Self-Incrimination

• Author: David M. Paciocco/Lee Stuesser/Palma Paciocco
• Pages: 382-463

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-incrimination6— situations 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-ups14 — and 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.”