The television scene is familiar: a police officer confronts a suspect in a criminal investigation and informs the suspect that he has the right to remain silent. However, in Canada, technically, there are no such things as Miranda rights. The familiar encounter between police and a suspect is based on an American-made judicial concept originating in a 1966 United States Supreme Court case called Miranda v. Arizona.
Canadian residents do have similar, although not identical, rights. Both the Canadian Constitution and the Canadian Charter of Rights and Freedoms afford Canadian citizens and residents an array of essential protections against abusive police tactics. Know your rights. Keep track so that your information is current.
Too often, when facing police authority, people get frightened and can be manipulated into speaking carelessly before they have had a chance to seek the guidance of legal counsel. That’s a mistake. There are no advantages to speaking with police before conferring with an experienced criminal defence lawyer.
What are Miranda Rights?
Deeply embedded in Canadian justice is the understanding that whenever someone is accused of a crime, the Crown and the media must respect the essential presumption of innocence until convicted after trial or a guilty plea is entered. That presumption of innocence is linked to a powerful evidentiary standard of proof. Any conviction requires proof of every element of a crime beyond a reasonable doubt, the most demanding of all evidentiary standards.
This presumption of innocence carries with it an important limitation on government power. The Crown must develop a criminal case against an accused using evidence obtained independent of the defendant. The Crown should not coerce a confession or trick a suspect into giving incriminating testimony against himself. To protect the accused, Canada has developed its own set of Miranda rights:
- Upon arrest or detention, an accused has the right to be informed promptly of the reasons for the arrest or detention;
- An accused has the right to be informed of the right to retain counsel without delay, and if the accused cannot afford private counsel, be informed of the availability of duty counsel and legal aid and
- An accused has the right to remain silent when confronted by the police and to be reminded by police of that right at the time of arrest or detention.
- Where an accused wishes to exercise their right to counsel, the police are further obligated to facilitate contact with counsel, and refrain from eliciting any self-incriminating evidence from the accused until they have spoken with counsel.
There is something missing from Canada’s Miranda rights. Unlike the American version, in Canada, an accused does not have the right to have a lawyer present in the room during a police interrogation unless the accused is under eighteen years of age. That exception was affirmed in 2010 by the Canadian Supreme Court. Many defence lawyers are committed to changing the law to require the presence of defence counsel during an interrogation. Until that time, be aware that police may restrict criminal defence counsel from being in the room when questioning you.
Do You Have the Right to Remain Silent in Canada?
Absolutely! And it’s an important right to remember when interacting with police. The pressure police can exert, especially when someone is in custody and separated from family and a criminal defence lawyer, can be intimidating. That intimidation can compel a suspect to say something incriminating or, even worse, confess falsely to criminal activity. Rooted in the presumption of innocence, individuals should not be compelled to incriminate themselves through their own words. To ensure a fair and legal proceeding, the police should independently gather evidence to prove the elements of a crime beyond a reasonable doubt. The defendant should not be compelled to provide that help unless it is part of a negotiated plea deal arranged by an experienced criminal defence lawyer.
When Do You Have the Right to Remain Silent?
The right to remain silent begins during a police inquiry and investigation and runs through indictment, culminating during the actual criminal trial.
When You Are Arrested and Detained: Police generally have the right to stop you if they:
- Suspect you have committed a crime,
- Actually, see you committing a crime, or
- If you are driving a car, motorcycle, scooter, or bicycle.
Section 7 of the Canadian Charter encompasses the right to remain silent from the moment that police detain a suspect. This right entitles you to decline to answer any questions posed by police. You can refuse to answer what you are doing, where you are going, why and with whom.
Maintaining a non-belligerent tone, you can merely say: I am not going to answer any questions.
In some circumstances, you may even refuse to identify yourself or produce identifying documents. However, if you are driving a motor vehicle, you must produce a license, registration, and proof of insurance if asked. If you are stopped while riding a bicycle, you must also identify yourself if asked.
In addition, if the police believe you have committed a crime and are writing you up for a ticket, you have the obligation to identify yourself. Or if your description fits a suspect, you will have to identify yourself if asked by police.
If you lie at any time to the police, you might be subject to additional criminal charges, including:
- Attempting to obstruct justice
- Obstructing a police officer
- Public mischief
Any false statements you give can end up strengthening a prosecutor’s case at trial. Any lies can be introduced as evidence of guilt, cover-up, or criminal agency. It’s much better to keep quiet and confer with an experienced criminal defence lawyer before you speak with the police so that any cooperation you might want to offer provides you with the greatest benefit.
Do the Police Have to Stop Questioning You?: When you refuse to answer questions posed by police, you cannot be arrested or detained solely for that refusal. However, if you answer some questions and then stop by asserting your right to remain silent, this might look suspicious to the police. That is why it is best to just refuse to answer any questions throughout any police encounter.
Practice saying this: I have the right to remain silent, and I am exercising that right.
Police might continue to question you after you have asserted your right to refuse to answer questions. Be strong. Continue to assert your right to remain silent and ask to speak with a lawyer. You can repeat this dual request whenever the police ask you another question.
Why exercise your right to remain silent?
Police often promise leniency or other benefits to entice a suspect into giving up the right to remain silent. Don’t be fooled. Only an experienced criminal defence lawyer can evaluate the evidence the police and Crown have against you in order to determine how to proceed when facing prosecution. Your future liberty depends on a strategic and knowledgeable approach to any interrogation and prosecution devised by a lawyer who knows the workings of the criminal justice system.
Keeping quiet and seeking legal counsel early in an investigation or prosecution allows you to preserve all of your rights and options in moving forward. Your lawyer has the experience and knowledge to understand the nature of the charges, how evidence was gathered, and how witnesses were interviewed in order to navigate the criminal prosecution process to your benefit. You want to act in a way that safeguards all of your rights and preserves as many options for your defence as possible.
Remember: Under Canadian law, you are innocent until proven guilty. Let the police do their job of investigating, without your help, in furtherance of this presumption.
What Is the Canadian Charter of Rights and Freedoms?
The Canadian Charter of Rights and Freedoms itemizes the rights of Canadians in relationships with all levels of government. It divides these essential rights and freedoms into distinct categories. In addition to securing rights of due process and fairness in a criminal prosecution, the Charter guarantees other essential freedoms:
- Fundamental Freedoms:
- Freedom of conscience and religion
- Freedom of thought, belief, opinion and expression, and freedom of the press and other media
- Freedom of peaceable assembly
- Freedom of association
- Democratic Rights:
- The right to vote
- Regulating the legislature
- Mobility of Citizens:
- Right to enter and leave Canada
- Right to move and reside within Canada
- Permitting affirmative action to rectify past discrimination
- Equality Rights:
- Equal protection of the law
- Identifying English and French as the official languages of Canada
- Minority Language Educational Rights
- General Rights:
- Aboriginal rights guaranteed
- Gender equality guaranteed
The Charter focuses on creating fairness and due process throughout the investigation, prosecution, and trial of criminal defendants. Under the Legal Rights and Enforcement categories, Canadians are guaranteed:
- Life, liberty and security
- Freedom from unreasonable searches and seizures
- Freedom from arbitrary detention and arrest
- Right to remain silent, be informed of the charges, the right to counsel, and to have access to legal counsel if unable to pay for a private lawyer
- Right to a speedy and fair trial
- Right to bail
- Right to presumption of innocence
- Right to be free from double jeopardy
- Freedom from cruel and unusual punishment
- Freedom from being compelled to testify against oneself
- Right to a foreign language interpreter
- Right to exclude evidence that was gathered in violation of laws and rights
Why Are You Being Charged?
Under the guarantees of the Charter, the police must inform you upon detention and arrest of the basis for the police action, including the alleged crimes you are being charged with committing. Knowing the charges is fundamental to defending yourself in a court of law. Imagine what it might feel like if you were detained without knowing why!
Is Your Right to Remain Silent Guaranteed?
Although the Charter says that you have the right to remain silent, in practice, police try very hard to maneuver any suspect or witness into answering questions before they have had an opportunity to confer with counsel. Therefore, it is up to you to stay committed to remaining silent, even if police continue to ask you questions after you have asserted your right and asked to speak with a lawyer. Once you have waived your right to remain silent, it’s hard to stop talking.
Do You Have the Right to Speak with a Lawyer?
Yes, you do, and if you cannot afford a private lawyer, you have the right to ask for a court-appointed lawyer to represent you. However, there are caveats to this right. First, under current Canadian law, the police may interrogate you without the presence of your lawyer in the room. This seems inherently unfair, and defence lawyers around Canada have been trying to change the policy to prevent interrogation unless the lawyer is present.
Second, although you might have asserted your right to remain silent and asked to speak with a lawyer, police may continue to try to get you to speak. Remain committed to protecting your own constitutional and charter rights by refusing to answer any questions.
Can Your Lawyer Be Present During Questioning?
Unfortunately, the Charter does not guarantee the right to have a lawyer physically present in the room with you while being questioned by police. You have the right to consult with your lawyer, but in some instances, the police may bar the lawyer from being with you during questioning. You have the right to consult with your lawyer during that questioning. However, to exercise this right, you must ask for the questioning to pause so that you can privately confer with counsel before answering the question. There is nothing in the Charter that prohibits the police from allowing your lawyer to be with you during any interrogation.
What Happens If Your Rights Are Violated?
Under the enforcement section of the Charter, there are consequences to deter the police and the Crown from violating the rights of a criminal defendant. Any evidence, whether physical or testimonial, that is gathered in violation of the rights guaranteed under the Constitution, Charter, and statutes may be excluded from any trial. That is a powerful tool for limiting the admission of tainted evidence and can lead to the dismissal of the charges.
Protect Your Rights With Expert Legal Counsel
Navigating a police investigation and prosecution is best done with the guidance of an experienced criminal defence lawyer whose reputation is known within the Province and who knows all of the players: police, investigators, prosecutors, and judges. No one should try to represent themselves. At each phase of a criminal investigation and prosecution, there are important rights and options to be preserved and explored. If you are under investigation, it is best to hire a criminal defence lawyer as soon as possible to protect all of your rights and options. The Crown has enormous resources available to it to pursue a criminal prosecution. You want fairness, and the best way to ensure fairness is to have a skilled litigator by your side throughout the process of investigation, arrest, pretrial, and trial.
Frequently Asked Questions
Should you speak with the police?
No! Do not speak with the police without first conferring with experienced criminal defence counsel. Although the police must inform you of your right to remain silent, they can continue to question you after you have asserted your rights. And they will try to get you to talk through all sorts of manipulative techniques that might appear to be innocuous but which have powerful, persuasive capacity. Let a skilled criminal defence lawyer guide you through an interrogation. Don’t try to risk it all by yourself.
Can the police lie to you?
Yes! Police can be deceptive during questioning. The Supreme Court of Canada has acknowledged that police deception can undermine the reliability and voluntariness of any statements made by a suspect or defendant. But know that police can lie and tell you that someone else has given evidence and that they just want you to confirm what the other witness said. Or that a co-defendant has confessed, so you might as well tell all. Do not trust the police to be straightforward. Remember that your best protection is having a skilled and experienced criminal defence lawyer guiding you throughout the criminal process.
Should you hire a lawyer when the police are investigating you?
Yes! To fully protect your rights and all of your options, you should hire a criminal defence lawyer as soon as you learn that you are the target of a police investigation.
Knowing the law: An experienced criminal defence lawyer knows the law, criminal procedure, the rights protected by the Charter and Constitution, all of the ins and outs of a police investigation, as well as all of the players: police, investigators, prosecutors, and judges. That knowledge is indispensable to a full and effective defence. The sooner you have a defence lawyer, the more protected you are from any possible police overreaching.
Protecting your rights: The Charter and Constitution, along with various federal statutes, are intended to protect you from oppressive police and prosecutorial conduct. However, in reality, police often work at the boundaries of their legal authority. Having a criminal defence lawyer making an appearance on your behalf while still under investigation will help keep the police in check and force them to work strictly by the books.
Strategizing a defence: Watching a case unfold offers a criminal defence lawyer opportunities to get ahead of the prosecution to develop defences and conduct investigations to uncover evidence and witnesses who might be able to exonerate you or introduce reasonable doubt. Early intervention by a skilled criminal defence lawyer also provides incentives to the police and the Crown to negotiate a lesser charge or a plea deal before a full-blown indictment and trial.
Negotiator in chief: You want to be represented by a criminal defence lawyer who is accustomed to negotiating with authorities—police, prosecutors, judges, and probation officers—so that your best interests can be protected. An experienced defence lawyer is not intimidated by shows of authority and can recognize a bluff. Throughout the course of a police investigation, there are times when prosecutors need to re-evaluate the strength of their case. Having your legal representative available to negotiate with authorities at these critical moments can help lessen the stress, the cost, and the consequences of a criminal prosecution.
Compiling evidence: Early intervention by a criminal defence lawyer also means that evidence and witness testimony can be preserved and documented to build a viable counter-narrative to the story the police and prosecutor are putting together. Early intervention is always better for you.
Contact the Criminal Defence Team at Chadi & Company
If you are being investigated or charged with a crime in Alberta or in the Edmonton area, contact the lawyers at Chadi & Company immediately. With over 30 years of experience in the criminal justice field, we will treat you with respect and dignity and will defend your rights as a defendant. Book a free consultation online or over the phone now to schedule an appointment with one of our lawyers. Call 780 429 2300 to set up that appointment today.