Generally you do not have to talk to the police. This applies to both those being investigated and witnesses. If the police ask you to give a statement or answer questions, you may refuse. You have the legal right to remain silent.
Your right not to speak to the police when questioned is part of your fundamental right to be free from self-incrimination; that is, to not provide the police with evidence that may be used against you.
You have a duty to identify yourself by giving them your name, however, and in some circumstances, your birth date and address.
If you refuse to identify yourself to the police, they can hold you in custody for the purposes of determining who you are.
The scenario is common. The police might think that you know about an incident.
The police may or may not be seeking to charge you. Or suppose you have already been charged, or are at the police station and about to be charged. You might think that you can avoid being charged by telling your story, or “talking your way out of it”.
Remember: the role of the police in investigating crime is to charge people whom they have reasonable grounds to believe have committed a criminal offence.
To lay a charge, a police officer must have grounds to believe they are justified in doing so. In most circumstances, if they have grounds, they will lay the charge. Thus, when a police officer asks for a statement from someone who has not been charged, it usually means they do not have grounds to lay the charge.
Any statement may just provide those grounds.
The police must tell you of your right to remain silent.
The reason for the right to silence is to give you the opportunity to speak to a lawyer and then make a free and meaningful choice about whether to speak.
After speaking with the lawyer, the police can continue to ask you anything they want without the presence of a lawyer.
The general rule of thumb is to refrain from speaking with the police. The three situations below underscore your right to remain silent.
Walking down the street
Suppose you are walking down the street and a police officer says he wants to speak with you. Most people who encounter this situation will stop and speak to the police officer until it becomes clear that the conversion is over.
Most people believe that when a police officer asks to speak with you that you have no choice but to comply. In fact, the Canadian Charter of Rights and Freedoms (Charter) gives everyone many protections in these circumstances.
You might well not know if the police have reasonable grounds to force you to remain.
The situation might be ambiguous. What should you do? Just tell the police officer that you do not wish to speak to him and ask “Am I free to leave?” If the police officer tells you that you are free to leave, you can simply walk away.
If the police officer tells you that you are not free to leave you are now detained and have to remain until they allow you to leave.
When you are detained, section 10(a) of the Charter requires the police to tell you why.
Under section 10(b) of the Charter, they must let you speak to a lawyer in private as soon possible. You should always take the opportunity to speak with a lawyer first before speaking with the police.
When you are detained, you do not have to say anything to the police. You do not have to answer any of their questions.
The police may make you feel like you have to answer their questions. But the law allows you to remain silent.
While generally not recommended, you might choose to speak to the police. If you do, anything you say must be the truth to avoid being charged criminally.
Section 9 of the Charter protects individuals from arbitrary detentions.
A “detention” occurs when the police through words, or actions, force you to stop and remain with them.
“Detained” means that the police have taken control of your movements, either by physically restraining you or by commanding you to stay put. An obvious example of a detention is an arrest; the police by force ensure that you remain in their custody.
Or the police could simply say “stop” or “don’t move” or block your path and a detention would occur. Simply put, a detention occurs when the police’s actions cause you to reasonably believe that you are not free to walk away.
The police are only permitted to detain you when they have reasonable grounds to believe, or suspect, that you are engaged in criminal activity.
If the police do not have the required grounds, then the detention is illegal and any evidence they obtain can be excluded at trial if one occurs.
Driving your car
Suppose you are driving your car and a police officer pulls you over. Just like when you’re walking down the street, your Charter rights apply to you and also to anyone else in your car. But you should know a few things to ensure that you are can exercise your rights in the car if you need to.
First, the law recognizes that there are a few issues that the police should legally be able to investigate in almost all driving situations.
These issues include:
- whether the driver is licensed to drive
- whether the motor vehicle is properly insured and registered
- whether the vehicle is in good working order.
Driving is considered a privilege, not a right.
The power for a stop of this kind comes from the Highway Traffic Act.
But this power does not allow the police to pretend to stop a car for a legitimate investigation of a Highway Traffic Act offence.
If the real reason the police have stopped your car is because they don’t like the way you look or are just curious to stop you and see what you are doing, they will be breaching your right not to be detained, or arrested, arbitrarily, under s. 9 of the Charter.
Similarly, the police power to stop your car to investigate your licence, insurance, registration, or the safety of your car does not permit a comprehensive search of your car or an investigation into who your passengers are.
Since they are not driving the car, they do not have to identify themselves to the police, unless the police have some other reasonable suspicion or belief that they are involved in a criminal offence.
Searches that go beyond the purposes of a Highway Traffic Act investigation will breach your right not to be unreasonably searched, protected by s. 8 of the Charter, unless the police can show that they otherwise had reasonable grounds or authority to search you.
The police may request or order that you allow them to search your vehicle over the course of a vehicle stop. You do not have to allow the police to do this. You would be wise to insist on calling a lawyer immediately, before you make any decision or give any permission.
If the police have grounds to believe you have committed a criminal offence, or if they observe you committing a Highway Traffic Act offence, they may stop your vehicle and conduct further investigations of you, and in some cases, your passengers.
If you are stopped by the police, insist on your right to speak to a lawyer immediately and to be told why you are being stopped. This is the best way to ensure that your rights are protected.
At the front door of your home
Suppose you are at home and a police officer knocks on your door. The police or other law enforcement authorities can only lawfully enter your home under certain circumstances, such as when they have an arrest warrant or a search warrant, or you’ve invited them in. Otherwise they are the same as any trespasser.
A police officer, like anyone, has your implied consent to walk onto your property to talk to you at your front door.
If the police have a legitimate reason for communicating with you, such as responding to a call or seeking information for an investigation, then there is nothing wrong with this. But the police may not conduct a “sniff” test to see whether there is any sign of criminal activity.
You do not have to answer the door when the police knock. You do not have to speak to the police at your door, and you can end any conversation with them whenever you want.
In summary, the best approach in the above situations is often to remain silent.
“Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances.”
- United States Supreme Court Justice Robert H. Jackson in Watts v. State of Indiana (1949)
This post gives information only, not legal advice.
If you have a legal problem or need legal advice, you should speak to a lawyer. For more information about your rights when dealing with the police, please feel free to contact us.
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