If police have contacted you and asked you to come in for an interview about a sexual assault allegation, you are in a serious situation that requires immediate legal counsel. The sexual assault defence lawyers at Davidson Gregory can be reached at 780-482-5496 or you can contact us. This article provides general legal information about how police interviews work in sexual assault investigations, the right to silence, the right to counsel, and the potential consequences of giving a statement. It is not legal advice. The decisions you make in a sexual assault investigation should be informed by advice from an experienced sexual assault defence lawyer based on the specific circumstances of your case.
Davidson Gregory has decades of sexual assault defence experience across Alberta. We are a criminal defence law firm focused on serious criminal trial work. Our sexual assault defence lawyers represent clients in Edmonton, Calgary, Red Deer, Fort McMurray, and Grande Prairie, and across the province. If police want to interview you about a sexual assault allegation, contacting an experienced sexual assault defence lawyer is the most important step you can take. The general legal information in this article is intended to help you understand the framework. The actual decisions in your case should be informed by advice tailored to your circumstances.
How Police Interviews Work in Sexual Assault Investigations
Police interviews in sexual assault investigations are evidence-gathering exercises designed to produce a recorded statement that can be used at trial. The investigator is trained, prepared, and working from a file the accused has not seen. The asymmetry between what police know and what the accused knows going into the room is significant.
By the time police call a suspect, they have typically interviewed the complainant, often more than once. They have likely spoken with witnesses, family members, and other people in the complainant’s life. They may have reviewed text messages, social media records, app communications, and other digital evidence. They have a theory of the case. The interview is designed to test that theory by getting the suspect to confirm parts of it, contradict themselves, or volunteer information that fills gaps in the Crown’s case.
None of that is obvious from the way a request to interview is framed. Police are typically polite, friendly, and reassuring. They may say they just want to hear the suspect’s side of the story. They may suggest that not coming in will look bad. They may hint that cooperating now will help later. None of those framings reflects what is actually happening. The interview is an evidence-gathering exercise. Statements given to police become evidence at trial.
Statements given to police become evidence regardless of whether the person is innocent or guilty. Even an innocent person can make a statement that materially damages their case. Memory is imperfect. People say things in police interviews that sound reasonable in the moment but turn out to be inconsistent with other evidence later identified by the Crown. Police are trained to ask questions in ways that produce evidence useful to the prosecution. Whether to give a statement is a question that an experienced sexual assault defence lawyer can address with the client based on the specific circumstances of the case. As a general matter, giving a statement to police in a sexual assault investigation is rarely beneficial to the person being interviewed.
There is also no version of a sexual assault police interview where the suspect can talk their way out of the situation. By the time police are interviewing a suspect, they have already taken statements from the complainant and likely from other witnesses. They are not looking for new information. They are looking for evidence to support charges. The explanation given in a police interview, no matter how reasonable, becomes part of the Crown’s case if charges are laid.
Your Right to Silence and Right to Counsel
In Canada, you have the right to remain silent and the right to counsel. These rights are protected by the Canadian Charter of Rights and Freedoms. They exist for a reason. Use them.
The right to silence
The right to silence is a constitutional right protected by the Canadian Charter of Rights and Freedoms. A person being investigated for a sexual assault is not required to give a statement to police, is not required to answer their questions, and is not required to attend a voluntary interview. Police cannot compel a statement. Police are allowed to keep asking questions even after a person says they want to remain silent, but the fact that police continue to ask does not mean the person has to answer. The right to silence has to be maintained throughout the interview, not just stated once. The right to silence applies whether the person is under arrest, detained, or simply being asked to come in for an interview.
Whether a person is required to attend a police interview is a separate question. If the person has not been arrested and not been detained, they are not required to attend a voluntary interview at all. If they have been arrested or detained, they may not be able to decline to attend, but the right to silence still applies once they are there. The right to attend or not attend is sometimes limited by the person’s circumstances. The right to silence is not.
Declining to give a statement is not an admission of guilt. The Crown cannot use silence against the accused at trial. Police may suggest otherwise. Statements that police give at the door or during a phone call about how silence will look at trial are not legally accurate. The right to silence exists to be exercised, and exercising it carries no negative legal consequences in court.
The right to counsel
A person who is arrested or detained has the right to speak to a lawyer without delay. This right is protected by the Canadian Charter of Rights and Freedoms and is triggered the moment a person is taken into custody. A person asked to attend a voluntary interview is not yet under arrest, but should still consult a lawyer before deciding whether to attend or what to say. Once a person is arrested or detained, the right to counsel means an actual conversation with a lawyer before meaningful questioning takes place, not just being told a lawyer is available.
The right to counsel includes the right to private consultation. A call to a lawyer made from a police station is private. The lawyer’s advice is privileged. What is said to a sexual assault defence lawyer in that call cannot be used against the person at trial. What is said to police, even after the call, can be.
Counsel is not in the room during the interview
In Canada, the right to counsel does not include a right to have a lawyer present during a police interview. This is different from the United States, where in many jurisdictions a lawyer can sit beside the accused during questioning. In Canada, the right to counsel is a right to consult with a lawyer before questioning begins. Once that consultation is complete, police can continue to question the suspect without counsel present.
Police can allow a lawyer to be in the room as a matter of discretion, but it is very rare that police will let a lawyer in the room with the person being interviewed. There is no right to insist on it, and police almost always proceed without counsel in the room. The default in essentially every Canadian sexual assault investigation is that the lawyer is on the phone before the interview, not in the room during it. Most people in this position will not have their lawyer in the room with them.
This framework is one of the most important practical features of Canadian police interviews. A sexual assault defence lawyer cannot intervene during the questioning to object, to advise, or to clarify on the suspect’s behalf. The advice the lawyer provides before the interview is the legal advice the suspect will have once police begin asking questions.
If Police Have Already Asked You to Come In
Police may contact a person by phone, by letter, or in person to request that they attend an interview about a sexual assault investigation. The request to attend is not the same as a formal arrest. A person who has not been arrested or detained is generally not legally required to attend a voluntary interview, although the practical and legal implications of declining to attend depend on the circumstances. The right to silence and the right to counsel both apply at the voluntary interview stage.
In some cases, police request that a person come in for what is described as an interview when in fact they intend to arrest the person on arrival. Police may not be fully transparent about the actual reason for the request. The framing of the request and the actual purpose of the request are not always the same thing. This is one of the reasons it is important to contact an experienced sexual assault defence lawyer before attending. A sexual assault defence lawyer can communicate with the investigating officer to clarify the actual reason police are seeking to bring the person in, whether the police intent is interview, arrest, or both, and what the person can expect on arrival.
Once an experienced sexual assault lawyer has been retained, the lawyer can communicate with the investigating officer on the suspect’s behalf, clarify what police are investigating, and discuss next steps with the client. From the moment counsel is retained, the suspect generally does not need to speak with police directly about the substance of the allegations. There are limited situations where direct interaction may still be required. If the suspect is arrested, they are required to provide identifying information including their name and date of birth. The right to silence applies to questioning about the alleged offence, not to basic identification information police are entitled to obtain on arrest. If police have already asked you to come in for an interview about a sexual assault allegation, the sexual assault defence lawyers at Davidson Gregory can be reached at 780-482-5496.
If a Statement Has Already Been Given
It is not uncommon for people to give a statement to police before retaining counsel. The damage from a first statement can sometimes be limited if no further statements are given, although the original statement remains part of the police file and may become evidence at trial. Sexual assault defence lawyers regularly defend cases in which the accused gave a statement before retaining counsel.
There may be legal arguments available about the admissibility of a statement given to police. There may be arguments about whether the right to counsel was respected, whether the statement was voluntary, and whether the questioning crossed into territory that engages other Charter protections. Whether those arguments are realistic in any particular case is a question for an experienced sexual assault defence lawyer at Davidson Gregory to assess on the actual facts of what happened. If you have already given a statement to police about a sexual assault investigation, the sooner an experienced sexual assault defence lawyer is involved, the more options may remain available to address it.
If Police Attend at the Residence
Police sometimes attend at a person’s home rather than calling first. The legal landscape that applies in this scenario is dynamic and complex. Different actions by the person at the door can produce different legal consequences. Stepping outside to speak with the officer can lead to an arrest where police then enter or remain in the home. Speaking with police through a closed door can prompt police to apply for a warrant authorizing entry into the home. Inviting police inside, or consenting to entry or to a search of the home or any device, can have significant consequences for any later challenge to evidence police gather.
There is no single right answer that applies to every door-knock situation. The legally appropriate response depends on what police are saying at the door, what they appear to be investigating, what they may already know, and a number of other factors. An experienced sexual assault defence lawyer can help a person navigate the situation in a way tailored to the specific circumstances. If police attend at your home about a sexual assault investigation, the sexual assault defence lawyers at Davidson Gregory can be reached at 780-482-5496.
If Police Make an Arrest
Once a person is arrested, attendance at an interview may no longer be optional. Police can hold the person, transport them, and bring them into the interview room. The right to silence still applies. The right to counsel becomes immediate. Police are required to facilitate a call to counsel without delay.
A person who has been arrested has both rights at once: the right to silence, which protects against being compelled to answer questions, and the right to counsel, which protects access to legal advice before further questioning. The lawyer’s advice received before the interview is the legal advice the person will have once police begin asking questions, because in essentially every case the lawyer will not be present in the interview room itself. Any conversation with police, including casual small talk while in custody, can be treated as a statement and used at trial. The right to silence applies to everything said to police, not just the formal recorded interview.
Bail and police statements
It is a common misconception that giving a statement to police affects whether a person will be released on bail. This misconception is significant enough to be worth addressing directly. Bail (also called judicial interim release) is decided by a justice based on whether the accused will attend court, whether release would put the public or any witness at risk, and whether release would undermine public confidence in the justice system. It is not decided based on whether the accused cooperated with police. Police sometimes suggest, directly or indirectly, that cooperating now will help with release. As a matter of law, it does not. The bail decision is made by the court based on the legal criteria, independent of whether the accused gave a statement during the investigation.
Silence Is Not the Same as Evading Police
Exercising the right to silence is not the same as evading police or running from an investigation. The two are very different things at law, and the legal consequences differ significantly.
The right to silence protects a person from being compelled to give a statement or answer questions. It does not authorize a person to avoid police, ignore their calls, miss court dates, fail to attend at scheduled appearances, or flee the jurisdiction. Failing to attend court, hiding from police, or fleeing is not silence. It is evasion, and it can result in additional criminal charges including failing to attend, failing to comply with a release order, and obstruction of justice. It can also have significant consequences for any subsequent bail decision and for the eventual position at trial.
The legal framework distinguishes silence on the substantive allegations, which is protected, from presence and engagement in the formal court process, which is required. A person who exercises the right to silence on the allegations while complying with court attendance, release conditions, and other procedural obligations is in a different legal position from a person who is evading police entirely.
Anyone who is being investigated, has reason to believe a warrant may be issued, or is otherwise at risk of arrest should obtain legal advice from an experienced criminal lawyer immediately. The criminal lawyers at Davidson Gregory can be reached at 780-482-5496.
Why Davidson Gregory
Davidson Gregory has decades of experience defending sexual assault and other sex crime cases across Alberta. Our criminal defence lawyers represent people facing sexual assault charges, sexual assault investigations, and the full range of related sex crime allegations. We work in every level of Alberta court and we approach these files with the seriousness they require.
Sexual assault investigations move quickly. Early involvement of an experienced sexual assault defence lawyer allows the lawyer to communicate with police on the client’s behalf, to assess any interview request, to plan around the investigation, and to protect the client’s interests before charges are laid. Davidson Gregory takes calls about sexual assault investigations every week. Our sexual assault defence lawyers can be reached at 780-482-5496 or you can contact us. For a fuller overview of how the firm defends sexual assault cases, see our sexual assault defence page.
Contacted by Police About a Sexual Assault Allegation? Call Davidson Gregory.
Sexual assault investigations move quickly. The decisions made in the first hours and days after police contact can shape the entire case. Davidson Gregory has decades of sexual assault defence experience across Alberta. Our sexual assault defence lawyers, sex crime lawyers, and criminal defence lawyers represent clients in Edmonton, Calgary, Red Deer, Fort McMurray, and Grande Prairie, across Alberta, British Columbia, Saskatchewan, and the Northwest Territories. Anyone who has been contacted by police about a sexual assault allegation can reach our firm at 780-482-5496 or contact us.
This article is general legal information only. It is not legal advice. Reading this article does not create a lawyer-client relationship with Davidson Gregory.