You have the right to remain silent but police don’t have to tell you

The Supreme Court of Canada recently ruled that police don’t have to tell you about your right to remain silent.

image: Stephen Gustitis

This is only true if you have not been arrested -which is a critical point in your conversation with police.

If you’ve watched enough cop shows, you’ve probably heard the phrase:

“You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.”

If it’s an American show you’re watching, the above warning is called the Miranda rights after a 1966 U.S. Supreme Court ruling that said failure to read accused person their rights violates the United States Constitution.

It took Canada a little while to catch up but after the Brydges case in 1990, the Supreme Court of Canada ruled something similar. Failure to read Canadian suspect their rights constituted a violation of the Canadian Charter of Rights and Freedoms.

But your rights don’t have to be read if you are not under arrest. If you are just having a conversation with police, no warning need be given.

A booklet published by the B.C. Civil Liberties Association outlines how a friendly conversation with police can lead to an arrest.

If you’re like me, you cooperate with police. As a former teacher, I often found myself policing my students as much as teaching them so I automatically identify with police.

A friendly conversation with the police could involve an incident that they are investigating. If they don’t alert you to the right to remain silent, something you say could implicate you with the incident.

Suddenly you have slipped from being cooperative to being a suspect under arrest.

Because they don’t have to, police will not stop you from singing like a canary. For them to say: “You have the right to remain silent. Anything you say can be used against you in court,” would get your radar up. To keep the conversation flowing, it’s to the police’s advantage not to warn you of your right to remain silent.

“If you don’t like the questions the police are asking, ask: ‘Am I free to go?’ If the answer is yes, you can leave. If the answer is no, you are being detained,” says the BCCLA handbook.

In the recent Supreme Court decision, an Alberta man was not told of his rights during a 105-minute voluntary interview. He came in voluntarily and cooperated with the investigation of the shooting of a friend. He was not a suspect.

The interview gradually turned adversarial. Police asked him to prove he did not commit the murder.

What? They might as well asked him where he hid the body.

His statements proved important in the circumstantial case against him and he was convicted.

The Supreme Court ruled that the Alberta man’s conviction would stand despite the slippery slope he fell down in the absence of warning.

Bottom line: when talking to the police, be polite but say as little as possible.