC 35 [2010] 2SCR 310 determined that there is no right to have a lawyer present in the room during questioning or to re-consult with them repeatedly during the interrogation.
When you first consult with your lawyer, and you should do so immediately when police provide you the opportunity, they will almost certainly tell you to remain silent. Take this advice and only speak to the police and prosecutors when cleared by your lawyer, who can best ensure that what you might say will not incriminate yourself.
Section 7 of the Charter and legal precedents provide you with the inherent right to remain silent as a principle of fundamental justice. The police do not have to advise you of this right before questioning you. However, they do have to provide you with timely notice that you have the right to speak to counsel without delay. If the police start questioning you, invoke your right to consult with a lawyer, and refuse to say anything beyond expressing your right to counsel until they’ve fulfilled this legal obligation to you. Once you’ve spoken to your lawyer, you’ll inevitably end up subsequently telling the police that you refuse to answer any questions based on the advice of your attorney and your Section 7 Charter Rights.
If you’ve been charged with a criminal offence in the Greater Toronto Area, or are otherwise facing police questioning due to your suspected involvement, maintain your right to remain silent and contact the expert criminal defence lawyers at Mass Tsang. With two-plus decades of securing positive outcomes for thousands of GTA clients, contact us for a free consultation.
A: While Section 7 of the Charter gives us the inherent right to remain silent in the face of police interactions, the Criminal Code, Canadian laws include some narrow exceptions under which you must provide them with basic identifying information: These exceptions include:
A: No. There is no constitutional right to have a lawyer present during police questioning. The police are required to pause questioning until you’ve had the opportunity to speak to a lawyer, but can resume questioning once you’ve done so. Of course, you can then invoke your Charter 7 right to remain silent, which your lawyer will likely advise you to do.
A: While a solid alibi should be disclosed in a timely fashion to help ensure its credibility, it is always best to discuss the alibi with your lawyer first. Disclosing it during an initial interrogation without your lawyer’s consideration can cause complications. The police might twist or misstate your initial alibi description, or it might lead to follow-up questions that create inconsistencies that could weaken the alibi. In short, it’s best to allow your lawyer to assess the alibi and decide the best timing and manner of disclosing it to the police and prosecutors.
A: In general, your silence during police questioning cannot be used as evidence against you in court or to draw an adverse inference of guilt. However, if you introduce a late disclosure of an alibi designed to absolve you of the offence, the court can use silence during police questioning as an adverse inference against the alibi’s credibility or weight. A skilled criminal defence lawyer, such as those at Mass Tsang, can ensure that you provide timely and adequate notice to the Crown that you have an alibi.
