Everything You Need to Know About Talking to the Police

Everything You Need to Know About Talking to the Police

At Sarah Leamon Law Group, we get no shortage of inquiries and questions about police investigations. Oftentimes, people reach out to us because they have been contacted by police and asked to provide a statement. This can be confusing, and the decision of whether to talk to police or refrain from doing so is not one that should be made lightly.

The Charter of Rights and Freedoms provides a number of protections for individuals in the face of police authority, particularly in the case of arrest, detention or investigation.  Court decisions have described how these rights are construed in the context of providing statements to police. In the case where an individual provides a statement to police, the Charter and common law are used to determine whether that statement can be used against the accused.

In this blog post, we will answer some fo the most frequently asked questions that our experienced criminal defence lawyers receive about police statements and your rights when talking to the police.

Can police use anything I say to them against me if I am later charged with a criminal offence?

 The law in Canada says that all statements made to a “person of authority” must be proven to be voluntary before they become admissible as evidence against the accused.

Voluntariness does not necessarily turn on whether you were compelled to say something or whether you said it without prompting or provocation. Even if you volunteered information, it may be determined under law that the statement was involuntary if certain steps are not taken by the officer before you provide the statement.

Voluntariness is a concept tied closely with your rights under the Charter of Rights and Freedoms. It relates to your right against self incrimination, protected under Section 13, and the right to legal counsel, protected under Section 10(b). The crux of the voluntariness requirement is that accused persons in detention have a clear right to make a meaningful choice whether or not to speak to authorities.

Do police need to warn me that anything I say to them could be used against me, in order to use it against me?

When the police warn an individual that any statement they provide could be used against them, it is called a police “caution”. The presence of a police caution is one factor in determining the voluntariness of a statement made by a person under arrest or detention.

However, it is not that simple. A statement made to an officer will not be thrown out solely because the officer failed to give the proper cautions. The presence or absence of a proper police caution is only one factor, amongst many, in conducting a voluntariness analysis. It does not guarantee automatic exclusion or inclusion.

 Still, though, criminal courts in Canada have found that the presence or absence of a police caution is an important factor in determining whether a statement was voluntary. The warning should be given when there are reasonable grounds to suspect that the person being interviewed has committed an offence. 

The courts have said that police officers should consider the following question in making a decision to issue a police caution or not:

• What would [the officer] do if the person attempted to leave their presence where a communication or exchange is taking place? and;
• If the answer is arrest (or detain) the person, then the courts have said that a warning should be given.

 You do not need to be under arrest for this to apply. Even if the suspect has not formally been arrested, put into handcuffs or otherwise obviously detained, police officers will still be required to caution their suspects if they would prevent that person from leaving their presence in the course of the interaction. Where the suspect has not consulted with a lawyer, or has not been advised of their right to speak with counsel, the police caution becomes a much more important factor in answering the question of voluntariness.

Are the police allowed to trick me into providing a statement?

The answer to this question may surprise you. Generally speaking – yes, police are allowed to trick you into providing a statement. However, there are limits on this.

While trickery by police is allowed, the law does not permit conduct by the officer that goes so far as to “shock the community”.

Some examples of police trickery that will generally be allowed are things like exaggerating the accuracy of polygraph results or lying about fingerprinting or DNA evidence found at a crime scene. An example of improper police trickery may be an officer who pretends to turn off a tape recorder when taking a statement, but actually doesn’t, so as to trick the suspect into thinking that they are speaking off the record.

The determination will largely depend on context, along with a number of other interwoven factors

It is not always completely clear whether any given statement will ultimately be used as evidence against an accused person at trial. But, in order for that to happen, it must be shown that the statement was voluntary. This is a complicated question of law.

In many cases, the police ought to warn a suspect that their statement could be used against them and inform them of their right to counsel. While this is a requirement where the accused is under arrest, even in cases where the accused is not under arrest the courts have determined that the police ought to have cautioned the suspect.

Remember, if you are contacted by police or questioned in relation to an offence, make sure to seek trusted legal advice before doing anything else. Your future could depend on it.

Call the lawyers at Sarah Leamon Law Group to learn how they can help.