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Ask any criminal lawyer for the most important piece of general advice to give to someone
who has just been arrested, and this is what it will probably be: “Don’t
say anything until you have talked to a lawyer”.
When the accused talks to a lawyer, he will likely be advised not to say anything to
the police. He is not obliged to make a statement.
Statements made to the police – whether they be confessions or “exculpatory” statements,
i.e., explanations of alibis – are generally admissible in court provided they
have been legally obtained. An exculpatory statement can be just as damaging as a confession
in the long run if the police can prove it was a lie.
The Canadian Charter of Rights and Freedoms requires that the police inform someone
who has been arrested or detained of certain basic rights.
Everyone has the right to be told why he has been arrested or detained and that he has
the right to retain and talk to a lawyer without delay. The police cannot question the
person until he has been given a reasonable opportunity to retain and talk to a lawyer,
unless he clearly and explicitly declares his intention not to reach a lawyer.
When a person does make a confession or an exculpatory statement, to be legal it must
be voluntary. In old movies, we can see the police shining a bright light in the eyes
of the accused, or not letting him go the bathroom until he confesses. These sorts of
practices are not acceptable any more – if they ever were. The police cannot threaten
or frighten a person into making a statement. Conversely, they cannot promise him lenient
treatment or some other form of benefit in exchange for a statement.
Illegally obtained evidence, such as an illegally obtained confession or an illegal
wiretap is not automatically excluded from a court case. Generally speaking, however,
confessions that have been obtained by breaching a Charter right of the accused have
been declared inadmissible as evidence. Both guilty and innocent people try to talk their
way out of the police station. Few of them succeed.
There is no doubt that the best general advice is to wait for a lawyer before saying
anything. For those who have done nothing wrong, a lawyer will sort it out for you eventually,
and the risk of talking yourself into further trouble disappears.
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