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May Advocate 2017

362 V O L . 7 5 P A R T 3 M A Y 2 0 1 7 THE ADVOCATE Detainee: But I am not going to talk to you unless my lawyer is present. PO: Look, what your lawyer told you, the advice he or she gave you, that’s what lawyers do. But it’s you here and not your lawyer. Whether you talk to us or not is a decision you have to make. That’s entirely up to you. It’s not up to your lawyer to make that decision for you. That’s a decision you have to make. Detainee: Well I am not going to talk to you unless my lawyer is present. PO: Well, whether or not you want to talk to us is entirely up to you, but what I am going to do now is tell you this: you have a right to know the evidence against you. So I am going to point out the evidence against you. Nobody here is going to force you to talk; whether you talk is entirely up to you. But you know that you are here on a serious matter. You also know that our job as police officers is to obtain all the evidence and present it to Crown counsel, who will make decisions on what charges are to be laid. We haven’t collected all the evidence until we get your version of what occurred. Detainee: Like I said, I am not going to talk to you unless my lawyer is present. PO: We’ve settled that issue. You have no right to have your lawyer present. I told you that already. But be clear on this, if you don’t talk to us then clearly we don’t have all the information that we need and there are significant gaps in what we present to the Crown. We will have everybody else’s version of what occurred except yours. Don’t you want the Crown to have your version of what occurred before it makes decisions as to what charges will be laid? We’re just after the truth here. And it goes on from there. CONCLUSION I hope this summary assists lawyers in advising their clients how to exercise their right to silence. I hope too that I have answered the rhetorical question posed above. All who are interested in advising clients should keep in mind the comment by Mr. Justice Lamer (as he then was) in Manninen. We as lawyers protecting our clients’ rights should not only advise our clients of the right to remain silent, but equally we should advise them how to exercise that right. ENDNOTES 1. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. 2. I use “he” throughout, not to be sexist or to imply that more “he’s” than “she’s” are detained, but simply for convenience. 3. 1987 1 SCR 1233. 4. Ibid at 1242–43. 5. 2010 SCC 35. t t t t t


May Advocate 2017
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