THE ADVOCATE V O L . 7 5 P A R T 3 M A Y 2 0 1 7 361 to whatever you have to say and, if possible, discuss matters with you that can either be recorded or passed on to the investigating police officers. (22) People placed in the same cell with you or in an adjoining cell or anywhere else in close proximity to you, including in any police car, police wagon or any other place controlled by the police, will most likely be police officers. DO NOT TALK TO THEM. (23) The more any of these people look like they are fellow detainees, the more it looks like they have possibly been beaten up, harassed, pepper sprayed or dealt with harshly by the police, the more likely it is that they are police officers. Do not think that they are fellow detainees. DO NOT TALK TO THEM. (24) If you come into contact with any of these people, I suggest you simply say “hello”, explain that you do not wish to talk any further with them and then ignore them. Some lawyers have suggested that the easiest way to explain how the client should exercise his right to silence is simply to say to the police, “I am not going to talk to you unless my lawyer is present.” I find this advice not very helpful. In R. v. Sinclair,5 the Supreme Court of Canada made it very clear that a detainee does not have a right to have counsel present while he is being interrogated by the police. The court also made clear, however, as it has in other cases, that an accused person has the right to remain silent. If the accused takes the position that he is not going to talk to the police unless his lawyer is present, then that is one way in which he can exercise his right to silence. I do not believe that many clients detained by the police and placed in an interview room appreciate the subtle difference between the fact that they have a right to refuse to talk to the police unless a lawyer is present and the fact that they have no right to have a lawyer present while being interrogated by the police. I can hear the exchange now: Detainee: I am exercising my right to silence. I will not talk to the police unless my lawyer is present. Police Officer (“PO”): The law is clear, buddy, you don’t have the right to have a lawyer present when we are talking to you. Detainee: Well I am not going to talk to you unless my lawyer is present. PO: Didn’t I just tell you that you have no right to have your lawyer present? We are not going to interview you with your lawyer present. So forget that. That ain’t gonna happen.
May Advocate 2017
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