Your Right to Silence

A two-part series by Edward L. Burlew, LL.B.
Barrister & Solicitor, 1-888-GUN-LOSS
In the next Outfitter, Part 2: "No Warrant - No Entry"


Shooters, being law-abiding citizens, are typically unfamiliar with the powers of search and seizure of law enforcement officers. This is because most shooters, be they hunters or target shooters, have scrupulously tried to avoid breaking the law so that their right to obtain firearms and use them is preserved. This lack of need to know has lead them to believe they will not be subject to police and conservation officer searches. This "it can't happen to me" syndrome has lead to ignorance of this area of the law when faced with a demanding enforcement officer.

Most shooters are compliant and give voluntary statements in the belief that they did nothing wrong and the officer will be fair and tolerant. This has been true in the past and enforcement officers have a discretion that is sometimes exercised in favour of shooters. This tolerance and discretion has become more limited as the political winds have changed. The career of enforcement officers is built on successful investigations and convictions. If any enforcement officer is investigating a criminal offence of a Fish and Game Act offence they have first formed the opinion that someone broke the law. When that officer starts asking you questions he/she is trying to find out if you are the person who broke the law. Their approach is that you are the transgressor, and the object of the questions and search is to find evidence to convict you or your friends. Do not kid yourself; that is what the object is. The enforcement officer has powers to investigate...but remember, you have rights. Those rights are real and very important.

The rights existed prior to the legislation, are codified by legislation and are upheld by learned judges. People fought to give you the rights you have, and you must be aware of those rights and uphold them by your actions during an investigation. This is not a game. The investigation of any crime is very serious to the victim, the investigator, and the perpetrator.

The first and most important right is the right not to incriminate yourself. The Charter of Rights and Freedoms states this in section 7 which says:

"Every person has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principals of fundamental justice."

This has a lot of importance.

You are not to be conscripted into convicting yourself. The right to silence is the best way to state this. You may keep silent. Silent is silent. Duct tape is the shooter's friend. Pretend that you have put duct tape over your mouth. Do not be embarrassed by your own silence. Silence is golden. Do not feel the need to fill the void of silence.

Do not feel that you have to respond to allegations of the officer, that your silence is an indication of guilt, or that you are hiding something. Silence is neither. Silence on your behalf if frustrating to the investigator who wants you to give evidence to convict yourself. The threats and intimidation you face will last only for a little while, then the investigator will give up and go away.

He/she may come back or go to others, but your silence has protected you. Statements voluntarily given are difficult to remove from an investigation and court case. Written statements, signed by you, are very hard to expunge. The officer's notes contain parts of the statement that show your innocence. Everything that tends to convict you will be written down fully and accurately. The simple act of owning or possessing the gun or ammunition can be very important. What you saw or said is also critical.

When the police want to build a case against you, let them do it without your help. That is your right and their job. Accept that. What you think is an explanation of your actions will be offered-up to the judge as a confession.

The prosecuting lawyer will not be sympathetic to your actions. Almost all prosecutors want you to lose your guns and stop hunting. Few prosecutors are gun owners, shooters, or hunters. Today, many of the older judges remember hunting and shooting as part of their lives even if they do not hunt or shoot today. This will change over time as the ranks of today's lawyers become judges, but right now there is more understanding from the judges than from the investigators and prosecutors. 

This article was taken from pages 14 & 15 of NOTO's "The Outfitter" publication, May/June 1999 Issue


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