If you or someone you know has been arrested, then you should exercise your right to retain counsel and your right to silence. What does that mean? In Canada, under our Charter of Rights and Freedoms, a person who is detained or arrested is entitled to know why the police have arrested them. That person also has a right to speak to a lawyer, and the police are not allowed to take statements from that person before they speak with a lawyer. However, anything they may say, may be given in evidence and used against that person in court. We advise our clients to ask to speak to us, and to not say anything to the police before speaking with us. These are fundamental and important rights in Canada, and are respected by the courts, and ought to be respected by the police.
After a person has spoken to a lawyer, whether it is to us or to duty counsel, or another lawyer, the police are entitled to try to take a statement from that person. In serious cases the police will try to do just that. The courts have ruled that when the police try to take that statement, a lawyer does not need to be present, and if the person arrested asks to speak to a lawyer again, the police do not have to allow that person to speak to counsel. What this means is that the initial conversation with a lawyer is very important, and a person arrested needs to receive all the advice they need within that first conversation.
Part of the advice we give to clients, is to provide them with tools to try to withstand police questioning without providing a statement. It is rarely, if ever a good idea to give a statement to the police upon arrest without the benefit of speaking to counsel in person, after that lawyer has had a chance to review the police report and help the client understand the jeopardy they are facing. One never knows if little bits of what seems innocuous information will help the Crown prove their case. A person arrested is under no obligation to assist the police in building a case against them.
It can be very hard to resist speaking to the police. Often the officer will appeal to the person’s conscience about the offence, or the impact it might have on their family or loved ones. The police are very good at pretending to befriend a person in custody, and will pretend they are on that person’s side. It is typically not like the movies with a good cop and a bad cop. In our experience, there is usually only a good cop.
We tell our clients to tell the police they do not want to speak to them, and that they want to go back to their cell. Repeat it over and over again. We tell our clients to put their head down on the table, cover their ears, stand up and face the corner of the wall. Do not respond verbally to the officer about any question, even if it is as innocuous as about the weather. Another danger is when our clients are offered to see what evidence the police have against them, and they take up that offer. This often leads to a conversation and then a statement. If a person under arrest is curious about what evidence they are facing, they are well served to wait and receive that information from counsel. Remember, the police are not your friend if you have been arrested. Their only job is to investigate, and if they think you committed an offence, then they will use any information you provide to build that case against you. They can lie to you and use tricks. In a recent case our client told the policed over 35 times that he wanted to speak to his lawyer and finally became worn out and made statements. Because he had been given a 3 minute phone call to a legal aid lawyer (not our firm), the court said his admissions, given after hours of interrogation and despite his repeated requests to speak to his lawyer, were admissible against him. This illustrates how far the courts allow the police to go.
If you or anyone you know has been arrested, call us. We can help. We practice only criminal law, and are very experienced in walking clients through the arrest process, and then the bail process in order to seek release from custody. We are here to help.
– Kasandra Cronin, Q.C. and T.E. (Terry) La Liberté, Q.C