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The right to remain silent upon detention

Unlike the United States, Canada doesn’t have “Miranda rights”. However, you still have the right to remain silent in Canada, because we still have protections under the law upon detention or arrest, which allow people detained by police not to have to make incriminating statements against themselves.

Thanks to the Charter of Rights and Freedoms, there are three sections that give people who were detained rights not to have to speak to police without a lawyer.

The first section is section seven, which states:

“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.”

This section deals with people in legal proceedings. As a person’s freedom is at stake in many criminal proceedings, this section demands that the government deal with a person fairly and unless that person has done something wrong in committing a crime against society, they are not to be deprived of their liberty. That includes not being tricked into making incriminating statements against themselves.

Section 10 of the Charter sets out the rights that persons who have been detained or arrested have during the arrest or detention:

“Everyone has the right on arrest or detention

  • (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 ofhabeas corpusand to be released if the detention is not lawful.”

In other words, if you have been detained or arrested by police you can ask for a lawyer right away and talk to the lawyer without delay and not say anything until you have spoken to your lawyer, in order not to incriminate yourself. You also have the right to know why you have been detained or arrested.

If you have been lawfully arrested, police will advise you that you have the right to a lawyer without delay.

Section 11 of the Charter also provides after a person has been charged with an offence. The protection that applies to the right to remain silent is in section (c), which reads:

“Any person charged with an offence has the right

(c) Not to be compelled to be a witness in proceedings against that person in respect of the offence.”

The Supreme Court Case R. v. Herbert, the court made it clear that a person cannot be compelled to incriminate him or herself.

If you have been detained or arrested by police you should contact a criminal lawyer as soon as possible.

Read more:

Canadian Charter of Rights and Freedoms

Your Rights when Arrested or Charged