What you should know before being interviewed or  making a statement to police in Canada

Our law firm gets many calls each year from people who have been charged with a crime. Most of these people didn’t get detailed legal advice before they agreed to give a statement to the police. This article aims to:

a) Explain why you should get legal advice right away, before any police interview.

b) Provide some information about what the police are legally allowed to do, which many people might not know.

c) Help people understand the real reason behind police interviews.

It’s crucial to understand that consulting with an experienced criminal defence lawyer is the only way to receive advice specific to your individual case and circumstances.

The intent of this article is purely informational, aimed at encouraging individuals to seek legal advice before agreeing to an interview.

You can contact our lawyers anytime without any legal fees by calling (416) 999-8389. Please note that the content of this article is exclusively relevant to Canadian criminal jurisprudence.”

Police want to interview me

The purpose of a police interview is to gather evidence. It is not to decide “what happened”

The primary goal of a police investigation is to gather evidence. This evidence must be collected in a manner that is reliable, legal, and can be replicated if necessary. That’s why the police are meticulous in taking statements professionally, clearly stating the rights of the suspect, and ensuring everything is recorded.

However, the professional demeanor of the police does not indicate their belief in your innocence or that they are allied with you. When they inform you of your rights, it doesn’t necessarily mean you fully comprehend them. Therefore, seeking legal advice is essential. Everything you say and do during an interview is recorded and will later be thoroughly analyzed by an experienced prosecutor. It’s crucial to remember that, in these situations, if you’re the suspect, the evidence is being compiled against you.

The aim of a police interview is not to determine precisely what transpired. That responsibility falls to the courts. Police officers are not judges or jurors; they do not determine what is true or false. They may hold personal opinions, but these are just that—opinions. The decision about someone’s guilt or innocence is made in court, not at the police station.

Usually, the decision to charge a suspect is already made before a statement is provided

When police contact a suspect, they often say something along the lines of:

“Someone has accused you of a crime. We would like to invite you to the station to share your side of the story.”

This statement might give the impression that the police are still deciding whether to charge you based on your response, or that they are offering you a chance to convince them of your innocence before any charges are made.

However, this phrasing is quite misleading. A more accurate and comprehensive warning would be:

“Someone has accused you of a crime, and based on their complaint, we have sufficient grounds to arrest you. We are likely to arrest you either before or after we speak. We are currently gathering evidence for the case against you. Your statement will be a part of this evidence. Any part of your statement that could support the case against you will be used. If what you say doesn’t aid the prosecution, it likely won’t be presented in court. Unless you can definitively prove your innocence, such as being in a coma or out of the country when the crime occurred, you will be charged. Attempts to deny, justify, or downplay the crime will only make things more complicated for you. You have no influence over whether you are charged or not.”

Police often do not explain this fully because if they did, fewer suspects would agree to speak with them. The courts have not fully recognized how this approach can be misleading, particularly for those who don’t understand the real purpose of police interviews. Furthermore, in many serious crimes like domestic violence, sexual assault, and child abuse, police policies often mandate charging. This means that even if the police believe you might be truthful or innocent, they don’t have the final say – that decision is made during a trial in court.

In summary, whether you are charged is beyond your control; however, providing a statement and potentially worsening your situation, is within your control.

A person’s refusal to provide a statement, is not admissible at trial

There is a strong human urge to explain oneself when faced with allegations. We naturally want others (in this case, the police) to see us as good people, to believe that we’re innocent, or that there’s been a misunderstanding. This urge to explain and defend oneself is deeply ingrained in our psyche. However, it’s crucial to resist this instinct.

A suspect must understand that even though they may want to explain and defend themselves, the appropriate place to do so is in court, with the assistance of legal counsel, a clear understanding of the case they need to meet, and before an impartial judge. The time and place to defend oneself is not in a police interview room.

Making it clear to the police that you do not wish to provide a statement is not admissible in court. No judge can rightly conclude that a person’s refusal to participate in a police interview should be used against them. Under Canadian law, a person’s decision to not provide an interview to the police is irrelevant. There are some rare exceptions related to duties to report traffic collisions and other statutory requirements, but these are few and far between. To get a definitive answer on whether you are required to provide a statement, it’s important to speak to a lawyer immediately. In over 99% of cases, statements are not legally required and cannot be used against a person in a criminal proceeding.

A person has a right to silence

Under the Charter of Rights and Freedoms, everyone has the right against self-incrimination and the right to silence. Therefore, if a person remains silent during an interview, their silence or non-responsiveness is not admissible at trial. For instance, if someone simply stares at the wall without uttering a word during a two-hour police interview, that recording would be entirely inadmissible in court. Silence in a police statement is irrelevant to any issue at trial.

However, the “right to silence” does not mean a person has the right to lie, speak half-truths, selectively answer questions, offer denials, or proclaim innocence. The right to silence is exactly that: silence. It is an all-or-nothing right.

Therefore, if you choose to exercise your right to silence, as you should, then commit to it fully. Do not attempt to balance between “silence” and “partial cooperation” or denial. The following are the only safe responses in a police interview:

  • “[silence]”
  • “I spoke to a lawyer, I have nothing to say at this time.”
  • “My lawyer has advised me to remain silent. I intend to do so.”
  • “I am exercising my right to silence.”
  • “I do not wish to participate in this interview and maintain my right to silence.”

Even if these phrases need to be repeated numerous times during hours of police questioning, adhering to them will be beneficial to a suspect in the long run.

Police officers and others in the know, do not provide statements when they are charged

If you’re uncertain whether giving a statement is beneficial, consider this: when was the last time you heard of a police officer giving a statement when charged with a crime? In almost all high-profile cases involving serious criminal charges against a police officer, they refrain from providing statements. This is due to one simple reason: it never helps.

If police officers, along with lawyers, judges, and others who work within the system, know better than to give statements when charged, it’s wise to follow their example.

Police are trained to be nice to suspects. This is a tactic, not empathy

The days when police would resort to rough or intimidating tactics during interviews are long past. Not only does such behavior risk being deemed abusive by a judge, but it’s also largely ineffective. Interviewers, armed with advanced psychological insights, have come to understand that adopting a kind, empathetic, and cooperative approach is more effective than the “bad cop” method.

However, it’s crucial to recognize that this approach is entirely tactical. The police are not being nice because they believe you; they don’t offer you a soft drink because you appear thirsty, nor do they provide easy explanations to help you. These methods are deliberate and proven police tactics designed to encourage conversation. Skilled interviewers undergo extensive training in these methods to optimize their chances of obtaining a statement. Don’t be misled into thinking they are there to help you out of the situation; their goal is to gather evidence, and being kind, tactically empathetic, and reciprocal is the most effective way to achieve that.

Police will not control the outcome of a case, that is for a court to decide

As noted earlier, even if you manage to persuade a particular police officer of your truthfulness over the complainant (for instance, in a case of sexual assault), it’s not within the police’s authority to make such determinations. The police do not have the power to decide whether a complainant of sexual assault is lying or if you are telling the truth. These judgments are reserved for the Court. Trying to convince someone who lacks the authority to influence the outcome of your case is futile. It’s important to understand that a police interview is not the venue where the veracity of allegations will be assessed; that assessment occurs later in the judicial process.

Police are permitted to lie, exaggerate, or minimize to a suspect

While there are certain boundaries to what police can do during an interview, these limits are often broader than many people realize. For instance, police officers are allowed to mislead suspects about non-existent evidence.

Consider a scenario where the police might say,

“We know it’s you, we have your DNA on the undergarments. We matched it. There’s no question it’s you; the only question is how much worse you want to make it for yourself.”

However, this statement about DNA could be entirely false. The police might not have any DNA evidence, or they may not even have a reliable identification of you as a suspect. In such situations, a suspect might feel pressured to offer some form of mitigation, believing it to be their only way out, because the case laid out during the interview seems overwhelming. Legally, police are permitted to use lies, trickery, and other psychological tactics. The safeguards against these practices are limited.

Therefore, you shouldn’t assume that a seemingly friendly officer presenting you with overwhelming evidence of guilt is doing anything other than trying to elicit an admission of guilt for later use. Police can set traps, but ultimately, it’s your decision whether to walk into them.

When it comes to interviews, police are smarter than you

Stepping into an interview room with a skilled interviewer is akin to stepping onto the ice with an NHL player and hoping to score a few goals. Just as you cannot outplay an NHL player, you cannot outsmart or outmaneuver an experienced police interviewer. Interviewing suspects requires years of specialized training. The methods and techniques of effective police interviewing are so advanced that they are nearly impossible for a layperson to fully comprehend.

Police are trained in a variety of techniques: building rapport, gathering information, presenting and questioning narratives, using silence as a prompt for further information, appealing to a suspect’s morality, presenting false dilemmas, employing the ‘Reid Technique’, direct confrontation, controlled questioning, and the minimization and maximization techniques, to name a few. These examples illustrate that unless you are highly familiar with these methods, you are out of your element and at a tremendous disadvantage.

To make matters worse, the police know much more about the case and will only share information they deem helpful in advancing their investigation. In other words, it’s like playing hockey with an NHL player while blindfolded, with no idea where the goal is—or if there even is a goal. It’s best not to step onto the ice at all.

Applications to exclude statements at trial are complicated, expensive, and unlikely to succeed

We have all watched television shows where an effective lawyer argues that a statement should be excluded because their client’s rights were breached. This is a gross oversimplification of how difficult it is to exclude statements at trial.

If your lawyer determines the statement to be unhelpful (which it almost always is), they will consider whether they can have the statement excluded because a person’s right to counsel or right to silence was infringed in such a way that it would bring the administration of justice into disrepute. It needs to be not only a violation of one’s rights but a serious one that is offensive to the court.

Another basis to exclude statements is because it was involuntary. This may include threats, inducements, or circumstances where the person did not have an operating mind due to intoxication or torture. Needless to say, these occasions are rare. In any case, such arguments are complicated and expensive to pursue.

All of this can be avoided by simply not providing a statement.

The less you talk, the sooner it will be over and you on your way

When a person is interviewed by the police as a suspect, most want to spend as little time as possible in that situation. Ironically, the more one talks, the longer they will stay. Usually, when an interviewer is met with silence or repeated assertions of the right to silence (recall the phrase “I spoke to my lawyer and do not wish to give a statement” mentioned earlier), the police will eventually cease questioning, provide the suspect with their paperwork, and either let them leave or return them to a holding cell to await court proceedings.

However, as soon as a suspect starts talking, the police will do everything they can to keep the person engaged and providing information. This leads to more time spent in the interview, more questions, more requests for clarification, additional investigation, potentially more charges, and more complications for your lawyer.

The simple rule is this: if you want the interview to end, stop talking. Silence will get you out of the room sooner.

It’s crucial to understand that consulting with an experienced criminal defence lawyer is the only way to receive advice specific to your individual case and circumstances.

The intent of this article is purely informational, aimed at encouraging individuals to seek legal advice before agreeing to an interview.

You can contact our lawyers anytime without any legal fees by calling (416) 999-8389. Please note that the content of this article is exclusively relevant to Canadian criminal jurisprudence.”