Should I Give a Statement to the Police?
A detective has left you a voicemail. Or an officer has come to your door and asked you to come down to the station to “clear a few things up.” Maybe they’ve told you that you’re “just a witness.” You haven’t been arrested or charged, and you want to cooperate. So should you give a statement?
No. Giving a statement to the police never helps you. Before you say anything about the allegation, call a criminal defence lawyer. This is exactly the situation our investigations counsel service is for: confidential advice for people the police have contacted but not charged.
Why a Statement Never Helps
When police ask you for a statement, they are in one of two positions. In neither one does talking help you.
1. They already have grounds to arrest you. If police already believe they have enough to charge you, your statement will not talk them out of it. What it will do is tie you to one particular version of events, given from memory, under pressure, without having seen the evidence. Any detail that turns out to be wrong, or that later evidence contradicts, can be used to attack your credibility at trial. And you may hand the Crown information it did not have: who you were with, where you were, what you were thinking. Anything you say can end up being used against you.
2. They don’t have grounds yet. This is often why police want to talk to you. They have suspicions, but not enough evidence to arrest. A statement is the easiest way to fill that gap. An innocent-sounding detail, such as placing yourself at a location, confirming a relationship, or explaining a text message, may be exactly the piece they were missing.
Either way, a statement can only add to the evidence against you. It cannot take anything away. People who are innocent are no exception. Innocent people give statements because they believe the truth will clear them. Then a small inaccuracy or an awkward phrase becomes the centre of the case.
The Only Two Questions to Ask
When police contact you, you do not need to explain anything, argue, or share your side of the story. There are only two things you want to know:
- “Do you have grounds to arrest me?”
- If so: “Am I being held for a bail hearing, or will I be released?”
Then stop, and contact us right away. We can speak to the investigator, find out what the investigation is about, and, if a charge is coming, help you get through the arrest and release process. If you will be held for bail, read about bail hearings and what a surety takes on, so your family knows what to expect.
Be polite. Do not lie. Under s. 140 of the Criminal Code, it is public mischief to cause police to start or continue an investigation by making a false statement, including one meant to divert suspicion from yourself. Declining to answer questions is lawful. Making something up is not.
You Have No Legal Duty to Talk to the Police
In Canada, you are generally not required to answer police questions. The Supreme Court of Canada put it plainly in R. v. Turcotte, 2005 SCC 50: “The law imposes no duty to speak to or cooperate with the police.”
That right exists even if you are not arrested or detained. The Court said that, absent a statutory requirement to the contrary, people have the right to choose whether to speak to the police, and that a voluntary interaction with police, even one you start yourself, is not a waiver of your right to silence.
Your silence also generally cannot be used as evidence of guilt. In Turcotte, the Court held that an inference of guilt “cannot logically or morally emerge from the exercise of a protected right.” There are narrow exceptions, for example where the defence itself puts your silence in issue, which is one more reason to get advice before you say anything.
”Just a Witness” Is Not a Promise
Police often contact people as witnesses, and many genuinely are. But your status can change during an investigation, and sometimes during a single interview. A witness interview can produce exactly the information that turns a witness into a suspect.
A witness statement can also be used as evidence later, even against what you say in court. In R. v. B. (K.G.), [1993] 1 S.C.R. 740, the Supreme Court held that a witness’s earlier inconsistent statement can, in some circumstances, be admitted as evidence of the truth of what it says. The reliability markers the Court identified include a statement given under oath or solemn affirmation after a warning, and one that is videotaped in full. That is why police sometimes ask witnesses for a sworn, video-recorded statement.
If police call you a witness, speak to a lawyer before you agree to anything.
There Is No Lawyer in the Interview Room
People often assume they can bring a lawyer to a police interview. In Canada, that is not how it works. In R. v. Sinclair, 2010 SCC 35, the Supreme Court held that the Charter does not give you a right to have a lawyer present during a police interview. In practice, defence lawyers do not sit in on police statements.
What you do have, if you are arrested or detained, is the right under s. 10(b) of the Charter “to retain and instruct counsel without delay and to be informed of that right.” Use it. Speak to a lawyer, and then exercise your right to silence.
Under Sinclair, once a detained person has spoken to a lawyer, they generally have no right to consult again unless circumstances change significantly. The advice you get before the interview is usually the only advice you get.
Detained or not
You are detained if police physically restrain you, or if you are psychologically detained. In R. v. Grant, 2009 SCC 32, the Court held that psychological detention exists where you have a legal obligation to comply with a police demand, or where a reasonable person in your position would conclude that they had “no choice but to comply.”
If you go to an interview voluntarily and are not detained, the s. 10(b) duties are not triggered. Police do not have to tell you about your right to counsel. Getting advice beforehand is up to you, so get it before you go, or better, before you agree to go at all.
Police Can Keep Asking Questions
Saying “I don’t want to talk” does not end a Canadian police interview. In R. v. Singh, 2007 SCC 48, the Supreme Court confirmed that police may continue questioning a detained person who has said they want to remain silent. The legal question is whether the person kept a free and meaningful choice about whether to speak. The Court also recognized that police persistence despite repeated assertions of silence “may well raise a strong argument” that a later statement was not voluntary. That argument is made in court, long after the interview.
In the interview room, it is up to you to keep exercising your right to silence, however many times you are asked. Our article on police interviews and your right to silence explains the techniques investigators use, and why they work.
Under R. v. Oickle, 2000 SCC 38, the Crown must prove beyond a reasonable doubt that a statement by an accused to a person in authority was voluntary before it can be used. Voluntariness is a minimum standard, not a safety net. A statement can be entirely voluntary and still do serious damage to your case.
Regulatory Investigations Can Be Different
Everything above concerns police investigations of criminal offences. Some regulatory investigations work differently. Turcotte itself recognizes that a statute can require you to answer questions. Some regulators and inspectors have legal powers to require information or documents, and refusing can have legal consequences of its own.
If you are being contacted by an inspector, a regulator, or a professional college, the question is what you are legally required to provide, and how to provide it without going further than the law requires. Our investigations counsel and regulatory offences pages explain how we handle these files.
What We Do When You Call
- Speak to the investigator for you. We find out what the investigation is about and whether police say they have grounds to arrest.
- Arrange a surrender if a charge is coming. Rather than being arrested at home or at work, you can often attend by appointment.
- Prepare for bail if you will be held. We work with your family on a release plan and potential sureties before the hearing.
- Preserve evidence that helps you. Messages, video and witness information can disappear while you wait to be charged.
This is the work our investigations counsel service covers. If you are already charged, start with your first court appearance and our guide to your Charter rights. For your rights at a roadside or street stop, see police stops and your rights.
What This Means for You
- Don’t give a statement. It can only add to the evidence against you.
- Ask police two things: do you have grounds to arrest me, and if so, am I being held for bail? Then call a lawyer.
- “Just a witness” can change, and a witness statement can be used as evidence later.
- There is no lawyer in the interview room. Get advice before, and stay silent during.
- Never lie to the police. Declining to answer is lawful. A false statement can be a crime.
If the police want to speak with you, call us before you answer their questions. Contact Mor Fisher LLP at 705-721-6642 or through our contact page. Our lawyers in Barrie and Toronto will speak to the investigator, tell you where you stand, and deal with the investigation before any charge is laid. If someone has already been arrested and is in custody, call our toll-free line at 833-527-5369.