Miranda rights come from a 1966 American Supreme Court case called “Miranda v. Arizona”. Because we’re inundated with American TV and movies, most Canadians are familiar with Miranda rights, which states: “You have the right to remain silent. Anything you say can be used against you in court. You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you.”
Our legal system is different from the one in the United States and we do not have Miranda rights in Canada, but we have something very similar under the Charter of Rights and Freedoms.
Innocent Until Proven Guilty
In Canada, the right to remain silent comes from the presumption that all individuals are innocent until proven guilty. This means that a person does not have to speak to a police officer or other person in authority, however, if a person does choose to speak to a police officer, they must tell the truth. The consequences of lying to the police could mean extra charges, including; obstructing a police officer, public mischief and obstructing justice.
The Right To Remain Silent Is Guaranteed
The right to remain silent is guaranteed by section 7 of the Canadian Charter of Rights and Freedoms that says: “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.“
Section 10 of the Canadian Charter of Rights and Freedoms mentions that upon arrest or detention, everyone has the right:
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
The Supreme Court has described the nature of habeas corpus as:
“…a vehicle for reviewing the justification for a person’s imprisonment.”
Your Right To Speak To A Lawyer.
This is part of section 11(b) of the Charter. “You have the right to retain and instruct counsel in private without delay.” This means that before the police proceed with your investigation, you may call any lawyer you wish or get free legal advice from Duty Counsel immediately.
You Do NOT Have The Right To Have A Lawyer Present During Questioning
One of the big differences between Miranda rights and Charter rights is that in Canada (unless you are under 18 years old), you do NOT have a right to have a lawyer with you in the room while you are being interviewed by the police. The Supreme Court supported this in R. v. Sinclair, 2010 SCC 35 mentioning that there is a right for a suspect to consult a lawyer before questioning and to be informed of that right. But the reason for consultation is to give the suspect legal advice on whether to cooperate with authorities. There is no requirement that says a lawyer needs to be present for questioning.
The Fifth Amendment vs Section 13
In the United States, the Fifth Amendment permits a witness to refuse to answer any question that may incriminate them (a.k.a.pleading the fifth). This is not how the law works in Canada. In Canada, Section 13 is effectively a bargaining tool that permits the Crown to force a witness to give evidence that might be incriminating, but in exchange for full and frank evidence, the Crown cannot use it against that witness in other proceedings. However, if a suspect lies on the stand, the deal is off and the Crown is permitted to pursue them for those lies.
There are two important factors that must exist to “trigger” section 13:
- Compelled Evidence: Section 13 will only protect witnesses if they are being compelled to give testimony, or if they are compellable witnesses. However, if a non-compellable witness testifies voluntarily, their evidence can be used against them at a later date.
- Incriminating Evidence: Section 13 only applies to incriminating evidence, meaning evidence that may lead a judge or jury to believe that a person is guilty of the act they are accused of.
Silence Does Not Mean Guilt
Even though the right to remain silent applies any time an individual interacts with police or a person in authority, there is no requirement that the police advise a person of the right to silence. Invoking your right to be silent does not mean you’re guilty. If you properly assert your right to remain silent, it cannot be used against you in court, and the jury would be given specific instructions not to consider your silence as an admission of guilt.
If you have been charged with any offence and would like to speak to a lawyer about your rights, we also offer a free 30-minute phone consultation to answer all of your questions. Contact us by phone at 613-233-0008 or e-mail at [email protected] to schedule your meeting