Self-incrimination

Pages306-380
306
CHA PTER 8
SELF-INCRIMINATION
1. INT RODUCTION
The common law has long treated it as unfai r to “conscript” or force
an accused person to be hi s own betrayer in a crim inal case. As a mat-
ter of principle, it is believed that a person should not be required to
answer an allegation made against him unless and unti l the Crown
has charged him a nd established “a case to meet” during tr ial by pre-
senting evidence supporting t he allegation. Until then, he should not
have to dignify t he allegation with a response. In moder n times this
notion is “intimately linked to our adversarial system of cr iminal jus-
tice and the presumption of innocence.”1 It is a vestige of the revulsion
that was felt over the ancient courts of Star Ch amber, which would de-
tain suspected enem ies of the state on mere suspicion, compel them to
swear an oath, and then requ ire them on pain of punishment to answer
questions asked about what they were thin king or what they believed.
The idea that self-incrimination is offensive rests, therefore, on ideas
about privacy and the inherent dignity of individuals.2 It is also about
the abuse of state power and the risk t hat compelling accused persons
to respond can produce unreliable inform ation.3 Hence, the principle
against self-incrim ination supports “limits on the extent to which an
1 R. v. Henry (2005), 202 C.C.C. (3d) 449 at para. 2 (S.C.C.).
2 R. v. D’Amour (2002), 4 C.R. (6th) 275 at para. 35 (Ont. C.A.).
3 R. v. B.(S.A.), [2003] 2 S.C.R. 678 at para. 57.
Self-incrimination 307
accused person can be u sed as a source of information about his or
her own criminal conduct.”4 At its heart it is about choice. Individuals
should be free to “choose whether to co-operate with the state and, i f
they choose not to, [they should] be left alone by the state”5 unless and
until the Crown proves th at they have violated a pre-existing r ule of law.
In order to vindicate the principle again st self-incrimination, the
common law developed a number of precise rules, including t he priv-
ilege against self-incrimination (the right of any witness in any pro-
ceeding to refuse to an swer questions that may incr iminate them), the
right of accused persons to decide whether to te stify at their own tr ials,
and the rule excluding involuntar y confessions. As can be seen, e ach
of these rules is concerned with “testimonial” self-incr imination6
situations where accused person s are made to act like witnesses again st
themselves by spea king about their own guilt. For more than a hun-
dred years, the principle against self-incrimination provided no pro-
tection in cases of non-testimonial conscription — situations where
suspects were made to par ticipate in the investigation against t hem
through some physical act such as givi ng a blood sample,7 blowing
into a breathalyzer,8 or standing in a police line-up.9 Conf‌ining self-
incrimin ation protection to testimonia l compulsion in this w ay was not
arbitrary. It was done in recognition of the fact that wherea s compelled
statements may well prove to be untrue, the rel iability of authentic real
evidence is not affected by the man ner in which it is obtained. More-
over, forcing testimonial self-incrimination arguably involves a par-
ticularly odious breach of privacy as it requires individual s to expose
their thoughts and ideas, and “t he mind is the ind ividual’s most private
sa n ct um .”10 Finally, when a person speaks about his guilt, he is creat-
ing new, previously unavailable evidence that wil l assist the Crown,
which is not the case when he is required to hand over pre-existing
real evidence.
With the advent of the Charter the sel f-incrimination concept grew.
This happened initia lly in the context of section 24(2) of the Charter.
Section 24(2) requires judges to exclude unconstitutional ly obtained
4 Ibid. at para. 33.
5 R. v. D’Amour, above note 2 at para. 34.
6 The concept of “testimonial se lf-incrimination” is ex plained in Marcoux v. R.
(1976), 29 C.R.N.S. 211 (S.C.C.).
7 Quebec (A.G.) v. Begin (1955), 21 C.R. 217 (S.C.C.).
8 Curr v. R. (1972), 18 C.R.N.S. 281 (S.C.C.).
9 Marcoux v. R., above note 6.
10 R. v. F.(S.) (1997), 120 C.C.C. (3d) 260 at 309 (Ont. Ct. Gen. Div), rev’d in part
on other grounds (200 0), 182 D.L.R. (4th) 336 (Ont. C.A.).
THE LAW OF EVIDENCE
308
evidence if its admis sion would bring the administration of justice
into disrepute. The Court accepted that given the import ance of self-
incrimination principles, if unconstitutionally obtained evidence is
self-incriminatory it should ordinarily be excluded. Before long the
Court began to use the ter m “self-incrimination” to describe re stricted
forms of real evidence that are intimately connected to the accused —
things like breath samples11 and blood sample s12 and participation in
line-ups13 and to treat these forms of ev idence the same as compelled
testimonial sel f-incrimination for the purpose s of exclusion.14 This ex-
tension was no doubt grounded in the notion that if the underlying
idea is that indiv iduals should be able to choose whether to participate
in their own conviction, the se forms of evidence, each of which re-
quires the compelled participation of the accused to obtain, should be
treated the same as compelled statements.
In 2003 the high-water mark of the self-incri mination concept was
reached when this broader conception of self-incrimination was rec-
ognized outside of section 24(2). R. v. B.(S.A.) involved a constitut ional
challenge to DNA warrants which compel persons to produce bodi-
ly samples for analysis. The Supreme Court of Canada observed that
the principle against self-incr imination applies to compulsion relating
both to “products of the mind and products of the body.”15
More recently the Supreme Court of Canada has backtracked. In
2009 in R. v. Grant it held that its earlier section 24(2) authority “wrong-
ly equates bodily evidence with statements.”16 The Court made it clear
that “communicative” information warra nts greater legal protection
than other forms of compelled par ticipation. This casts doubt about
whether non- communicat ive forms of conscript ion should now be
treated as constituting self-incrimination.
It is evident, therefore, that the self-incrimination concept is un-
stable. Indeed, the Supreme Court of Canada has observed that the
self-incrimination principle “has a limited scope and requires d iffer-
ent things at different times.”17 Fortunately, most cases can be resolved
using f‌ixed and reliable rules. There are two categories of clear rules
11 R. v. Dyment, [1988] 2 S.C.R. 417.
12 R. v. Therens, [1985] 1 S.C.R. 613.
13 R. v. Leclair, [1989] 1 S.C.R. 3.
14 See chapte r 9, section 6.2, “Rejecte d Practices,” and section 6.4 (b), “Bodily
Evidence.”
15 R. v. B.(S.A.), above note 3 at para. 34.
16 R. v. Grant, 2009 SCC 32 at para. 105. See chapter 9, sect ion 6, “Requirement 2:
The Effect of the Admi ssion on the Repute of the Admini stration of Justice.”
17 R. v. B.(S.A.), above note 3 at para. 57.

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