R. v. Marcoux, (1975) 4 N.R. 64 (SCC)

• Judge: Beetz and de Grandpré, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 30, 1974
• Jurisdiction: Canada (Federal)
• Citations: (1975), 4 N.R. 64 (SCC);60 DLR (3d) 119;4 NR 64;24 CCC (2d) 1;[1976] 1 SCR 763;1975 CanLII 10 (SCC)

R. v. Marcoux (1975), 4 N.R. 64 (SCC)

MLB headnote and full text

R. v. Marcoux

Indexed As: R. v. Marcoux

Supreme Court of Canada

Laskin, C.J.C., Martland, Judson,

Ritchie, Spence, Pigeon, Dickson,

Beetz and de Grandpré, JJ.

March 7, 1975.

Summary:

This case arose out of a charge of break and enter. At the trial evidence was offered by the Crown that the accused refused after his arrest to participate in a line-up for purposes of observation and identification of the accused by the alleged victim. The trial judge held that evidence of such refusal by the accused was admissible. The accused was convicted by a judge and jury.

On appeal to the Ontario Court of Appeal the appeal was dismissed and the conviction of the accused was affirmed - see [1973] 3 O.R. 861.

On appeal to the Supreme Court of Canada the appeal was dismissed and the judgment of the Ontario Court of Appeal was affirmed.

The Supreme Court of Canada stated that the privilege against selfincrimination did not extend to the exhibition of the person of an accused in a line-up for observation and identification by an alleged victim - see paragraph 9. The Supreme Court of Canada held admissible evidence of the refusal by the accused to participate in a line-up where the issue was raised by defence counsel when he criticised the Crown for using a show-up rather than a line-up - see paragraphs 12 to 14.

The Supreme Court of Canada stated that generally evidence of a refusal by an accused to enter a line-up is not admissible when offered by the Crown - see paragraph 14.

Evidence - Topic 4321

Witnesses - Privilege - Self-incriminating facts - General principles - The Supreme Court of Canada stated that the privilege against selfincrimination is the privilege of a witness not to answer a question which incriminates him or may tend to incriminate him - See paragraph 5.

Evidence - Topic 4322

Witnesses - Privilege - Self-incriminating facts - Extent of the privilege - The Supreme Court of Canada stated that coerced oral or documentary disclosures fall within the privilege - See paragraphs 6 to 9 - Identification of an accused in a police line-up - The Supreme Court of Canada held that the exhibition of the person of an accused in a line-up for observation by an alleged victim is not a violation of the privilege against self-incrimination - See paragraph 9.

Police - Topic 3103

Powers - Investigation - Powers of police respecting persons under arrest - The Supreme Court of Canada stated that the police can use reasonable compulsion to force an accused to take part in a line-up for observation and identification by an alleged victim - See paragraph 10.

Criminal Law - Topic 5247

Evidence - Identification of an accused - Line-up - Admission of the evidence of a refusal by an accused to enter a line-up - The Supreme Court of Canada stated that generally evidence of a refusal by an accused to enter a line-up is not admissible when offered by the Crown - See paragraph 14 - Supreme Court of Canada held admissible evidence of the refusal by an accused to participate in a line-up where the issue was raised by defense counsel when he criticised the Crown for using a show-up rather than a line-up - See paragraphs 12 to 14 - The Supreme Court of Canada stated that the jury was free to draw an inference of guilt or innocence from such evidence of refusal - See paragraph 15.

Criminal Law - Topic 4361

Procedure - Charge or directions to a jury - Directions regarding identification and a refusal by the accused to participate in a line-up - The Supreme Court of Canada approved the judge's charge to a jury - See paragraph 15.

Criminal Law - Topic 4411

Procedure - Closing address by counsel - Prohibition against comment by Crown counsel on the failure of the accused to testify (Supreme Court of Canada) - See paragraph 15.

Cases Noticed:

R. v. Judge of the General Sessions of the Peace for the County of York, ex parte Corning Glass Works of Canada, [1971] 2 O.R. 3, folld. [para. 5].

Curr v. The Queen, [1972] S.C.R. 889, folld. [para. 5].

Attorney General of Quebec v. Begin, [1955] S.C.R. 593, folld. [para. 5].

In re Validity of Section 92(4) of the Vehicles Act 1957 (Sask.), [1958] S.C.R. 608, folld. [para. 5].

Holt v. United States, 218 U.S. 245, folld. [para. 7].

Schmerber v. California, 384 U.S. 757, folld. [para. 8].

United States v. Wage, 388 U.S. 218, folld. [para. 8].

R. v. Burns, [1965] 4 C.C.C. 298, dist. [para. 9].

R. v. Shaw (1964), 43 C.R. 388, dist. [para. 9].

Rochin v. California, 342 U.S. 165, dist. [para. 9].

Dallison v. Caffrey, [1964] 2 All E.R. 610, folld. [para. 10].

R. v. Brager, [1965] 4 C.C.C. 251, folld. [para. 12].

People v. Ballott, 20 N.Y. 2d 600, folld. [para. 13].

R. v. Seiga, [1961] Crim. L.R. 541, folld. [para. 13].

R. v. Linton, [1973] Crim. L.R. 113, folld. [para. 13].

Statutes Noticed:

Canadian Bill of Rights, R.S.C. 1970, Appendix III, sect. 2(d) [para. 5].

Canada Evidence Act, R.S.C. 1970, c. E-10, sect. 5 [para. 5].

Identification of Criminals Act, R.S.C. 1970, c. I-1 [para. 9].

Counsel:

R. Carter, for the appellants;

C. Scullion, for the respondent.

This appeal was heard by the Supreme Court of Canada on October 30, 1974. Judgment was delivered by the Supreme Court of Canada on March 7, 1975.

The judgment of the Supreme Court of Canada was delivered by DICKSON, J.