A statement made to police, whether a casual comment or a formal recorded interview, can become an important piece of evidence in a criminal case. This guide explains, in general terms, how Canadian law treats statements made to police, including the rules around voluntariness and how statements are used at trial. It is general information only and does not replace legal advice about a specific statement or case.
What Counts as a "Statement" in Law?
In criminal law, a statement generally refers to anything a person says, writes, or otherwise communicates that may later be relevant to a criminal case. This can include a formal, recorded interview at a police station, but it can also include a brief remark made at the scene of an incident, a comment made during a traffic stop, or something said informally to an officer. The formality of the setting does not determine whether something counts as a statement.
Because even brief or informal comments can become part of the evidence in a case, it is generally worth being mindful of what is said to police in any context connected to a suspected offence, not only during a formal interview.
This includes statements made outside a traditional interview room, such as comments made while being transported in a police vehicle, during booking procedures, or even in what feels like idle conversation while waiting. Officers are generally still able to note and later rely on anything said during these moments, which is why the general caution to think before speaking applies broadly, not only to formal questioning.
The Voluntariness Requirement
Canadian law has long required that a statement made to a person in authority, such as a police officer, be shown to have been voluntary before it can be used as evidence against the person who made it. This generally means the statement must not have been the product of threats, promises, oppressive conditions, or other improper pressure. This requirement exists to guard against unreliable or coerced confessions.
Whether a specific statement was voluntary is a legal question the court considers based on the full circumstances in which it was made, including how the interview was conducted, its length, and the conduct of the officers involved. This is one of the most detailed and fact-specific areas of criminal law.
Factors a court may consider include whether there were any promises of leniency, whether the person was denied food, rest, or access to a washroom for an unreasonable period, whether questioning was unusually lengthy or aggressive, and the person's own characteristics, such as age or vulnerability. No single factor is automatically decisive; courts generally look at the whole picture.
Statements to a "Person in Authority"
The voluntariness requirement generally applies specifically to statements made to a "person in authority," a legal term generally understood to include police officers and others formally connected to the investigation or prosecution of an offence. Statements made to people outside this category, such as a friend or family member, are generally governed by different rules, though they can still become relevant evidence in a case in other ways.
Whether a specific individual counts as a person in authority is not always obvious. It generally depends on whether the person was acting on behalf of, or in connection with, the state's investigation or prosecution of the offence, rather than simply their job title. A lawyer can assess whether this concept applies to a specific person involved in a case.
Police Cautions
Police will often give a formal caution before questioning a suspect, generally reminding the person that they do not have to say anything, that anything they do say may be used as evidence, and reinforcing their right to speak with a lawyer. A caution is meant to reinforce, not replace, the underlying rights already discussed in our guides to the right to remain silent and the right to a lawyer.
A caution can be given more than once during an investigation, particularly if new charges or a new line of questioning arises, or if there is a gap in time between interviews. Hearing a caution repeated is not unusual and does not signal anything specific about how the investigation is going; it is generally just a standard part of proper procedure.
Being cautioned does not mean you must then answer questions. It is a reminder of rights you already have, and you can choose to exercise your right to remain silent and speak with a lawyer regardless of how the caution is phrased.
Video and Audio Recording
Canadian courts have generally encouraged, and in some circumstances effectively required, that significant statements made by a suspect in custody be video or audio recorded, particularly for more serious offences. Recording is generally seen as a way to create a clear, objective record of exactly what was said and how the interview was conducted, reducing later disputes about what happened.
If a significant statement was not recorded where recording would ordinarily be expected, that absence can itself become a relevant factor in how a court assesses the reliability and voluntariness of the statement. This is a detailed area of practice that a lawyer can address based on the specific circumstances of a case.
Oral vs. Written vs. Recorded Statements
Statements can take different forms: a spoken comment, a formal written statement a person signs, or an audio or video recorded interview. Each form can be used as evidence if it meets the general legal requirements discussed on this page, though recorded statements can sometimes be viewed as more reliable evidence of exactly what was said, since there is less room for dispute about the wording used.
A written statement prepared by an officer based on what a person said, rather than written by the person themselves, can raise its own questions about accuracy, since it reflects the officer's summary rather than the person's own words verbatim. If asked to review and sign this kind of summary, reading it carefully and raising any inaccuracies before signing is generally important.
Spontaneous or Excited Statements
Sometimes a person makes a spontaneous comment at the scene of an incident, before any formal questioning begins, sometimes referred to as an excited utterance in some legal contexts. These kinds of statements can still be subject to the same general voluntariness requirements and can still become part of the evidence in a case. There is no general exception that makes spontaneous comments automatically excluded from consideration.
How Statements Are Used at Trial
If a statement is found to meet the legal requirements for admissibility, the Crown can generally introduce it as evidence at trial. A statement can be significant evidence, particularly if it includes information connecting a person to an offence. This is one of the central reasons getting legal advice before making any statement is so important, since a statement's impact on a case can be substantial.
Even a statement that seems neutral or exculpatory when it was made can end up being used in ways that surprise the person who gave it, for example if it is inconsistent with other evidence that later emerges. This is another reason a full, honest account to a lawyer, including anything already said to police, is important for effective representation.
Statements to Undercover Officers
Statements made to an undercover officer, who a person does not realize is police, raise distinct legal considerations compared to a statement made knowingly to a uniformed officer. Canadian courts have developed specific rules addressing when this kind of technique is permissible and how resulting statements are treated, particularly in more serious investigations. This is a specialized area of law where general statements carry meaningful risk of being incomplete or outdated for a specific case.
If you believe you made a statement to someone who turned out to be an undercover officer, or a police agent, this is an important detail to raise with a lawyer, since the legal analysis of such statements involves specific considerations beyond the general voluntariness rule.
Statements Given in Another Language
If a statement is given in a language other than English or French, or through an interpreter, additional considerations can arise about whether the statement was accurately understood and recorded. Ensuring an accurate, qualified interpreter was used, and that the person understood their rights in a language they were comfortable with, can be relevant to whether a statement was genuinely voluntary and informed.
Challenging the Admissibility of a Statement
A defence lawyer can challenge whether a statement should be admitted as evidence, for example by arguing it was not voluntary, or that it was obtained in violation of a person's Charter rights, such as the right to counsel. If a court agrees that a statement should not have been admitted, this can potentially be excluded from the evidence considered at trial, though the specific outcome depends on the facts of the case.
This kind of challenge generally happens through a specific pretrial process, often called a voir dire, where the court hears evidence specifically about the circumstances in which the statement was obtained, separate from the main trial evidence. This process allows the voluntariness and Charter compliance issues to be resolved before the statement, if admitted, becomes part of the evidence the trier of fact considers.
Statements Made While in Custody
Statements made while a person is in custody receive particular attention under Canadian law, given the inherently more pressured environment of custody. Courts generally scrutinize the circumstances of custodial statements carefully, including whether the person's rights to silence and counsel were respected throughout. Our guide to what happens if you are arrested explains some of the related protections that apply at this stage.
The length of time a person has been in custody before making a statement, whether they were given breaks, food, and rest, and whether they had already exercised their right to counsel are all factors that can be relevant to how a custodial statement is assessed. A statement made after an unusually long or gruelling period in custody is more likely to attract careful scrutiny.
If You Gave a Statement and Regret It
If you have already given a statement to police and are worried about how it may be used, it is not too late to get legal advice. A lawyer can review the statement, the circumstances in which it was made, and advise on the general options available, which may include examining whether the statement meets the legal requirements for admissibility discussed above.
It is generally not advisable to try to contact police again to change, retract, or add to a previous statement without first getting legal advice. Doing so can create a second statement with its own legal significance, sometimes complicating the situation further rather than resolving it.
Frequently Asked Questions
Can something I said casually be used against me?
Yes, potentially. Even informal or brief comments can be treated as a statement and can become relevant evidence, subject to the same general legal requirements.
What does it mean for a statement to be "voluntary"?
It generally means the statement was not the product of threats, promises, or oppressive conditions. Courts assess this based on the full circumstances in which it was made.
Does being read my rights (a caution) mean I have to answer questions?
No. A caution is a reminder of your existing rights, including the right to remain silent. You can choose not to answer questions regardless of the caution.
Can a statement be thrown out of a case?
Yes, in some circumstances, if a lawyer successfully argues it was not voluntary or was obtained in violation of Charter rights. Whether this applies depends on the specific facts.
Is a recorded statement treated differently from a verbal one?
Both are generally subject to the same legal requirements, though a recording can provide clearer evidence of exactly what was said and how it was obtained.
Does it matter if my statement was not recorded?
It can. Courts have generally encouraged recording significant custodial statements, and the absence of a recording can be a relevant factor in assessing reliability and voluntariness.
What if I gave a statement through an interpreter?
Whether an accurate, qualified interpreter was used and whether you understood your rights in a language you were comfortable with can be relevant to whether the statement was voluntary and informed.