Area of Law: Criminal Law
Answer Number: 741
The right to remain silentRegion: Ontario Answer Number: 741
The right to remain silent is guaranteed by section 7 of the Canadian Charter of Rights and Freedoms. The Charter states that:
“everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.“
Essentially, this means that a person does not have to speak to a police officer or other person in authority. It flows from the basic presumption that all individuals are presumed innocent until proven guilty. However, if a person chooses to speak to a police officer, he or she must tell the officer the truth. If the person lies to the police, he or she may be charged with one or more of the following criminal offences: obstructing a police officer, public mischief and obstructing justice.
If a person’s right to silence is violated by a police officer or other agent of the state, the trial judge would be able to exclude the evidence obtained under such circumstances, because under the Charter, if it would bring the administration of justice into disrepute.
In addition to the right to remain silent, a person cannot be required to give evidence against him or herself. However, if a person does testify, he or she is obliged to the truth. Again, to not do so can result (although this is rare) in a charge of perjury.
Furthermore, the state cannot use so-called “dirty tricks,” such as undercover police or police informers to get a suspect to speak about an offence. However, this can be a complicated issue and depends on the nature of the relationship between the suspect and the police officer/informer. If the officer/informer is acting as an agent of the state, then this will usually be regarded as a violation of a person’s right to remain silent.
Lastly, even though the right to remain silent applies any time an individual interacts with a person in authority, there is no requirement that the police advise a person of the right to silence. However, as with all Charter rights, the right to silence cannot be waived (given up) unless such a waiver is informed with full knowledge of the consequences of one’s actions.
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