Self-Incrimination

AuthorDavid M. Paciocco/Lee Stuesser/Palma Paciocco
Pages382-463
382
CHAPTER 7
SELF-INCRIMINATION
1. INTRODUCTION
The concept of “self-incrimination” applies where the state seeks to com-
pel an accused person to provide evidence of their own guilt for use at
their criminal or penal trial. The law of self-incrimination reflects the
long-standing common law view that it is unfair to “conscript” or force
an accused person to be their own betrayer. As a matter of principle,
it is believed that a person should not be required to answer an alleg-
ation for which they could be prosecuted unless and until the Crown
has charged them and established “a case to meet” during trial by pre-
senting evidence supporting t he allegation. Until then, a suspect 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 presumption of innocence.”1 It is a vestige of the revul-
sion that was felt over the ancient courts of Star Ch amber, 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 about what they were th inking 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
1 R v Henry, [2005] 3 SCR 609 at para 2 [Henry].
2 R v D’Amour (2002), 4 CR (6th) 275 (Ont CA) at para 35 [D’Amour].
Self-Incrimination 383
to respond can produce unreliable information.3 Hence, the principle
against self-incrimination supports “limits on the extent to which an
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 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 in another
proceeding), 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 the prevention of
“testimonial” self-incrimination6situations where accused persons
are made to act as witnesses against themselves by furnishing informa-
tion for use in their prosecutions. For more than a hundred years, the
principle against self-incrimination provided no protection in cases of
non-testimonial conscr iption — 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 breatha lyzer,8 or standing
in a police line-up.9 Confining self-incrimination protection to testimon-
ial 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. Moreover, forcing testimonial self-in-
crimination arguably involves a particularly odious breach of privacy,
as it requires individuals to expose their thoughts and ideas, and “the
mind is the indiv idual’s most private sanctum.”10 Finally, when a person
speaks about their guilt, they are creating new, previously unavailable
evidence that will assist the Crown, which is not the case when that
person is required to hand over pre-existing real evidence.
3 R v B(SA), [2003] 2 SCR 678 at para 57 [B(SA)].
4 Ibid at para 33.
5 D’Amour, above note 2 at para 34.
6 The concept of “testimoni al self-incrimin ation” is explained in Marcoux v R,
[1976] 1 SCR 763 [Marcoux].
7 Quebec (AG) v Begin, [1955] SCR 593.
8 Curr v R, [1972] SCR 889.
9 Marcoux, ab ove note 6.
10R v F(S) (1997), 120 CCC (3d) 260 (Ont Gen Div) at 309, rev’d in part on other
grounds (2000), 182 DLR (4th) 336 (Ont CA).
THE LAW OF EVIDENCE384
With the advent of the Charter,11 the self-incrimination concept
grew. This happened initially in t he context of section 24(2) of the Char-
ter. Section 24(2) requires judges to exclude unconstitutionally obtained
evidence if its admission would bring the administration of justice into
disrepute. The Court accepted that, given the import ance of self-incrim-
ination principles, if unconstitutionally obtained evidence is self-in-
criminatory, then it should ordinarily be excluded from a criminal trial.
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 samples,12 blood samples,13 and par-
ticipation in line-ups14and to treat these forms of evidence the same
as compelled testimonial self-incrimination for the purposes of exclu-
sion.15 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-incrim ination concept was
reached when this broader conception of self-incrimination was rec-
ognized outside of section 24(2). R v B(SA) 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 to
both “products of the mind and products of the body.”16
More recently, the Court has backtracked. In 2009 in R v Grant,it
held that its earlier section 24(2) authority “wrongly equates bodily
evidence with statements.”17 The Court made it clear that “communica-
tive” information warrants greater legal protection than other forms of
compelled participation. This holding casts doubt upon whether non-
communicative forms of conscription should now be treated as consti-
tuting self-incrimination.
It is evident, therefore, that the self-incrimination concept is
unstable. Indeed, the Supreme Court of Canada has observed that the
self- incrimination principle “has a limited scope and requires different
11Canadian C harter of Rights and Freedoms, Part I of the Constit ution Act, 1982,
being Schedule B to t he Canada Act 1982 (UK), 1982, c 11 [Charter].
12R v Dyment, [1988] 2 SCR 417.
13 R v Therens, [1985] 1 SCR 613.
14R v Leclair, [1989] 1 SCR 3.
15See Ch apter 8, Section 1.2, “The Charter,” and Section 6.3 ( b), “Bodily Evidence.”
16B(SA), above note 3 at pa ra 34.
17R v Grant,[2009] 2 SCR 353 at para 105. See Chapter 8, Sec tion 6, “Requirement
2: The Effect of the Admi ssion on the Repute of the Admini stration of Justice.”

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