Criminal law

Arrest

What is the right to remain silent?

When a person is arrested or detained by police, everything he says to the police can be retained and used against him at trial.

The law provides that all citizens have the right to remain silent following an arrest or a detention. This is a fundamental right granted by the most important law in the country: the Canadian Charter of Rights and Freedoms.

The police must inform a detained or arrested person of his right to remain silent. It is then up to the individual to decide whether to speak to them or to say nothing at all.

Does an adolescent have the right to remain silent?

Yes. In our legal system, the right to remain silent is granted to everyone. As with an adult, an arrested or detained adolescent has the right to remain silent, except when he is just asked to identify himself. It is important for the youth to know that he can refuse to answer questions and to sign any documents related to the alleged offence.

However, in many cases, the adolescent may have the reflex to want to explain his actions to the police. This is a natural reaction, but it is wiser to remain silent, because everything he says can be used against him in future legal proceedings. Moreover, no one is obligated to cooperate with the police. To learn more, see the Infosheet Understanding your right to a lawyer.

What information must the police give the adolescent before questioning him?

Police must follow special rules when taking a statement from an adolescent. The statement is made up of the answers that he provides to the police officers’ questions. Before questioning an adolescent, the police must inform him that he doesn’t have to make a statement, and that all statements can be used as evidence if he is charged with the offence. Also, the police must tell him that he has the right to consult a lawyer.

In addition to his lawyer, the adolescent has the right to speak to one of his parents before making a statement to the police. If his mother and father are unavailable, he can consult another member of his family who is 18 years or older. For example, he might want to speak to his 25-year-old brother. If none of these people are available, the youth can generally speak to another adult whom he trusts, like a neighbour or a friend of the family. He also has the right to demand that his parents and his lawyer be present at all times during police questioning.

Under what circumstances can an adolescent’s statement to the police be used against him in court?

Even if Thomas speaks to the officers, this does not mean that his statement can automatically be used as evidence. In theory, all verbal or written statements made by an adolescent to the police are excluded from the evidence presented to the court. However, a statement can be admissible as evidence if the Crown counsel obtains the permission of the judge. This permission is requested during the trial itself, within the context of a hearing called a “voir-dire”. During the voir-dire, the Crown counsel must convince the judge that the police clearly explained the following to the adolescent before taking his statement:

• he has no obligation to make a statement;
  
• the statement can be used against him;
  
• he has the right to the assistance of his mother or father, as well as his lawyer.

The Crown counsel must also persuade the judge that the adolescent had sufficient opportunity to contact these people and to make his statement in their presence. In addition, the Crown must prove that the statement was made to the police freely and voluntarily, without force, threats, or promises on their part. Also, it must be shown that the adolescent was in a state that allowed him to act with full knowledge (this means that he was not under the influence of alcohol, drugs, or medication).

It may happen that the statement is not recorded on a video or audio tape, but is simply written down by a police officer or by someone else. In such a case, the Crown must prove that the youth’s words were accurately transcribed by the officer or the person to whom the statement was made. To show this, the investigators who were present when the statement was taken can be called to testify. The adolescent can also ask to testify, if desired.

What is the difference between a statement and a confession?

The difference between the terms “statement” and “confession” is often misunderstood. The law does not make a distinction between a statement and a confession, and the same rules limit their use as evidence.

A statement is the official version of the facts that a person gives regarding an event. The victim, the witness, and the accused can all be called upon to make one. The statement is generally written, but it can be verbal or recorded on a video or audio tape. The one given by the accused adolescent isn’t necessarily an admission of guilt on his part; it can sometimes exonerate him (clear his name) completely. The confession, on the other hand, is a statement in which a person acknowledges guilt for an offence.

What happens if an adolescent confesses to the police before knowing his rights?

Let’s take the example of an adolescent who is caught robbing a boutique in a shopping centre. What happens if, upon the arrival of the police, he yells: “You know, this isn’t the first pair of boots I’ve stolen!” This statement, made before the officer had time to inform the adolescent of his rights, can be used as evidence during his trial because it fulfills the following conditions:

• it is an oral statement;
  
• it is made spontaneously (without the police asking questions);
  
• it is made voluntarily (no promises nor threats);
  
• it is made before the police had time to inform the adolescent of his rights.

However, a police officer who hears such a confession must immediately inform the adolescent of his right to remain silent. These requirements apply to all statements that are oral and spontaneous, regardless of whether or not they are admissions of guilt.

Can an officer use a statement made by the youth to another person as evidence against him?

Yes. An adolescent might talk about having committed an offence to a teacher, the principal of a school, a security guard, or one of his classmates. In certain instances, such a statement can be reported to the police and then serve as evidence against this adolescent if charges are brought against him.

What happens when an adolescent makes a statement because he thinks he has an obligation to do so?

For a statement to be admissible as evidence against the adolescent, it is very important for it to have been given voluntarily. This means that he must not have been encouraged to make the statement through the use of threats or any promises.

Can keeping silent harm the adolescent’s case?

No. If an adolescent chooses to remain silent at the police station, this does not mean that he has something to feel guilty about! This simply means that he is exercising his right to remain silent. Similarly, at his trial, an adolescent cannot be forced to testify. He can therefore make the choice to remain silent throughout the trial. This right is guaranteed for all accused individuals under the Canadian Charter of Rights and Freedoms.

This means that no judge can find an adolescent guilty of an offence simply because he did not testify or remained silent with the police. The judge must evaluate the evidence presented to him and he can only find the accused guilty if he is convinced beyond a reasonable doubt that the adolescent committed the offence.

1. Barreau du Québec
2. Texte de la loi