What it is: The ‘right to silence’ is a right granted by section 7 of the Canadian Charter of Rights and Freedoms to detained and arrested individuals. Enshrined is the fundamental right to make a free and voluntary choice as to whether or not to speak to the authorities. This means that in the face of police questioning, the decision to answer remains in the hands of the detainee.[1] Further, the decision to exercise this right and remain silent cannot be used against an accused by the prosecution in any legal proceeding.

What it isn’t: The right to silence is NOT a right to be free from questioning. Police officers are not required to stop an interrogation simply because a detainee has expressed their desire to remain silent. It is important for a detainee in these circumstances who wishes to exercise their right to silence to remain polite, but resolute under these stressful conditions.

Why it’s usually a good idea to exercise this right: It’s in our nature to want to explain and tell our side of the story. The police know this and are happy to exploit this fact. Their job is to elicit a confession, or short of that, useful admissions to be used against you at trial. They are trained interrogators who have done this hundreds of times before. Needless to say, they’re very good at it. Everything you say can and will be used against you in legal proceedings down the line and it is quite rare that someone will successfully talk their way into having the charges dropped or into being released.

Yes, even if you’re innocent: A common reaction of many people is to assume that since they have nothing to hide there is nothing to fear. They want to help the police in any way they can and believe that the truth shall prevail. Whose truth though? Let’s take an example (one among many) in which this goes wrong. Let’s say a crime is committed on a Tuesday. In the course of being interrogated, Mr. X states that he was out of town at the cottage during the week of the crime. Ms. W, an honest but mistaken ‘witness’ tells the police that she remembers seeing Mr. X at the grocery store in town on the Tuesday in question. This witness in isolation is useless to the prosecution. It’s not a crime, nor even unusual to be grocery shopping and present in the town in which one lives. Normally, all else being equal, this ‘witness’ would never be called. However, because of the statement Mr. X made to the police, Ms. W will give testimony which directly contradicts that of Mr. X. Given that Ms. W is unconnected to the crime and would seem to have no motive to lie, the natural inclination of any jury will be to disbelieve Mr. X and find him to be untrustworthy. That innocent statement by that innocent man just significantly increased the odds that he will be found guilty.

Consult Counsel: If you have been detained it is highly recommended that you exercise your right to speak with your counsel of choice. A lawyer will be able to advise you on the proper course of action in the particular circumstances that you find yourself in. Generally speaking it is a poor choice to waive your right to silence without having sought legal advice.

[1] With certain limited exceptions where an individual is statutorily compelled to speak. Provincial motor vehicle laws, for example, will often include sections compelling an individual to provide certain information in a designated circumstance.

Disclaimer: The above information should not be construed as legal advice and no client relationship is formed through its reading. Should you require legal advice on the above topic or any other please contact Robert Wulkan to request a consultation.

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