The police want to question me. Now what?

One of the most common questions I receive from people who are arrested or under investigation is whether to speak to the police.

Although every case is different, my usual advice is to say nothing. You have a right to remain silent. Exercise that right. Be quiet. Don’t even respond to a remark about the weather.

You may think what you say won’t hurt you if you are innocent or don’t confess to a crime. That belief is often false.

For example, you tell the police you remember going to a hockey game the day before attending the station. Such a comment might seem harmless. Two years later, your case goes to trial, and you testify. The prosecutor asks you what you did the day before you spoke to the police. You say something completely different. Misremembering might be a normal result of time passing. But at a trial, you do not decide what normal is. Every word you utter to the police is a possible inconsistency in the future. How the judge or jury views that inconsistency is not up to you.

Another problem I encounter frequently is that non-lawyers do not always know that certain activities are crimes. Consider this scenario. P gets into a fight and breaks the other person’s jaw. He tells the police that he unleashed an uppercut because the other person wanted to fight. P has just admitted to assault because the law does not allow consent to bodily harm. Punching someone in the face, even if they ask for it, and injuring them in the process is a crime. Common sense and the law sometimes differ.

This is a widespread misconception. Outside of some limited exceptions, a criminal defendant cannot raise their denials as evidence of their innocence. You can deny a crime ten million times. That does not make your denial more or less likely to be true.

On the other hand, saying nothing will not hurt you. A judge or jury may not make a negative finding against you because you remained silent.

Unless you are under 18, you do not have a right for a lawyer to be present during a police interview in Canada. It will be just you and the police.

You have a right to speak with a lawyer before the interview begins or if your circumstances change during the interview (e.g., new charges). The police must give you the number for a free lawyer (called duty counsel) if you don’t have a specific lawyer in mind.

No.

While you have a right to remain silent, the police may continue asking you questions. Stating that you’re not going to talk does not mean the police must stop trying.

The police may spend hours attempting to get you talking. Here are some common tactics they use:

• The “do the right thing” approach: Officers will tell you that you can make things right for the victim and their family. They will aim to tug on your emotions.

• Showing you a gruesome photograph and asking you how you could not respond.

• The “logical explanation”: Officers will tell you that there is probably a logical explanation that could make the case go away. This is almost always untrue

• Lying about the evidence: Officers may say the case against you is overwhelming or someone has told them everything they need to know. Very often, officers will lie about what they have against you. The law does not require them to be honest

• Making small talk: Officers may try to make you feel comfortable by making small talk. They are not trying to be friendly

• The preferable alternative: Officers may present you with a scenario that seems better than the central allegation. What they may be doing is trying to lock you into an answer that sounds good before refuting the preferable alternative. For instance, you are charged with assault, and officers say, “Look, we know you were just defending yourself”. You jump at this opportunity and say “yes” because you think it’s your out. It turns out the police did not have strong evidence to identify you as the assailant. Now, you’ve just admitted it was you

• Asking if you would take a lie detector test

• The “last chance”: Officers may say that once they leave the interview, they can’t help you. “This is your last chance”. They’re not trying to help you

• Minimizing the legal advice: Officers may say something like, “I know you talked to a lawyer. But your lawyer isn’t sitting here. They’re not the one facing these charges. Only you are”. Again, they’re not trying to help you

• The prop box:  Officers may place a box marked with your name inside the room. They will leave you alone. If you look inside the box, they will catch you in the act and ask why an innocent person would be concerned about it.

• “The stolen pen”: Officers may confront you with a minor infraction (e.g. “Where did my pen go? Did you steal my pen?”). If you say no, they will then ask why you would immediately deny stealing the pen but remain silent on the serious allegations.

This is far from a complete list of techniques. The police may attempt to extract a statement from you in more ways than you can imagine.

Receiving proper legal advice before a police interview is critical. You can do so now by calling (416) 999-8389.