MIKE JAKEMAN, Criminal Lawyer, heads our criminal law department at all three of our law offices in Fort St John, Surrey and Vancouver BC. Call us toll free at 1-877-602-9900 if you need immediate help.
ARE YOU CHARGED WITH A CRIMINAL OFFENCE IN BC AND NEED A CRIMINAL LAWYER TO HELP YOU WITH YOUR BC CRIMINAL L:AW CHARGE? This is the most important thing you need to know.
Saying nothing is the first thing that any lawyer will tell you when you call them on the phone from the police station.
But you need to understand why this is so important to have any shot at keeping your mouth shut. I have given the above advice to hundreds of people and only on one or two occasions did people actually listen to me, here is why:
INSTINCTS – we are full of them and to be successful here you must fight the urge to do yourself an injustice. Police officers are well trained to get you to speak. Frequently, our Charter Rights will work against the police and not allow evidence where they used tactics of oppression, threats or promises, the problem is that police rarely use those tactics because they rarely have to. People talk, this is instinctual. Get it into your head – you will talk unless you have a plan. If you don’t make a plan ahead of time you will use your instincts. The plan I suggest, is like a diet – you get to say two things and only two things – nothing else can come out of your mouth, they are your name for my example: “Joe Quiet” and the word “Lawyer.” Remember that your right is to remain silent and that you have no right to not be talked to.
Here is an example of this plan played out:
Officer: So Joe, do you mind if I call you Joe?
Joe: Joe Quiet
Officer: So Joe Quiet I hear that you drive a camaro, what year is it?
Joe: Lawyer
Officer: Joe, you know that we have someone reporting this crime but we are just collecting facts, we have their side of the story and now it’s your turn to tell us your side of the story, this is still an ongoing investigation even though you are here, you know?
Joe: Lawyer
Officer: So Joe, now that we gave you those three minutes to talk to your lawyer it’s your turn to talk to us?
Joe: Lawyer
Officer: Joe, you already spoke to your lawyer, you don’t have the right to speak with him again – lets you and I talk now, okay?
Joe: Joe Quiet
Officer: Okay Joe, I’m going to tell you what Tony Talker told us about you. He said that the two of you are good friends, is that right?
Joe: Joe Quiet
Officer: You know Tony Talker also told us that your camaro is actually his camaro and that you took it without him knowing about that?
Joe: Joe Quiet
Officer: Tony says that he told you three days ago that you weren’t supposed to take his car anymore, do you recall that conversation?
Joe: Joe Quiet
NOTE: This may continue for hours and it may be in the middle of the night!
RIGHTS – you have rights so long as you know about them and exercise them. My prime example is the Right to Counsel, yes you have this right but if you do not say that you want to speak with lawyer, than you have waived your right to one and what you say will be used against you. Did you know that only young persons, under 18 years of age, charged with criminal offences have the right in Canada to have a lawyer present while being questioned, in fact they may also have a parent or both a lawyer and parent present. Did you know that if you are an adult the moment you hang up the phone with the lawyer you will be taken into a room with a video tape and audio recording device, if this is not the case, which sometimes happens than if you say anything they will write it own in their notebook and their accuracy of notes will be believed more often than yours. Why, you may be intoxicated, not remember remember as clearly, you didn’t write it down did you (of course not you had no pen and paper), and ultimately your comments are always seen to be self serving. Where the officer is doing his job, he is a professional, he was not drinking and he is trained to take notes and give evidence – are you convinced yet? lets look at more…
FAIRNESS – what is fair? knowledge is your right.
Knowing what you are charge with;
Knowing what evidence is pointing to you being the bad guy;
Knowing what a defence is and if it would be applicable given the evidence against you;
Knowing the law that you are up against;
Knowing what the penalties and the maximum jail sentence;
Knowing what the role of the various players are i.e. Police, Judges, Lawyers, Legal Aid, Experts and so on;
Knowing when you will see or speak to your lawyer again;
Knowing if you are going to be staying in jail;
Knowing that if you say yes to anything than you just gave away a right;
Knowing that there is a person in jail with you who may be working for the police;
Knowing what you have to do or say so that you don’t comit a crime by not doing or saying something; and
Knowing that what you say will be used against you, as evidence in court.
If you want fairness all you need to do is work hard at learning this lesson of staying quiet. Really what you need to do is provide your name “Joe Quiet”. and say “Lawyer” – if you say anything else you are commiting an act of unfairness against your own rights. You will not be prejudiced by not saying anything, this is also your right.
Criminal Process - provides you with the right to have full aswer and defence, that means that what I said above is true you have the right to knowing things before you provide your version of events. This is important because attention to detail will be necessary even for the innocent, if you happen to put yourself at the right place at the wrong time you may be linked to the crime and there may be no way back. Example: You said you were there at 3:23p.m. and that is exactly when the microwave exploded because we matched it to the internal clock stoping on the microwave. Now there is a direct link in evidence to you being there at the right time and just like the glove that didn’t fit OJ was good for him the exploding microwave at 3:23 may be bad for you even though the internal clock stopped 10 minutes after you left, not by an explosion but by a strike of lightening down the lane, that fact may not be in evidence. Re-telling a story is never perfect – so just in case keep your mouth shut.
What is even worse than saying nothing is making stuff up – in that case you might as well just say you did everything and not even ask what you are being charged with, I call this the thief who went down for murder.
You wouldn’t be very good at chess is you didn’t know how the pieces moved. This is a simple game compared to the complexities of the court system yet you may well know the ways that chess pieces can and cannot move and you likely don’t know this about your lawyer.
A lawyer is an officer of the court – that means that they cannot lie for you. If you say you did it! Then you can never have that lawyer draw out a story from you saying you didn’t do it or that you weren’t there. They can still defend you and this is often a difficult issue for people to understand – Lawyers do not judge and they cannot if they are doing their job correctly. Even if you did it you have the right to have the case against you proven in court. This is something that you choose and a lawyer must provide you with advice and analysis of your likelihood of success. Even if you are facing a case that has solid evidence on all the required elements, items that need to be proved to find you guilty, you may still proceed to court and try to exclude this evidence.
Ultimately a criminal lawyer should quickly – if not immediately take charge of the interview with you. I typically will talk for about 8 minutes without you having the chance to say a word. This is for a number of reasons, one I need you to understand my role, your role and the seriousness of what comes out of your mouth. Just imagine how important it is that you say nothing to other people if even talking to your lawyer is something you should think about and understand first.
Please note this is not intended as legal advice but is meant to encourage you to understand your rights, how to exercise them and to seek legal advice always. There are exceptions to the above information and this is not intended for all purposes. For instance if you are stopped by an officer you may be required to provide your name, address and date of birth, if stopped in a motor vehicle you must also provide your licence, registration and insurance, if stopped in an impaired investigation a lawyer is required to tell you that it is an offence not to provide a roadside breath sample if demanded, however you my deserve the right to know about what this evidence will mean given the charges you are facing. Likewise, this information is not intended to be used for any purpose other than to inform you of your rights it’s now your decision to exercise your rights.
