What if I'm being interviewed about a white-collar crime?
When people are told they are been investigated about their possible role in an alleged criminal activity, their immediate impulse may be to give their side of the story, thinking that will exonerate them. That is not a wise strategy. Their words may still implicate them.
If you are being investigated for your involvement in a white-collar crime, your first step should be to speak to a criminal lawyer. I have defended numerous people in this situation and I know the importance of keeping control of the situation when giving information.
What if my boss wants to talk to me?
Let’s say you are an executive at a firm and are asked about financial improprieties that have surfaced. No matter your guilt or innocence, I would advise you not to give any information, but to say you need to consult legal counsel before making a statement. If you choose to answer questions from your employer about the alleged crime, that information can later be used as evidence against you.
If you politely defer answering questions and your employer goes to the police with the allegation, you will then be benefiting from your lawyer’s advice before giving a statement. But never give false information. Mistruths may constitute an obstruction of justice and will damage your credibility if the matter ends up in court.
What if the police want to speak to me?
Keep in mind that anything you say to the police might be used as evidence against you in court. If the police contact you in the course of a white-collar crime investigation and ask you for information, tell them that you need to consult with a lawyer first. Don’t be lured by police coaching to “clear the air about the situation at hand.”
Take notes about any involvement with the police. What alleged crime are they investigating? Are you a suspect or a witness? Police are not required to provide the details of their investigation to you at this point, but they should be able to give you some idea about why they want to speak to you.
Be sure to ask for the name and contact information for the officer you are speaking to, as I will need to confer with them as I build a case on your behalf.
Won’t speaking to a lawyer make me look guilty?
The desire to speak to a lawyer before making a statement does not indicate any level of guilt or subterfuge on your part, as both innocent and guilty people need legal advice. Our judicial system is complicated and full of procedures and rules. Speaking with legal counsel can prevent you from making mistakes that cannot be undone.
Even if police have told you that the purpose of the interview is to question you as a witness to a potential crime, it’s prudent to seek legal advice from an experienced criminal lawyer. You don’t want to say something that may be used against you at trial.
Advice for talking to police
There’s no one-size-fits-all response about what to expect during a police interview. Each investigation is different and it can be difficult to know what the police will be asking. Before my clients talk to the police, I ask them to provide me with a detailed written account of what happened or what they know about the matter being investigated. I caution to avoid “editing” details that they feel are not relevant or that make them look bad. That information may emerge as a crucial part of the Crown’s case, so I need to know everything in advance.
What if the police think I’m a suspect?
If you are being investigated for possibly committing a white-collar crime, my advice in most cases is to say nothing when being interviewed. If you’re about to be charged, police already think they have enough evidence to bring to the Crown, so it is not to your advantage to talk to them and provide them with statements that may later be used against you. At this stage in the investigation, we will not have the prosecutor’s disclosure or any of the evidence or allegations against you.
Avoid the temptation to unburden yourself to investigators, thinking that will work in your favour or will mean you will not have to stand trial. I can appreciate how most of us want to provide information, but in judicial matters, timing is everything. If you have played a part in a crime, there’s a proper place and time to make that admission, and it’s not during the police interview. By speaking then, you are compromising the ability of your lawyer to negotiate on your behalf.
What if the police think I’m a witness?
If the police want to question you as a witness in a white-collar investigation, my advice is to speak to me first, then be straightforward with officers and tell them what you know. In our discussion before the police interview, I can give you an idea of what types of questions you can expect from the officers. When questioned by the police, take your time and think your responses through, then answer the questions succinctly.
If you say something as a witness that leads investigators to regard you as a suspect in the alleged crime, the interview has to stop and you will be informed of your rights, including the right to speak to a lawyer.
Don’t fall for psychological ploys
Police officers are trained to use various techniques to draw information from suspects during interviews and perhaps encourage a confession. Common phrases used by investigators include, “This is your opportunity to clear the air about what you have done.” Go into that interview knowing that is not the case. If you have an admission to make about a crime, that should be given in court, with your lawyer working with the Crown on possible plea agreements.
Even if you tell officers that you wish to remain silent, that doesn’t mean they will stop asking questions. Their job is to get information and they are allowed to apply psychological pressure and play on the emotions of those they are questioning, in the hope of extracting information.
Do I have the right to remain silent?
In one word, yes. That right is guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms, which states, “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
In the context of being questioned by the police, that means you do not have to answer questions, as everyone is presumed innocent until proven guilty in court.
A 1990 Supreme Court of Canada judgment provides more detail about why this right is so important and the essential role defence counsel plays at trial:
“The guarantee of the right to consult counsel confirms that the essence of the right is the accused's freedom to choose whether to make a statement or not. The state is not obliged to protect the suspect against making a statement; indeed it is open to the state to use legitimate means of persuasion to encourage the suspect to do so. The state is, however, obliged to allow the suspect to make an informed choice about whether or not he will speak to the authorities. To assist in that choice, the suspect is given the right to counsel … if the suspect chooses to make a statement, the suspect may do so. But if the suspect chooses not to, the state is not entitled to use its superior power to override the suspect's will and negate his or her choice.”
The judgment also offers this guidance about police interviews.
“There is nothing in the rule to prohibit the police from questioning the accused in the absence of counsel after the accused has retained counsel. Presumably, counsel will inform the accused of the right to remain silent … police persuasion, short of denying the suspect the right to choose or depriving him of an operating mind, does not breach the right to silence … the accused cannot stop the interrogation absent putting his hands over his ears, closing his eyes, and curling up in a ball in the corner until the police leave. Vigorous and skilful questioning is permitted. The police are allowed to misstate facts, exaggerate facts, appeal to the conscience of the accused, sympathize, exhort, even offer inducements so long as there is no quid pro quo understanding. A great deal of power is given to the police and the challenge for the law is to ensure that the police do not abuse this power.”
Choose experienced legal counsel
Dealing with the police and the criminal justice system is a serious matter. If the police ask you to answer questions about an investigation they have launched, you have the right to have an experienced legal advocate helping navigate this complex process. If you have been charged with a criminal offence, call me for a free consultation.