Updated: Mar 19
Sections 10(a) and (b) of the Canadian Charter of Rights and Freedoms (the "Charter"), read as follows:
10. Everyone has the right on arrest or detention (a) to be informed promptly of the reasons there-for; (b) to retain and instruct counsel without delay and to be informed of that right.
There has, of course, been extensive litigation as to whether an accused's rights under s. 10(b) have been infringed or denied. Often this litigation focuses on whether the accused, having been detained, has had access or adequate access to counsel. Often in rejecting such an application the judge will ask the rhetorical question: "When a detainee is given access to counsel, usually over the telephone, what more can a lawyer do than tell the detainee that he has a right to remain silent?"
I am going to answer that question, but first I will set the scene.
The suspect is arrested or detained in some way by the police. Under s.10(a) of the Charter the police are obliged to tell that detainee the reasons for this inconvenience. Thereafter, the police are obliged to tell the detainee that he has the right to obtain and instruct counsel without delay. There then follows generally a recitation by the police as to how the legal advice is free and covered by the Legal Services Society and that the detainee does not have to pay anything if he does not have any money, etc.
What usually follows such advice is the question: "Do you want to talk to a lawyer?" In response to this question, hopefully the detainee says words to the effect of "yes" or "absolutely" or "of course, I take great pride in my rights and freedoms under Canada's Charter and I wish to exercise all of them."
As a consequence of the above, the police are then obliged to put the detainee in contact with a lawyer. This lawyer is typically contacted through the "Brydges Line", a province-wide telephone service provided by the Legal Services Society for persons who have been arrested or detained.
The police are also obliged, if specifically requested, to put the detainee in touch with his lawyer if that lawyer is available.
What then follows is usually a short conversation, hopefully in private, between the detainee and, in ninety-nine percent of cases, a stranger on the other end of the phone line. The detainee has been told this is a lawyer and certainly hopes that is the case. Following this usually brief discussion on the phone, the detainee is then subjected to interrogation by the police. Assuming the detainee is convinced by the police to talk with them, the admissibility of any statements made by the detainee is then made the subject of a voluntariness voir dire. Alternatively, an application can be made under s. 24(2) of the Charter for exclusion of the evidence of the detainee's statements based on an infringement or denial of his rights and freedoms, such as a violation of his s. 10(b) rights.
Once again, in rejecting such an application, the judge may ask the rhetorical question: "When a detainee is given access to counsel, usually over the telephone, what more can a lawyer do than tell the detainee that he has a right to remain silent?"
The answer is found in the Supreme Court of Canada's decision in R. v. Manninen, where the court, speaking through Mr. Justice Lamer (as he then was), states:
The purpose of the right to counsel is to allow the detainee, not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights.
My comments herein are to assist you as the lawyer on the other end of the phone to advise your client not only of his rights, but also how best to exercise them. Discussing these points with a detainee will take longer than three to eight minutes, which is the average time that most detainees spend on the phone talking with a lawyer about their rights. You should inquire of the detainee if he is in an area that is private. If the answer is "yes" then you can continue. If the answer is "no" then instruct him to ask the police officer present to arrange for privacy so he can talk with you without being overheard.
Ask the detainee why he has been arrested. If he is unclear about the reason for his detention, ask him to call out to a police officer and to put that officer on the phone. If the officer agrees to talk to you, then ask the officer for the reason for the detainee's arrest. If you are talking to an officer who was involved in the arrest and is knowledgeable about the investigation, the officer may or may not give you the information you request. The police are not obliged to talk to you. They are not obliged to tell you why your client has been arrested. They are obliged to give that information to the detainee.
If the officer cannot or refuses to tell you the reason for the arrest, advise the officer that the detainee is unclear about the reason why he has been arrested. You should suggest to the police that they may wish to tell him again why he has been arrested or detained. The police, of course, are not obliged to follow any suggestions you make. If the detainee is still unclear as to why he has been detained or arrested, tell him to go and ask a police officer. Tell him that once he finds that out, he should call you back or get further legal advice. Tell him that you are not giving him any legal advice because you do not know what charge he is facing. Tell him that he has not received legal advice and therefore he should ask to talk to a lawyer again to get that advice once he has been told clearly why he is being detained.
Make notes of all of this.
If the detainee has been arrested for murder or another serious offence as opposed to a break and enter or a minor theft, that will be important to you. It will give you some ideas for which techniques the police may use to get him to talk.
Once you have resolved why he has been detained, I suggest you start by
telling your client the following:
You have the right not to speak to the police. In other words, you are not required to speak to them under any circumstances. You have the absolute right to remain silent. And my advice to you is not to speak to the police.
If the police want to interrogate you, tell them that you are exercising your right to silence. Or, you can tell them that you "will not and do not want to talk to them" or words to that effect. Be very clear in what you are saying to them: "I do not want to talk to you."
If the police want to interrogate you it is because they want to get information from you that they can use against you. Nothing you say to the police will result in your being released from custody. DO NOT TALK TO THEM.
Even if you choose to say to the police that you are not involved in what they are investigating or you say to the police something to the effect of "I don't know what you are talking about," the police may use those statements against you. My advice to you is to exercise your right to silence and not talk to them. Tell them that you do not want to talk to them and then after you have told them that, do not say another word other than to repeat, "I do not want to talk to you."
If you are brought into an interview room and told by police that everything said and done in this room is videotaped and audio recorded, and that this is a form of protection for both you and the police, that is accurate. But if you do not talk to the police, no one will see the video or hear the audio recording. Exercising your right to silence and refusing to talk to the police cannot be used as evidence against you.
When the police tell you that they are just there (a) to show you what the evidence is against you, (b) to tell you that you have the right to know the evidence against you, or (c) to tell you that they want to give you a chance to give your version of what occurred, that may not always be the full story. These interactions may be designed to get you to talk to the police. Do not. It is not to your advantage to talk to them. It is to your advantage not to talk to them. DO NOT TALK TO THE POLICE.
Police may advise you that they are just gathering all the evidence and, to be fair, they just want to give you a chance to give your version of what occurred. This does not, however, mean that it is in your best interest to talk. DO NOT TALK TO THE POLICE.
The police are there to gather whatever evidence they can, which includes any statements or information from you. DO NOT TALK TO THE POLICE.
When the police ask you at the start of the interview, "Have you talked to your lawyer?", respond by saying, "I do not want to talk to you."
If the police ask you, "Are you satisfied with the advice your lawyer gave you?", say, "I do not want to talk to you."
Do not engage with the police in general conversation of any kind. When the police ask questions like, "Where were you born?", "How many brothers and sisters do you have?", "Whom do you most look up to in your life?", "Do you drive a car?", "What kind of car do you have?", all of these statements are designed to get you talking. They do not really care about any of this.
If you are being interrogated in an interview room, you do not have to stay in that room. You are probably positioned in a chair in the far corner of the room against the wall. There are no windows. The police officer is between you and the door. After you have told police that you do not want to talk to them, tell them that you want to go back to your cell. Then get up off the chair and go to the door and leave. If the door is locked, pound on the door and ask for it to be opened. If no one opens the door, your options are as follows: (a) go back to your seat and sit down, then put your head in your arms, close your eyes and ignore anything being said or done in the room; (b) sit down in the corner of the room on the floor with your arms on your knees and your head in your arms with your eyes closed and ignore anything being said or done; or (c) lie down on the floor in the room and go to sleep or at least try to ignore anything being said or done in the room.
After a few minutes of doing one of these three things, you can go to the door again and repeat your attempts to leave the room. The videotape will show how you were trying to leave the room and the police were preventing you from doing so. This will be to your advantage later on.
The police may say to you that the evidence that they have collected so far shows that this is a cold-blooded killing or a hard-ass criminal act or whoever committed this crime is a violent psychopath or an evil monster or some other similar characterization. Police may tell you that they know that you are not any of those things, but that it is essential that you talk to them about what happened here and the reasons why all this occurred. Police may tell you that if you do not talk to them, then it looks like you are (a) a cold-blooded killer, (b) a hard-ass criminal or (c) a violent psychopath. All of this is not true. It is designed to get you to talk. You will not be considered any of those things just because you exercised your right to silence. DO NOT TALK TO THE POLICE.
If the officer says to you, "Look if you are (a) a cold-blooded killer, (b) a hard-ass criminal or (c) a violent psychopath, that is why you are not talking to us," or if the officer says, "Look, I understand that if you are (a) a cold-blooded killer, (b) a hard-ass criminal or (c) a violent psychopath, then I see why you wouldn't be talking to us," all of these are techniques designed to get you to talk to the police. DO NOT TALK TO THE POLICE
If the officer says to you, "If you don't talk to us, other investigators will consider you to be (a) a cold-blooded killer, (b) a hard-ass criminal or (c) a violent psychopath," that is not true. No one will draw those conclusions because you are presumed to be innocent under the law. No one will know that you did not talk to the police since the court will never see the video or hear the audio recording from the interview room as long as you do not talk to the police. Your silence cannot be used against you in any way. DO NOT TALK TO THE POLICE.
When the police tell you during the course of the interrogation that everything they say to you is absolutely true, that is not necessarily the case. Police officers are legally permitted to trick you into talking to them. You should not believe everything the police tell you. What they say may be designed to get you to speak to them. DO NOT TALK TO THE POLICE.
If the officer tells you what other people are saying you did, or if the officer plays you an audio statement or shows you a video statement of what someone else has said about you, it is designed to get you to talk. Even if someone said things about you, that evidence may not be something that can be used against you. You are better off not speaking to the police and not responding to statements made by other people. DO NOT TALK TO THE POLICE.
If the officer tells you, "This is your opportunity to tell your story" or "If I walk out of here and you haven't talked to me, you won't get another chance" or words to that effect, these statements are not true. These statements are designed to get you to talk to the police. DO NOT TALK TO THE POLICE.
Sometimes another police officer may come into the interview room and take part in the interrogation. No matter how many police officers take part in the interrogation, DO NOT TALK TO THEM. A small room with several officers can be intimidating. No matter how many officers may try to talk to you, tell them you will not talk to the police. Thereafter, repeat, "I do not want to talk to you" and go to the door demanding to go back to your cell. If no one responds to your request when knocking on the door, then return to the previous positions mentioned above, and ignore anything being said or done in the room.
If you are taken out of the interrogation room and taken to a cell or any other area in the police station and there is someone in the same cell or in close proximity to you, do not talk to those people. These people may also be police officers. They are there to listen to whatever you have to say and, if possible, discuss matters with you that can either be recorded or passed on to the investigating police officers.
People placed in the same cell with you or in an adjoining cell or anywhere else in close proximity to you, including in any police car, police wagon or any other place controlled by the police, will most likely be police officers. DO NOT TALK TO THEM.
The more any of these people look like they are fellow detainees, the more it looks like they have possibly been beaten up, harassed, pepper-sprayed or dealt with harshly by the police, the more likely it is that they are police officers. Do not think that they are fellow detainees. DO NOT TALK TO THEM.
If you come into contact with any of these people, I suggest you simply say "hello", explain that you do not wish to talk any further with them and then ignore them.
Some lawyers have suggested that the easiest way to explain how the client should exercise his right to silence is simply to say to the police, "I am not going to talk to you unless my lawyer is present." I find this advice not very helpful.
In R. v. Sinclair, the Supreme Court of Canada made it very clear that a detainee does not have a right to have counsel present while he is being interrogated by the police. The court also made clear, however, as it has in other cases, that an accused person has the right to remain silent. If the accused takes the position that he is not going to talk to the police unless his lawyer is present, then that is one way in which he can exercise his right to silence. I do not believe that many clients detained by the police and placed in an interview room appreciate the subtle difference between the fact that they have a right to refuse to talk to the police unless a lawyer is present and the fact that they have no right to have a lawyer present while being interrogated by the police.
I can hear the exchange now:
Detainee: I am exercising my right to silence. I will not talk to the police unless my lawyer is present.
Police Officer ("PO"): The law is clear, buddy, you don't have the right to have a lawyer present when we are talking to you.
Detainee: Well I am not going to talk to you unless my lawyer is present.
PO: Didn't I just tell you that you have no right to have your lawyer present? We are not going to interview you with your lawyer present. So forget that. That ain't gonna happen.
Detainee: But I am not going to talk to you unless my lawyer is present.
PO: Look, what your lawyer told you, the advice he or she gave you, that's what lawyers do. But it's you here and not your lawyer. Whether you talk to us or not is a decision you have to make. That's entirely up to you. It's not up to your lawyer to make that decision for you. That's a decision you have to make.
Detainee: Well I am not going to talk to you unless my lawyer is present.
PO: Well, whether or not you want to talk to us is entirely up to you, but what I am going to do now is tell you this: you have a right to know the evidence against you. So I am going to point out the evidence against you. Nobody here is going to force you to talk; whether you talk is entirely up to you. But you know that you are here on a serious matter. You also know that our job as police officers is to obtain all the evidence and present it to Crown counsel, who will make decisions on what charges are to be laid. We haven't collected all the evidence until we get your version of what occurred.
Detainee: Like I said, I am not going to talk to you unless my lawyer is present.
PO: We've settled that issue. You have no right to have your lawyer present. I told you that already. But be clear on this, if you don't talk to us then clearly we don't have all the information that we need and there are significant gaps in what we present to the Crown. We will have everybody else's version of what occurred except yours. Don't you want the Crown to have your version of what occurred before it makes decisions as to what charges will be laid? We're just after the truth here.
And it goes on from there.
I hope this summary assists lawyers in advising their clients on how to exercise their right to silence. I hope too that I have answered the rhetorical question posed above. All who are interested in advising clients should keep in mind the comment by Mr. Justice Lamer (as he then was) in Manninen. We as lawyers protecting our clients' rights should not only advise our clients of the right to remain silent, but equally we should advise them how to exercise that right.