Self-incrimination
| Author | David M. Paciocco/Lee Stuesser |
| Pages | 281-348 |
281
Cha pter 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 matter of
principle, it is believed that a person should not be requi red to answer
an allegation made against him unless and until the Crown has charged
him and established “a case to meet” during trial by presenting evidence
supporting the allegation. Until then, he should not have to dignify the
allegation with a response. In modern t imes th is notion is “intimately
linked to our adversar ial sy stem of cr iminal justice and the presump-
tion of innocence.”1 It 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, compel them to swear an oath, and then
require them on pain of punishment to answer questions a sked about
what they were thinking or what they believed. The idea t hat sel f-in-
crimination 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 r isk th at compelling accused persons to respond can produce
unreliable information.3 Hence, the principle against self-incrimin ation
supports “limits on the extent to which an accused per son can be used
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.
The law of evidence282
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 st ate 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 rule of law.
In order to vindicate the principle against self-incri mination, the
common law developed a number of precise rules, including the privil-
ege against self-incrimin ation (the right of any witness in any proceed-
ing to refuse to answer questions that may incriminate them), the right
of accused persons to decide whether to testify at their own tri als, and
the rule excluding involuntary confessions. A s can be seen, each of
these rules is concerned with “testimonial” self-incrimination6 — situ-
ations where accused persons are made to act like witnesses against
themselves by speaking about their ow n guilt. For more than a hun-
dred years, the principle against sel f-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-incrim-
ination protection to testi monial compulsion in this way was not arbi-
trary. 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-incrimin ation arguably involves a
particularly odious breach of privacy as it requires individuals to ex-
pose thei r thoughts and ideas, and “the mind is the individual’s most
private sanctum.”10 Finally, when a person speaks about his own guilt,
he is creating new, previously unavailable ev idence that will assist the
Crown, which is not the case when he is required to hand over pre-
existing rea l 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 choose whether to par-
4 Ibid. at para. 33.
5 R. v. D’Amour, above note 2 at para. 34.
6 The concept of “testimoni al self-incrimin ation” is explained 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. Gen. Div), rev’d in part on
other grounds (200 0), 182 D.L.R. (4th) 336 (Ont. C.A.).
Self-incrimination 283
ticipate in t heir own conviction, then t he failure of the law to address
non-testimonial compulsion was a problem. Wit h the inception of the
Charter, things changed. The Supreme Court of Canada began to use
the ter m “self-incrimination” to describe restricted forms of real evi-
dence that are intimately connected to the accused — things like breath
samples11 and blood samples12 and participation in l ine-ups.13 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 accu sed t hat t he Court
decided t hat they should be treated the same as his statements. This
change occurred initially in the context of the exclusionary remedy for
unconstitutionally obtained evidence that is provided for in subsection
24(2) of the Charter. As the jurisprudence developed under that sec-
tion, real evidence intimately related to the body of t he accused came
to be treated like compelled statements and was made subject to quasi-
automatic exclusion.14 It is now settled even outside of the exclusionary
remedy context that self-incrimination principles are violated when-
ever bodily samples are taken from the accused. In R. v. B.(S.A.), a case
involving a constitutional challenge to DNA war rants which compel
persons to produce bodily samples for analysis, t he Supreme Court of
Canada observed that the principle against self-incrimination applies
to compulsion relating both to “products of t he mind a nd products of
the body.”15
In R. v. B.(S.A.) the Court made a more general comment that has
the potenti al to mislead about the scope of the pr inciple again st sel f-
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 t he state are adversaries vio-
lates the principle against self-incr imination.”16 This comment is broad
enough to suggest that the principle will be violated whenever a suspect
is compelled to do such things as hand over his clothing, or f urnish
documents under a search war rant. Such a broad view would not be in
keeping with centra l aspects of the foundational notion of self-incrim-
ination. Historically, the principle “addresses those situations in which
it can be said that the evidence the state seeks to use was created by the
person against whom the state seek s to use it.”17 Compelled statements
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 Se e the discussion below in s ection 9.9, “The Fairness of the Tri al.”
15 R. v. B.(S.A.), above note 3 at para. 34.
16 Ibid., quoting R . v. Jones, [1994] 2 S.C.R. 229 at 249 (Ont. C.A.).
17 R. v. D’Amour, above note 2 at para. 37.
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