The Right To Remain Silent: A Criminal Defence Lawyer’s Guide

April 28, 2023


The right to remain silent is guaranteed by sections 7 and section 11(d) of the Canadian Charter of Rights and Freedoms. Section 7 of the Charter states that:

“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

Section 11(d) of the Charter states:

“Any person charged with an offence has the right to be presumed innocent until proven guilty according to the law in a fair and public hearing by an independent and impartial tribunal.”

In combination, these two sections of the Charter of Rights and Freedoms provide both the right to remain silent, and the exercise of that right cannot be used against the person that chooses to remain silent.

Unlike in the United States, an accused in Canada does not have the right to have a lawyer present during questioning. Also, just because an accused has chosen to remain silent does not require the police to stop questioning. Therefore, some scholars have said that in Canada, accused persons have less of a right to remain silent than an ability.

If a person’s right to silence is violated by a police officer or an agent of the state, the trial judge can exclude the statement because, under the Charter, it would bring the administration of justice into disrepute. It is in an accused’s best interests to consult with a criminal defence lawyer to understand whether the police’s actions were in violation of the accused’s rights.

They Use Your Words Against You

There is no benefit to an accused in cooperating with a police interview. In fact, in almost any case where a statement is given, it is used in court to benefit the prosecution. Self-serving statements of denial are not admissible as evidence of innocence. Therefore, and yes, this is repetitive, “There is no benefit to an accused in cooperating with a police interview.”

The Benefit Of Not Providing A Statement

Mr. Royer’s usual example of the benefit of not providing a statement is in relation to an actual case. Two long-term friends drank heavily almost every weekend together and sometimes got into physical altercations.

On this occasion, they were in the car and heavily intoxicated. The deceased punched the accused, and then the accused punched the “victim.” They both went to sleep, it seemed, but in the morning, the victim was dead. The victim’s tooth had been knocked out, and he choked on it.

The elements of manslaughter are an unlawful act causing death. If the accused were to say, “I only hit him one,” or “I didn’t mean for him to die,” he would have been charged and tried for the offence of manslaughter.

Because the accused said nothing other than, “I would like to provide a statement, but on the advice of counsel, I am not going to say anything at this time,” he was never charged. The importance of choosing not to say anything is never too important to be waived. A person’s right to remain silent is their ability to protect themselves.

Read Also: Understanding Your Right To Counsel In Canada: A Comprehensive Guide

The techniques used by police to obtain statements are intended to circumvent your ability to remain silent, and the only evidence that supports the prosecution’s theory will be used in court. Again, there is no benefit to providing a statement. If you feel your ability to remain silent is being overcome, blame your criminal defence lawyer by using the following statement created to help ensure an accused person’s ability to remain silent:

“I would like to provide a statement, but on the advice of counsel, I am not going to say anything at this time.”

Every question they ask should have that same answer.

About Daryl Royer

Daryl Royer is a highly experienced criminal defence lawyer based in Edmonton, Alberta. With over 20 years of experience in defending individuals charged with criminal offences, Daryl is dedicated to providing the best possible legal representation to his clients. Learn more about Daryl Royer.

Need criminal defence services? Contact Daryl now.

Get A Free Consultation, Contact Daryl Royer Today

Get A Free Consultation Contact Us