6. A Principled Approach To Self-incrimination

Author:David M. Paciocco - Lee Stuesser
Profession:Justice of the Ontario Court of Justice - Professor of Law, Bond University

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6. 1) The Principles to Consider

As described throughout this work, a principled approach is being taken in most areas of the law of evidence. Established fixed rules are being supplemented or even replaced by flexible rules that involve the application of general standards to determine admissibility. The same trend is occurring with the law of self-incrimination. The Supreme Court of Canada has developed a principled approach for determining whether, outside of the fixed rules, additional self-incrimination protection is warranted. This approach builds on the factors first identified in the "statutorily compelled statements" area. It is most clearly illustrated in the decision in R. v. B.(S.A.),260a case involving a constitutional challenge to the DNA warrant regime.

B.(S.A.) argued that the DNA warrant legislation was unconstitutional because it compelled him to furnish a DNA sample that, by its nature, is so intimately tied to his person that the legislation effectively requires him to self-incriminate. In rejecting this claim the factors used in the statutory compulsion case of R. v. White261were rearranged by the Court, with the key question becoming whether, in the relevant context, the search for the truth outweighs self-incrimination concerns about the abuse of state power.262Dealing first with the "search for the truth," the Court observed that DNA evidence is reliable and important evidence, advancing the ability of a court to make accurate factual findings. Unlike in the case of compelled statements that may well be untrue, this factor agitated in favour of admissibility. The counter-balancing "abuse of state power" consideration could be measured by examining the extent of the compulsion being exercised, the degree to which the state and the subject were in an adversarial position at the time the evidence was being gathered, and any circumstances that might increase the risk of abuse of power, including the degree of invasion required. The Court held that while the compulsion of a warrant is great and the adversarial position high during a criminal investigation, the safeguards attached to the warrant and the safe, as well as relatively unobtrusive, way DNA can be obtained lessened the risk of abuse of power to the point where the balance favoured discovering the truth over the self-incrimination...

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