Many times a month, our lawyers get calls from terrified people telling us that police want to interview them and wondering what to do.
All too often we hear them say “The police just called me, I have to turn myself in in 30 minutes or they will come to get me.”
Or, we hear over and over from clients who made the mistake of going into the station before speaking to counsel that they felt “didn’t feel they had a choice” and that the police told them they “had to be there by a certain time.”
While perfectly sensible, those beliefs are often misinformed.
This article is written to try and clarify some of these misperceptions. As well, it is meant to provide a guide to those found in these very intimidating situations with the information they need to make informed decisions on how to approach a request for a police interview (spoiler alert: call a lawyer ASAP).
In Canada, everyone has a right to silence, and a right to retain and instruct counsel without delay. Few know this; fewer understand it; and fewer still will exercise these rights when pressed by police.
Since people in Canada have the right to silence, there is never a requirement that suspects provide a statement, despite the pressure they may feel to do so.
Similarly, there is never a requirement that a suspect must come to the police station when asked.
Failing to attend the police station may result in police attending the location of a suspect and arresting them, but that is not the same as being required to come to the police station on their own free will. Being asked to attend the police station is a matter of convenience to the police, and often the suspect, but never a requirement.
Even though lawyers will often always advise clients to turn themselves in, it is only after they have obtained proper legal advice and made the appropriate arrangements to protect their client’s interests. There may also be instances where police do not have reasonable grounds to lay a charge and the lawyer may advise the client to respectfully refuse their request to participate that might place them at risk of self-incrimination.
Lesson 1: You have a right to silence, you have a right to a legal advice: use both.
Even though suspects often believe they must turn themselves, it is often not the case.
Whenever we receive panicked phone calls insisting that an officer requires an immediate surrender, we call the officer and ask them whether they intend to arrest our client or not. Officers are usually forthright with counsel and inform us of their intentions.
In cases where an arrest is inevitable, we typically advise our clients thoroughly on the right to silence. Once they understand these rights completely and their importance, we will make arrangements with the officer for our client to surrender when it is convenient to do so.
Sometimes, an arrest is not inevitable and the police request was an optional one (even though it may have not felt optional to the client). From there, we can advise our client on their choices and whether it makes sense to attend the station at all.
Lesson 2: You may not have to turn yourself in at all. Let a lawyer call the police and ask.
Although there are situations where an arrest of a suspect is urgent for police, an accused providing a statement to police rarely (if ever) is. Despite this, police investigators often benefit from this sense of urgency assumed by the suspect.
There is a common, but false, belief held by suspects that they need to sort this out as quick as possible. Their hope is often driven from a hope that if they cooperate quickly and fully, they can prevent criminal charges from happening in the first place. This hope is misguided and often proves to be a fatal issue to their case.
Suspects false sense of urgency aside, police will often imply a sense of urgency by demanding the suspect attend the station promptly. This request for immediate action often prevents people from taking a moment to obtain advice from a lawyer.
Lesson 3: Breathe. Call a lawyer. Let your lawyer set the pace of surrender or refusal.
Statements and utterances of a suspect (even before they are charged) are admissible against them in evidence unless the statement is involuntary; or, the statement was made without proper caution of their rights to counsel or right to silence.
Whether a statement is “voluntary” or not, a complicated and fact-driven legal analysis that generally does not favour the accused.
Without getting overly legalese, a statement is voluntary if was given in an absence threats, coercion, promises, or other factors that would take away one’s free will to provide it. Therefore, in nearly all instances where a statement is provided to police over the telephone, it will be considered “voluntary” and therefore admissible.
There is also a legal requirement in Canada that police must advise people of their right to counsel and their ability to contact one without delay.
However, this only applies when a person is arrested or detained. Since you are not detained in a telephone conversation, there is no obligation at this point in time that police advise you of your rights to speak to a lawyer. Therefore, telephone calls with police place the non-detained suspect in a very precarious position and are almost always admissible.
Lesson 4: Statements and utterances over the telephone are almost always admissible in evidence.
Many assume that a “statement” is only when a suspect signs a confession, or goes on video to make a complete narrative of the events.
Evidence of a suspect can take any form. It can include admissions, denials, reactions, or gestures. As long as there is some evidentiary value to the prosecution, they can seek its admission into evidence against a suspect.
This means that:
- “Yes, this is John Smith”
- My telephone number if (416) XXX-XXXX
- My address is …
- “Sorry, I have no idea what you are talking about”
- “Yes, I know that person.” or “I don’t even know that person.”
- “He said what about me?!”
- “I have never been there in my life.”
are all potentially admissible against a person at their trial.
Small, seemingly harmless details can prove essential to proving an element of the case. Denials are particularly dangerous as it is human nature to deny when confronted with something harmful. At trial, a denial can be equally damaging to a person’s credibility as an admission if proven that denial was made falsely.
Lesson 5: Anything and everything you say, admit, implicitly acknowledge, or deny over the phone can be used against you in evidence. Silence is the only thing that can’t.
If you walked into a hospital, you would likely not believe you are as skilled as the surgeon (unless you are a surgeon I suppose). Similarly, you would probably not assume you can out-skate a professional hockey player. Yet, every day, suspects walk into police stations thinking that it is just friendly, common-sense chit-chat that they can easily handle.
Police investigators, like the surgeon and hockey star, are seasoned professionals. They do this every day. They know how to get people to talk. They use sophisticated methods to ensure they get to the evidence they are after. Putting it lightly, an accused is no match.
Employing advanced investigatory techniques, police may say things over the telephone like “I think you know what this is about” or “Don’t you want to come down to the station so we can get your side of the story?”
These are powerfully coercive, and legally permissible ways, to investigate crime.
They are designed to leverage human nature and our innate desire to react and explain. Everything you say in response is written down in detail for later use. In the best case scenario, you end the conversation quickly and contact a lawyer who can then speak to the police to understand what the issue is, and advise you from there.
Lesson 6: This is not a friendly telephone chit-chat. You are trying to out-skate a pro with loosely tied skates.
Turning yourself in is not like going to the mall. There are really important things you need to know before going in.
Rarely are these important details provided by the police when speaking to a suspect over the telephone in the first instance. Since the right to retain and instruct counsel only applies when a person is detained, there is arguably no obligation for police to tell you that until you actually show up at the station.
By then, it’s too late.
Having the benefit of legal advice in advance would inform of:
- A comprehensive explanation of the right to silence and its importance;
- An explanation that anything you bring with you to the station can and will be seized as evidence;
- The items seized upon your arrest at the station may be subject to search including, cell phones, and contents of vehicles;
- The importance of understanding whether you will be released from the police station or held for a bail hearing;
- The need to make arrangements for sureties to bail you the following day should police hold you;
- The possibility of surrender in the early morning instead spending the evening in custody;
- A possible inability to access your phone for numbers you may need due to investigatory preservation;
Lesson 7: Police are not required to inform you of important things until you’re detained or arrested, so speak to a lawyer before you get to the police station.
How we sometimes as lawyers when we are asked to provide advice after a statement is given.