Witness or Suspect? How the Difference Affects Police Investigations

On April 2, 2016, 22 year-old Julian Weekes was shot and killed outside Annie’s Grill in Leslieville, a trendy area just east of downtown Toronto.

Weekes was, sadly, attending a memorial service for another shooting victim. Given the occasion, chances are that numerous witnesses could help the police.

But will they? The history of gun violence in this city shows that they may not heed the call of civic duty.

Conventional wisdom has it that when witnesses don’t help the police, it’s because they see them as adversaries.

To be sure, rampant carding of young, black males for years in Toronto did nothing to endear African-Canadian communities towards the police.

Carding has finally been reduced if not eliminated, but that may not remove the distrust felt towards the police.

One issue that remains is the concern people may have over the personal consequences that could following if they give the police a statement.

Where the Fear of Helping the Police is Legitimate

For example, what happens if, during the course of their interview, the police decide that the witness is now a suspect? What happens when the police have information about a witness that makes them believe that this “witness” is somehow involved?

Police trickery has not been eliminated from our system. Some may argue that it’s there for a good reason - but that reason vanishes when it prevents them from solving crimes.

To help change the dial on this, the courts can act. They can provide civilians with the kinds of protections that the police get when they are asked by the Special Investigations Unit to be witnesses against a fellow officer.

In those cases, if a witness officer subsequently becomes a “subject” officers, their statements are given up by the SIU in the name of fairness.

When it comes to civilians, the lines are blurred. Appellate courts are partly to blame.

The Need for More Information

As things stand, trial courts largely follow a decision by Justice David Watt (who is now on the court of appeal) who wrote the following:

Voluntariness implies an awareness about what is at stake in speaking to persons in authority, or declining to assist them.

What this means is that for a statement to be “voluntary”, made without threats or promises, the police have to tell a witness if they are or could be a suspect. They also have to tell them about the right to silence.

This decision is from our trial courts. It has not been fully embraced by the Ontario Court of Appeal and even in this decision, the protections are far from as strong as they could be.

Perhaps this is because the right to silence has never been fully embraced by our courts, at least from the perspective of the police. If a person asserts their right to silence, they are still allowed to question them. Indeed, it is time for appellate courts to revisit that situation.

But we don’t even get to the right to silence if the police don’t tell a suspect that they have one.

And to be sure, there’s ignorance out there. My experience is that most people who are not lawyers believe that they have a positive obligation to talk to the police. That applies to even the highly educated.

How can a statement be truly “voluntary” if it’s the product of such ignorance?

Our judicial system is based on fairness. Arguably, it is unfair to unknowingly conscript someone against themselves. The hallmark of our system of justice is that every person is entitled to force the state to make their cases against them without their help.

It’s a tradition that exists in SIU investigations. It should exist in investigations against civilians as well.



R. v. Worrall, SCJ

Section 10, SIU Regulations