The Right to Remain Silent (No, This isn’t about Family Law)

It used to be that lawyers worried about clients filling out motor vehicle accident reports required under provincial law – for fear that the police would use the information contained in those reports to pursue a criminal prosecution against those clients.  Not too long ago, the Ontario Court of Appeal decided that there are restrictions on how a police officer can question you following a motor vehicle accident.  (R. v Soules, [2011] O.J. No. 2500)  Mind you, the Ontario court wasn’t actually breaking new ground – they were following earlier British Columbia decisions on the same point.

The problem arises because under the Motor Vehicle Act, one has a duty to report an accident.  What happens, however, if you feel a duty to report the accident (or are told by the police that you must do so) – but your report in some way suggests that you have been drinking or committed some other criminal offence?  The short answer is that information which the police obtain from your report (or as a result of following up on that report) cannot be used against you in a subsequent criminal prosecution.

This type of case arises because our Charter of Rights gives us the right to remain silent when under investigation for a criminal offence.  People often complain that the Charter right to remain silent gives criminals an unfair advantage.  Most lawyers respond by pointing out that the government and the police have virtually unlimited resources – which, Charter or no Charter, gives the government a significant advantage when it decides to prosecute the average citizen.  In the eyes of the average lawyer, the rights which we all enjoy under the Charter are there to help make the “fight” between the government, on the one hand, and an accused person, on the other, just a little bit fairer.  If you don’t agree, just wait for the day when you’re wrongly accused!  You might just change your mind.

Article written by Centennial Law Corp. (Douglas E. Dent)