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What you do not know can hurt you.

The right to remain silent is a precious, but sorely misunderstood right in Canada.  The majority of Canadians believe that an individual has a right to have their lawyer present when they are questioned by the police or government authorities.  They are mistaken. You only have a right to speak to a lawyer before they start questioning, and you have a right to remain silent… to say nothing.  The state cannot force you to give evidence against yourself.

Typically, if you are under investigation for an offence the authorities begin collecting evidence.  When they think they have enough evidence to charge you with the offence, they will call you and ask you to come down to the station.  They will not tell you the real reason for the request.  If you ask any police officer off the record they will tell you that at this point regardless of what you say to the police, you are going to be charged.

In Canada you have a right to speak to a lawyer before questioning begins.  You must answer “yes,” when asked if you wish to speak to a lawyer in order to trigger this right.  The authorities up to this point will be very friendly and even nonchalant. 

They are depending on your cooperation to provide them with more evidence that can be used against you.  Many people waive the right to speak to a lawyer thinking they will just tell police what happened and they will be released.  They are horribly mistaken.

As a former Assistant Crown Attorney I can’t tell you how many people I convicted because they thought they were smarter than the police and so had a “little” conversation with them, just to get a few facts straight.

The Police have a tough thankless job to do. Keeping the streets safe is a never-ending task fraught with danger, challenges and frustrations. The police are overworked and underpaid and have all the same problems we have. In essence they are humans.  They want to go home to their family and they want their investigations to go smoothly. So whenever you encounter a police officer remember they are public servants who deserve our respect.

But… as soon as you become a potential suspect in a crime, you need to make sure you understand something very clearly. The police are not your friends, no matter how nice they seem. They get very good at their job, and their job once you are a suspect is to collect evidence so that you may be convicted of a crime

Here are 10 Reasons why you never speak to the Investigating Authorities of any kind when you are a potential suspect:

  1. Everything you say can and will be used against you.  Nothing you say can be used in your favour.  A properly cautioned statement you provide to the police will be used in court against you.
  2. The authorities can mislead you without repercussion.  They can tell you they have a strong case against you when in fact they have very little.  This is to encourage you to cooperate.  They will tell you other witnesses have already told them the story and that you might as well cooperate so you can secure a good deal for yourself.
  3. There is no benefit to you if you speak.  Often in an interview the police suggest that if you are a good person you will tell the whole story.  There is no benefit to this.  If you want to take responsibility for an event telling the police won’t help you.  Your lawyer can get you a deal, and he can get you a better deal if the police do not have a confession.
  4. You do not understand the system and are easily fooled.  Investigators get elite training on interview techniques.  You will lose the battles in the interview room if you engage in discussions.  Your only defence is silence.  The police will do everything they can to make you give up that right so that you will give them the evidence they need to get a conviction
  5. You do not know what you do not know.  Your answers can lead to different charges.   There are 1000s of criminal and regulatory charges on the books and most citizens do not know what they are.  You may inadvertently admit to an offence trying to be a helpful guy.
  6. Time is on their side.   Recent Supreme Court decisions have allowed police techniques that borderline on coercion.  A suspect has told police 100s of times that they wish to remain silent and the police continue the interrogation for hours and hours until the suspect starts to speak. 
  7. There is a power imbalance.  You can give the police a statement later… after you have had time to digest events and spoken to a lawyer in person.  Once you get to the station the police have all the power. In order to scare you they will take a break and place you in a cold cell while they have a coffee and discuss how to get you to cooperate.
  8. Cell Plants.  It is now fairly common knowledge that police will put undercover officers in the cells next to you to solicit confessions.  Do not speak to anyone about anything; protect your right to remain silent.
  9. Wrongful Convictions come from false confessions.  A recent study in the U.S. found that a full 17% of people wrongfully convicted of a crime, imprisoned and later exonerated by DNA evidence where put in jail based on a false confession.
  10. You can get confused.  It is 4am; you are cold, hungry, and thirsty, need to go to the bathroom and are sleep deprived.  You have been interrogated for 3 hours now and just want it to end; you are ready to say yes to anything just to get it over with.  This is when you are most vulnerable; this is when you need to keep your mouth closed.

Innocent people get convicted trying to explain themselves, don’t explain yourself. Speak to a lawyer and follow his instructions.

In fact get to know a lawyer before you ever get in trouble. You never know when you have to make that call.

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