Self-incrimination

• Pages: 306-380

306

CHAPTER 8

SELF-INCRIMINATION

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 mat-

ter 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 pre-

senting evidence supporting the allegation. Until then, he should not

have to dignify the allegation with a response. In modern times this

notion is “intimately linked to our adversarial system of criminal jus-

tice and the presumption of innocence.”1 It is a vestige of the revulsion

that was felt over the ancient courts of Star Chamber, which would de-

tain suspected enemies 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 thinking 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 that compelling accused persons

to respond can produce unreliable information.3 Hence, the principle

against self-incrimination 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 used 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, if

they choose not to, [they should] be left alone by the state”5 unless and

until the Crown proves that they have violated a pre-existing r ule of law.

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

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

ilege 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 tr ials,

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

of these rules is concerned with “testimonial” self-incrimination6 —

situations where accused person s are made to act like witnesses again st

themselves by speaking 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 participate in the investigation against them

through some physical act such as giving 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 whereas compelled

statements may well prove to be untrue, the rel iability of authentic real

evidence is not affected by the manner in which it is obtained. More-

over, forcing testimonial self-incrimination arguably involves a par-

ticularly odious breach of privacy as it requires individuals to expose

their thoughts and ideas, and “t he mind is the ind ividual’s most private

sanctum.”10 Finally, when a person speaks about his guilt, he is creat-

ing new, previously unavailable evidence that will 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 self-incrimination concept grew.

This happened initially in the context of section 24(2) of the Charter.

Section 24(2) requires judges to exclude unconstitutionally 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.

10R. 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 admission would bring the administration of justice

into disrepute. The Court accepted that given the importance of self-

incrimination principles, if unconstitutionally obtained evidence is

self-incriminatory it should ordinarily be excluded. Before long the

Court began to use the term “self-incrimination” to describe restricted

forms of real evidence that are intimately connected to the accused —

things like breath samples11 and blood samples12 and participation in

line-ups13 and to treat these forms of evidence the same as compelled

testimonial self-incrimination for the purposes of exclusion.14 This ex-

tension was no doubt grounded in the notion that if the underlying

idea is that individuals should be able to choose whether to participate

in their own conviction, these 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-incrimination 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 constitutional

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-incrimination 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 warrants greater legal protection

than other forms of compelled participation. This casts doubt about

whether non-communicative forms of conscription 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 differ-

ent things at different times.”17 Fortunately, most cases can be resolved

using f‌ixed and reliable rules. There are two categories of clear rules

11R. v. Dyment, [1988] 2 S.C.R. 417.

12R. v. Therens, [1985] 1 S.C.R. 613.

13 R. v. Leclair, [1989] 1 S.C.R. 3.

14See chapte r 9, section 6.2, “Rejecte d Practices,” and section 6.4 (b), “Bodily

Evidence.”

15R. v. B.(S.A.), above note 3 at para. 34.

16R. 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.”

17R. v. B.(S.A.), above note 3 at para. 57.