Self-Incrimination

• Author: David M. Paciocco/Lee Stuesser
• Pages: 257-315

1. INTRODUCTION

The common law has long treated it as unfair to “conscript” or force an

accused person to be his own betrayer in a criminal case. As a matter

of principle, it is believed that a person should not be required to

answer an allegation made against him unless and until the Crown has

charged him and established “a case to meet” during trial by present-

ing evidence supporting the allegation. Until then, he should not have

to dignify the allegation with a response. This notion is a vestige of the

revulsion that was felt over the ancient courts of Star Chamber, which

would detain suspected enemies of the state on mere suspicion, com-

pel them to swear an oath, and then require them on pain of punish-

ment to answer questions asked about what they were thinking or what

they believed. The idea that self-incrimination is offensive rests, there-

fore, on ideas about privacy and the inherent dignity of individuals.1It

is also about the abuse of state power and the risk that compelling

accused persons to respond can produce unreliable information.2

Hence, the principle against self-incrimination supports “limits on the

extent to which an accused person can be used as a source of informa-

tion about his or her own criminal conduct.”3At its heart it is about

257

1R. v. D’Amour (2002), 4 C.R. (6th) 275 at para. 35 (Ont. C.A.).

2R. v. B.(S.A.) [2003] 2 S.C.R. 678 at para. 57.

3Ibid. at para. 33.

SELF-INCRIMINATION

chapter 8

choice. Individuals should be free to “choose whether to co-operate

with the state and, if they choose not to, [they should] be left alone by

the state”4unless and until the Crown proves that they have violated a

pre-existing rule of law.

In order to vindicate the principle against self-incrimination, the

common law developed a number of precise rules, including the privi-

lege against self-incrimination (the right of any witness in any pro-

ceeding to refuse to answer questions that may incriminate them), the

right of accused persons to decide whether to testify at their own trials,

and the rule excluding involuntary confessions. As can be seen, each of

these rules is concerned with “testimonial” self-incrimination5–situa-

tions where accused persons are made to act like witnesses against

themselves by speaking about their own guilt. For more than a hundred

years, the principle against self-incrimination provided no protection in

cases of non-testimonial conscription — situations where suspects

were made to participate in the investigation against them through

some physical act such as giving a blood sample,6blowing into a breath-

alyzer,7or standing in a police line-up.8Confining self-incrimination

protection to testimonial compulsion in this way was not arbitrary. It

was done in recognition of the fact that whereas compelled statements

may well prove to be untrue, the reliability of authentic real evidence is

not affected by the manner in which it is obtained. Moreover, forcing

testimonial self-incrimination arguably involves a particularly odious

breach of privacy as it requires individuals to expose their thoughts and

ideas, and “the mind is the individual’s most private sanctum.”9Final-

ly, when a person speaks about his own guilt, he is creating new, previ-

ously unavailable evidence that will assist the Crown, which is not the

case when he is required to hand over pre-existing real evidence.

Even though all of this is true, the practice of confining self-incrim-

ination protection to testimonial compulsion was controversial. If the

underlying idea was that individuals should not be made to participate

in their own conviction, then the failure of the law to address non-testi-

monial compulsion was a problem. With the inception of the Charter,

things changed. The Supreme Court of Canada began to use the term

258 The law of Evidence

4R. v. D’Amour, above note 1 at para 34.

5 The concept of “testimonial self-incrimination” is explained in Marcoux v. R.

(1976), 29 C.R.N.S. 211 (S.C.C.).

6Quebec (A.G.) v. Begin (1955), 21 C.R. 217 (S.C.C.).

7 Curr v. R. (1972), 18 C.R.N.S. 281 (S.C.C.).

8Marcoux v. R., above note 5.

9R. v. F.(S.), (1997), 120 C.C.C. (3d) 260 at 309 (Ont. Gen. Div), reversed in part

on other grounds, (2000), 182 D.L.R. (4th) 336 (Ont. C.A.).

“self-incrimination” to describe restricted forms of real evidence that are

intimately connected to the accused — things like breath samples10 and

blood samples11 and participation in line-ups.12 These forms of evidence

emanate from the accused or are the fruits of the use of his body. They

are so closely linked to the accused that the Court decided that they

should be treated the same as his statements. This change occurred ini-

tially in the context of the exclusionary remedy for unconstitutionally

obtained evidence that is provided for in subsection 24(2) of the Char-

ter. As the jurisprudence developed under that section, real evidence

intimately related to the body of the accused came to be treated like com-

pelled statements and was made subject to quasi-automatic exclusion.13

It is now settled even outside of the exclusionary remedy context that

self-incrimination principles are violated whenever bodily samples are

taken from the accused. In R. v. B.(S.A.), a case involving a constitution-

al challenge to DNA warrants which compel persons to produce bodily

samples for analysis, the Supreme Court of Canada observed that the

principle against self-incrimination applies to compulsion relating both

to “products of the mind and products of the body.”14

In R. v. B.(S.A.) the Court made a more general comment that has

the potential to mislead about the scope of the principle against self-

incrimination if read out of context. The Court said “any state action

that coerces an individual to furnish evidence against him- or herself in

a proceeding in which the individual and the state are adversaries vio-

lates the principle against self-incrimination.”15 This comment is broad

enough to suggest that the principle will be violated whenever a sus-

pect is compelled to do such things as hand over his clothing, or fur-

nish documents under a search warrant. Such a broad view would not

be in keeping with central aspects of the foundational notion of self-

incrimination. Historically, the principle “addresses those situations in

which it can be said that the evidence the state seeks to use was creat-

ed by the person against whom the state seeks to use it.”16 Compelled

statements and bodily demonstrations are new evidence created by the

accused. So, too, on a generous view, are bodily samples; they do not

exist until they are relinquished by the accused. It does not in any

Self-incrimination 259

10 R. v. Dyment [1988] 2 S.C.R. 417.

11 R. v. Therens [1985] 1 S.C.R. 613.

12 R. v. Leclair [1989] 1 S.C.R. 3.

13 See the discussion below at “9.9 The Fairness of the Trial.”

14 R. v. B.(S.A.), above note 2 at para. 34.

15 Ibid. at para. 34, quoting R. v. Jones [1994] 2 S.C.R. 229 at 249 (Ont. C.A.).

16 R. v. D’Amour, above note 1 at para. 37.