Right to Silence
The right to silence is the constitutional protection against being compelled to give evidence against oneself in a criminal investigation or prosecution. The right is rooted in section 7 of the Charter (fundamental justice) and section 11(c) (which protects against being compelled as a witness in proceedings against oneself). It operates throughout the criminal process — from initial police contact through to trial — and is one of the most important protections available to an accused.
Pre-trial right to silence
Before charges are laid and during police interviews, an accused or suspect has the right to remain silent. Police can ask questions, but the person is not obliged to answer. The Supreme Court in R v Hebert, 1990 confirmed the constitutional foundation of the pre-trial right. Police are not entitled to use trickery or undercover techniques to elicit statements from a person who has elected to remain silent. Statements obtained in violation of the right can be excluded under section 24(2).
Police interviews and the choice to speak
Police are not required to stop questioning a person who exercises the right to silence. They can continue to ask questions, present evidence, and seek to persuade the person to talk. The person remains entitled to silence at every point. What police cannot do is use coercion, threats, or improper inducements — these go to voluntariness and can render any statement inadmissible under the confessions rule. The constant theme: police can keep asking; the person can keep declining.
Right to silence at trial
At trial, section 11(c) of the Charter protects the accused from being compelled to testify. The accused has the right to silence and the right not to incriminate themselves. If the accused does testify, they become a witness like any other and are subject to cross-examination — but the choice to testify is theirs alone. Failure to testify cannot be commented on by the Crown or treated as evidence of guilt by the trier of fact.
Special situations
Some statutory schemes compel statements in narrow regulatory contexts (tax disclosures, accident-reporting under highway traffic legislation). Section 7 derivative-use immunity often protects against use of those compelled statements in criminal proceedings. Sexual assault cases involve additional complexity — the accused's silence after the alleged events, for example, cannot generally support an inference of guilt.
Practical advice
If you are arrested or interviewed, the right response is almost always to invoke the right to silence and consult counsel. Even well-intentioned statements can be devastating in court. Mass Tsang's criminal lawyers advise newly arrested clients within hours of arrest, often before any interview begins. For more, see our blog posts on the rights of the charged or arrested.
Related glossary terms
