Understanding Your Right to Remain Silent
The right to remain silent is an important protection for anyone being investigated, detained or arrested by police in Canada.
If police suspect you of a criminal offence, you generally have the right to remain silent and not answer questions about the alleged offence. In most criminal investigations, you should speak with a criminal defence lawyer before giving police a statement.
Anything you say to the police may incriminate you and may later be used as evidence against you in court.
Charitsis Law is led by Nicholas Charitsis, a former Crown Attorney with more than 20 years of criminal law experience. As a Toronto criminal lawyer his practice is focused on helping people facing impaired driving, domestic assault, sexual assault and criminal driving charges, including cases involving police questioning, statements and alleged Charter violations.
Arrested or questioned by police? Call Charitsis Law at 416-731-7113 to discuss your case.
What the Right to Remain Silent Really Means in Canada
The right to remain silent is protected by the Canadian Charter of Rights and Freedoms. If you are detained by police, you generally have the right to choose whether to answer questions about an alleged crime.
What you say can become evidence. Even a simple explanation may later be compared with witness statements, text messages, video or other evidence.
What Does the Right to Silence Allow You to Do?
If police are investigating you, you can choose not to:
- explain what happened;
- answer questions about the alleged offence;
- provide a written or recorded statement; or
- discuss evidence the police say they have against you.
You can also tell police that you do not want to answer questions.
Before You Answer Questions From Police
Ask to speak with a criminal defence lawyer before giving any statements
The right to remain silent in Canada generally allows you to choose whether to answer police questions about an alleged criminal offence. If police are questioning you as a suspect or as a criminal investigation, our advice is simple: ask to speak with a criminal defence lawyer before giving a statement.
If you are arrested or detained, you have the right to speak with a lawyer without delay. You can also choose not to explain what happened or give police your side of the story.
Ask to speak with a lawyer first. Get legal advice before deciding whether to answer police questions.
Have the Police Asked You to Come In for an Interview?
If the police call and ask you to come to the station to answer questions or give a statement, make sure you speak with criminal lawyer Nicholas Charitsis before agreeing to an interview or a conversation on the phone or otherwise.
You may not know whether police see you as a witness, a suspect or someone they simply want more information from. You also may not know what evidence they already have.
Do not guess about what you should say or try to explain the situation over the telephone. Get legal advice first.
Why Do Police Want a Statement?
Any statement you give can be used in court to convict you of the charge.
Police ask for statements because they are investigating what happened and gathering evidence. They may already have information from a complainant, witnesses, video, text messages or other sources. Your statement gives them another piece of evidence to compare with what they already know.
Police may also be trying to confirm important facts, such as:
- whether you were involved;
- where you were at the time;
- what you did or saw;
- your relationship with the other people involved; and
- your explanation for what happened.
The police officer in asking for a statement is trying to collect evidence in a criminal prosecution. Persons being investigated should not make statements to the police without proper legal advice first.
The Danger of Incriminating Yourself
The danger is that you may say something that helps prove the case against you without realizing it.
You do not have to confess to an offence to incriminate yourself. Simply confirming where you were, who you were with, what you were doing or that certain events occurred may provide police with evidence they can use in their investigation.
Police can then compare what you said with witness statements, text messages, video or other evidence they have collected. An explanation that seemed harmless when you gave it may later become an important part of the case against you.
This is why we generally recommend not giving police a statement if you are suspected of a criminal offence. If police have asked you to provide a statement, contact our office and speak with a criminal defence lawyer before deciding what to do.
What Should You Do If Police Keep Asking Questions?
In many police investigations, the police need to get a statement to help prove the case.
For example, in a fail to remain investigation they want to know who the driver was or where where you were, or who has keys for the vehicle. These types of questions can inadvertently convict you of the offence and are not meant to help you in any way.
What you say to the police will be written down and can be used against you in court, even if the context is taken out of character.
There are times when you may still be required by law to provide information. For example,
- a driver may be required to produce a driver’s licence, vehicle permit and proof of insurance during a lawful traffic stop.
- A driver may also be required to comply with a lawful breath demand during an impaired driving investigation.Can Police Keep Asking Questions?
Police do not always have to stop questioning you just because you say you want to remain silent. In R. v. Singh, 2007 SCC 48, the Supreme Court of Canada confirmed that police may continue trying to get a detained person to speak.
Your Right to Speak With a Lawyer
If you are arrested or detained, section 10(b) of the Canadian Charter of Rights and Freedoms gives you the right to speak with a lawyer without delay.
Police must tell you about this right. If you ask to speak with a lawyer, they must generally give you a reasonable opportunity to do so before trying to obtain evidence from you.
What Should Happen After You Ask for a Lawyer?
Police generally must:
- tell you that you have the right to a lawyer;
- provide information about Legal Aid and duty counsel;
- give you a reasonable chance to contact a lawyer; and
- allow you to speak with the lawyer in private.
Speaking with a lawyer gives you an opportunity to understand your rights and get advice about dealing with the police investigation.
Can Your Lawyer Be With You During Police Questioning?
No. Usually, you do not have the right to have your lawyer sitting beside you during a police interview in Canada.
The Supreme Court of Canada addressed this issue in R. v. Sinclair, 2010 SCC 35. In some situations, you may have the right to speak with a lawyer again if circumstances change during the investigation.
Your right to a lawyer and your right to remain silent work together—but they are two separate Charter rights.
Right to Remain Silent – Impaired Driving Investigation
The right to remain silent still applies during an impaired driving investigation, but there are important limits. A driver may have to provide certain information or comply with a lawful police demand.
What Can Police Ask You?
During a roadside investigation, police may ask questions such as:
- Where are you coming from?
- Have you been drinking?
- When was your last drink?
- How much alcohol did you consume?
- Who was driving the vehicle?
Your answers may later become part of the evidence in an impaired driving or Over 80 case.
Do You Have to Provide a Breath Sample?
If police make a lawful breath demand, the right to remain silent does not give you the right to refuse that breath test demand. You have the right to remain silent, but you do have to take the test.
Depending on the circumstances, police may require a roadside breath sample or further breath testing at the police station. Refusing or failing to provide a required sample can result in a separate criminal charge.
This is why there is an important difference between answering police questions and complying with a lawful breath demand.
If you have been charged with impaired driving, Over 80 or refusing a breath test, your defence lawyer can review what happened at the roadside and whether police followed the law.
Right to Remain Silent – Domestic Assault Investigation
In a domestic assault charges, the police are often called to a home while emotions are still high. Officers may separate the people involved and ask each person what happened.
Anything you say may become part of the evidence in a domestic assault case.
What Might Police Ask You?
Police may ask:
- What happened before they arrived?
- Was there an argument?
- Did anyone push, grab or hit someone?
- Who started the physical contact?
- Was anyone injured?
- Were children or other witnesses present?
You may feel that explaining your side will clear everything up. However, even a small detail can later become important if it differs from a witness statement, 911 call, text message, video or other evidence.
Right to Remain Silent – Sexual Assault Investigations
A sexual assault investigation may involve detailed questions about private events, relationships, consent and communications between the people involved.
If police believe you may have committed an offence, what you say during the investigation can become important evidence.
What Might Police Ask About?
Investigators may ask about:
- your relationship with the complainant;
- what happened before and after the alleged incident;
- whether there was consent;
- text messages or social media conversations;
- alcohol or drug use; and
- where and when particular events occurred.
Police may already have information from the complainant, witnesses, text messages, photographs or other evidence when they ask you these questions.
Statements & Sexual Assault Investigations
The police can ask any type of questions to try to get you to incriminate yourself.
If police want to question you about a sexual assault allegation, speak with a criminal defence lawyer before deciding whether to give a statement.
- Sexual assault investigations can involve detailed questions about consent, conversations, physical contact, alcohol, text messages and what happened before and after the alleged incident.
- Police may ask the same issue in different ways, challenge your answers or put information and allegations to you during the interview.
- You may think you are simply explaining your side of the story, but an answer can provide evidence that police did not previously have.
Even a small admission may become important. You might confirm that you were with the complainant, that sexual contact occurred, that alcohol was involved or that a particular conversation took place.
Know Your Right to Remain Silent
The right to remain silent is an important part of Canadian criminal law. If police suspect you of a criminal offence, you generally do not have to explain what happened or give them a statement.
Remember these important points:
- Ask to speak with a lawyer if you are arrested or detained.
- Get legal advice before giving police a statement.
- What you say to police may become evidence.
- Police may continue asking questions even if you say you want to remain silent.
- The right to remain silent has limits. You may still have to comply with certain lawful police demands.
These rights can become important in impaired driving, domestic assault, sexual assault and other criminal investigations.
Speak With a Criminal Defence Lawyer
You’ll speak directly with Nicholas Charitsis—not a call centre or an intake representative.
When you call Charitsis Law, you’ll speak directly with Toronto criminal lawyer Nicholas Charitsis. He’ll answer your questions, explain your legal options, and help you understand the evidence against you.
Call 416-731-7113 today to arrange your confidential case review.
FAQs About the Right to Remain Silent in Canada
Do I Have to Answer Police Questions in Canada?
Generally, you do not have to answer police questions about an alleged criminal offence. If you are detained or arrested, you can choose to remain silent and ask to speak with a lawyer. There are exceptions where the law requires you to provide information or comply with a lawful police demand.
What Should I Say If I Want to Remain Silent?
Tell the police clearly that you do not want to answer questions and that you want to speak with a lawyer. Police may continue asking questions, but you can continue to say that you do not wish to answer.
Can Police Keep Questioning Me After I Say I Want to Remain Silent?
Yes. In Canada, police do not necessarily have to stop questioning you because you have said you want to remain silent. You can continue to refuse to answer questions. The Supreme Court of Canada considered this issue in R. v. Singh, 2007 SCC 48.
Can What I Say to Police Be Used Against Me in Court?
Yes. Statements you make to police may become evidence in a criminal case. This can include answers given during an interview or other conversations with police. If you are being investigated for a criminal offence, ask to speak with a lawyer before deciding whether to give a statement.
Does the Right to Remain Silent Apply During an Impaired Driving Investigation?
Yes, but there are important limits. You can generally choose not to answer questions about an alleged offence, but you may still have to provide required driving documents or comply with a lawful breath demand. Refusing a lawful breath demand can itself result in a criminal charge.
