Self-incrimination
| Author | David M. Paciocco/Lee Stuesser |
| Profession | Justice of the Ontario Court of Justice/Professor of Law, Bond University |
| Pages | 283-351 |
283
CHA PTER 8
Self-incriminaTion
1. inTRoduCTion
The common law has long treated it a s 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 al legation m ade agai nst him u nless a nd until the Crow n has ch arged
him and established “a case to meet” during trial by presenting evidence
supporting the allegation. Until then, he should not have to dignify t he
allegation with a response. In modern times this notion is “intimately
linked to our adversarial system of crimin al justice and the presump-
tion of in nocence.”1 It is a vestige of the revulsion that was felt over the
ancient courts of Star Chamb er, which wou ld detain sus pected enemies
of the state on mere suspicion, compel them to swear an oath, and then
require t hem on pain of punishment to answer que stions a sked about
what they were thinki ng or what they believed. The idea that self-in-
criminat ion is offensive rests, t herefore, on ideas about privacy and the
inhere nt dignity of indiv iduals.2 It is also about the abuse of state power
and the risk that compelling accused pers ons to respond can produce
unreli able information.3 Hence, the principle against self-incrimination
supports “limits on the extent to which an accused person 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 evidence284
as a source of information about his or her own crimi nal conduct.”4 At
its heart it is about choice. Individuals should be free to “choose whether
to co-operate with t he state and, if t hey choose not to, [they should] be
left alone by the state”5 unless and until the Crown proves that they
have violated a pre-existi ng rule of law.
In order to vindicate the principle against self-incrimination, t he
common law developed a number of precise rules, including t he privil-
ege against self-incrimination (the right of any witne ss in any proceed-
ing to refuse to answer questions that may incriminate them), the right
of accused persons to decide whether to test ify at their own t rials, and
the rule excluding involuntary confessions. As can be seen, each of
these rules is concerned with “testimonial” self-incrimin ation6 — situ-
ations where accused persons are made to act like witnesses against
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 m ade to participate in the investigation aga inst 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-
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 man ner in which it is obtained. More-
over, forcing testimonial self-incrimination arguably involves a par-
ticularly od ious breach of privacy as it requires individuals to expose
their thoughts and ideas, and “the mind is the individual’s most private
sa n c tu m .”10 Finally, when a person speaks about his guilt, he is creat-
ing new, previously unavailable evidence that will assist t he Crown,
which is not t he case when he i s required to hand over pre-existing
real evidence.
With the advent of the Charter the self-incrimination concept grew.
This h appened in itially 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 “te stimonial self-incr imination” is explaine d 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 285
evidence if its admission would bring the administration of justice into
disrepute. The Court accepted that given the importance of self-in-
crimination principles, if unconstitutionally obtained evidence is self-
incriminatory it should ordinarily be e xcluded. Before long t he Court
began to use the term “self-incr imination” to describe rest ricted forms
of real evidence t hat are int imately connected to t he 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 extension wa s
no doubt grounded in the notion th at if the underlying idea is that
individuals should be able to choose whether to participate in their
own conviction, t hese forms of ev idence, each of which requires 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-incrimi nation 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 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.”15
More recent ly the Supreme Court of Canada has backtracked. In
2009 in R. v. Grant it he ld t hat its ear lie r se cti on 24 (2) aut hor ity “w rong ly
equates bodily evidence with statements.”16 The Cou rt mad e it cle ar th at
“communicative” information warrants greater legal protection than
other forms of compelled participation. This casts doubt about whether
non-communicative forms of conscr iption should now be treated as
constit uting s elf-incr imination.
It i s 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 a nd reli able 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 Se e chapter 9, section 6.2, “Rejected Practice s,” 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 chapte r 9, section 6, “Requir ement 2:
The Effect of the Admi ssion on the Repute of the Admin istration of Justice.”
17 R. v. B.(S.A.), above note 3 at para. 57.
To continue reading
Request your trial