One of the difficult challenges for counsel is to convince a Judge that the client’s statement to police ought to be excluded from evidence. The definition of “statement” includes anything said to police: that includes conversations on the telephone, in person, without being recorded, a written statement, a statement taken on video and, in certain circumstances, silence when confronted by police. So, here is some general advice for those who are about to contact police.
Police will rarely call a suspect and advise that they should come to the station to be arrested. Instead, they will ask the person to attend in order to “clear something up”, or speak to them about a matter. Now, usually, the person has an idea that they are being accused of committing a crime. Before the person speaks or attends at the station, CALL A CRIMINAL LAWYER. What I do, in those circumstances, is call the officer myself. I bluntly ask the officer if the person is going to be arrested upon their attendance. Usually, the officer will advise me. I then ask the officer whether the person is going to be held for a bail hearing. If the answer is yes, then I will make arrangements for the person to “turn themselves in” on a day that is convenient for all parties. I do not want my client to spend a night in custody before being taken for a bail hearing. If the person is not going to be held for a bail hearing, then I will discuss what conditions, if any, the officer will be releasing the client on from the police station. The term “bail” includes releases from the station and from court.
Now, as a general rule, I would advise the person to remain silent when they communicate with police. I don’t mean remain mute. There will be certain pieces of information that the client will communicate to police: for example, their date of birth, their address, sometimes their work information,etc. However, the person should respectfully state that “upon advice from my lawyer, I wish to remain silent”. Often, police will explain the circumstances and ask the person to comment on the allegations. Again, the person should state that they wish to remain silent. The law allows the officer to continue to question a person in the face of their desire to remain silent. How long the interview can continue and the content of the officer’s persuasion, can, at a later date, be the subject of an application to exclude the statement under certain circumstances. So, it is imperative that the person continue to answer that they wish to remain silent. The person can even advise the officer that they wish to be taken back to the cells so that the questionning can end.
So, when speaking to the police in person, on the telephone, on video, in the police car, do not answer any questions in regard to the incident and state that you wish to remain silent. Upon your release from custody, take pen to paper and recall your interaction with police, down to the last detail. Then date it. Some details that may seem irrelevant to you might be instrumental in defending the charge. Since a trial may not be heard for months in the future, memory fades. Police are entitled to make notes and rely upon those notes. When a crown asks an accused how they can possibly remember that detail, you can confidently state that you wrote your own notes a short time after the incident and reviewed those notes prior to testifying.
Excluding a client’s statement may result in their charges being “thrown out”. Consider this: a person’s denial will rarely be led in evidence by the crown: but their admission will almost always be used against you. So, when you do interact with police, make it clear that you wish to remain silent…over and over again.