Right to silence

Jun 02, 2025 Letters

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Dear Editor

My letter advocates for legal rights awareness, focusing on one’s right to remain silent when arrested. It references the case of Ms. Tamieka Clarke, who was wrongfully “detained for advising her client” to remain silent, highlighting the need for people to consult Counsels and exercise their right to remain silent during cop questioning. I point out systemic issues, including the unequal treatment of less fortunate individuals, who may be denied legal support.

My letter also discusses the right to remain silent as protected in some other countries, noting the ongoing disregard for these rights despite recent ruling. I share my professional responsibility to advise clients against speaking to police, emphasizing the risks of self-incrimination and the importance of legal counsel. My letter explains relevant legal frameworks in Nigeria, Canada, and Guyana and the broader implications of remaining silent, particularly emphasizing the dangers of talking with a cop without legal representation. It stresses that exercising the right to remain silent is important, for protecting one’s defense and underscores the necessity of understanding and asserting this right to foster a fair justice process. It addresses systemic issues within law enforcement practices in Guyana. It calls for fair treatment within the justice system, as well as increased awareness of these fundamental rights.

Anyone arrested, whether in Guyana or in other countries such as Canada (where I practiced criminal law for some time) or Nigeria, which has very similar legislation, has the right to remain silent. This right is protected under sections 7 and 11 of the Canadian Charter of Rights and Freedoms and section 35(2) of Nigeria’s 1999 Constitution. In the recent case of Tamieka Clarke v. A.G., 2023, (Ag.) Chief Justice Roxane George stated that Ms. Clarke’s “fundamental right to personal liberty, as guaranteed and protected by Article 139 of the Constitution of Guyana, was breached by officers of the Special Organized Crime Unit when she was arrested and detained for advising her client to remain silent during questioning by members of the Guyana Police Force.” This legal principle grants individuals the freedom to either speak or remain silent when questioned by police—a right acknowledged in legal systems worldwide. It was fantastic news when I learned that Ms. Clarke’s colleagues in Georgetown, came to her aid with her ordeal, by demonstrating in the streets.

In the case of Atanda v. A.G. Western Region (2001), the Nigerian Supreme Court ruled that no defendant is obligated to make a statement to the police, and the rights of a suspect in custody are protected. The same principle applies in Canada. It is disheartening to note that, even in 2025, the fundamental rights of accused persons are still being disregarded by law enforcement in Guyana despite the (Ag.) Chief Justice’s ruling in 2023. Moreover, I am aware that, apart from Guyana, in countries like Trinidad and Tobago, Jamaica, Suriname, and Haiti, suspects often experience severe mistreatment, being dehumanized and sometimes even harmed or killed, despite disapproval from their Chief Justices.

 

As a barrister-at-law and a former soldier in the Canadian Armed Forces, I feel a responsibility, as a Legal Aid Ontario Panelist, to advise my clients not to speak to the police. This is crucial because evidential rules can often undermine their defense. Most of the time, I provide this advice over the cell telephone, sometimes in my vehicle while at the side of the road, instructing my clients to clearly express their desire to remain silent to the police. If they have limited English comprehension due to language barriers, I recommend that they request an interpreter and assert their right to Counsel. This approach helps safeguard the rights of the accused.

However, it is important to note that in Nigerian and Guyanese societies, less privileged individuals in custody may not be given the opportunity by a cop—or maybe outright denied—the right to contact their lawyers or loved ones, unlike more privileged individuals who usually secure these rights after their arrest. There is a simple rule in Guyana everyone follows “It’s who knows who!” Among the less fortunate, only those with financial means may manage to reach out to someone they trust, often only after statements have been taken from them, which is contrary to constitutional protections and reflects an unfair and unethical practice by law enforcement in both Guyana and Nigeria.

Section 17(1) of the Administration of Criminal Justice Act (ACJA) 2015 of Nigeria states that when a suspect is placed in police custody on allegations of committing an offense, “his statement shall be taken, if he so wishes to make a statement.” Section 17(2) further stipulates that “this statement may be taken in the presence of a legal practitioner of his choice.” If the suspect does not have a legal practitioner, it “can be taken in the presence of an officer from the Legal Aid Council of Nigeria, an official from a civil society organization, a Justice of the Peace, or any other person of his choice.” Importantly, this individual should not interfere while the suspect is making their statement, except in their capacity as a legal practitioner.

In addition, in my experience, the situation in Guyana is appalling as lawyers often have insufficient spaces to meet with their clients. I suggest that certain resources or services are generally available to those in need. This highlights the importance of accessibility and support in various contexts, whether in education, healthcare, or community services. Ensuring that these provisions are consistently available can greatly enhance the overall well-being and development of individuals and communities. Refusing to speak with the authorities does not mean that you are admitting guilt. Instead, it shows that you know your legal rights. Being silent can be tricky because cops are often unprofessional, and may try exerting pressure or apply aggressive methods to get you to talk and make comments that could be used against you in court.

This is their number one agenda of putting pressure on you. They start by swearing expletives at you and raising their hands cuffed, but your key is never to give the cops any information or statement without your lawyer. No matter what the police or other authorized person(s) in charge say, do, or promise you, remain silent. Always remain silent saying, “You may speak to my lawyer,” in case you have to say anything. I always advise clients to refrain from expressing an opinion. Otherwise, a single piece of information can become enough to cost you the case.

In Ontario, no one is required to speak or provide information to police, except in certain traffic situations. Clients can choose to remain silent, and if they do, police typically continue questioning (R v. Singh). Importantly, one has the right to consult with a lawyer in private. Young ones have additional protections under the Youth Criminal Justice Act, ensuring that counsel is present during interrogations. Court rulings, such as R. v. Sinclair and R. v. McCrimmon, clarify that even after consulting a lawyer, police may continue questioning.  Undercover operations must adhere to legal standards, and individuals have the right against self-incrimination, which should be respected in cases. When detained, one can remain silent and is under no obligation to provide information based on police suspicions on an allegation of committing an offence.

If you are a suspect, and is at a station, ask to contact Counsel again due to: [i] a change in the jeopardy facing you (e.g., from attempted murder to murder) [ii] New procedure(s) involving you that require further legal advice (e.g., participation in a polygraph test, line-up, or for a DNA sample) [iii] Reason to believe that you may not have understood the initial legal advice (e.g., becoming confused about choices or the right to remain silent in light of new allegations). In the face of repeated requests to consult with counsel, depending on the circumstances, your voluntariness of any subsequent statement you make to the police is challengeable.

Sometimes the cop may try other methods to elicit evidence. Where the “inmate” is an undercover cop, different considerations may apply: R. v. Hébert. In Hébert, it was held that where the accused consulted with Counsel and informed the police that he didn’t wish to make a statement, his rights were violated due to trickery by putting an undercover cop nearby because the court felt that the cop engaged the man in conversation. The situation is different where an undercover cop merely allows a man to speak but does not attempt to elicit information or to “free agents” (inmates) who get information from another, which may be adduced in evidence.

There is an underlying right, which is the right to avoid self-incrimination. At times, some prosecutors in their un-fairmindedness approach to their work may ask a judge or jury to draw unfavourable conclusions based on this right being exercised advocating that one did not speak up before, or during a trial, leaving Counsel to raise any objection if desirous. In Ontario, if the police wish to speak to someone, that person is generally under no obligation to provide any information, with a few exceptions, such as in traffic situations. A lawyer must inform the client of their rights and is required to gather sufficient information to offer further advice. If the client opts to remain silent, the lawyer must respect that choice, and also be silent.

But the bottom line is when detained, one is not legally required to interact with a cop or give any information based on the cops’ “mere suspicions”. In other words, when one is taken into custody, one can remain silent instead of giving any statement(s). Cops may use the helplessness and vulnerability of a detainee to force him or her into confessing. However, you are not required to speak to the cop, even if a cop tells you to. Voluntariness is important. What happen if a person wants to speak with a cop? If so, that is a different story – they must be completely honest. Each word will be noted down, and can be used as pieces of evidence. Giving false statements to a cop is a criminal offence: perjury. The right to remain silent isn’t an opportunity to lie to the police, one must understand that one is in no way allowed to lie to the cop: “obstructing a peace officer” or “obstruction of justice” are offences that may be committed. These are serious offences and it will affect your ability to defend yourself in court.

 

Most people don’t have any knowledge regarding the right to remain silent. Due to this, many people speak out without thinking about the later consequences. That is why exercising your right to silence is crucial to creating a winning defence strategy. Because anything coming out of your mouth could endanger your defence case, becoming the main reason for your conviction. If you are asked to report, there is a chance that a cop is either investigating you for a crime or has evidence to arrest. A cop may ask for your alibi or of your whereabouts. The cop might suspect you, and call you in, in hopes that you admit to a crime. An unseasoned cop may just have a hunch, you may have committed an offence, and ask you to “come to the station,” hoping that you will spill something, so it is best to not talk in the absence of a lawyer. Even if you are innocent and the police just want a statement, it is not advised that you talk without a Counsel. One might be guilty of committing a crime even if one thinks one is innocent, for an accessory to a crime without knowing. There is no such thing as an “off the record” statement. Anything one tells a cop can be used against one – if one admits during a phone call, text message or any other means is evidence.

The simplest evidential rule is to provide your name, address, and date of birth and refuse to share any other details.

Yours faithfully,

M. SHABEER ZAFAR, B.A., LL.B. Hons.), L.E.C.

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