Canadian Criminal Evidence/Admissions and Confessions/Right Against Self-crimination

General Principles

The right against self-crimination protects an accused from cooperating in their own conviction and abuse by state power. This right is a principle of fundamental justice under s. 7 of the Charter.

The accused can never be forced to testify in their own trial. If the accused chooses to testify they are protected from having any prior testimony they have given, be it in criminal or civil context, from being used to incriminate them.

Right to Silence

The "right to silence" is protected both under s. 7 and s. 11(c). It includes the right to choose whether to make a statement to authorities.^[1]

The purpose of the right to silence is to "limit the use of the coercive power of the state to force an individual to incriminate himself", it is not simply to protect a person from incriminating himself per se.^[2]

The right to silence extends throughout the proceedings. It includes preparation of the defence wherein the accused does not have any obligation to reveal the defence evidence at any point before calling evidence.^[3]

The right to silence relates to authorities including agents of the state and undercover police.^[4]

The right can be extinguished by waiver.^[5]

The application of the right with respect to undercover officers depends on whether the officer merely "observed" the statement or "actively elicited" the statement.^[6]

The right to silence does not extend to a right to conceal one's identity. A peace officer has a right to inquire into the identity, including name, date of birth, and place of residence of a person who is under investigation.^[7] However, there is no common law power of a Peace Officer to determine identity. It must be derived from legislation.^[8]

↑ R v. Broyles 1991 CanLII 15 (SCC), [1991] 3 SCR 595
R v Hebert [1990] 2 SCR 151 at para. 47
R v Liew, [1999] 3 SCR 227
↑ Broyles at para. 22
↑ R v Chambers, 1990 CanLII 47 (SCC), [1990] 2 SCR 1293, 80 CR (3d) 235 at 256
↑ Broyles
↑ Liew
↑ Liew
Hebert, [1990] 2 SCR 151
↑ R. v. Autio (M.) (1994), 159 A.R. 167 (ProvCt)
↑ R. v. Gagné [1989] 1 S.C.R. 1584 [1]

Obligation to Speak to Police

Generally, there is no duty to speak to the police. A person can provide "some, none, or all of the information he or she has" to the police.^[1]

Refusing to speak to the police cannot be used as circumstantial evidence of guilt.^[2]

While evidence of the accused's silence may be admissible, such as for narrative, it will often be required that jury instructions be given against the improper use of the silence as evidence.^[3] A failure to do so may result in prejudice to the accused.^[4]

↑ R v Turcotte 2005 SCC 50 at para. 52
↑ Turcotte at para. 55 (“Refusing to do what one has a right to refuse to do reveals nothing”)
↑ Turcotte at para 58 (“juries must be instructed about the proper purpose for which the evidence was admitted, the impermissible inferences which must not be drawn from evidence of silence, the limited probative value of silence, and the dangers of relying on such evidence”)
↑ Turcotte at para. 59

Failure of a Co-Accused to Testify

A failure for a co-accused to testify cannot be used as evidence towards the accused's guilt.^[1]

↑ R v Prokofiew, 2012 SCC 49

Compellability of the Accused

Section 11(c) of the Charter states:

11. Any person charged with an offence has the right ...

(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;

...

– CCRF

Section 11(c) concerns compelling a person to give testimony in court on a charge against them.

The purpose of s. 11(c) is “to protect the individual against the affront to dignity and privacy inherent in a practice which enables the prosecution to force the person charged to supply the evidence out of his or her own mouth.”^[1]

Section 11(c) is invoked where:^[2]

a person is compelled to testify in a proceeding;
the proceeding in against the person;
it is regarding an offence.

↑ R. v. Amway Corp., 1989 CanLII 107 (SCC), [1989] 1 S.C.R. 21, at para. 35, per Sopinka J.
↑ Martineau v M.N.R. 2004 SCC 81 (CanLII), [2004] 3 SCR 737

Self-crimination by Testimony in Prior Proceedings

The accused has a constitutional right not to have their testimony in a prior proceeding be used to incriminate them in a criminal proceedings. This right is protected under s. 13 of the Charter and prior to the introduction of the Charter, under s. 5(2) of the Canada Evidence Act.

Section 13 of the Charter states:

13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

– CCRF

Section 5 of the Canada Evidence Act states:

Incriminating questions
5.
...
Answer not admissible against witness
(2) Where with respect to any question a witness objects to answer on the ground that his answer may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person, and if but for this Act, or the Act of any provincial legislature, the witness would therefore have been excused from answering the question, then although the witness is by reason of this Act or the provincial Act compelled to answer, the answer so given shall not be used or admissible in evidence against him in any criminal trial or other criminal proceeding against him thereafter taking place, other than a prosecution for perjury in the giving of that evidence or for the giving of contradictory evidence.

– CEA

Section 5 is the predecessor to s. 13 of the Charter. Section 5 must be invoked by an objection to be of use unlike s. 13.

Section 13 is intended to protect a person from being indirectly compelled to incriminate themselves.^[1] This only applies to testimonial evidence and not documents.^[2] It does not apply to those who chose to testify at a retrial.^[3]

Under s. 13, the accused may only be cross-examined on the testimony from a prior proceeding where the judge is satisfied that there is "no realistic danger" that the prior testimony will incriminate the accused. The danger depends on the nature of the prior evidence, the circumstances of the case, and the efficacy of adequate jury instructions.^[4]

Section 13 is not engaged when a non-incriminating discovery transcript is used to impeach the accused's credibility.^[5] In this context, incriminating evidence is any evidence which if admitted, would "prove or assist in proving one or more of the essential elements of the offence for which the witness is being tried".^[6]

There are four factors to consider whether a person's right against self-incrimination has been violated by statutory requirements to provide statements: ^[7]

whether there was real coercion by the state in obtaining the statements;
whether there was an adversarial relationship between the accused and the state at the time the statements were obtained;
whether the statutory compulsion would increase the risk of unreliable confessions; and
whether the statutory compulsion increased the risk of abuses of power by the state.

This right does not generally cover an accused's conduct.^[8]

The crown cannot admit into evidence as part of its case a transcript of the accused prior testimony in a trial. This would be an indirect manner of compelling the accused's testimony.^[9]

Documents prepared by that individual pursuant to a order of production under 487.012 cannot be used against that person in criminal proceedings unless for perjury or related offences.^[10]

↑ R v Dubois, 1985 CanLII 10 (SCC), [1985] 2 SCR 350
↑ R v Bari 2006 NBCA 119 (CanLII)
↑ R v Henry, 2005 SCC 76 (CanLII), [2005] 3 SCR 609
c.f. Dubois
↑ R. v. Noël, 2002 SCC 67 (CanLII), [2002] 3 SCR 433
↑ R v Nedelcu, 2012 SCC 59
↑ Nedelcu at para. 30
↑ R. v. Fitzpatrick, [1995] 4 SCR 154, 1995 CanLII 44; and R. v. White [1999] 2 SCR 417, 1999 CanLII 689
↑ R v Marcoux, [1976] 1 SCR 763 - accused's participation in a line-up
↑ R v Henry, [2005] 3 SCR 609
↑ See s. 487.016