What are my rights during a police interrogation?

What are my rights during a police interrogation?

Canadians must understand and exercise their rights when dealing with police. That becomes even more necessary if they are being interrogated after an arrest, which is a stressful situation for anyone.

The Canadian Charter of Rights and Freedom spells out what officers can and cannot do in this situation. Let’s start at the beginning.

What are my rights when being arrested?

Police must have reasonable and probable grounds for any arrest, based on evidence or what they have witnessed.

Section 11 of the Charter lists nine rights a person has when placed under arrest, with the first being “to be informed without unreasonable delay of the specific offence.” That means that police cannot place you under arrest unless they tell you why.

If police believe you are a threat to the safety of their officers, they can pat you with their hands to search for weapons. 

Do I have the right to speak to a lawyer?

Police must tell you that you have the right to speak to a lawyer. As s.10(b) of the Charter notes, “Everyone has the right on arrest or detention … to retain and instruct counsel without delay and to be informed of that right.”

When you arrive at the station after an arrest, police must give you time to call and speak to a lawyer. After you have been given that opportunity, police can begin their questioning.

Will I have a lawyer during an interrogation?

It is important to stress that you will not have a legal representative with you when being questioned by police. The only exception is for those under 18. But you still have protection from the Charter.

Do I have the right to remain silent?

The right to remain silent is guaranteed by s.7 of the Charter, which states that “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

That means you do not have to answer questions during the interrogation, other than giving your name and address. The reasoning for that is that all individuals are presumed innocent until proven guilty. The Crown bears the entire burden to prove beyond a reasonable doubt that you are guilty. You are not required to assist with their efforts in any way.

My advice to clients is to say nothing to the police. Police will not charge you unless they feel they have sufficient evidence. If you talk to them, you may inadvertently provide evidence that they can use against you in court.

Will police try to convince me to talk?

Officers are trained to extract information from suspects and they use legitimate tactics to encourage a confession. They might say something like, “This is your chance to tell your side of the story.” That might be tempting, as some people in this circumstance may have an impulse to unburden themselves and admit to their role in the event being investigated.

Don’t fall for this ploy and just politely decline to answer questions. If officers have enough evidence to charge you with a crime, you can tell your side of the story during the court process.

Officers may continue to ask questions even after you say you do not want to answer since it is their job to try to get information. While police can’t outright lie to someone in an interrogation, they do play on people’s emotions to extract information.

Be prepared, as sometimes they might yell or seem to get angry with you. On the other hand, they may try to engage you in small talk, warming you up so you answer what may seem like harmless questions about the crime being investigated.

In all cases, it is best to stay silent during the interrogation. Otherwise, your words may come back to haunt you later in the judicial process.

Do I have to tell the truth?

If you choose to speak to investigators, you must tell the truth. Misleading officers or providing false information could lead to obstruction of justice charges that could result in a two-year jail sentence.

Can I speak to police ‘off the record’?

Anything you tell an officer, at any time, can be used against you. That includes verbal answers, written statements or any audio or video tape recordings they have.

What is the ‘interrogation trilogy’?

The rights that an individual in custody in Canada has when being questioned by police are governed by what Supreme Court Justice Ian Binnie called the “interrogation trilogy,” which is reflected in the high court’s decisions in Oickle, Singh and Sinclair. In these cases, respectively, the court set down seminal rulings on the scope of the common law rule of voluntariness, the right to silence and the right to counsel.

The trilogy is often cited in cases where the fairness of an interrogation of a suspect is being questioned.

What if I am being questioned as a witness?

Even if an officer has told you that they want to interview you as a witness to a potential crime, it is a good idea to seek legal advice from a criminal lawyer first. I have represented clients who were called into a police station as witnesses but, at some point during that interview, the focus shifted to them as a suspect in the crime.

Contact me for assistance

Facing a police interrogation can be daunting. Be sure to seek legal advice before that happens and remember that remaining silent is usually the best strategy. If you are facing criminal charges in the Ottawa area, contact me for a free consultation.