After being stopped by the police while driving, the not uncommon law enforcement thing we might all dread most is the police showing up at our door wanting to come in to “just to ask a few questions.” What should you do?
Having seen this scenario go down in all sort of ways from both the Federal Crown Prosecutor and defence counsel perspective, here are my top five things NOT to do.
Hiding from an angry neighbour or ex-spouse hammering on your door might be a viable strategy. Hiding from the police is not.
The police have quite broad exigent circumstances common law search powers. That means if they believe there is an immediate risk to human safety, they might be able to break down your door and enter your residence quite lawfully without any warrant.
If you hide, you won’t know why they’re there. They might be responding to a report of a 911 call from inside your residence (even if it wasn’t you who placed it). They might be responding to a complaint from a neighbour. Hiding won't necessarily make them go away.
2. Invite them in
Instead, ask if you can come down to the detachment to answers questions. They have no more right to detain or arrest you at a police detachment than they do in your home. So there is no added risk of you attending at the detachment, and then not being allowed to leave. Whereas once in your home, there is a risk of their noticing things or poking about.
If they truly only have a couple of questions, you could speak to them on your doorstep. I know not inviting them in may seem impolite, and you may have nothing to hide. But if controlling the privacy of your residence is important to you, there's no need to have the police sitting on your couch drinking tea.
3. Tell them anything without finding out the reasons why they want to speak to you
While it’s easy for criminal defence lawyers to constantly tell you to say nothing to the police, that may be easier said than done. People seem to feel a compulsion to talk, even though generally anything you say isn’t going to help you. But this is especially the case if you don’t know what the police are investigating, and what they think they know about your role in the investigation, prior to answering any of their questions.
Unfortunately, contrary to widely held belief, the police can lawfully lie to you. So asking them what is going on isn’t a sure fire way to know how you should be answering questions. But at least it's a start.
If you're a family members of a victim or a witness to a crime, and are absolutely sure you're not a potential suspect, then talk away. Just be as sure as you can about your status up front, and remember that even telling the police you didn't do something can be used against you later.
4. Answer every single question put to you, because you believe you have a duty to help the police
Generally speaking, you don’t have a duty to help the police. There are a few situations, like for auto insurance situations, where you are obliged to answer their questions. But the best way to resolve any doubts about obligation to answer is to pose the exceedingly simple question to the police questioning you: do I have to answer?
They may give you all sorts of justifications as to why it would be in your best interests to answer, but what you need to know is are you obliged to answer? Usually the answer will be no.
Thus if you do have an uncontrollable to talk, you don’t have to talk about everything. You can pick and choose. Sort of like you would in a media interview. Police questions can even be considered suggestions for conversation, not mandatory topics. It will only be in court before a judge (or in a few other very limited circumstances) that you'll be legally obliged to answer every relevant and proper question put to you.
Yes, I know this might seem obvious. But it seems to be human nature to make things up, especially in nervous situations, and even when you haven’t done anything. People do it all the time, even when it isn’t to their advantage.
Far better to say nothing at all, than to lie. Lying to the police can itself be a criminal offence, whereas saying nothing will never be a criminal offence (though it might get you into trouble with some regulatory investigations, thus the need to carefully clarify the purpose of questions, and the requirement for you to answer).
Follow these top 5 things NOT to do, and you'll hopefully be a little less nervous if the police ever do knock on your door.
Gordon S. Campbell is a criminal, regulatory and professional conduct trial and appellate defence lawyer practicing throughout Ontario. He served as a Federal Crown prosecutor, counsel to the RCMP and Military Police Complaints Commission, and is author of three books on the law of investigations. Learn more at www.defenceeast.com.