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

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 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 the

allegation with a response. In modern times this notion is “intimately

linked to our adversarial system of criminal justice and the presump-

tion of innocence.”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 them on pain of punishment to answer questions asked about

what they were thinking or what they believed. The idea that self-in-

crimination is offensive rests, therefore, 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 persons 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

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.

The law of evidence284

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 rule of law.

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

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

ege against self-incrimination (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 trials, and

the rule excluding involuntary confessions. As 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 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-

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. 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 “the mind is the individual’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

4Ibid. at para. 33.

5R. 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.).

7Quebec (A.G.) v. Begin (1955), 21 C.R. 217 (S.C.C.).

8Curr v. R. (1972), 18 C.R.N.S. 281 (S.C.C.).

9Marcoux v. R., above note 6.

10R. 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 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 samples11and 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 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 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-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 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 recently 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 conscription should now be treated as

constituting self-incr imination.

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.

14Se e chapter 9, section 6.2, “Rejected Practice s,” 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 chapte r 9, section 6, “Requir ement 2:

The Effect of the Admi ssion on the Repute of the Admin istration of Justice.”

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