Introduction
Interactions with law enforcement can be intimidating, particularly when an individual is suspected of criminal activity. While many individuals feel compelled to explain themselves or “clear the air” during police interviews, such actions often lead to unintended consequences. This analysis will explore the purpose of police interviews, the legal rights of individuals under Canadian law, and why obtaining legal advice before speaking to the police is critical.
The Purpose of a Police Interview
When the police request to interview a suspect, their primary objective is to gather evidence. Regardless of how friendly or understanding officers may appear, their role is not to assist suspects in proving their innocence or resolving misunderstandings. Instead, their goal is to build a case against the suspect.
By the time the police seek to interview a suspect, they may already possess sufficient evidence to lay charges—or at least have reasonable grounds to believe the individual is involved in criminal activity. Their invitation to “tell your side of the story” is not an opportunity to exonerate oneself but rather a strategic effort on the part of the police to elicit incriminating statements.
The Right to Remain Silent: A Fundamental Protection
Under Canadian law, all individuals have the constitutional right to remain silent and not incriminate themselves, as enshrined in section 7 and section 11(c) of the Canadian Charter of Rights and Freedoms. This means that refusing to provide a statement cannot be used against a person at trial.
Despite this protection, police officers may attempt to persuade suspects to speak by suggesting that silence will be perceived as an admission of guilt or that the interview is their opportunity (and only opportunity) to tell their story. Such tactics are misleading—exercising the right to silence is a legally protected choice and cannot be legally used against the accused. Speaking to the police is also not the only opportunity a suspect will have to tell their story. If charged, a suspect has the right to testify at their trial. In that case, it is best not to provide the police with a statement upon which an accused can be cross-examined.
The safest course of action in any police interview is to remain silent. Anything said during an interview can and will be used as evidence. There is no advantage to speaking with the police. It can only hurt and not help.
Police Tactics: The PEACE Model and Deceptive Practices
Police officers are trained in sophisticated interviewing techniques designed to elicit information. One widely used framework is the PEACE model, which stands for:
- P – Planning and Preparation: Officers prepare by reviewing the facts of the case and formulating questions.
- E – Engage and Explain: They establish rapport, explain the purpose of the interview, and create a comfortable atmosphere.
- A – Account, Clarify, and Challenge: The suspect is encouraged to provide their version of events, after which officers ask clarifying questions or challenge inconsistencies.
- C – Closure: Officers summarize the discussion and outline next steps.
- E – Evaluate: After the interview, officers assess the information gathered to determine its value to the investigation.
While the PEACE model emphasizes fairness and ethical conduct, it is ultimately a tool for gathering evidence against the suspect. Officers may also employ deceptive practices, such as falsely claiming to have forensic evidence (e.g., fingerprints or video footage) linking the suspect to the crime scene. These lies are permissible under Canadian law and are intended to overwhelm the suspect in the hope that they will confess.
Why Police Interviews Are Inherently One-Sided
Police officers are highly trained professionals with extensive knowledge of investigative techniques and the specifics of the case. Suspects, on the other hand, typically lack this expertise and are unaware of the full scope of the evidence against them. Attempting to “outsmart” the police or talk one’s way out of charges is rarely successful and often results in self-incrimination.
Moreover, once a statement is given, it becomes part of the evidentiary record. The Crown can tender the statement as evidence of the accused’s guilt at their trial or cross-examine the accused on a statement previously provided to the police. The simplest and most effective way to avoid these consequences is to refrain from providing a statement altogether.
Challenges in Excluding Statements from Evidence
Some individuals mistakenly believe that their lawyer can easily have their statement excluded from trial if their rights were violated during the interview. However, successfully arguing for the exclusion of evidence requires a significant and often difficult legal application. The test for exclusion of evidence is a high threshold to meet and often involves significant legal resources.
By contrast, exercising the right to remain silent eliminates the risk of inadvertently providing incriminating evidence. Silence ends the interview more quickly and prevents the police from obtaining additional information that could be used against the suspect.
Common Misconceptions About Statements
- Statements are not just written statements. They include oral statements. Anything coming out of the mouth of this suspect is a “statement” that can be used against them.
- There is no such thing as an “off the record” discussion. Anything said at any time can be used against the suspect, including during a “smoke break” or while in the back of a police vehicle. The police may also employ jail cell informants or undercover officers. A jail cell plant will appear to be another suspect sharing a cell, but they are in fact a police officer or an inmate acting on behalf of the police who may be recording their conversation. It is best not to talk to anyone except your lawyer and even then only in private.
- The police can keep asking questions. Just because the accused said they want to remain silent does not mean the police cannot ask the suspect questions anyway. They can and will do so. There is no legal obligation for the police to refrain from asking questions of a suspect who asserts their right to silence. Suspects may respond, “I have nothing to say” or ignore the question.
- Remaining silent does not include saying “I don’t remember.” The phrase, “I don’t remember,” is a statement about the circumstances of the case; it means the suspect does not remember what happened. An accused who later testifies that they do remember, but are not legally culpable, will be impeached on their prior statement that they did not remember. This is an unintended consequence that can flow from speaking to the police and is an example of why suspects should not talk at all. Silence cannot be used against a suspect, but anything they say, including “I don’t remember,” can be used against them.
Practical Guidance: What You Should Do
- Exercise Your Right to Silence: Politely inform the police that you wish to remain silent and will not answer questions. Keep repeating, “I have nothing to say.”
- Contact a Lawyer Immediately: Before agreeing to any interview, consult with an experienced criminal defense lawyer who can assess the situation and provide tailored advice.
- Avoid Voluntary Statements: Even seemingly innocuous explanations or justifications can be misconstrued or used to undermine your defense.
Conclusion
Interacting with the police without legal representation is fraught with risks. While the urge to explain oneself or “cooperate” may be strong, doing so often leads to unintended consequences that can severely prejudice one’s case. The safest and most prudent course of action is to remain silent and seek immediate legal advice.
At Filkow Law, our team of seasoned criminal defense lawyers understands the complexities of police interviews and the potential ramifications of statements made during such interactions. We are committed to protecting your rights and helping navigate challenging situations with confidence and legal clarity.
