In Canada the public’s understanding of the “right to remain silent” is heavily influenced by American TV shows like Law and Order and The First 48 Hours. The typical scenario plays out something like this. One or two detectives bear down on a whimpering suspect who is bombarded with questions and accusations. Within a few minutes, the suspect has had it. He “lawyers up” and the interrogation magically ends.
Unfortunately, it’s not that simple. I can’t speak to what the law is in the United States, but I can tell you one thing for sure — it doesn’t work that way in Canada, and there are recent cases from the Supreme Court of Canada to prove it.
In the simplest terms, the right to remain silent is the right not to say anything. If you are being questioned by a detective or a police officer, you don’t have to answer. If you are sitting in a room or in a police car with a police officer who is saying nothing, just sitting opposite from you, you don’t have an obligation to offer an “explanation” for anything you may or may not have done, whether you have been asked for one or not. You have a constitutional right to say nothing.
The one and only exception to that rule is if you are stopped while driving your car. You have no choice but to provide your driver’s licence and registration documentation, and confirm who you are and where you live. You don’t have to say anything else.
What may come as a surprise to you is that invoking your right to remain silent by actually telling the police you don’t want to say anything does not prevent the police from continuing to interrogate you. They can sit with a suspect for hours after he has repeatedly told them he doesn’t want to say anything, and they are free to continue asking questions or carry on a one-sided conversation.
As unusual as this might sound, it’s true. What’s more, it often ends with the suspect confessing to criminal acts after having had the good sense earlier to invoke his right to silence. A good interrogator uses sophisticated techniques to break down a suspect’s psychological inhibitions without so much as raising his voice, let alone his fist. Interrogators seldom start by getting right to the point. They carefully build trust and rapport by discussing things they may have in common with the suspect or by discussing harmless topics. At other times, they appeal to the suspect’s sense of decency, religious inclinations and values to coax him to say something. Sometimes they say nothing, letting long periods of awkward silence pass, hoping the suspect will not be able to stand the silence and awkwardness of the moment and start talking.
Don’t help the police convict you. Invoke your right to remain silent and stand by it. There is a time and a place for everything. If you have a story to tell, your lawyer can tell you how, where and when to tell it, assuming you ever need to tell it at all! After all, you are presumed innocent until proven guilty. It is the state’s responsibility to prove you are guilty, not your responsibility to prove you are innocent.
