Netflix sometimes teaches us things beyond the fact that you can now get a whole lot of quality viewing for not much money every month. The popular When They See Us show about the Central Park Five teaches us that, given the right circumstances, people will tell the police what they want to hear, and you’re never doing yourself any favours in doing so.
In my 24 years involved in criminal law, I’ve never come across anything in Canada like the Central Park Five false confession confession convictions, and I hope I never do. But make no mistake that there is a lot police officers can do in Canada that is completely lawful to get you to talk.
The police certainly might tell you that if you just tell the truth, you can go home. That’s essentially what the Central Park Five were told.
The police also might suggest to you what the truth is, and ask you to agree. Again, that’s what happened to the Central Park Five.
No one can beat you. No one can deny you medical care. No one can deny you food and water. But when it comes to how much questioning is too much, there can be judicial disagreement.
Now you might be wondering: “If I just say I didn’t do it, isn’t that going to help me?” In short, no.
Nothing wrong with identifying who you are to the police. They might not let you go until you do that, and there is some conflicting caselaw out there saying you might have a positive duty to identify yourself. But that’s about it.
You have no duty to help the police on criminal matters, except in some very, very limited circumstances like providing information under the Automobile Insurance Act about an accident. If in doubt, ask if you’re required to answer.
Most people seem to believe they have a legal (or at least moral) duty to help the police by telling all, even if they are the ones facing criminal jeopardy. Or at least they think that by telling the police a long convoluted story that they might have trouble keeping straight - as true as it might be - they are doing themselves a favour. They couldn’t be more wrong.
Why You Need to Resist the Urge to Talk
I find almost all people - regardless of levels of education - have an urge to talk at length to the police, even if it’s just to deny everything. They all seem blind to the fact that those denials can later be handily used against them. They’ll do things like:
1. pin themselves down in one location at the time of the offence;
2. identify the people they were and weren’t with at the time of the offence;
3. offer justifications as to why they couldn’t possibly have done anything wrong;
4. voluntarily produce documentary evidence - like an entire lifetime on a cell phone;
5. identify other people for the police to talk to - including speculating that they may have “done it”;
6. voluntarily offer to provide blood samples, or take lie detector tests, or accompany the police to particular locations;
7. voluntarily offer to permit the police to search a vehicle or a residence.
You’ve got to realize, that by producing negatives, you’re really offering positives which you can later be tripped up on. Even if you’re completely innocent, those trip ups can make you look guilty.
Why You Effectively Have No Right to Silence if You Feel Obliged to Talk
The key point is that everyone has a fundamental rights to remain silent under the Canadian Charter of Rights and Freedoms. It’s not especially different from the Central Park Five’s “Miranda Rights” as they’re often called in the US after a famous case. But if you’re not exercising that right in an informed way, then you’ve really got no right at all.
Thus everyone needs to be absolutely certain that speaking to the police is a choice, not a duty. They also need to know that in questioning suspects, the police will employ various techniques to encourage a voluntary spilling of the beans, including potentially lying to you. The police can’t coerce you. Your statement needs to be voluntary, meaning its free of threats, promises or an atmosphere of oppression. But there can often be a fine line - and disagreement among judges - over how the police can encourage statements.
Unlike in the United Kingdom, but exactly like we saw with the Central Park Five, recordings don’t start the moment witnesses enter police interview rooms in Canada. Likewise the police mostly don’t wear body cameras in Canada. So various things can be said to you by police prior to any recording being started, just like in the Central Park Five. You shouldn’t let those things influence your willingness to give a statement.
Why This Post is Police Positive
I don’t make the rules. It was Parliament in the Constitution Act, 1982 which decided to constitutionally entrench the right to silence under Canadian law.
In part of my practice, I actually do a lot of work with law enforcement officers, including prosecuting cases, as well as representing them on administrative matters. So long as they obey the law, I’ve got nothing to criticize about their techniques in getting people to talk as part of an investigation. It’s their job to get you to talk. Some are quite good at it.
My stressing potential Canadian parallels to the Central Park Five is only meant to underline that you could effectively wind up in their situation even without being a youth and without the police impropriety involved in that case just by an officer lawfully continually asking you the same questions, and you feeling like you should be helpful, because that is likely the best way to enable you to go home.
Avoid Turning a Witness Interview Into a Target Interview
If it’s very clear to you - and you clearly ask police - that you are only a witness, and not a subject of investigation, you might be tempted to speak to them. There’s nothing wrong with assisting the course of justice so long as you’re not going to pay for providing that help. But before doing so, you absolutely need legal advice, since you’ll recall that the Central Park Five were initially told they were only being spoken to as witnesses, not as targets of investigation.
Like the Central Park Five, everyone just wants to go home. They hope that by talking, the police will believe every word they say, and give them that coveted get out of jail free card. They fail to appreciate that the police can lawfully withhold information from them, and even lawfully lie to them in order to adduce information.
Identify yourself, call a lawyer, and wait for the questioning to end. It lawfully could take a while. The police are just doing their jobs.
Gordon S. Campbell practices criminal, civil and family trial and appellate litigation throughout Ontario. He’s author of The Investigator’s Legal Handbook (Carswell 2006, 2014; Yvon Blais 2010) series of books and has appeared on precedent setting cases up to the level of the Supreme Court of Canada.