Susan Karpa Criminal Defence Lawyer - Calgary

In my role as a criminal lawyer, one of the common questions you may need to ask me before you’ve been charged is: 

“The police have contacted me, and they want to talk to me about something. Can I refuse?” 

At this early stage, the police may want to ask some questions. It may be about an incident you participated in, one you witnessed, or one you have simply became aware of. Based upon my experience, the police will likely be contacting you about a matter for which they are contemplating laying criminal charges.

We all know that it is the job of police to respond to public complaints and to investigate crime. This includes following leads, investigating criminal suspects, and getting information from potential witnesses.  Not all investigations result in a criminal arrest. However, you will understandably be worried about staying within your legal rights, while avoiding doing or saying anything to incriminate yourself.

The police often use tactics to try to convince or coerce people to speak with them. That is so they can get the person to say something that can be used against them later, and that may assist the police in prosecuting them. 

What are your rights in this scenario? 

In many circumstances under Canadian law if you are a suspect or a witness to a potential crime you have the right to decide whether you want to co-operate with the police, including answering their questions. 

The decision to not speak to police is commonly referred to as the right to remain silent. It goes hand-in-hand with the right to retain and instruct counsel without delay, which arises anytime you have been detained, arrested or criminally charged by the police. All citizens are entitled to exercise these rights where they arise, which are protected in the Canadian Charter of Rights and Freedoms.  

There are exceptions to this general principle, and for that reason, it is important to obtain legal advice to ensure that you are exercising your right lawfully. Otherwise, you run the risk of being charged with a separate criminal offence. It is always wise to seek legal advice to address your particular set of circumstances. 

The right to remain silent may extend to police attempts to solicit your information by:

• Questioning you in person.
• Contacting you by phone.
• Sending you texts.
• Contacting you through social media.
• Writing to you by e-mail.

In this context, your “silence” should be comprehensive in nature. You may not realize that simply providing certain information that you are not required to provide, may incriminate you. It is for this reason that it is important to seek legal advice as soon as possible, even at the stage where police have not yet arrested or charged you.

If you choose to exercise your right to remain silent, you may want to avoid doing any of the following: 

• Confirming police have dialed or texted the correct phone number. 
• Confirming your address.
• Indicating you have no information about the matter the police are asking you about.
• Admitting or denying you know another person.
• Admitting or denying that a conversation with another person took place.
• Denying you have ever been in a specific location.

I cannot stress enough the importance of obtaining specific legal advice relevant to your exact situation to avoid any complications with the police, however, as there are several exceptions to the above that would require specific legal advice. 

What advice would you give? 

Each client’s situation is fact specific. I would always suggest calling me to discuss your situation so that I can provide you with advice as an experienced criminal defence lawyer. Without speaking with you, and obtaining an understanding of your specific situation, I would not be in a position to give legal advice.

The right to silence is an important part of our criminal justice system, and one as defence counsel that I encourage you to discuss with me before speaking to police. That way, I can help you to ensure that you do not say anything or do anything that could compromise your defence of the charges down the line.   

What if the police are pressuring me?

As a member of the general public, with little or no experience with the criminal justice system, it will feel daunting to face police questioning, and very challenging to resist it. After all, police are trained to be skilled (and often intimidating) investigators. Many people assume that the police have the authority to demand answers and compel cooperation.   

Even if you know otherwise, you may feel intense pressure to comply. 

This is why it is especially important to take some time to obtain my legal advice on your rights, before you say anything. While the police may have an urgent need to arrest a suspect, there is normally no urgency around questioning, even if police lead you to believe so. I always recommend seeking my advice promptly so that I can help you immediately and liaise with the police on your behalf.

Do I need to report to the police station if requested?

Generally, you do not have a duty to go to the police station to submit to questioning. This can apply even if the police are pressuring you to come in for questioning. Again, there are exceptions that I would need to speak to you about personally in order to provide legal advice.

There are also situations where the police will tell you that if you do not come to the station, they will issue a warrant for your arrest. In these situations, I will give you legal advice as to what to do in your particular situation. 

The police are unlikely to emphasize that in certain circumstances, this is merely an optional “invitation”. Unless your arrest is pending, or there is a warrant for your arrest, being asked to report to the police station may simply be a convenience to police investigators.

If you are on the receiving end of such a request, it can feel very much like an urgent demand, and it is likely designed to. Once again, I can help you face this pressure, by:

• Contacting the police on your behalf.
• Finding out whether they intend to arrest you and/or lay criminal charges against you.
• Advising the police that you intend to exercise your right to silence, if no charges are pending.

Even if it later becomes clear police will be charging you with an offence, I can still assist with making arrangements with them, to have you surrender when it is appropriate and most convenient.

What about providing a sample of my DNA? 

If the police have a warrant to take a DNA sample (usually a pin prick or a swab from the inside of your mouth), then you are being compelled by law to provide such samples. If you do not comply, the police are generally authorized to take the sample, by force if necessary. 

If there is no warrant in place, then in these circumstances contact me as soon as possible to discuss what your options are regarding or whether you should consent to submitting to a DNA test. 

What are the police allowed to search when they arrest me?

As part of a lawful arrest, the police may be permitted to:

• Conduct a pat-down “search” of your body for officer safety reasons.
• If you are being arrested while in your vehicle, the police may be authorized to search certain areas of your vehicle. 

The law relating to search incident to arrest is complex. There are many circumstances where the police will have searched a vehicle or conducted a pat-down search and have located contraband. It may be that the police did not have the authority to conduct those searches. If the searches were conducted unlawfully, then that may be grounds to have the charges against you withdrawn by the crown, or if the matter proceeds to trial, the charges may be dismissed. 

Again, if you find yourself in this situation, I can offer help on an urgent basis to advise you of your legal rights, to inform the police that you will be exercising them, and to continue to represent you accordingly. 

Call me, Susan Karpa, an experienced criminal defence lawyer.

If you are in any situation where you are facing police questioning, I encourage you to come speak to me so that I can give you timely, personalized advice that protects your rights. This may include discussing:  

• Your right to silence, and why it is important to exercise it.
• The risks of not exercising this right.
• The pros and cons of speaking with the police.
• What you may experience if you choose to cooperate with the police.
• What you should bring to the police station if you choose to go for questioning.
• What arrangements may be made to “schedule” your surrender, if you are subject to being arrested.
• The scope of your rights related to search and seizure by the police, in the event of your arrest.

Regardless of the situation – and especially in the face of police questioning and possible arrest – it is never wise to make assumptions about what your rights and duties are. If you are in this situation, it is important to consult a lawyer who will advise you of your rights and obligations. It is my job to help.