Right to silence : do not incriminate yourself at traffic stops

Right to silence : traffic tickets

Right to silence : traffic tickets

Right to silence

Have you ever wondered why police officers ask you why they stopped you?  It’s usually pretty obvious.  Is it meant to embarrass you?  Or perhaps the officer is exerting his or her authority?

While these questions are rhetorical, the feelings they trigger are simply collateral benefits for the officer.  The real purpose for asking is to elicit from you an incriminating statement.

The Highway Traffic Act establishes traffic violations such as speeding, failing to stop at a stop sign, and texting while driving.  Under the act, violations are punishable by fines, and in some cases, like driving while suspended can trigger jail time.


Under the Summary Convictions Act, if someone who receives a traffic ticket wishes to challenge the ticket, the state (i.e. the provincial prosecutions branch) will set a trial date.  A trial under the Summary Convictions Act is similar to a regular trial.

A Judicial Justice of the Peace (JJP), duly appointed by the provincial justice minister presides.  The Crown (provincial prosecutor) must prove that you committed the office on a “beyond reasonable doubt” standard.

The Crown calls evidence.  Usually, the Crown calls the officer who issued the ticket. The officer is sworn in, and will ask permission to refer to his notes.  As long as the notes were taken at the time of the office, the JJP will allow him or her to look through the notes.

The Officer will then testify, under oath, that on such and such a date, he positioned the cruiser at the corner of such and such street monitoring speed when he observed a such and such coloured sedan with licence plate xyz going 67kms/hr. He will state that he pursued the vehicle and the vehicle pulled over.

He will then say that he asked the driver if he knew why he was being pulled over and the driver answered: “I was speeding”…..

And there you have it.  You gave the officer evidence that the officer used against you at trial.

Generally hearsay evidence – repeating what someone else said – is not admissible.  However certain exceptions apply.  If an accused person says something that is against his or her interest, the hearsay statement becomes admissible.

Right to silence

But must you answer police officer questions?  Section 11(c) of the Charter of Rights and Freedoms states:

11. Any person charged with an offence has the right …

(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;

Despite your constitutional right to silence, under the Highway Traffic Act, an officer can ask for your driver’s licence and registration.  However, they cannot compel you to incriminate yourself. If the officer asks to see your licence and registration, you must obey. The Supreme Court ruled that the right to silence cannot prevent the police from ensuring that Canadians are driving with valid driver’s licences.  But if he asks you why he stopped you, then you can legally refuse to answer.

Canadians enjoy this right at all times. It applies when you are stopped for a traffic violation or of if you become the subject of a criminal investigation.  While police techniques have improved over the years, the problems related to tunnel vision – meaning that the officers believe you are guilty and look for evidence to support that conclusion – still exist.

Knowing your rights is only the first step.  Learning to exercise those rights without creating more problems is another.  While it is tempting to aggressively challenge police officers when asserting your rights, the practice will likely cause you more problems.  Especially in the context of a traffic violation.

Stay polite

Police officers have a difficult job.  They will likely use their power to make your life difficult.  For example, they could legitimately detain you longer to “investigate” other violations.  Rather, I recommend that you always stay polite and respect the officer’s authority.  Answering “yes sir” or “no mam” demonstrates respect.  When they ask why you were pulled over, a simple: “I don’t know” will suffice.  If you wanted to be technical, you could say: “With respect, under the Charter, I have a right to remain silent. I wish to exercise that right”.

Disclaimer – Legalese

I am posting this article for informational purposes only. The content does not constitute legal advice or solicitation.  It does not create a solicitor client relationship (this means that I am not your lawyer until we both agree that I am). If you are seeking advice on specific matters, please contact Philippe Richer at richerp@tlrlaw.ca, or 204.925.1900. We cannot consider any unsolicited information sent to the author as solicitor-client privileged (this means confidential).

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