Self-Incrimination
| Author | David M. Paciocco/Lee Stuesser/Palma Paciocco |
| Pages | 382-463 |
382
CHA PTER 7
SELF-INCRIMINATION
1. INT RODUCTION
The concept of “self-incrimination” applies where the state seeks to com-
pel an accused person to provide ev idence of their own guilt for use at
their crimi nal or penal trial. The law of self-incrimination ref lects the
long-standing common law view th at 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 an swer an alleg-
ation for which they could be prosecuted unless and until t he Crown
has charged them and e stablished “a case to meet” during tr ial by pre-
senting evidence supporting t he allegation. Until then, a suspect should
not have to dignify the allegation with a response. In modern t imes,
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 enemie s 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 t hat compelling accused persons
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 inform ation.3 Hence, the principle
against self-incrim ination supports “limits on the extent to which an
accused person can be u sed as a source of information about his or her
own cri minal conduct.”4 At its heart, it is about choice. Individuals
should be free to “choose whether to co-operate with the state and, i f
they choose not to, [they should] be left alone by the state,”5 unless and
until the Crown proves th at they have violated a pre-existing l aw.
In order to vindicate the principle again st self-incrimination, the
common law developed a number of precise rules, including t he 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 tri als, and the rule excluding involuntar y 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 witnes ses 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 invest igation 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 wa s not arbitrary. It was done in recognition
of the fact that, whereas compelled statements may well prove to be
untrue, the reliabilit y of authentic real evidence is not affected by the
manner in which it is obtai ned. Moreover, forcing testimonial self-in-
crimination arguably involves a particularly odious breach of privacy,
as it requires indiv iduals to expose their t houghts 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 c ase when that
person is required to ha nd 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,
7 Quebec (AG) v Begin, [1955] SCR 593.
8 Curr v R, [1972] SCR 889.
9 Marcoux, ab ove note 6.
10 R 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 admis sion would bring the administr ation of justice into
disrepute. The Court accepted that, given the import ance of self-incrim-
ination principles, if unconstitutionally obtained evidence is self-in-
criminator y, then it should ordinari ly be excluded from a criminal t rial.
Before long, the Court began to use the term “self-incr imination” 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 i n line-ups14 — and to treat these forms of ev idence the same
as compelled testimonia l 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 ow n conviction, these forms of evidence, each
of which requires the compelled par ticipation of the accused to obtain,
should be treated the same as compelled st atements.
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 con stitution al
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 wit h statements.”17 The Court made it clear that “communica-
tive” information warrant s greater legal protection than other forms of
compelled participation. This holding casts doubt upon whether non-
communicative forms of conscription should now be treated a s consti-
tuting self-incrimination.
It is evident, therefore, that the self-incrimination concept is
unstable. Indeed, the Supreme Court of Canada h as observed that the
self- incrimination principle “has a limited scope and requires dif ferent
11 Canadian 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].
12 R v Dyment, [1988] 2 SCR 417.
14 R v Leclair, [1989] 1 SCR 3.
15 See Ch apter 8, Section 1.2, “The Charter,” and Section 6.3 ( b), “Bodily Evidence.”
16 B(SA), above note 3 at pa ra 34.
17 R 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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