What do I tell the Police?
One’s constitutional right to silence is not an all or
nothing proposition. I regularly advise individuals
who have been arrested or detained to provide the police with some information,
that is, biographical information (name, address, date of birth, etc.), but
advise them to give no further information than this. And the right to
silence does not preclude an accused from giving a statement to police if he
wishes, and later deciding not to give evidence at trial.
And while I am a fan of the English philosopher Jeremy
Bentham, I disagree with him that “innocence never takes advantage of [the
right to remain silent]; innocence claims the right of speaking as guilt
invokes the privilege of silence.”
There is a time for the accused to tell his version of
events. That time, in my opinion, is often
not the time of the police interview. Though I recognize that there
will be rare occasions when there are compelling case-specific reasons for not
exercising the right to silence after providing the police with what is known
as “tombstone data”.
Prior Inconsistent Statements
The Crown has the opportunity to attempt to impeach
the individual’s credibility by showing inconsistency between the evidence the
individual gave at trial and the information he/she provided in a statement to
police (assuming the statement is admissible).
Even if innocent, I am not sure why one would run that risk.
In R. v. Carlos,
2016 ONCA 920 the Court of Appeal for Ontario saw no merit in the
Appellant’s contention that that the Crown had breached the appellant’s right
to silence by asking him questions as to why, during his police statement, he
did not tell the police officer certain things that he said at trial. The
Crown’s questions, the Court held, were proper cross-examination on the
inconsistencies between what the appellant said in the statement and what he
said at trial, and did not undermine the appellant’s right to silence.
Past Consistent Statements
While prior inconsistent statements may be used against
witness, a witness is not entitled to give evidence of statements on other occasions
by the witness in confirmation of her testimony. This is the rule against the
admission of past consistent statements.
As a result there will often be little benefit to giving a police
statement, though plenty of risk.
Where the accused makes a denial
in his statement to police but does not testify at his trial
A denial rendered by an accused during the course of
giving a statement made to police, and then tendered in evidence at trial, must
be considered by the court as it would consider all other evidence: the court
must assess it for credibility and reliability based on a review of
circumstances under which the statement was made. Axiomatically
discounting such a statement simply because an accused might have chosen not to
testify at trial would strip the accused of the right to silence, a right that
runs throughout a criminal trial of the presumptively innocent.
See R. v.
Pettipas, 2016 NSPC 62 (CanLII) at para 29.
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