One’s constitutional right to silence is not an all or nothing proposition. I regularly advise individuals who have been arrested or detained to provide the police with some information, that is, biographical information (name, address, date of birth, etc.), but advise them to give no further information than this. And the right to silence does not preclude an accused from giving a statement to police if he wishes, and later deciding not to give evidence at trial.
And while I am a fan of the English philosopher Jeremy Bentham, I disagree with him that “innocence never takes advantage of
[the right to remain silent]; innocence claims the right of speaking as guilt invokes the privilege of silence.”
There is a time for the accused to tell his version of events. That time, in my opinion, is often not the time of the police interview. Though I recognize that there will be rare occasions when there are compelling case-specific reasons for not exercising the right to silence after providing the police with what is known as “tombstone data”.
Prior Inconsistent Statements
The Crown has the opportunity to attempt to impeach the individual’s credibility by showing inconsistency between the evidence the individual gave at trial and the information he/she provided in a statement to police (assuming the statement is admissible). Even if innocent, I am not sure why one would run that risk.
In R. v. Carlos, 2016 ONCA 920 the Court of Appeal for Ontario saw no merit in the Appellant’s contention that that the Crown had breached the appellant’s right to silence by asking him questions as to why, during his police statement, he did not tell the police officer certain things that he said at trial. The Crown’s questions, the Court held, were proper cross-examination on the inconsistencies between what the appellant said in the statement and what he said at trial, and did not undermine the appellant’s right to silence.
Past Consistent Statements
While prior inconsistent statements may be used against witness, a witness is not entitled to give evidence of statements on other occasions by the witness in confirmation of her testimony. This is the rule against the admission of past consistent statements. As a result there will often be little benefit to giving a police statement, though plenty of risk.
Where the accused makes a denial in his statement to police but does not testify at his trial
A denial rendered by an accused during the course of giving a statement made to police, and then tendered in evidence at trial, must be considered by the court as it would consider all other evidence: the court must assess it for credibility and reliability based on a review of circumstances under which the statement was made. Axiomatically discounting such a statement simply because an accused might have chosen not to testify at trial would strip the accused of the right to silence, a right that runs throughout a criminal trial of the presumptively innocent.
See R. v. Pettipas, 2016 NSPC 62 (CanLII) at para 29.