Self-Incrimination: Removing the Coffin Nails

Self-Incrimination: Removing the Coffin Nails*

David M. Paciocco**

L’auteur examine le privilege contre l’auto-
incrimination et en dtmontre les lacunes. Ce
privilege se limite aux deux rfgles de preuve,
maintenant 6nonctes aux articles 11(c) et 13
de la Charte canadienne des droits et libertis,
qui ne s’appliquent que dans le cadre d’un pro-
c~s. Notamment, l’inculp6 ne peut etre con-
traint a ttmoigner contre lui-meme et son
ttmoignage ne peut servir contre lui dans un
proc~s subsequent. L’auteur 6nonce ce privi-
lege en tant que principe, qu’il voit refltt6
dans la Charte et dans son interpretation
rcente par les tribunaux. II soumet que la por-
te de ce principe, bien que plus large que celle
du privilege, se limite A la preuve testimoniale.
En derni~re partie, l’auteur examine le r6le que
pourrait avoir ce nouveau principe dans l’inter-
prtation et l’application de la Charte.

The author articulates a principle against self-
incrimination based on current notions found
in doctrine as well as in the decisions of
Canadian appellate courts. In doing so, he
shows the inherent shortcomings of the pre-
vailing view of self-incrimination. This holds
the principle to be limited to two rules of evi-
dence, expressed in sections 11(c) and 13 of
the Canadian Charter of Rights and
Freedoms, and arising solely in the setting of
a formal trial: namely, the accused’s non-
compellability right and the protection of wit-
nesses from having testimony given in one
proceeding used in subsequent proceedings to
incriminate them. The author instead posits a
more vital principle against self-incrimination
drawn from interpretation of other Charter
provisions and from recent Charter authority.
The scope of this principle is then discussed,
and the argument is made that its appropriate
application is limited to testimonial evidence.
The article concludes with an analysis of the
proper role of the redefined principle in the
interpretation and application of particular
Charter provisions.

*In 1978, Ed Ratushny published an influential article entitled “Self-Incrimination: Nailing the

Coffin Shut” (1977-78) 20 Crim. L.Q. 312. In this article I take the position that his report of the
death of the principle of self-incrimination was greatly exaggerated.

**Associate Professor, Faculty of Law, Common Law Section, University of Ottawa. The author

would like to thank Patrick Healy for his comments and for the considerable assistance given in
the preparation of this article.
McGill Law Journal 1989
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Synopsis

Introduction
1.

The Principle Against Self-Incrimination Defined
A. The Ratushny Thesis
B. A Vital Pre-Charter Principle Against Self-Incrimination
C. Testimonial Versus Non-Testimonial Self-Incrimination

1. The Reliability of the Information
2.
3.

The Causal Connection
Personal Autonomy and Privacy of the Mind

II. The Charter and Testimonial Self-Incrimination

Section 11(c)
1. Other Proceedings
2. Adverse Inferences

B. Section 13

1. Voluntary Self-Incrimination
2.
3.

“In Any Proceedings”
“Incriminate”

C. Section 10(b)
D. Section 7

M. The Charter and Non-Testimonial Self-Incrimination

A. Section 10(b)
B. Sections 11(c) and 13
C. Section 8
D. Section 7
E. Section 24(2)

Conclusion

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Introduction

The principle against self-incrimination’ as it contributes to the definition

of relevant rules of admissibility requires that:

no person should be required to respond (in the sense of providing information as
opposed to real evidence) to an allegation made against them by the state until the
Crown has established on evidence that there is a case to meet.

The prevailing view, so well described in the works of Ed Ratushny,2 is that
this principle applies solely in the context of formal proceedings. This view
holds that the influence of the principle became spent with the development of
two rules of evidence law pertaining to formal testimony, namely, the accused’s
non-compellability right, and the protection of witnesses from having the evi-
dence that they give in one proceeding used in subsequent proceedings to
incriminate them. Beyond this, it is said that the principle can have no influence
on the development of the law. If this prevailing view is correct, the principle
against self-incrimination can contribute nothing to the interpretation and appli-
cation of the Canadian Charter of Rights and Freedoms3 apart from sections
11(c) and 13, which house the non-compellability and witness self-
incrimination doctrines referred to.

In my opinion this prevailing view is incorrect. The claim that the principle
against self-incrimination has not influenced the development of rules applica-
ble to the admissibility of evidence obtained in the informal, pre-trial setting has
never been accurate. Moreover, I take issue with the view that the principle
against self-incrimination is beyond child-bearing. Indeed, the principle that I
have defined has already been influential in the interpretation of a number of the
Charter’s provisions apart from sections 11 (c) and 13, although the perpetuation
of the prevailing view has served to retard the development of appropriate
doctrine.

‘I have used the term “principle against self-incrimination” rather than the more familiar term
“privilege against self-incrimination” advisedly. In the loose terminology we have come to employ,
the “privileges against self-incrimination” are the non-compellability of the accused, and the right
of a witness to be protected from the use of his or her self-incriminatory testimony in another pro-
ceeding. These “privileges” are rules of law. They exist as mandatory directions aimed at those
who administer the conduct of criminal proceedings. In this article, I write primarily about the per-
tinent principle of law –
that notion of justice, morality or fairness which influences or informs
the development of rules of law having to do with the admission of self-incriminatory evidence.
The distinction is important since the Charter preserves principles of law, and is not confined to
the preservation of existing rules of law.

2Self-Incrimination in the Canadian Criminal Process (Toronto: Carswell, 1979); “Is There a
Right Against Self-Incrimination in Canada?” (1973) 19 McGill L.J. 1; and “Self-Incrimination:
Nailing the Coffin Shut” (1977-78) 20 Crim. L.Q. 312.
3Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982,

c. 11 [hereinafter Charter].

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In this paper I will explore the influence that self-incrimination notions
have had upon the development of the law of evidence. In this way I will sup-
port the articulation of the principle that I offer here. In the course of doing so
I will suggest that the principle against self-incrimination has nothing to do with
the obtainment of real evidence and that a sharp and clear line must be drawn
between the treatment of testimonial and non-testimonial evidence. Having
defined the principle against self-incrimination I will then examine the influence
that self-incrimination notions have had to date in Charter interpretation. I will
suggest that, on a number of occasions, resort to improper notions about what
the principle against self-incrimination requires has led to inappropriate conclu-
sions. I will also offer views on what the principle against self-incrimination
should mean for the interpretation and application of particular provisions.4

There is no dispute that the principle against self-incrimination as I have
articulated it here underlies both sections 11(c) and 13 of the Charter. It is my
view that the interpretation of section 11 (c) has been consistent with the prin-
ciple against self-incrimination. In particular, decisions denying access to sec-
tion 11(c) by those not subject to conviction at the proceedings with respect to
which the section is being invoked are true to the principle. So, too, are those
decisions which hold that nothing in section 11(c) prohibits the drawing of
adverse inferences against an accused for having failed to testify. Section 13
authority, on the other hand, goes beyond the legitimate reach of the principle
against self-incrimination. Nothing in this underlying principle would have
required the exclusion of testimony voluntarily provided by accused persons at
earlier proceedings, nor prevented the use of prior testimony during the cross-
examination of an accused with a view to challenging his or her credibility as
a witness.

Section 10(b), through its prohibition on efforts by the police to obtain
statements from an accused who has yet to consult counsel and who has not
waived the right to counsel, lends considerable indirect protection to the prin-
ciple against self-incrimination as I have defined it. Its contribution to the prin-
ciple suffers, however, from the line of authority which suggests that once a
waiver has occurred, or counsel has been consulted, the protection of section
10(b) becomes spent. Whether this represents a gap in the extent to which the

4It should be made clear at the outset that in my view the principle against self-incrimination
is exclusively an evidentiary one. Certainly this is the only role that it has served at common law.
It is concerned with whether information which the accused has been compelled to provide to his
or her accusers should be available in the prosecution. It is not concerned with the manner in which
such evidence was obtained. It is not implicated, therefore, at the time when the information is
secured from the accused. It is compromised only when that information is tendered in evidence.
This is because prior to the adduction of the evidence by the Crown there has been no effort to
“incriminate” the accused. The effect of this is that the principle against self-incrimination is seen
as having no “normative” effect. Unlike other principles apt to do the job, the principle against self-
incrimination does not exist to moderate police misconduct.

1989]

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Charter entrenches the principle against self-incrimination depends on whether
section 7 is ultimately interpreted to pick up the slack. The authority in this
regard is uneven. Section 7 should, however, be interpreted to apply whenever
an accused person is faced with the admission into evidence of a communication
made by him or her at the behest of a state agent, as proof of the truth of its con-
tents, without having made an informed and comprehending decision to provide
the information.

Often, accused persons are asked or even required to participate in their
own prosecutions through the provision of real evidence, such as breath or
blood samples, or fingerprints. Traditionally, real evidence obtained from
accused persons was left unprotected by the principle against self-incrimination,
and it was much more likely to be admitted than compelled testimonial evi-
dence. This dichotomy of protection was a principled one and should continue
to be mirrored in the Charter jurisprudence. To a substantial degree this has
occurred. Sections 11(c) and 13 are irrelevant to the obtainment of real evi-
dence. Sections 10(b), 8 and 7 are, on the other hand, concerned with the obtain-
ment of real evidence but the concern is with the manner by which such evi-
dence is secured and not, as is the case with testimonial information, with what
it is that is being obtained. In other words, these sections tolerate both the
obtainment and the ultimate admission of real evidence, even when taken from
the accused against his or her will, where their particular procedural require-
ments are observed. By contrast, the principle against self-incrimination relating
to compelled testimonial information is concerned with the nature of the evi-
dence being admitted. Curiously, the only relevant provision in which judicial
authority equates involuntary participation in the production of real evidence
with compelled testimonial self-incrimination is procedural, namely section
24(2), the Charter’s exclusionary remedy: where evidence is obtained in the
shadow of a Charter violation, it will be excluded almost automatically, as a
matter of principle, whenever the evidence is the product of a pre-trial obliga-
tion imposed upon the accused by the state. In my view, this heightened propen-
sity to exclude evidence should have been confined to proof which contravenes
the principles against self-incrimination.

I. The Principle Against Self-Incrimination Defined

A. The Ratushny Thesis

The classic Canadian work on the law of self-incrimination prior to the
Charter is Ed Ratushny’s Self-Incrimination in the Canadian Criminal
Process.5 In a nutshell, Ratushny denies that the principle relating to self-
incrimination has anything to do with admissions made by accused persons out-

5Supra, note 2.

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side of formal proceedings. He argues, however, that a broader principle exists
which relates to both testimonial6 and non-testimonial 7 evidence, and that it
guards, at least to a degree, against compulsory disclosure of information out-
side of formal proceedings.

In his work, Ratushny traces the origins of the principle against self-
incrimination,8 explaining how the seeds of current notions regarding self-
incrimination germinated from a revulsion over the procedures of the notorious
Court of Star Chamber. He draws the conclusion, however, that objection to the
procedures of that court was not concerned as much with the spectacle of com-
pelled testimony as with the fact that inquisitions were carried out in the
absence of specific accusations. Yet, the legacy of distaste generated by the pro-
cedures of that court resulted in a case of over-kill which gave rise ultimately
to the rule that persons could not be made to testify against themselves even
where a proper accusation had been made.’ Historical research has suggested
that “the expression nemo teneturprodere seipsum … did not grow out of a phi-
losophy of law, but the converse was in fact the case….It became accepted as
a rule of law in the minds of those who wished to believe it, and justifications
both legal and moral began to appear.”‘

Ratushny goes beyond this historical explanation, however, to find a prin-
cipled basis for some self-incrimination protections. In particular, he finds that
basis in the concept of the rule of law. One of the aspects of the rule of law he
identifies as the “principle of a case to meet”, the notion that “a person should
not be put in jeopardy merely on the basis of suspicion or speculation”.” This
principle, which Ratushny characterizes as a trial principle, 2 exists in recogni-
tion of the fact that an accused person has no obligation to rebut the accusation
made against him. The dignity of persons and their liberty interest, coupled with
the presumption of innocence, 3 saves accused persons from having to answer

6By “testimonial” I refer to those cases where a person’s communications are used as evidence
of the truth of their contents, whether the statements are made in court or out of court, and whether
they are oral, written, or in another form of symbolic communcication.
7Such as hair and breath samples, fingernail scrapings, and other bodily samples, as well as the
8Especially in Chapter 4 of Self-Incrimination in the Canadian Criminal Process, supra, note

physical characteristics of an accused.

91bid. at 159-74.
‘0 Tollefson, The Privilege Against Self-Incrimination in England and Canada (D. Phil.
Dissertation, Oxford University, 1975) [unpublished] at 32, as cited with agreement by Ratushny,
ibid. at 173-74.

“Self-Incrimination in the Canadian Criminal Process, snpra, note 2 at 178.
’21bid. at 179.
13Ratushny sees the principle of a case to meet and the presumption of innocence as coterminous
but not identical. See the discussion, ibid. at 180-81. He is no doubt correct, since the presumption
of innocence is rebutted only by proof beyond a reasonable doubt while the principle of a case to
meet is satisfied even where displaced by a lesser level of proof. Ratushny does not deny, however,

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SELF-INCRIMINATION

unsubstantiated allegations. Thus, the principle requires that “the Crown must
prove its case before there can be any expectation that [the accused] will
respond, whether it be by testifying himself or calling other evidence.”‘ 4 The
determination of whether the Crown will have presented a case to meet occurs
at the close of the Crown’s case and is assessed at a lower standard of proof than
the ultimate determination of guilt. 5 Thus, Ratushny maintains that the non-
compellability of accused persons at their trial does not have independent value
as a matter of principle, but is a mere corollary of the trial principle of a case
to meet, and efforts to lionize it with rhetoric are misguided. 6

Despite this, Ratushny recognizes that the principle against self-
incrimination took on an apparent life of its own in the early development of the
law’ 7 and gave rise to two rules of criminal procedure which survived in pre-
Charter Canada, each of which pertained only to formal proceedings. In other
words, Ratushny sees the principle against self-incrimination as having nothing
to do with compulsory disclosure in an informal context:

[The privilege against self-incrimination in Canada means only two things. It
means

(1) the protection given to any witness while testifying; and
(2) the protection given to an accused not to testify at all.’ s

In his work he maintains that the influence of the principle became spent with
the perpetuation of these two rules and that it has ceased to function in Canadian
law as a guiding principle, 9 that it can have no further influence in the devel-
opment of Canadian law, and that continued reference to it can create only con-
fusion.’

All of this makes Ratushny sound extremely hostile to any suggestion that
the principle demands an imposition of limits upon investigative techniques that
would require accused persons to provide evidence against themselves. In fact,
nothing could be further from the truth. As indicated above, he concludes that
there is a principle independent of the principle of a case to meet,2′ and inde-

the contribution that the presumption of innocence makes to the nature of the principle of a case
to meet.

’41bid. at 179.
‘5lbid. at 181. In our system the inquiry is whether the Crown has adduced sufficient evidence
which, if believed to be true, could form the basis of a conviction by a reasonable trier of fact. (R.
v. Mezzo, infra, note 79) This lower standard is appropriate because the issue at this point is not
whether the accused should be punished. Instead, it is whether the Crown has adduced sufficient
evidence to justify calling upon the accused to answer the allegations.

16SelfI-ncrimination in the Canadian Criminal Process, ibid., note 2 at 2-10.
171bid. at 53.
‘”lbid. at 66.
19lbid. at 53.
20lbid. at 66.
2’Which applies only at the trial, ibid. at 186.

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pendent of the principle against self-incrimination,22 which is intended to pre-
vent the state from compelling accused persons to participate outside of formal
proceedings in the investigation and prosecution of the offences against them.
Ratushny sees this principle as applying whether the enforced participation
involves the provision of information in the form of answers or statements, or
by the compelled cooperation of the accused in investigative procedures such as
the performance of physical tests,’ the provision of blood samples,24 or submis-
sion to psychiatric examinations.’ He calls this principle, the “absence of pre-
trial obligation”.26

In one respect, at least, this principle appears to be more vital than the prin-
ciple against self-incrimination because, unlike the latter, it is not confimed to
testimonial evidence. On the other hand, the principle of the absence of pre-trial
obligation seems remarkably weak. It appears from his discussion that Ratushny
sees its effect as protecting accused persons who do not co-operate from having
adverse inferences drawn against them for having failed to do so. He does not
suggest that the principle could cause the exclusion of real evidence where such
evidence is produced as a result of the authorities successfully compelling the
accused to co-operate, nor does the case law support such a proposition.27 In
other words, it seems that the principle protects those who resist, but is of no
use to those who are successfully made to participate in their own investigation.

Much of Ratushny’s basic thesis has been unequivocally confirmed by
judgments of the Supreme Court of Canada and its contribution to the law can-
not be doubted.’ In particular, the judgment of Lamer J. in Dubois v. R.29 con-
firmed the essence of the thesis, namely, that there is an inextricable relationship
between the principle of a case to meet and self-incrimination protections. Mr.
Justice Lamer had occasion, for the majority of the Court, to discuss the con-
stitutional right of an accused not to be compelled to be a witness as part of the

22Which does not apply prior to the trial, ibid. at 183.
23R. v. Shaw (1964), 48 W.W.R. 190,43 C.R. 388, [1965] 1 C.C.C. 130 (B.C.C.A.) is cited, ibid.

at 184.

24R. v. Burns, [1965] 2 0.R. 563, 51 D.L.R. (2d) 393, [1965] 4 C.C.C. 298 (H.C.) is cited, ibid.

at 184 and at 299-300.

25R. v. Sweeney (No. 2) (1977), 35 C.C.C. (2d) 245 (Ont. C.A.) is cited , ibid. at 184.
261bid. at 185.
27Ratushny makes no suggestion that this principle would cause the exclusion of evidence where
the accused is forced to participate and evidence is thereby obtained, ibid. at 183-87. This may be
accounted for on the basis that illegally obtained evidence, apart from involuntary confessions, is
admissible at common law.

2At least half of Ratushny’s thesis, that pertaining to the narrow compass of self-incrimination

protections, is cited and relied upon by courts and commentators with incredible regularity.

29[1985] 2 S.C.R. 350, 23 D.L.R. (4th) 503, [1986] 1 W.W.R. 193 [hereinafter Dubois cited to

S.C.R.].

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SELF-INCRIMINATION

Crown’s case which is housed in section 11(c) of the Charter?’ Quoting
Ratushny he said:

[tihe important protection [offered by section 11(c)] is not that the accused need
not testify, but that the Crown must prove its case before there can be any expec-
tation that he will respond, whether by testifying himself, or by calling other evi-
dence.3 1

His Lordship then went on to discuss the relationship of section 13 (the right of
a witness not to have his or her testimony from one proceeding used to incrim-
inate him or her in a subsequent proceeding) 32 to the principle of a case to meet.
Section 13, he concluded, was passed to prevent the state from indirectly con-
scripting persons as witnesses against themselves by using their previous testi-
mony to prove the case against them.33 It is incontestable, therefore, that
Ratushny was correct in identifying the basic principle as relating to the concept
of a case to meet.

An examination of my statement of the relevant principle at the beginning
of this paper reveals that while it is based substantially on the connection that
Ratushny has identified between self-incrimination and the concept of a case to
meet, I disagree with Ratushny’s thesis on two counts. First, I believe it was
erroneous to have claimed even before the Charter that the self-incrimination
principle had lost its vitality and contributed only to the development of the
non-compellability and witness protection rules. Rather, the principle was
clearly relevant to the admission of evidence obtained during the investigatory
stage and helped bolster several other rules relating to testimonial self-
incrimination. This is now coming to be borne out by Charter authority
although this aspect of Ratushny’s thesis has, in my opinion, served to slow the
growth of what I would suggest are appropriate doctrines. Second, I see it as
inaccurate to lump the co-operation of accused persons in acts of investigation
which require physical participation with the protections that pre-Charter law
gave to testimonial evidence. Again, Charter authority to date lends some sup-
port to this contention with one notable exception: in deciding whether section
24(2) of the Charter requires the exclusion of evidence obtained in a manner
that violates the Charter, the Supreme Court appears to be largely driven by the
principle of the absence of pre-trial obligation.

30See the text of section 11(c) below at Ill.A.
31Supra, note 29 at 357, citing E. Ratushny, “The Role of the Accused in the Criminal Process”
in W.S. Tamopolsky & G.-A. Beaudouin, eds, The Canadian Charter of Rights and Freedoms:
Commentary, 1st ed. (Toronto: Carswell, 1982) 335 at 358-59.

32See the text of section 13 below at 1TI.B.
331bid.

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B. A Vital Pre-Charter Principle Against Self-Incrimination

The principle against compelled self-incrimination played a vital role in the
context of informal proceedings prior to the Charter and was influential in the
development of the law of evidence. Despite this, Canadian courts denied for
some time that the voluntariness rule emanating from the decision in Ibrahim
v. R. 4 had anything to do with concepts of compelled self-incrimination. It was
said that the rule, which required statements made to persons in authority to be
voluntary before they could be proved, existed because of concern for the accu-
racy of the confession or admission, not because of any concerns related to self-
incrimination.35 Ratushny’s thesis was unquestionably consistent with what was
being said. It was not consistent with what was being done, however, and this
must be the true test of the existence of a principle. The “reliability rationale”
failed to account for several features of the voluntariness rule which had devel-
oped. In particular, it did nothing to explain why statements which the Crown
conceded to be false had to be voluntary to be admitted.36 Nor did it explain why
statements would be excluded according to the voluntariness rule only when
made to persons in authority.37 These aspects of the rule were clearly influenced
by the notion that it is inappropriate to compel persons accused of crimes to
respond to allegations made against them by state agents. Other more recent
aspects of the voluntariness rule are explicable only on the basis of this principle
as well. The focus in case law relating to statements made by accused persons
suffering oppression at the hands of state agents is on whether the accused’s will
to remain silent has been “sapped” such that the decision to speak is not a truly
voluntary one; it is not on whether the oppression has deprived what the accused
has said of its reliability.38 The operating mind rule may require the exclusion
of statements made where the accused is suffering from some condition which
prevents him or her from appreciating the significance of speaking to persons
in authority. If this is so, the focus is not on the trustworthiness of the informa-

34[1914] A.C. 599, [1914-15] All E.R. 874 (P.C.) [hereinafter Ibrahim cited to A.C.].
35See Boudreau v. R., [1949] S.C.R. 262, [1949] 3 D.L.R. 81, 94 C.C.C. 1 [hereinafter Boudreau
cited to S.C.R.]; R. v. Fitton, [1956] S.C.R. 958, 6 D.L.R. (2d) 529, 24 C.R. 371; Pih6 v. R.
(1970), [1971] S.C.R. 23, 11 D.L.R. (3d) 700, 74 W.W.R. 674 [hereinafter Pichg cited to S.C.R.].
More recently, see the opinion of the majority in Rothman v. R., [1981] 1 S.C.R. 640 at 664, 121
D.L.R. (3d) 578, 59 C.C.C. (2d) 30 [hereinafter Rothman cited to S.C.R.].

(Toronto: Carswell, 1979) at 80-103.

36 Pich6, ibid.
37See Ibrahim, supra, note 34; and see, F. Kaufman, The Admissibility of Confessions, 3d ed.
38See R. v. Priestley (1965), 51 Cr. App. R. 1 and the explanation of the doctrine in Lord
MacDermott, “The Interrogation of Suspects in Custody” (1968) 21 Curr. Legal Probs 1 at 10
where it is said that the actions of the police must affect “the mind of the subject so that his will
crumbles and he speaks when otherwise he would have stayed silent.” This doctrine has been
unequivocally accepted in Canada. See Horvath v. R., [1979] 2 S.C.R. 376, 93 D.L.R. (3d) 1,
[1979] 3 W.W.R. 1; Hobbins v. R., [1982] 1 S.C.R. 553, 135 D.L.R. (3d) 244, 41 N.R. 433.

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SELF-INCRIMINATION

tion provided but rather on the fact that the information will be used to incrim-
inate the accused.3 9

The influence of self-incrimination principles can also be seen in the con-
text of authority dealing with whether the silence of accused persons can be
used to ground inculpatory inferences. The silence of the accused can be cir-
cumstantially relevant in a variety of ways.n” Two of the possible kinds of infer-
ences which can be made from the failure of an accused person to speak
threaten to compromise the principle against testimonial self-incrimination if
allowed to be drawn under certain circumstances. The first is the inference of
“adopted admission”. If the accused remains silent in the face of an allegation
against him or her where one might reasonably have expected an innocent per-
son to have denied the allegation, it may be possible to conclude that the
accused was acknowledging or admitting the truth of the statement.4
1 The sec-
ond is the inference of consciousness of guilt. If the accused fails to respond to
an allegation, it may reflect an awareness on the part of the accused that he or
she has no answer to the allegation. Silence shows that the accused acted as a
guilty person would have. In each of these cases, testimonial self-incrimination
may be occurring because the silence of the accused is, in effect, treated as
though it was a communication by the accused. In the former case the inference

39See Clarkson v. R., [1986] 1 S.C.R. 383, 26 D.L.R. (4th) 493, 50 C.R. (3d) 289 [hereinafter
Clarkson cited to S.C.R.]. Here, at 399 McIntyre J. provides the most authoritative opinion to date
on the test for determining whether the accused’s mind was sufficiently operative to allow the
admission of a statement. His Lordship indicated that the evidence should be excluded where either
the accused was unable to appreciate what he or she was saying, or where the accused was unable
to appreciate the consequences of speaking.In R. v. Favell (28 October 1986), (Ont. H.C.) [unre-
ported], summarized in 17 W.C.B. 308 (Ont. H.C.), DuPont J. reinforced the connection between
the doctrine and self-incrimination principles by holding that where the statement was made to a
person in authority, the accused had to be able to appreciate the consequences of speaking before
the statement would be admissible, but where the statement was made to persons not in authority,
the statement would be admissible whether or not the accused appreciated the consequences of
speaking, so long as the accused was capable of understanding what it was that was being said.In
R. v. Lapointe (1983), (1984) 1 O.A.C. 1, 9 C.C.C. (3d) 366 (C.A.), Lacourciere J.A., for the Court,
ruled specifically that the “appreciation of the consequences test” was inappropriate even where
the statement was made to persons in authority, and had been rejected by earlier Supreme Court
of Canada authorities. This decision has since been affirmed by the Supreme Court of Canada,
[1987] 1 S.C.R. 1253, 76 N.R. 228, 35 C.C.C. (3d) 287 in a two line decision in which Dickson
C.J.C. said, “We are substantially in agreement with the reasons of Lacourciere J.A. who delivered
the judgment for the court.” However, since there were many issues presented at the Court of
Appeal, it is impossible to conclude that McIntyre J.’s views on the operating mind test have been
authoritatively rejected by the Supreme Court.
40For a more complete discussion of the issues presented by inferences from silence see D.M.
Paciocco, Charter Principles and Proof in Criminal Cases (Toronto: Carswell, 1987) at 552-70.
41R. v. Christie, [1914] A.C. 545, 83 LJ.K.B. 1097 (H.L.) is the leading case dealing with
adopted admissions. There is some disagreement as to the precise formulation of the appropriate
test for determining whether an allegation has been adopted as an admission. See S. Schiff,
Evidence in the Litigation Process, 3d ed. (Toronto: Carswell, 1988) at 318-19.

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is that the failure of the accused to deny the allegation is tantamount to an
admission of the facts alleged. In the latter case, the inference stands as though
it was a broad admission of culpability made by the accused. In each case, then,
the inferences suggest that the accused has incriminated himself or herself.

There are restrictions, and perhaps even absolute prohibitions, upon the
drawing of these inferences where the silence is maintained in the face of per-
sons in authority. It is uncontested that where the accused remains silent after
he or she has been cautioned, no inferences can be drawn from that silence. 2
It is arguable that this is based solely on considerations of fairness and has noth-
ing to do with a principle against testimonial self-incrimination.43 On the other
hand, the bulk of judicial authority holds that such inferences are absolutely pro-
hibited even in the absence of a caution,4 and to the extent that this is so, the
prohibition can be explained only on the basis of the principle against testimo-
nial self-incrimination.

The least that can be said with respect to this line of authority is that self-
incrimination notions have played a substantial role in influencing the course of
the law. There is no bar upon the use of such inferences where silence is main-
tained in the face of persons not in authority.45 This confirms the contribution
of self-incrimination notions since the concept of self-incrimination as known

42For authority pertaining to adopted admission cases, seeR. v. Robertson (1975), 21 C.C.C. (2d)
385, 29 C.R.N.S. 141 (Ont. C.A.); R. v. Stevens (1984), 2 O.A.C. 239, 11 C.C.C. (3d) 518 (C.A.),
leave to appeal to S.C.C. refused; R. v. Symonds (1983), 1 O.A.C. 103, 38 C.R. (3d) 51, 9 C.C.C.
(3d) 225 (C.A.) [hereinafter Symonds cited to O.A.C.]; R. v. Spicer (1984), 36 Sask. R. 235 (C.A.).
With respect to inferences of consciousness of guilt see R. v. Cripps, [1968] 3 C.C.C. 323, 63
W.W.R. 532, 3 C.R.N.S. 367 (B.C.C.A.); R. v. Leckey (1943), [1944] K.B. 80, [1943] 2 All E.R.
665, 29 Cr. App. R. 128 (C.C.A.) [hereinafter Lecky cited to K.B.].

1f silence could be used against the accused after he or she had been advised that they need
not speak, the caution would become “a trap”. Leckey, ibid. at 86, and see R. v. Hawke (1975), 7
O.R. (2d) 145 at 174, 22 C.C.C. (2d) 19 (C.A.) [hereinafter Hawke cited to O.R.].

4 3

“As to adopted admissions, see R. v. Hall (1970), [1971] 1 All E.R. 322, 1 W.L.R. 298, 55 Cr.
App. R. 108 (P.C.); R. v. Eden, [1970] 2 O.R. 161, [1970] 3 C.C.C. 280 (C.A.); Taggart v. R.
(1980), 13 C.R. (3d) 179 (Ont. C.A.). In the latter case no absolute bar was enunciated but the rea-
soning of the court confirms that such a bar was applied. As to inferences about consciousness of
guilt see R. v. Itwaru (1970), 1 N.S.R. (2d) 424, 10 C.R.N.S. 184, [1970] 4 C.C.C. 206 (N.S.C.A.)
[hereinafter Itwaru cited to N.S.R.]. The decision in R. v. Torbiak (1974), 18 C.C.C. (2d) 229, 26
C.R.N.S. 108 (Ont. C.A.) supports this view.Ratushny argues that there is no absolute bar but that
these decisions merely represent factual determinations that the requested inferences are not appro-
priate to be drawn. He also cites some contrary authorities. Self-Incrimination in the Canadian
Criminal Process, supra, note 2 at 122ff. In my opinion the Canadian authorities which Ratushny
cites as contradicting the existence of an absolute bar on the inference do not, in fact, do so. See
D.M. Paciocco, Charter Principles and Proof in Criminal Cases, supra, note 38 at 561.
45See J.H. Buzzard, R.D. Amlot and S. Mitchell, Phipson on Evidence, l1th ed. (London: Sweet
& Maxwell, 1970) at 371; Hawke, supra, note 43; Parkes v. R., [1976] 3 All E.R. 380 (P.C.), Sir
R. Cross and C. Tapper, Cross on Evidence, 6th ed. (London: Butterworths, 1985) at 529-30. But
see Itwaru, ibid.

19891

SELF-INCRIMINATION

in law applies between the individual and the state. Where silence maintained
in the face of state agents is sought to be used as evidence the decisions are
replete with references to the so-called “right to silence” as the explanation for
the disallowance of the inferences. Moreover, there appears to be no bar to using
the silence of the accused where the inference sought to be drawn does not
involve using that silence as positive evidence of guilt.46

These lines of authority demonstrate that the principle against self-
incrimination has, in fact, played a vital role with respect to the ultimate proof
of information obtained in informal settings. This was to be expected since the
operation of the principle as it applies to information obtained outside of formal
settings is, in my view, an inevitable corollary of the principle of a case to meet.
This application of the principle against self-incrimination is required in order
to keep the principle of a case to meet from becoming illusory. After all, if
accused persons could be made to respond to allegations made against them
prior to the commencement of formal proceedings and to have their responses
used as evidence of their guilt, then adherence to the principle of a case to meet
at the trial would become pointless.47

C. Testimonial Versus Non-Testimonial Self-Incrimination

The common law carved a sharp and clear line between cases where
accused persons were compelled to answer allegations made against them and
cases where they were forced to participate in the provision of physical evi-
dence. The prevailing view is that the voluntariness rule applied solely to efforts
to adduce testimonial evidence.4 s Pre-Charter Supreme Court judgments denied

46In such cases the evidence about silence is being used to undermine the evidence of the
accused, and not to contribute affirmative information to assist the Crown in the establishment of
a case to meet. SeeR. v. Parker, [1933] 1 K.B. 850, [1932] All E.R. 718,24 Cr. App. R. 2 (C.C.A.);
R. v. Littleboy, [1934] 2 K.B. 408, [1934] All E.R. 434, 24 Cr. App. R. 192 (C.C.A.); and R. v.
Hoare, [1966] 2 All E.R. 846, [1966] 1 W.L.R. 762, 50 Cr. App. R. 166 (C.C.A.), which are alibi
cases. A failure to offer a timely explanation can also be relevant outside of the alibi context. See
R. v. Fillekes (1974), 27 C.R.N.S. 399 (Ont. C.A.).

47This point was not, of course, lost upon Ratushny. He notes that a legal obligation to co-operate
in a police investigation would denude the principle of a case to meet, as well as other trial prin-
ciples, of their significance. Self-Incrimination in the Canadian Criminal Process, supra, note 2
at 187. His answer is to place reliance on the principle of the absence of a pre-trial obligation,
which, for the reasons I present below, does not, to my mind, provide satisfactory support for the
principle of a case to meet.

4
8See P.K. McWilliams, Canadian Criminal Evidence, 3rd ed. (Aurora, Ontario: Canada Law
Book, 1988) at 15-3; R. v. Angelucci, [1947] 1 W.W.R. 82,4 C.R. 220, 88 C.C.C. 111 (B.C.C.A.)
where the accused produced stolen goods from his pocket as a result of a demand by the police,
and it was held that the confession rule had no bearing on the admission of the items; and see the
discussion of R. v. Voisin, [1918] 1 K.B. 531, [1918-19] All E.R. 491, 13 Cr. App. R. 89 (C.C.A.)
[hereinafter Voisin cited to K.B.] by the Criminal Law Revision Committee in its Eleventh Report
(Cmmd. 4991, para 69). In Voisin the accused was asked to write words to see if his penmanship

McGILL LAW JOURNAL

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consistently that the concept of self-incrimination had anything to do with the
obtainment of real evidence from accused persons, even where the obtainment
of the evidence required a degree of forced co-operation such as where the
accused was compelled to participate in a line-up,49 or to provide breath or blood
samples.50 Moreover, non-testimonial evidence discovered as a result of
improper investigative techniques that would compel the exclusion of testimo-
nial evidence was held admissible.5

This is not to say that the law granted no protection against the compulsory
pre-trial non-testimonial participation of accused persons. No doubt Ratushny is
correct and that, as a matter of principle, it has always been considered unset-
tling to require persons who are presumed to be innocent to co-operate in the
furnishing of real evidence against themselves. Yet, subject perhaps to an exclu-
sionary discretion,52 the relevant principle has no impact where the accused per-
son capitulates and co-operates in furnishing self-incriminatory real evidence.
As Ratushny indicates, all the relevant principle serves to do is to protect, in
some cases, those who have successfully resisted the pressure to co-operate by
invalidating the inference that the accused must have had something to hide. 3
By contrast, the confession rule illustrates that the principle against self-
incrimination has contributed to the exclusion of evidence actually obtained.

Why would the law draw such a substantial distinction between the com-
pelled disclosure of testimonial information and the compelled disclosure of real
evidence? The reasons are rarely articulated in the caselaw because the issue
simply does not emerge as one for comparison. Yet there are clear and compel-
ling reasons for the difference in treatment between the two kinds of evidence
which emerge, as a matter of inference, from the authorities. They relate primar-
ily to the reliability of the information provided and to the inevitable existence
of a causal connection in the case of compelled testimonial information.

and spelling matched words scribbled at the crime scene. The writing was held admissible, not to
prove the truth of its contents, but to help identify the accused. The court mooted the application
of the confession rule but the Criminal Law Revision Committee considered this to have been
unnecessary. See R. May, Criminal Evidence (London: Sweet & Maxwell, 1986) at 8-94 as to sec-
tion 76(4)(b) of the Police and Criminal Evidence Act, 1984, U.K., c. 60.
49Marcoux v. R., [1976] 1 S.C.R. 763, 60 D.L.R. (3d) 119,24 C.C.C. (2d) I [hereinafterMarcoux

cited to S.C.R.].

Hogan cited to S.C.R.].

50Hogan v. R. (1974), [1975] 2 S.C.R. 574, 48 D.L.R. (3d) 427, 18 C.C.C. (2d) 65 (hereinafter
51R. v. St. Lawrence, [1949] O.R. 215, 93 C.C.C. 376, 7 C.R. 464 (H.C.) [hereinafter St.
Lawrence cited to O.R.]; R. v. Wray, [1974] S.C.R. 565, 33 D.L.R. (3d) 750, 10 C.C.C. (2d) 215.
52See the judgment of Dickson C.J.C. in Marcoux, supra, note 49.
53See Self-Incrimination in the Canadian Criminal Process, supra, note 2 at 184, citing R. v.
Burns, [1965] 2 O.R. 563, 51 D.L.R. (2d) 393, 4 C.C.C. 298 (H.C.); R. v. Shaw (1964), [1965]
I C.C.C. 130, 48 W.W.R. 190, 43 C.R. 388 (B.C.C.A.) and R. v. Sweeney (1977), 35 C.C.C. (2d)
245 (Ont. C.A.). For a recent application of the discretion to exclude the evidence of a refusal to
cooperate in the provision of real evidence see R. v. Fyfe (1984), 7 C.C.C. (3d) 284 (N.W.T.C.A.).

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SELF-INCRIMINATION

The Reliability of the Information

While the “reliability rationale” cannot adequately account for all of the
aspects of the voluntariness rules, there is no question that the dependability of
evidence is an extremely important consideration in the development of rules
about proof. After all, the primary function of evidence is to produce correct
determinations of fact. There is no question that testimonial evidence is more
likely to be misleading than real evidence. The trier of fact is itself a witness
to real evidence in the sense that the evidence can be seen and characterized;
in terms of knowing what the thing is and whether to believe in its existence the
trier of fact can rely on its own senses.54 Testimonial evidence is useful, on the
other hand, only where the trier of fact is prepared to assume that the witness
is accurate in what he or she has observed and is truthful in relating that to the
court. Moreover, as a matter of human experience there are grave dangers asso-
ciated with assigning credibility to enforced disclosures. It is not surprising,
then, to find absolute rules of exclusion related to compelled testimonial evi-
dence, but not to rules about the proof of real evidence.55

The Causal Connection

The case for excluding evidence is more compelling where it can be said
that, “but for” the improper act or inducement, the evidence would not have
been found.56 Where the evidence is testimonial in nature, it does not exist prior
to the relevant communication. If that communication never occurs, the evi-
dence never appears. It follows that where a person communicates only because
of pressure, inducement, or the exploitation by another of that person’s igno-
rance, there is a “but for” connection between the wrongful act and the partic-
ular admission. The wrongful act, in a very real sense, creates the information.
The authorities would not have had the precise admission relied upon “but for”
that act. Where the evidence is real evidence, on the other hand, it is more dif-
ficult to discern such an ineluctable “but for” connection. The real evidence,
whether it be the blood of an accused, a weapon wielded by an assailant, or a

54Authentication still depends, however, on the accuracy of evidence provided by witnesses.
5 5This notion was of obvious significance in the development of the pre-Charter rule in St.
Lawrence, supra, note 51. Calling the relative unreliability of communications into aid in this con-
text is not, in my opinion, inconsistent with my earlier rejection of the reliability rationale as the
sole basis for the voluntariness rule. Its influence in that context cannot be denied. The point is
that factors other than reliability affected the development of the voluntariness rule but that reli-
ability does stand as a significant consideration in the decision to accept evidence, whether it be
real or testimonial.

561 do not believe that the largely discredited “but-for” test is an appropriate minimum threshold
for issues of causation as it is decidedly too narrow. It is precisely because it is so narrow, however,
that it adds considerable weight to the case in favour of giving compelled communications height-
ened protection.

REVUE DE DROIT DE McGILL

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document, has independent existence. It is there to be discovered, and it may
well be that the evidence would have come to the attention of the authorities in
some legitimate fashion had they not acted as they did. Exclusion may therefore
accomplish more than perfect restitutio in integrum between the parties; by
causing the state to lose the evidence completely, it may well be put in a position
that is worse than if the constitutional violation had never occurred.”

Personal Autonomy and Privacy of the Mind

I am convinced that in addition to these pragmatic considerations, there is
something in the nature of the seizure of the information stored in the memory
of an accused person which makes it more reprehensible than the taking of real
or physical evidence from his or her person. By its very nature that which is in
the mind of the accused person is more private than that which is physically
possessed. It is certainly less accessible. What exists can usually be observed by
a third party without a willed act of participation by the accused. Physical char-
acteristics used to identify an accused and the possession of objects by the
accused can be observed without his or her participation. Even bodily speci-
mens can be forcibly taken from an accused who continues to resist.
Information stored in the recesses of the mind can become available for use
against the accused, however, only through an act of the accused. He or she
must be a full participant in its creation by making a conscious decision to
speak. In this sense, the seizure of involuntary statements involves an overbear-
ing of the will of the individual to resist and conscripts the accused in a way that
the seizure of physical evidence does not. It is an act of the self which ultimately
leads to the evidence. The privacy of the mind, the last refuge of the individual,
is invaded with the enforced complicity of the accused.

Certainly, it is difficult to find clear statements in the authorities that such
notions have grounded the disparate treatment that information and physical
evidence have received at common law. These sentiments no doubt explain,
however, the frequent, if somewhat confusing, references to freedom of speech”

57The influence of these notions is manifest in the recent Charter case of Black v. R. (10 August
1989), (S.C.C.), [hereinafter Black] [not yet reported] in which Wilson J., for a unanimous court,
calls each of these points into aid in determining whether to exclude unconstitutionally obtained
evidence. It was ultimately decided to exclude a statement but to admit real evidence because,
unlike the statement, the real evidence would have inevitably been discovered and, unlike the state-
ment, had not been brought into existence as a result of the constitutional violation.
58For this reason it is common, although potentially confusing, for American commentators sup-
porting the principle against self-incrimination to call into aid the constitutional right to freedom
of speech or to emphasize the privacy of the human mind. See, for example, United States v.
Grunewald, 233 F.2d 556, 581-82 (2d Cir. 1956), rev’d, 353 U.S. 391 (1957); E. Griswold, The
Fifth Amendment Today (Cambridge, MA: Harvard University Press, 1955) at 9; Ratner,
“Consequences of Exercising the Privilege Against Self-Incrimination” (1957) 24 U. Chi. L. Rev.
472 at 488-89.

1989]

SELF-INCRIMINATION

that can be found in American writings dealing with self-incrimination.
Moreover, they give added significance to the phrase self-incrimination. The
lack of clear expression of concepts of personal autonomy and privacy of the
mind may be explained, in part, on the basis that they are inherent in the revul-
sion which elevated the principle against self-incrimination into a vital legal
concept. As Field J. said in Brown v. Walker:

The essential and inherent cruelty of compelling a man to expose his own guilt is
obvious to every one, and needs no illustration. It is plain to every person who
gives the subject a moment’s thought.

A sense of personal degradation in being compelled to incriminate one’s self
must create a feeling of abhorrence in the community at its attempted enforce-
59
ment.

It is no doubt why Wigmore spoke in this context of the individual being sov-
ereign when he sought to explain the principle.6″

In brief, then, violations of the privacy of the mind invade the last sanctu-
ary of the individual and create evidence which might not otherwise exist, the
reliability of which is suspect. On the other hand, the seizure of real evidence
does none of these things. This accounts for the dichotomy of protection at com-
mon law in which testimonial evidence receives a higher level of respect, and
it is this dichotomy which causes problems for Ratushny’s thesis that both tes-
timonial and non-testimonial evidence discovered in informal proceedings can
shelter under the same principle of the absence of a pre-trial obligation. It also
casts doubt on the wisdom of equating testimonial and non-testimonial self-
incrimination for the purposes of defining Charter protection.

II. The Charter and Testimonial Self-Incrimination

Based on the foregoing I would suggest that the principle against self-

incrimination which pre-existed the Charter provided that:

no person should be required to respond (in the sense of providing information)
to an allegation made against them by the state until the Crown has established on
evidence that there is a case to meet.

To what extent has this principle been entrenched in the Charter, and to what
extent are the decisions dealing with the relevant Charter provisions true to the
requirements of the principle?

59161 U.S. 591, 637 (1896).
60J.T. McNaughton, ed., Wigmore on Evidence (Boston: Little, Brown and Co., 1961), para.

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A. Section 11(c)

This section specifies that:

11. Any person charged with an offence has the right

Its function is to entrench the non-compellability right of accused persons relat-
ing to their own trials.6′ To date, the authority dealing with the section has been
true to the underlying common law principle. There have essentially been two
major issues relating to its scope. The first is whether the section allows a wit-
ness to refuse to provide information at a proceeding where he or she is not an
accused. The second relates to whether an accused person who avails himself
or herself of the right not to be a witness is protected by the section from the
drawing of adverse inferences for having failed to testify.

Other Proceedings

At common law, the non-compellability of an accused person applied only
at his or her own trial and at preliminary proceedings constituting part of the pri-
mary process of prosecuting the accused.62 The Supreme Court of Canada has
denied that accused persons had the right to refuse to testify or provide infor-
mation at proceedings which could not end ultimately in their conviction.63 This
line of authority has been confirmed in most cases in the context of section
11(c). 4 In my view this is a result consonant with the relevant principle. The
real issue is whether the accused has been made to furnish testimonial informa-
tion which is being used as evidence to assist the prosecutor in presenting its
case to meet. At the proceeding where the information is being adduced the
prosecutor is not being called upon to make a case against the accused therefore
there is no risk of the immediate violation of the principle. So long as the tes-
timony cannot be used against the accused in a subsequent proceeding to help

61 t has been held not to apply to corporations. SeeR. v. Amway Corp., [1989] 1 S.C.R. 21 [here-

inafter Amway].

62Batary v. A.G. Sask., [1965] S.C.R. 465 at 474-75, 52 D.L.R. (2d) 125, 46 C.R. 34.
63Faber v. R. (1975), [1976] 2 S.C.R. 9, 65 D.L.R. (3d) 423, 27 C.C.C. (2d) 171; Dilorio v.

Montreal Jail Warden (1976), [1978] 1 S.C.R. 152, 73 D.L.R. (3d) 491 B.N.R. 361.

64See R. v. Crooks (1982), 39 O.R. (2d) 193, 2 C.R.R. 124, 2 C.C.C. (3d) 57 (H.C.), affirmed
39 O.R. (2d) 193n (C.A.); Rueben v. R. (1983), 24 Man. R. (2d) 100 (Q.B.); Porco v. R.; Amorelli
v. Stalker (1983), 33 C.R. (3d) 398, 6 C.C.C. (3d) 93 (Que. S.C.); Michaud v. Min. of Justice N.B.
(1982), 145 D.L.R. (3d) 588, 4 C.R.R. 159, 3 C.C.C. (3d) 325 (N.B.Q.B.) [hereinafter Michaud
cited to D.L.R.]; R. v. Daigle (1982), 32 C.R. (3d) 388, 4 C.R.R. 153 (Que. S.C.); Re Robinson
andR. (1986), 3 B.C.L.R. (2d) 17, [1986] 4 W.W.R. 729,28 C.C.C. (3d) 489 (S.C.), aff’d on other
grounds [1987] 3 W.W.R. 362 (B.C.C.A.), aff’d, [1988] 1 W.W.R. 216 (S.C.C.).

1989]

SELF-INCRIMINATION

establish its case to meet, then the principle against self-incrimination is
respected. Section 13 of the Charter assures that this cannot happen.65

Adverse Inferences

Prior to the Charter it was the case that nothing prevented the drawing of
adverse inferences against an accused for having failed to testify in his or her
own defence.66 Section 11(c) has not changed this,67 although there are author-
ities to the contrary.6 s The leading cases are the recent Ontario Court of Appeal
decision in R. v. Boss69 and the decision of the Manitoba Court of Appeal in R.
v. B.(J.N.)70 In R. v. Boss the accused challenged the constitutionality of section
4(5) of the Canada Evidence Act”‘ on the footing that it prevented the judge
from directing the jury not to draw an adverse inference from the failure of the
accused to testify. It was argued that section 11(c) required such a direction
since it invalidates any such inferences. The court held that nothing in section
11(c) should be taken to require any jury directions, and went further to hold
that section 11(c) does not prevent the drawing of adverse inferences. That sec-
tion protects accused persons from being “compelled” to testify, and that term
is simply not apt to prohibit the tactical compulsion which exists where an
accused person realizes that the case against him or her is so strong that the only
remaining chance for acquittal is to take the stand. In R. v. B.(J.N.) it was held
that nothing in the Charter prevented an appeal court from considering the fail-
ure of the accused to have testified in determining whether a verdict of guilty
is unreasonable or cannot be supported by the evidence.

Although neither the Court in Boss nor B.(J.N.) made it a central part of
their reasoning,” an examination of the principled bases for section 11(c) sup-
ports the decisions. The underlying principle against self-incrimination, which
emanates from the principle of a case to meet, is respected even where infer-

65Concem has been expressed by some that self-incriminatory testimony can lead to “clue-
facts”, sources of information or real evidence that can subsequently be used in presenting the case
against the accused. This problem is discussed below in note 143.
66Corbett v. R. (1973), [1975] 2 S.C.R. 275,42 D.L.R. (3d) 142,25 C.R.N.S. 296; Vezeau v. R.

(1975), [1977] 2 S.C.R. 277, 66 D.L.R. (3d) 418, 34 C.R.N.S. 309.

671oannadis v. M.E.L, [1983] 1 FC. 369 at 371 (Fed. C.A.); R. v. Thomas (14 June 1985), (Ont.
D.C.) [unreported], summarized (1985), 15 W.C.B. 47; R. v. Chapman (28 May 1982), (B.C. Prov.
Ct.) [unreported]; R. v. Kuyan (14 June 1985), (Ont. H.C.) [unreported], per Saunders J.; R. v. Boss,
(1988), 68 C.R. (3d) 123 (Ont. C.A.) [hereinafter Boss], R. v. B.(J.N.) (1988), 68 C.R. (3d) 145
(Man. C.A.).

68See R. v. Pelley (1983), 34 C.R. (3d) 385 (Ont. Co. Ct.), now overruled by Boss, ibid.; R. v.

Olsen (6 Feb. 1985), (B.C. Co. Ct.) [unreported], summarized (1985), 13 W.C.B. 493.

69Supra, note 67.
70Supra, note 67.
71R.S.C. 1985, c. C-5.
72There is reference in each judgment to the principle of a case to meet as constituting the under-

lying basis for section 11(c) but no analysis is made of the significance of this.

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[Vol. 35

ences adverse to the accused are drawn from his failure to testify. This is
because by the time the accused has to elect whether to testify the Crown will
have already established that there is a case to meet. If it had not, the accused
could have moved successfully for a directed verdict of acquittal. Thus, the prin-
ciple has already been completely satisfied and there is no longer any prospect
of its violation.

B. Section 13

Section 13 provides that:

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

A number of issues have arisen with respect to the scope and application of sec-
tion 13. The primary issues which have implications for the principle against
testimonial self-incrimination include, whether the section would apply to vol-
untary self-incrimination, how broadly the phrase “in any proceedings” was to
be interpreted, and what the phrase “incriminate” would come to mean. Each of
these issues is all but settled. In general, the principle against self-incrimination
has become over-extended in the context of section 13 authority and, as a result,
section 13 has come to provide protections that are much broader than a prin-
cipled approach would have required.

Voluntary Self-Incrimination

According to the principle, no-one should be compelled or made to provide
testimonial information in order to assist the Crown in establishing its case to
meet. As Wigmore said in explaining the principle against self-incrimination in
the American context, “[t]he privilege contributes to a fair state-individual bal-
ance by requiring the government to leave the individual alone until good cause
is shown for disturbing him….”73 Where the accused has chosen to provide
information in another proceeding without any compulsion, the individual has,
ex hypothesi, been left undisturbed. The fact that the government seeks to utilize
information which that person has already provided against himself, at the sub-
sequent proceeding, does not change this, for the accused is not being called
upon to do anything to facilitate the government’s use of that evidence. It would
seem to follow, as it does with the confession rule, that the voluntariness of the
initial provision of information removes concern for the violation of the princi-
ple against self-incrimination and that the information should be available for

73Wigmore on Evidence, supra, note 60, vol. 8 at 317.

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SELF-INCRIMINATION

use by the Crown. Despite this, it is settled that section 13 provides protection
even where the accused voluntarily testifies at an earlier proceeding.74

The decision to grant the protection of section 13 without the need for any
inquiry into the voluntariness of the decision of the ultimate accused to provide
testimony at the earlier proceeding makes sense, and is consistent with the prin-
ciple against self-incrimination, only where the person giving the information
was a compellable witness at those earlier proceedings. This is because compel-
lable witnesses have no real choice but to testify and therefore the inquiry into
voluntariness would not be a truly meaningful one. Where at the earlier pro-
ceeding the individual is testifying in his or her own defence, however, the sit-
uation is different. Because the accused is not compellable, his or her decision
to testify will have been voluntary,75 and a meaningful waiver of the principle
against self-incrimination can fairly be assumed, at least where the accused is
represented by counsel. Section 13 has been interpreted more broadly in this
context than it had to be in order for it to vindicate its underlying principle.

“In Any Proceedings”

It appears that the protection granted by section 13 is available only where
the information in question is provided during a more or less standardized mode
of procedure for the resolution of some legal issue, which procedure has a dis-
crete beginning, whether that be the issuance of a claim or the provision of
notice of a hearing, and a distinct end, typically a finding by a tribunal, usually
accompanied by the ordering of, or the refusal of, a remedy.76 As such, the sec-
tion is not concerned with statements made to public officials in informal set-
tings, even where those statements are compelled by law.77 Thus, section 13 is

tify is not relevant in deciding whether the decision to take the stand was voluntary.

74Dubois, supra, note 29 at 360. It is interesting that on this issue Lamer J. relied primarily upon
the legislative history of section 13 rather than upon the purposive analysis which colours the rest
of his judgment.
75As Boss (supra, note 67) indicates, the practical compulsion that an accused might feel to tes-
76While there is no comprehensive definition in the cases as to what a “proceeding” is, cases
providing definitions in other contexts illustrate the need for a modicum of form along the lines
that this tentative definition suggests. See, for example, Dupont v. Comm. du Dist. D’Urbanisme
de Belledune (1984), 151 A.P.R. 125, 58 N.B.R. (2d) 125 (Q.B.) (as used in rules of court);
Jorgensen v. Jorgensen (1968), 66 W.W.R. 17 (B.C. Co. Ct) (as used in matrimonial legislation);
O.N.A. Staff Union v. O.N.A. (1982), 83 C.L.L.C. 16,002 (O.L.R.B.) (as used in labour legislation);
A.G. Can. v. Royal American Shows Inc. [1980] 1 W.W.R. 187 (Alta. Q.B.) (as used in the criminal
law context). Cases dealing with the term in the context of section 13 of the Charter consistently
employ this form of definition. See, for example, Donald v. Law Society of B.C., (1984), 48
B.C.L.R. 210,2 D.L.R. (4th) 385, [1984] 2 W.W.R. 46 (C.A.), additional reasons [1985] 2 W.W.R.
671, leave to appeal to S.C.C. denied (1984), 7 C.R.R. 305, 55 N.R. 237n. (S.C.C.); R. v. Carlson
(1984), 47 C.R. (3d) 46, 14 C.R.R. 4 (B.C.S.C.).

77See, for example, R. v. Metcalfe (3 February 1983), (Alta. Prov. Ct.) [unreported], dealing with
statements which a driver was compelled to make at an accident scene; see also, R. v. Campbell

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inadequate to accomplish entirely its mission of preserving the underlying prin-
ciple against testimonial self-incrimination; that principle is offended whenever
individuals are compelled by state agents or by law to provide testimonial infor-
mation which can subsequently be used to help establish a case to meet. Yet,
section 13 is not presented as the exclusive protector of that underlying princi-
ple, and by its terms it is incapable of extending its protection to what is being
said by accused persons outside of the context of what can legitimately be
described as “proceedings”. The question, then, is whether other Charter pro-
visions fill in the gap left by the text of section 13.78

“Incriminate”

The principle against self-incrimination, as an emanation of the principle of
a case to meet, is offended only where the state somehow forces the accused to
provide information that the Crown can use to establish or prove that there is
a case to answer. Thus, where the Crown is using information that the accused
provides in order to contradict the case for the defence the principle is not
offended. This is because the information is not being added to the bank of pos-
itive data that will establish that there is a case for the accused to meet.
Moreover, if the accused is presenting its defence, then ex hypothesi the Crown
has established a case to meet and the principle has done its service. There is
no need, therefore, to continue to exclude evidence in the name of the principle.
It is also worth pointing out that the concept of a case to meet has nothing to
do with the credibility of evidence. In deciding whether the Crown has estab-
lished a case to meet, the judge will pay no regard to the reliability of the evi-
dence adduced but will assume that the evidence is true.79 It would seem to fol-
low that if all the Crown wishes to use the admission of the accused for is to
address credibility issues then the principle of a case to meet, and therefore the
principle against self-incrimination, remains undisturbed by the admission of
the evidence.

All of this means that a principled interpretation of section 13 would allow
the Crown to adduce admissions made at earlier proceedings by an accused
where those admissions are being used solely to challenge the credibility of
defence evidence. This result would have been accommodated comfortably by
the language of the section. The prohibition in section 13 is on using the earlier
testimony to “incriminate th[e] witness in any other proceedings.” The term

(5 September 1985), (Ont. Prov. Ct.) [unreported] per Megginson RC.J. In R. v. Vandervoet (1986),
26 C.R.R. 173 (Ont. Prov. Ct.), a challenge to provisions in the Environmental Protection Act,
R.S.O. 1980, c. 141, as am. was refused despite that the provisions require disclosure of informa-
tion outside of the context of a formal process.

78See infra, ll.D.
79R. v. Mezzo [1986] 1 S.C.R. 802, 4 W.W.R. 577 [hereinafter Mezzo cited to S.C.R.].

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SELF-INCRIMINATION

“incriminate”, means to “tend to prove the guilt of'” This suggests that to be
incriminating, evidence must constitute positive information that the accused
committed the criminal act alleged. Evidence is not incriminating, therefore,
where its sole function is to neutralize information which the accused presents
as exculpatory.” Despite this, there are unequivocal indications in the Supreme
Court of Canada case of R. v. Mannion,2 that section 13 disallows the use of
evidence given in earlier proceedings even where it is being used solely to con-
tradict the evidence of the accused.

There are differences of opinion among the appellate courts who have con-
sidered this issue as to what exactly Mannion decided. In Re Johnstone and Law
Society of British Columbia3 the British Columbia Court of Appeal interpreted
Mannion narrowly, holding that its ratio was confined to cases where the Crown
attempted to use the prior testimony of the accused during cross-examination as
an opportunity to get positive evidence of guilt, and not just to discredit the
accused. The Saskatchewan Court of Appeal agreed in R. v. W.D.B. 4 Each court
held that the earlier evidence could be used during the cross-examination of the
accused so long as it was used solely to test the credibility of the accused’s
answers. On the other hand, the Ontario Court of Appeal in R. v. Kuldipss
expressed its disagreement with Re Johnstone as to the import of Mannion, ulti-
mately ruling that section 13 precludes any cross-examination of accused per-
sons on the basis of prior testimony given by the accused. 6

Quite clearly the ratio of the Mannion case is, as Re Johnstone suggests,
confined to cases where the Crown seeks to use the cross-examination to obtain

80J.B. Sykes, ed., The Concise Oxford Dictionary, 7th ed. (Oxford: Clarendon Press, 1982) at

507.

81The foregoing arguments were considered to be persuasive in a number of appellate court deci-
sions. One of the most thoroughly reasoned, in my opinion, is the decision in R. v. Langille (1986),
73 N.S.R. (2d) 262, 176 A.P.R. 262, 60 C.B.R. (N.S.) 55 (C.A.). See also, R. v. Sophonow No. 2
(1984), 29 Man. R. (2d) 48, 34 C.R. (3d) 287, 12 C.C.C. (3d) 372 (C.A.) and R. v. Yakelya (1985),
9 O.A.C. 284, 46 C.R. (3d) 282, 20 C.C.C. (3d) 193. These cases were ultimately overruled, in
my opinion, by the Supreme Court of Canada decision in R. v. Mannion [1986] 2 S.C.R. 272, 31
D.L.R. (4th) 621, [1986] 6 W.W.R. 525 [hereinafter Mannion cited to S.C.R.].

52Ibid.
13(1987), 15 B.C.L.R. (2d) 1, 40 D.L.R. (4th) 550, [1987] 5 W.W.R. 637 (C.A.).
84(1987), 38 C.C.C. (3d) 12 (Sask. C.A.).
15(1988), 24 O.A.C. 393, 40 C.C.C. (3d) 11 [hereinafter Kiddip cited to O.A.C.].
86The Court in Kuldip, ibid., analyzed the issue as though there was no binding authority in com-
ing to its conclusion, emphasizing that whether the Crown invites the inference, a trier of fact who
is shown that the accused is lying will infer that there is a consciousness of guilt. The Court also
concluded that s. 5(2) of the Canada Evidence Act, supra, note 71, prohibited the use of earlier
testimony for all cross-examination purposes but that its failing was that its protection had to be
expressly invoked. Reasoning that section 13 was drafted so as to remove the need for an invo-
cation of the protection against self-incrimination, the Court concluded that to construe section 13
more narrowly than section 5(2) would perpetuate a regimein which those who are knowledgeable
about their legal rights will receive greater protection than those who are not.

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[Vol. 35

positive evidence of guilt. In that case the Crown sought to convince the trier
of fact that Mannion’s effort to tell a different story at his second trial from what
he had told at his first demonstrated a consciousness of guilt, which stood as cir-
cumstantial evidence of culpability. On the other hand, the reasoning in the case
is unequivocal, and extends to circumstances where the Crown attempts to use
the evidence solely to undermine the credibility of the present testimony of the
accused. As the Court in Kuldip pointed out, McIntyre J., for the Court, ana-
lyzed the case in extremely broad terms, concluding:

I would answer the questions as follows:

1. Whether the cross-examination of an accused at a new trial on tes-
timony given at a previous trial on the same charge infringes or denies
the right guaranteed in s. 13 of the Canadian Charter of Rights and
Freedoms?
A: Yes.

This conclusion is both unfortunate87 and unnecessary to a purposive inter-
pretation of the provision, but I cannot help but agree with the Ontario Court of
Appeal as to the significance of the Mannion decision. Section 13, contrary to
the requirements of its underlying principle, prohibits the use of the prior tes-
timony of accused persons in cross-examining them at their subsequent trials.

C. Section 10(b)

Section 10(b) states:

Everyone has the right on arrest or detention

(b) to retain and instruct counsel without delay and to be informed of
that right.

Although not on its face a self-incrimination provision, section 10(b) has been
interpreted as requiring that where an accused person has not validly waived the
right to retain and instruct counsel without delay, no questions should be asked
of the accused until he or she has been provided with a meaningful opportunity
to retain and instruct counsel.88

The right to retain and instruct counsel without delay is not an end in itself.
It is the process whereby an arrested or detained person can become advised of
his or her rights and entitlements so that informed decisions can be made about
whether to participate in the investigation. It also ensures that the person is able
to insist on his or her legal rights relating to release from detention. Thus, the

87Subject to the remote possibility of the accused being charged with perjury, or giving contra-
dictory evidence, the accused is free, as a result of this interpretation, to recraft his or her evidence
without fear of the trier of fact learning of this.
88R. v. Manninen [1987] 1 S.C.R. 1233 at 1242, 41 D.L.R. (4th) 301, 34 C.C.C. (3d) 385 [here-
inafter Manninen cited to S.C.R.]. See D.M. Paciocco, “The Development of Miranda – Like
Doctrines Under the Charter” (1987) 19 Ottawa L. Rev. 49 at 66.

19891

SELF-INCRIMINATION

right to consult counsel without delay is a procedure provided so as to vindicate
underlying rights and privileges belonging to detainees, one of these being the
entitlement to remain silent; the detainee, upon discussing the matter with coun-
sel, will know that he or she need not provide self-incriminatory information.
If the accused’s section 10(b) rights are violated and the evidence produced is
testimonial in nature, it will almost certainly be excluded.89 Section 10(b) there-
fore plays a predominant role in protecting the principle against self-
incrimination as it applies in informal settings. This section is limited in the ser-
vice it can provide, however, to cases of “arrest” or “detention”.

Despite some decisions to the contrary,9″ the prevailing view is that once
an accused person has had the opportunity to consult counsel, section 10(b) has
been fully complied with9′ unless circumstances change materially during a
continued detention thereby necessitating further legal advice.’ In R. v. Logan,93
for example, the Ontario Court of Appeal ruled that there had been no violation
of section 10(b) where accused persons, having been provided with counsel,
made statements to undercover police officers in the absence of their lawyers

89See R. v. Collins, [1987] 1 S.C.R. 265, [1987] 3 W.W.R. 699, 33 C.C.C. (3d) 1 [hereinafter
Collins, cited to S.C.R.], and see D.M. Paciocco, “More on Miranda – Recent Developments
Under Subsection 10(b) of the Charter” (1987) 19 Ottawa L. Rev. 573; D.M. Paciocco, “The
Judicial Repeal of Section 24(2) and the Development of the Canadian Exclusionary Rule”, pub-
lication pending; and see R. v. Woolley (1988), 25 O.A.C. 390, 40 C.C.C. (3d) 531 (C.A.) [here-
inafter Woolley cited to O.A.C.].

90R. v. Grieg (1987), 33 C.C.C. (3d) 40,56 C.R. (3d) 229,26 C.R.R. 136 (Ont. H.C.) [hereinafter
Grieg cited to C.C.C.], where it was held that, save in emergency situations, once an accused has
retained counsel no further questioning should take place without reasonable notice to counsel. See
also R. v. Ashford (9 April 1985), (Ont. H.C.) [unreported] (sub nom. R. v. A & E).

9 1See the dicta of the court in R. v. Playford (1987), 63 O.R. (2d) 289, 24 O.A.C. 161, 40 C.C.C.
(3d) 142 at 168 (C.A.); R. v. Ferguson (1985), 10 O.A.C. 5, 20 C.C.C. (3d) 256, 16 C.R.R. 21
(C.A.); R. v. Emile, [1988] N.W.T.R. 196, 42 C.C.C. (3d) 408 at 430 (C.A.); R. v. Stone (10 May
1984), (B.C.S.C.) [unreported], per Lysyk J., overturned on another point (1986), 25 C.C.C. (3d)
548 (B.C.C.A.); R. v. Martell (1984), 13 W.C.B. 151 (B.C.S.C.). Where the accused has been pro-
vided with a reasonable opportunity to consult counsel and chooses not to do so, the accused can
of course be questioned, even where the accused indicates a desire not to answer questions, so long
as no improper pressure is applied. See R. v. White (1986), 24 C.C.C. (3d) 1 (B.C.C.A.); R. v.
Williams (1986), 48 Alta. L.R. (2d) 68, 73 A.R. 388, 54 C.R. (3d) 336 (C.A.). Even where an
accused has had the opportunity to consult counsel without delay, it is possible that section 10(b),
through using the word “retain”, provides an ongoing right for accused persons held in custody to
see their lawyer from time to time. There is dicta that can be interpreted to support this in the case
of R. v. Logan (1988), 67 O.R. (2d) 87 at 113, 57 D.L.R. (4th). 58 (C.A.) [hereinafter Logan cited
to O.R.]. In my view, because section 10(b) provides its protection “on arrest or detention” and
is to be provided “without delay”, it does not comfortably accommodate such a right, although sec-
tion 7 surely would.

92Black, supra, note 57. At the time the accused spoke to counsel, the charge was attempted mur-
der. She sought to recontact counsel when advised that the charge was being changed to first degree
murder. The failure of the police to delay questioning until this was possible constituted a Charter
violation in light of the change in circumstances.

93Supra, note 91.

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while in custody awaiting trial. In R. v. J.TJ. (No. 2) the Manitoba Court of
Appeal held that “once counsel has been retained and instructed, and the
accused has received advice as to how to exercise his rights under the law, the
further investigation by the police is entirely proper.”‘
In each case the appel-
late courts held that it was implicit in R. v. Manninen95 that the Supreme Court
of Canada would adopt this position. In that case Lamer J. described the no
questioning bar in these terms:

[Section] 10(b) imposes on the police the duty to cease questioning or otherwise
attempting to elicit evidence from the detainee until he has had a reasonable
opportunity to retain and instruct counsel. The purpose of the right to counsel is
to allow the detainee not only to be informed of his rights and obligations under
law but, equally if not more important, to obtain advice on how to exercise those
rights. 6

The Court in Logan said:

The clear implication in the judgment of Lamer J. in Manninen is that s. 10(b) con-
fers the right, upon arrest or detention, to retain, instruct and be instructed by
counsel before any statements of the accused are elicited. The words “upon arrest
or detention” indicate a point in time, not a continuum.97

This approach is indeed consistent with the purposive interpretation of sec-
tion 10(b) described by Lamer J. 98 The detainee, having spoken to counsel, is
in a position to exercise informed judgment about which legal rights to insist
upon. Thus, subject to any improper inducements or pressure, a decision to
speak to persons known to be in authority is a fully informed one and thereby
represents a valid waiver of the right to remain silent. Where there has been a
valid waiver of that right, the underlying principle against self-incrimination is
not violated by the subsequent use of the statement provided.

In the United States, once counsel has been retained the accused cannot be
interviewed again in the absence of his or her attorney.99 This line of authority
is premised on the view that custodial interrogation is inherently coercive and

94(1988), 50 Man. R. (2d) 300 at 306, 40 C.C.C. (3d) 97 (C.A.) [hereinafter J.TJ. (No 2) cited
to Man. R.], Huband J. O’Sullivan J. dissented on this point. The confession was ultimately
excluded because of non-compliance with the procedural protections of the Young Offenders Act,
S.C. 1980-81-82-83, c. 110, s. 56(2), as. am. 1986, c. 32, s. 38. Huband J.’s opinion on the issue
was expressed earlier by His Lordship in the case of R. v. FJ.C. (1987), 46 Man. R. (2d) 92 (C.A.),
additional reasons at (1987), 46 Man. R. (2d) 92 at 95 (C.A.) [hereinafter R. v. C.], where he crit-
icizes the judgment of Dupont J. in Grieg, supra, note 85.

95Supra, note 88.
96Ibid. at 1242-43.
97Supra, note 81 at 113.
9 But see S.A. Cohen, “Indirect Interrogation: Jailhouse Informers and the Right to Counsel”

(1989), 68 C.R. (3d) 58.

99See United States v. Henry, 447 U.S. 264 (1980); Massiah v. United States, 377 U.S. 201

(1964).

19891

SELF-INCRIMINATION

that the true voluntariness of any statement made by an accused in such an envi-
ronment cannot be assured without the added protection of the presence of
counsel.” In response it can be said that, at least since the seminal decision in
Ibrahim v. R.,” we have not accepted that custodial questioning is so inherently
intimidating that we must conclusively presume involuntariness.” Our courts
have felt able to determine on the facts of each case whether the accused suc-
cumbed to pressure or promise. So long as there is no illegitimate inducement
or oppressive conduct, the accused’s mind is “operating”, and the accused has
either consulted counsel or validly waived the entitlement to do so, the decision
to speak to those known to be in authority would appear to be sufficiently vol-
untary to allow the answers given to be admitted against the accused without
compromising the principle against self-incrimination.

The major deficiency with section 10(b) in terms of the extent of its pro-
tection of the principle against self-incrimination relates to its failure to protect
accused persons from tricks designed to secure inculpatory admissions where
the accused has previously indicated a desire not to make any statements. My
objection to the use of such investigative techniques is basic. Without appreci-
ation that he or she is providing information directly to the state, the accused is
not, in any meaningful sense, waiving his or her entitlement not to incriminate
himself or herself. Where an accused person expresses a desire not to speak, the
authorities cannot insist on the provision of information. It seems inconsistent
with the values inherent in the principle against self-incrimination to then allow
the use of subversive means to accomplish indirectly what cannot be done
directly.

The issue was central in the pre-Charter case of Rothman v. R.’03 There a
police officer posed as an arrested truck driver, and was lodged in the cell with
the accused, Rothman. Rothman had previously told the police that he wished
to exercise his right to remain silent. Despite this, the undercover officer man-
aged to elicit admissions by Rothman, which were subsequently held admissible

‘0See Miranda v. Arizona, 384 U.S. 436, 469-70 (1966).
I0O[1914 A.C. 599 (P.C.), where the submission that answers produced during custodial inter-
rogation had to be excluded automatically was rejected. This put to rest the suggestion to this effect
made in cases like R. v. Mick (1863), 17 E.R. 376 and R. v. Gavin (1885), 15 Cox C.C. 656.

10 2See David M. Paciocco, “The Development of Miranda-Like Doctrines Under the Charter”,

supra, note 88 at 63-64.

10 3Supra, note 35.

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[Vol. 35

at his trial.” In defending the use of such tricks in a solo concurring judgment,
Lamer J. concluded that:

The authorities, in dealing with shrewd and often sophisticated criminals, must
sometimes of necessity resort to tricks or other forms of deceit and should not
through the [confession] rule be hampered in their work.’0 5

His Lordship went on to add that the only reliable confessions that should be
suppressed are those produced by conduct which shocks the community.”

Mr. Justice Estey dissented. His Lordship offered that one of the primary
concerns of the confession rule is the protection of the public interest in the
integrity of the judicial process” and he indicated clearly in his judgment that
the integrity of that process is tied largely to the extent to which the principle
against self-incrimination is respected. Obtaining and relying upon an involun-
tary confession would fail to maintain that respect, even where the confession
is involuntary only in the sense that the accused did not wish to provide the
information to the police:

To be voluntary a statement must be volunteered by the speaker in the sense that
the statement must be the product of a conscious volens on the part of the speaker.
The volens must relate not only to the mechanics of speaking, that is the articu-
lation of the ideas of the speaker. Where the speaker has, as here, already refused
to give a statement to the authorities, the test of voluntariness must include an
appreciation of the circumstances in which the statement is made, including an
awareness that his statement is being “volunteered” to a person in authority. To
apply the rule otherwise in circumstances we have here would not merely permit
but would encourage the deliberate circumvention by the authority of the accu-
sed’s announced exercise of his right not to give a statement to the authorities. 08

Lamer J. did not deny that the means used by the police undermined the
true voluntariness of Rothman’s confession. His Lordship rejected Mr. Justice
Estey’s position because he accepted the Ratushny thesis that self-incrimination
protections are not relevant to the admission of evidence gathered during
informal proceedings. His Lordship concluded, that “mere lack of voluntariness
cannot be … a reason for excluding a statement as there is no general right to

‘0The majority judgment tumed on the narrow reach of the established confession rule in which
the accused must appreciate that he is speaking to a person in authority before the voluntariness
rule applies. Since Rothman felt that he was speaking to a fellow detainee and not a police officer,
there was no need to assess the voluntariness of the statement and it was admissible. This rule is
itself questionable as it is based on the view that the only operative purpose behind the confession
rule is to ensure trustworthiness of the confession. It also relies upon the questionable assumption
that pressure exerted by persons who are not, to the knowledge of a suspect, persons in authority
is unlikely to be substantial enough to induce a false confession.

105Supra, note 35 at 697.
l06Ibid, at 697.
“07lbid. at 646.
105Ibid. at 651.

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SELF-INCRIMINATION

no self-crimination.”” 9 Therefore, not all involuntary confessions need be
excluded. Involuntariness is only symptomatic of unreliability, and where it
does not affect reliability, or where reliability is not in issue, a lack of voluntar-
iness should cause exclusion only where it is necessary to refuse the evidence
in order to preserve the “integrity of the criminal justice system” and this can
be tested by asking whether the method by which the evidence was obtained
shocks the conscience.”‘ His Lordship stated:

If lack of voluntariness … were to result automatically in the exclusion of all
unwilling statements this would then be, in my opinion, an overextension of the
right of an accused to stand mute, and would amount to introducing indirectly into
our system a facet of the general privilege of no self-incrimination we do not have
in this country.”‘
In Collins v. R., 2 His Lordship took the opportunity to express, in obiter,
his opinion that nothing in the Charter changed his views on the use of tricks
to elicit statements:

I still am of the view, that the resort to tricks that are not in the least unlawful let
alone in violation of the Charter to obtain a statement should not result in the
exclusion of a free and voluntary statement unless the trick resorted to is a dirty
trick, one that shocks the community.” 3
Decisions to date where the issue has actually emerged have adopted the
same view and have held that nothing in the Charter has changed the result of
the Rothman decision.” ‘4 In a number of these decisions there is no discussion
of the matter, just a pronouncement that section 10(b) has nothing to say about
the issue. Where courts do analyze the problem more fully, the reasoning tends,
in my view, to be unsatisfactory. For example, the analysis of the issue in R. v.
Hebert..5 as to why section 10(b) is not applicable to jail cell subterfuge is curi-
ous. The Court found significance in the fact that the “there was no continuity
or connection between what took place in the interrogation room and the state-
ment made by the accused to the undercover officer.””‘ 6 While the Court con-
ceded for the sake of argument that a “continued interrogation of an accused

’91bid. at 692.
“I’Ibid. at 696-97.
“‘Ibid. at 693.
“2Supra, note 89.
“131bid. at 286-87.
“4Logan, supra, note 91; R. v. Forsyth (2 December 1986), (B.C.C.A.) [unreported] summarized
in 1 W.C.B. (2d) 156; R. v. Hebert (1988), 43 C.C.C. (3d) 56 (Y.T.C.A.) [hereinafter Hebert cited
to C.C.C.]; Sophonow, supra, note 81; Emile, supra, note 91; R. v. Morin (9 January 1986), (Ont.
H.C.) [unreported] per Craig J. (overturned on other grounds, (1987), 36 C.C.C. (3d) 50 (Ont.
C.A.), approved (1988), 44 C.C.C. (3d) 193 (S.C.C.)). The judgment of Craig J. was approved in
Logan, at 110-11. But see R. v. Perrault (1984), 11 C.R.R. 331 (Ont. Dist. Ct.) and R. v. Smith (5
November 1987), (Ont. H.C.) [unreported].

51bid.
1
” 61bid at 60.

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person after he has retained counsel and indicated his desire not to speak may
constitute a breach of section 10(b)”, it would not logically follow that there
would be a Charter violation in the absence of coercion or pressure where the
accused was merely engaged in a conversation “at a time and place completely
isolated from the interrogation process”.”7 Thus, while the open efforts of the
police to persuade the accused to waive his Charter rights by continued inter-
rogation are seen as potentially unconstitutional, the surreptitious efforts to con
the accused out of a fundamental right are not. As I say, I find the reasoning
curious. Moreover, the reference to coercion suggests that the Court in Hebert
did not focus on the basic objection. The essence of the decision of the Supreme
Court of Canada in Clarkson v. R.”‘ is that statements made by accused persons
need not be the product of improper inducements to be excluded; a court must
be satisfied before admitting the evidence that the waiver of the right to counsel
is an informed and comprehending one. Surely where an accused is intention-
ally fooled into thinking that he or she is not faced with a person in authority,
his or her comments cannot be taken as the product of an informed and com-
prehending waiver.”9 It seems odd that we would go to so much trouble to
ensure absolute voluntariness when it comes to waiving the procedural protec-
tion of the right to counsel, but that we would be so cavalier when it comes to
the waiver of those substantive rights which section 10(b) was developed to
protect.

The decisions in R. v. Logan,”2 and R. v. Emile’ on the other hand, place
what may indeed be a real impediment to relying on section 10(b) to challenge
the practice of using undercover police officers to obtain admissions from
accused persons. These decisions reject section 10(b) challenges in this context
on the basis previously discussed, 22 namely that this section becomes spent
once the accused has had an opportunity to retain and consult counsel, or has
waived the right to counsel.” Thus, the subsequent subterfuge of the police can
have nothing to do with this section of the Charter. Even if this point is correct,

“‘lbid. at 61.
1″Supra, note 35.
I 9There are, of course, arguments to the contrary. The accused has, ex hypothesi, spoken to
counsel and would have been advised not to speak to anyone. The decision to do so therefore argu-
ably amounts to a valid waiver. An accused person who provides information about his or her com-
plicity must appreciate that he or she is creating evidence that might come back to haunt them.
Despite such arguments, I, for one, have difficulty accepting that knowledge of the identity of who
is being spoken to is not an essential element of a valid waiver.

120Supra, note 91.
1211bid.

I2See text accompanying note 114.
1WVhere the right to counsel is waived, the accused can reactivate the “no questioning” bar by
suggesting that he or she now wants to speak to a lawyer. See R. v. Anderson (1984), 45 O.R. (2d)
225, 7 D.L.R. (4th) 306, 10 C.C.C. (3d) 417 (C.A.).

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SELF-INCRUVIINATION

(as I believe it to be), all it serves to do is to transfer the basic question of
whether this practice is constitutionally objectionable to section 7.

D. Section 7

Section 7 provides:

Everyone has the right to life, liberty and security of the person and the right not
to be deprived thereof except in accordance with the principles of fundamental
justice.

The principle against self-incrimination will receive protection under section 7
in situations where the life, liberty or security of the person of the accused is in
peril only if it is considered to be an established principle of our system of jus-
tice that is fundamental to justice, given the rule of law and the inherent dignity
of individuals. 4 I would suggest that it is beyond controversy that the principle
against self-incrimination meets this criteria. It is an indispensable corollary of
the principle of a case to meet which helps to define the accusatorial system
which, in turn, exists in order to vindicate the rule of law. The principle, under
its more common appellation, “the right to silence”, has been expressed to be
a fundamental principle on numerous occasions.” The only thing which serves
to challenge this conclusion is the broad support which exists for the Ratushny
thesis. A number of courts have held that sections 11(c) and 13 accommodate
the entire principle, given that it has no significance in the informal setting. 6

124This is essentially the formula which the Supreme Court of Canada developed for the iden-
tification of principles of fundamental justice in the case of Ref. re S. 94(2) of the Motor Vehicle
Act (B.C.), [1985] 2 S.C.R. 486, 24 D.L.R. (4th) 536, 23 C.C.C. (3d) 289. See D.M. Paciocco,
Charter Principles and Proof in Criminal Cases, supra, note 40 at 107-16.

‘2See, for example, R. v. Collins, supra, note 89; R. v. Clarke (1979), 33 N.S.R. (2d) 636 at
652, 57 A.P.R. 636, 48 C.C.C. (3d) 440 (C.A.) per Macdonald J.; R. v. Symonds, supra, note 42;
R. v. Esposito (1985), 53 O.R. (2d) 356 at 362, 12 O.A.C. 350,24 C.C.C. (3d) 88 (C.A.). In a recent
case note “Woolley: Finding Keys in the Distinction Between Statements and Real Evidence”
(1988), 63 C.R. (3d) 347, R.J. Delisle suggests a distinction, which is not explained, between the
privilege against self-incrimination and the right to remain silent. Presumably he is confining the
language of the privilege against self-incrimination to the protections found in section 11(c) and
13, and considers the right to silence as applying outside of formal proceedings. I have no problem
with the terminology, but Delisle sees the linkage between the two in Woolley, supra, note 89, as
“odd”. In my view, the linkage is inevitable as both the privilege, as defined, and the right to
silence are emanations of the same underlying principle. See the discussion of Woolley, infra at n.
129ff.
126See, for example, R. v. Altseimer (1982), 38 O.R. (2d) 783, 142 D.L.R. (3d) 246, 1 C.C.C.
(3d) 7 (C.A.) [hereinafter Altseimer cited to O.R.]; Thomson Newspapers Ltd. v. Director of
Investigation & Research (1986), 54 O.R. (2d) 143, 26 D.L.R. (4th) 507, 25 C.C.C. (3d) 233
(H.C.), affirmed on this point (1986), 57 O.R. (2d) 257 (C.A.), currently on appeal to S.C.C. [here-
inafter Thomson cited to O.R.]; R. v. Sydholm (1983), 22 M.V.R. 37 (B.C. Co. Ct.), affirmed (9
May 1983), (B.C.C.A.) [unreported] summarized in (1983), 10 W.C.B. 71 [hereinafter Sydholm
cited to W.C.B.]; Transpacific Tours Ltd. (C.P. Holidays) v. Director of Investigation & Research
(1985), 68 B.C.L.R. 32, 25 D.L.R. (4th) 202, 24 C.C.C. (3d) 103 (S.C.) [hereinafter Transpacific

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To return to the last issue discussed in the context of section 10(b), the Ontario
Court of Appeal in R. v. Logan held that section 7 could not assist in any claim
that the Charter invalidates the use of trickery to obtain admissions for that very
reason:

It is now clearly established that, in Canada, the privilege against self-
incrimination is not functionaly operative at the pre-trial stage in the sense that it
cannot operate to produce a result in a particular case. 27

The reasoning mirrors that employed by Lamer J. in the pre-Charter case of
Rothman v. R.”

There is some confusion caused by the Logan case. The Ontario Court of
Appeal had previously decided a case called R. v. Woolley.” 9 In Woolley the
Court held that the police violated a principle of fundamental justice when they
induced a confession from the accused by threatening him.30 The matter could
not be resolved using the common law confession rule because the issue related
to the admissibility of certain real evidence found as a result of the involuntary
confession and, at common law, the real evidence would be admissible.’ The
Court held that it could examine the admissibility of the evidence using section
24(2) of the Charter’3 2 because the act of improperly inducing the accused to
produce the evidence violated his “right to remain silent”. The Court held:

It has always been a tenet of our legal system that a suspect or accused has a right
to remain silent at the investigative stage of the criminal process and at the trial
stage. At the very least, it is clear that an accused person is under no legal obli-
gation to speak to police authorities and there is no legal power in the police to
compel an accused to speak…

The right to remain silent is a well-settled principle that has for generations
been part of the basic tenets of our law. It follows that the protection given by this
principle must come within the purview of s. 7 of the Charter. 33

In R. v. Logan, the Woolley decision was distinguished on the footing that
it was the coercive conduct of the police in that case which caused the violation
of the accused’s right to remain silent.”M This is true enough, and certainly the

Tours cited to B.C.L.R.]; Belhemeur v. Comitg de discipline du Barreau du Qurbec (1988), 35
C.R.R. 193 (Que. C.A.), applying similar although not identical reasoning.

127Supra, note 91 at 114, citing Ed Ratushny, Self-Incrimination in the Canadian Criminal

Process, supra, note 2 at 65-66.

“2Supra, note 35.
’29Supra, note 89.
13The police threatened to hold Woolley in custody until they found the keys to the Corvette

that he was arrested for taking. He then confessed and showed them the keys.

13’See the discussion above accompanying note 47.
132The exclusionary remedy. See below section IV.E.
133Supra, note 89 at 396.
134Supra, note 114 at 115.

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SELF-INCRIMINATION

relevant principle is violated where coercion is employed since the Crown has
not, at that point, established a case to meet against the accused. Yet, the issue
should not have been whether the facts of Woolley were distinguishable. It
should have been whether the pertinent principle which Woolley recognized as
one of fundamental justice was respected in Logan. Logan’s “right to remain
silent”, which vested in him the entitlement to choose whether to provide
incriminating information, was in fact contravened since he was deprived, by
the trick that was employed, of the benefit of his decision to insist upon the
enjoyment of that right.

The Woolley case is important for it recognizes that section 7 of the
Charter does indeed add to the constitutional protections given to the principle
against self-incrimination, and as the foregoing discussions indicate, there are
gaps in the extent to which sections 11(c), 13 and 10(b) provide Charter pro-
tection for this fundamental principle. The decision, of course, does not settle
the matter. It stands in contrast to a great wave of authority, including other
appellate court case law.135 Moreover, read in conjunction with the earlier
Ontario Court of Appeal decision in Thomson Newspapers Ltd. v. Director of
Investigation & Research’36, it would have to be confined to its context in which
there was a standard police investigation. In Thomson, after adopting the
Ratushny thesis and stating that sections 11(c) and 13 exhaustively cover the
Charter’s self-incrimination protections, Grange J.A. responded to persistent
references to the so called “right to silence”, by stating that the “right must be
restricted to police inquiries and the like and the trial proceedings them-
selves.” ’37 This “right to silence” could not, therefore, affect the outcome of a
Charter challenge brought against a section under the Combines Investigation
Act 3′ which requires persons to appear before Anti-combines officers to answer
questions.

The Thomson case typifies the context in which this issue has been
debated. Section 7 and self-incrimination claims are called into aid to quash

135See, for example, Haywood Securities Inc. v. Inter-Tech Resources Group Inc. (1985), 68
B.C.L.R. 145, 24 D.L.R. (4th) 724, [1986] 2 W.W.R. 289 [hereinafter Haywood cited to B.C.L.R.]
Leave to appeal to S.C.C. granted (C.A.), although it was suggested that “if the sole aim and pur-
pose of the proceeding was to obtain evidence to … assist the criminal prosecution” then it might
be arguable that section 7 would be violated (at 153); Transpacific Tours, supra, note 126; Re
Ziegler and Hunter (1983), 8 D.L.R. (4th) 648, 39 C.P.C. 234, 51 N.R. 1 (Fed. C.A.) [hereinafter
Ziegler cited to D.L.R.], leave to appeal to S.C.C. denied, [1984] 1 S.C.R. xiv; Sydholm, supra,
note 126 and see the other decisions discussed below; but see R.L. Crain Inc. v. Couture (1983),
30 Sask. R. 191, 6 D.L.R. (4th) 478, 10 C.C.C. (3d) 119 (Q.B.) [hereinafter Crain cited to Sask.
R.].

136Supra, note 126.
1371bid. at 262. See also Ontario Securities Commission v. Biscotti (21 July 1988), (Ont. H.C.)

[unreported], summarized at 11 A.C.W.S. (3d) 2.

138R.S.C. 1970, c. C-23, as am. S.C. 1986, c. 26, s. 19 (renamed Competition Act).

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subpoenas or to challenge statutory provisions requiring discovery proce-
dures, “’39 or in an effort to avoid the production of pre-existing documents 4″ or
other real evidence.’ 4′ In my view decisions rejecting such claims are correct but
not for the reasons provided by Grange J.A. in Thomson. Consider what the rel-
evant principle requires:

[N]o person should be required to respond (in the sense of providing information)
to an allegation made against them by the state until the Crown has established on
evidence that there is a case to meet.

When exactly is this principle contravened? It is not contravened when pre-
existing documents are ordered to be produced, for the production of pre-
existing documents does not constitute an answer to the allegation. Nor is it
offended when an accused person is made to provide real evidence. Nor is it
even offended when answers to questions are compelled. The principle is vio-
lated only if the testimonial information obtained from the accused is subse-
quently admitted into evidence as part of the Crown’s case to meet. Until it is
relied upon at the trial of the accused, there has been no incrimination. Thus, if
there is a statutory mechanism in place which guards accused persons from the
admissibility of their answers at their criminal trials, then the principle is being
respected. 4 2 It is not the investigation that is offensive to the principle. It is the
use to which the information is put that is troublesome.’

R. v. Woolley'” is not the only decision holding that section 7 houses con-
stitutional support for the principle against self-incrimination. In R. v. Grieg,145

139Crain, supra, note 135; Haywood, supra, note 135; R. v. Wooten (1983), 5 D.L.R. (4th) 371,
9 C.C.C. (3d) 513 (B.C.S.C.); Michaud, supra, note 64; Sydholm, supra, note 126; Re Bookman
(1984), 49 C.B.R. (N.S.) 267, 41 C.RC. 248 (Ont. S.C.); Ziegler, supra, note 135.

’44Supra, note 89.
145Supra, note 90.

14See, for example, Bassett v. College of Physicians and Surgeons (1987), 63 Sask. R. 45
(Q.B.), aff’d (1988) 70 Sask. R. 283 (C.A.) [hereinafter Bassett cited to Sask. R.] and R. v. Amway
Corp. (1986), 72 N.R. 221 at 225 (Fed. C.A.), reversed on other grounds by S.C.C. supra, note
61.
141See, for example, R. v. Brake (1985), 52 Nfld & P.E.I.R. 178, 153 A.P.R. 178 (Nfld. S.C.)
[hereinafter Brake cited to Nfld & P.E.I.R.] (handwriting sample); Altseimer, supra, note 126 (brea-
thalyzer sample); R. v. Gaff (1984), 35 Sask. R 136 (Q.B.), aff’d (1984), 36 Sask. R. I (C.A.).
Leave to appeal to S.C.C. refused, [1984] 2 S.C.R. vii (breathalyzer sample).

142See Stelco Inc. v. A.G. Can. (1987), 13 F.T.R. 128 (T.D.), aff’d, (1987), 83 N.R. 193 (Fed.
C.A.). For this reason I am not persuaded by the reasoning of Scheibel J. in Crain, supra, note 135,
since ss 17(2) of the Combines Investigation Act, R.S.C. 1970, c. C-23, as am. S.C. 1986, c. 26,
s. 24 (renamed the Competition Act) provided that the answers given could not be admitted at sub-
sequent proceedings. Section 13 of the Charter will provide this protection whenever the informa-
tion is obtained in the context of formal proceedings.

13In Haywood, supra, note 135, Lambert J.A. argued that section 7 would be offended even
where evidence discovered as a result of compelled disclosure was admitted. For the reasons why
I take issue with this submission see D.M. Paciocco, Charter Principles and Proof in Criminal
Cases, supra, note 40 at 596-97.

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SELF-INCRIMINATION

a decision with an admittedly checkered history,’46 Dupont J. held that section
7 was violated where an accused person clearly manifested his right to silence
but where the police persisted in interrogating him, as though he had no such
right at all. More recently, in R. v. Hansen47 the British Columbia Court of
Appeal accepted that section 7 of the Charter is contravened in at least some
cases where the silence of an accused is sought to be used against him. The
accused made a statement to the police but then, when pressed for an explana-
tion, invoked his right to remain silent. The Court held that, at least where the
accused has been cautioned, the use of his silence to draw adverse inferences
against him contravenes the principles of fundamental justice.

A related issue is whether there is a constitutional right to be advised of the
right to remain silent. Recently in R. v. Campbell’48 the P.E.I. Supreme Court
held that section 7 houses the right to remain silent as a principle of fundamental
justice, and that it also requires that any suspects be advised of this right. This
decision is contradicted to a degree on this latter point by the judgment in R. v.
Cipriani.49 In that case a government tax auditor failed to caution the subject
of the audit that his answers could be used against him in a subsequent proceed-
ing and, on this basis, the trial judge excluded the statements. The Ontario Court
of Appeal overturned that decision in a brief judgment stating that once it was
determined that the answers provided were voluntary, that should have ended
the matter.

Traditionally, the provision of a caution was not required before a self-
incriminatory statement would be found admissible. The existence of a caution
only provided relevant evidence with respect to the issue of voluntariness. 5 ‘ In
my view, so long as a court is satisfied that the decision to speak was not com-
pelled, there would seem to be no need for the provision of such a caution in
order to satisfy the dictates of the principle against self-incrimination. I argued
in an earlier article that a constitutionally required warning of the right to
silence should not be gleaned from the existence of a principle of fundamental
justice related to testimonial self-incrimination. 5’ That argument was based in
part on the broad notion of waiver which Madame Justice Wilson spoke of in
the case of Clarkson v. R.’52 The Clarkson decision appears to hold that a valid

146The decision was soundly criticized in R. v. C., supra, note 90 and in J.T.J. (No. 2), supra,
note 94, by Monnin C.J.M. and Huband J.A. The decision in J.TJ. (No. 2) was cited with approval
by the Ontario Court of Appeal in Logan, supra, note 91 at 112. On the other hand, O’Sullivan
J.A. agreed with the decision in J.TJ. (No. 2), while it is cited with approval by the British
Columbia Court of Appeal in R. v. Hansen (21 December 1988), [unreported].

147Ibid.
’48See J. Middlemiss, The Lawyers Weekly, (Vol. 9, No. 4) (Friday May 26, 1989) 1.
149(1988), 34 C.R.R. 382 (Ont. C.A.).
150Supra, note 35.
15’Paciocco, supra, note 88 at 62-66.
152Supra, note 39.

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[Vol. 35

waiver of section 10(b) can be made only if the accused person is aware at the
time of the waiver that he or she need not provide information to the police.
That being so, any constitutionally entrenched warning of the right to silence
would be redundant to the protection that section 10(b) already provides.’53
Despite the broad language used in the Clarkson decision,”5 however, doubt has
now been cast upon whether a detainee must appreciate the existence of the
right to silence before a waiver of the right to counsel will prove valid. In R. v.
Weber 55 it was held that for a section 10(b) waiver to be valid, all that the
accused must realize is that by not consulting counsel, he or she might ulti-
mately make a decision different from that which would have been made if he
or she had received legal advice. The waiver requirement does not necessitate
that the detainee be aware of what his or her legal rights are or of what the legal
consequences would be if he or she pursued a certain course of action. As much
as I like the results of the decision in Weber, I have difficulty in reconciling it
with Clarkson. The waiver requirement may well not be as fragile as the Weber
decision indicates. If it is not, there would appear to be no need to add to the
procedural protections already provided by section 10(b).

What then should section 7 be held to contribute to the principle against
self-incrimination? It is to be hoped that the Supreme Court of Canada will ulti-
mately determine that section 7 provides protection in circumstances like
Woolley’56 where a person ultimately being tried for an offence is faced with the
adduction of testimonial evidence as part of the Crown’s case, which he or she
produced at the behest of a state agent in the absence of an informed and com-
prehending decision to make that information available.

III. The Charter and Non-Testimonial Self-Incrimination

As indicated above, it was well-settled at common law that the concept of
self-incrimination had nothing to do with the obtainment of real as opposed to
testimonial evidence. Moreover, decidedly less protection was granted with
respect to the obtainment and the proof of real evidence. I suggested earlier that
the distinction between the two kinds of proof is a principled one, and that this
principle should be reflected in the interpretation of the Charter. By contrast,

153See the discussion in Paciocco, supra, note 88 at 52-61. Madame Justice Wilson made it clear
that, whatever the precise contents of a valid waiver might be, the accused must have some aware-
ness of the consequences of not exercising the constitutional right. On the facts of the case Her
Ladyship ultimately held that Clarkson did not validly waive her right to counsel because she was
not aware of the consequences of speaking. By seizing on an awareness of the consequences of
not exercising one of the underlying rights that the right to consult counsel is meant to protect
rather than on the right to counsel itself, the message seems to be that a valid waiver requires some
appreciation of the relevant underlying legal rights and entitlements.

154The language is repeated in Black v. R., supra, note 57.
’55(1987), 52 Alta. L.R. (2d) 274, 79 A.R. 251, 49 M.V.R. 128 (Q.B.).
16Supra, note 89.

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SELF-INCRIMINATION

Ratushny argued in his work that the single principle of the absence of pre-trial
obligation provided the accused with pre-trial protection against the compelled
provision of testimonial and non-testimonial evidence. To a significant degree,
Charter authority has maintained a distinction between the level of protection
offered to testimonial as opposed to non-testimonial evidence. On the other
hand, Ratushny’s unitary notion of the absence of a pre-trial obligation has been
influential in the application of the Charter’s exclusionary remedy.

Section 10(b)

Protections relating to the adduction of non-testimonial evidence appear to
shelter under section 10(b)’s right to counsel. The obligation on state agents to
desist in efforts to have accused persons produce evidence against themselves
until they have consulted counsel157 extends beyond testimonial information to
include real evidence that can only be obtained with the co-operation of the
accused. As a result, in R. v. Therens58 the police were held to have violated
section 10(b) by obtaining breath samples from an accused without giving him
an opportunity to consult with his lawyer. In LeClair and Ross. v. R. 159 the
Supreme Court of Canada found that section 10(b) had been violated where the
accused were made to participate in a police line-up without having had a mean-
ingful opportunity to consult counsel.

In each of these cases it can be said, at least indirectly, that the absence of
pre-trial obligation, or a concept of non-testimonial self-incrimination, received
support. This observation should, however, be put into perspective. All that sec-
tion 10(b) seeks to ensure is that an accused person appreciates the network of
legal rights and obligations that pertain in situations of custodial investigation.
Where the law compels non-testimonial self-incrimination, section 10(b) does
nothing to prevent it. An accused person arrested for an alcohol driving offence,
for example, must, after consulting with counsel or waiving the right, provide
a self-incriminating breath sample or risk conviction for refusing to blow. An
accused asked to participate in a line-up will learn from his or her lawyer that
a refusal to do so could conceivably lead to an adverse inference being drawn
against him, and nothing in section 10(b) will prevent the inference from ulti-
mately being drawn. Since section 10(b) is meant to make available to detainees
those legal rights which already exist, it contributes little to the principle of the
absence of pre-trial obligation.

157See text accompanying note 91.
158[1985] 1 S.C.R. 613, 18 D.L.R. (4th) 655, 18 C.C.C. (3d) 481 [hereinafter Therens cited to

S.C.R.].

159[1989] 1 S.C.R. 3 [hereinafter Leclair and Ross].

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B. Sections 11(c) and 13

Neither section 11(c) nor section 13 pertain to non-testimonial self-
incrimination. This is primarily because of the restrictive language which the
provisions employ. Each section provides protections relating to the accused’s
role as a “witness”, and a witness is commonly understood to be one who pro-
vides testimonial information.”6 Thus, section 11(c) is inapplicable, apart alto-
gether from its other contextual limitations, to the compulsion of breath sam-
‘6 or to the obtainment of other species of real evidence such as footprint
ples
casts 62 or blood samples.’63 It is also inapplicable where an accused person is
asked to provide a handwriting sample, or to perform an act in court.” Both
sections 11(c) 65 and 13 are inapplicable to the enforced production of pre-
existing documents.’66 In short, these sections confine their protection to testi-
monial self-incrimination.

C. Section 8

Section 8 of the Charter provides:
Everyone has the right to be secure against unreasonable search or seizure.

It is now settled that the obtainment of physical specimens from the person of
an accused can constitute a seizure within the meaning of section 8 of the
Charter. In R. v. Pohoretsky it was held that the taking of a blood sample from
an unconscious suspect without consent, and without prior judicial authoriza-
tion, constituted either an unreasonable search or seizure. 67 In R. v. Dyment’
the Court concluded that section 8 was violated by way of an unreasonable sei-
zure where blood samples were obtained without reasonable grounds by a med-
ical doctor and then handed over to the police. It is important to note that, as

160The witness may be authenticating real evidence, but the real evidence, once verified, stands

independently of the testimony which establishes its relevance.

16’Supra, note 126.
162R. v. Nielsen (1984), 30 Man. R. (2d) 81, 16 C.C.C. (3d) 39, 17 C.R.R. 90 (C.A.). Leave to

appeal to S.C.C. refused, (1985), 31 Man. R. (2d) 240 (S.C.C.).

161R. v. Racette (1988), 61 Sask. R. 248 at 283-84, 48 D.L.R. (4th) 412, 39 C.C.C. (3d) 289

(C.A.) [hereinafter Racette cited to Sask. R.].

164In Brake, supra, note 141. It was assumed, without deciding the matter, that section 11 (c)
might apply to cases where accused persons are asked to provide things in court like hand writing
samples. For a discussion of why I consider this assumption to have been incorrect see D.M.
Paciocco, Charter Principles and Proof in Criminal Cases, supra, note 44 at 462.

165Re Bassett and R. (1987), 53 Sask. R. 81, 35 D.L.R. (3d) 537 (C.A.).
166See the obiter comments of Hugesson J. in Ziegler, supra, note 139 at 673-74. See also,

Bassett v. College of Physicians and Surgeons (1987), 63 Sask. R. 45 (Q.B.).

167[1987] 1 S.C.R. 945 at 948, 75 N.R. 1, [1987] 4 W.W.R. 590 [hereinafter Pohoretsky cited

to S.C.R.]. The Court declined to decide which had occurred, a search or a seizure.

16′[1988] 2 S.C.R. 417.

1989]

SELF-INCRIMINATION

in this line of authority is not with the fact of
with section 10(b), the concer
non-testimonial self-incrimination. The Supreme Court did not focus in these
cases on what was being obtained but concerned itself rather with the method
by which the real evidence was being obtained. Indeed, in Pohoretsky the Court
cited in its reasoning the newly proclaimed section 238(3)(b) of the Criminal
Code of Canada,69 which allows for the obtainment of blood samples by war-
rant, leaving the impression that had the samples been obtained in accordance
with constitutional search and seizure procedures, there would have been no
constitutional violation.7 For this reason, section 8 cannot be understood as
protecting against non-testimonial self-incrimination.

D. Section 7

At issue here is whether the principle of the absence of a pre-trial obliga-
tion is one of fundamental justice, thereby protected by section 7 of the
Charter.7′ In the face of the Supreme Court of Canada decision in R. v. Beare;
R. v. Higgins,” one would be hard pressed to argue that it is. Beare involved
a constitutional challenge to the Identification of Criminals Act,’173 which
requires persons arrested of certain offences to attend, if required, to be finger-
printed. Much of the argument centred on section 7 of the Charter. It was
alleged that the procedure infringed upon the liberty and security of the person
of those forced to subject themselves to fingerprinting, and that it did so in a
manner that was inconsistent with the principles of fundamental justice. The
Supreme Court accepted that there was an infringement of the liberty of such
persons” but held that the infringement was in accord with the dictates of the
principles of fundamental justice.

What makes the decision important in the present context is that the Court
supported the use of the procedure, in part, on the basis that fingerprinting was
‘ and in providing evidence
of great use in linking accused persons to crimes, 17
that could be used by the prosecution to prove a prior record for the purpose of

169R.S.C. 1970 c. C-34 (now R.S.C. 1985 c. C-46, s. 254(3)(b)).
170Supra, note 167. See R. v. Racette, [19881 2 W.W.R. 318, 39 C.C.C. (3d) 289 (Sask. C.A.)

for a similar analysis with respect to s. 8 and the obtainment of blood samples.

1751bid. at 399-400.

’71In R. v. Nielsen, supra, note 162, the Court assumed for the sake of argument that section 7
may have been violated where the accused was required to provide a footprint cast to the police
but then admitted the evidence on the basis that its admission would not bring the administration
of justice into disrepute.

172[1988] 2 S.C.R. 387, 55 D.L.R. (4th) 481, 45 C.C.C. (3d) 57 [hereinafter Beare cited to
173R.S.C. 1970, c. I-I, s. 2, (now R.S.C. 1985, c. I-1, s. 2).
74Although it did so on the narrow basis that the statute requires persons to appear at a specific
place and time to go through the process on pain of imprisonment for failure to comply. See, supra,
note 172 at 402.

S.C.R.].

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[Vol. 35

seeking a heavier sentence in the event of a conviction.” 6 In other words, the
fact that the process conscripts accused persons in the investigation against
themselves through the provision of real evidence supported the constitutional-
ity of the provision rather than detracted from it. Moreover, the court empha-
sized that persons who are arrested on reasonable and probable grounds must
expect a significant loss of privacy:

He must expect that incidental to his being taken into custody he will be subjected
to observation, to physical measurement and the like. Fingerprinting is of that
nature. While some may find it distasteful, it is insubstantial, of very short dura-
tion, and leaves no lasting impression. There is no penetration into the body and
no substance is removed from it.rn

Thus, while there is doubtlessly a principle of fundamental justice relating to
invasive procedures, 178 the mere fact that the accused is forced to co-operate in
the adduction of real evidence is not, in and of itself, contrary to principles of
fundamental justice. By contrast, it would be recognized as absolute heresy
were someone to make a parallel remark about persons in custody having to
expect to be made to answer questions.

In rendering its decision, the Supreme Court of Canada had occasion to
look at the primary sources that one would turn to in attempting to discover the
principles of fundamental justice. The Court took an incomplete but sufficient
look at the extent to which common law and statute allowed the enforced par-
ticipation of accused persons in the obtainment of real evidence. Finding wide-
spread statutory support for the practice of fingerprinting in democratic coun-
tries’79 and broad common law support for this and analogous investigative
practices, 8’ the Court concluded that no principle of fundamental justice was
contravened. I would venture to suggest the same is true of other compelled,
non-invasive investigative procedures.

176Ibid. at 400.
1771bid. at 413. The Court even cited at 405, with apparent approval, the decision in Brown v.
Baugh and Williams (1982), 38 B.C.L.R. 1, [1982] 5 W.W.R. 644,70 C.C.C. (2d) 71 (C.A.), aff’d
[1984] 1 S.C.R. 192, 7 D.L.R. (4th) 193, [1984] 3 W.W.R. 577 to the effect that the common law
would permit the use of reasonable force in securing the fingerprints.
178The Supreme Court of Canada elected not to consider the issue in Dyment, supra, note 168
where blood samples were taken from an accused person, because the issue could be resolved using
the Charter’s search and seizure provision, section 8.

179Supra, note 172 at 406-07.
180The court at 403-04, referred to bodily searches incident upon arrest for real evidence, and
the observation of height, weight and natural or artificial marks on the body to be used for iden-
tification purposes. To this list could have been added statutory provisions authorizing the taking
of breath samples, the production of licences and permits and the like, and enactments requiring
the production of documents upon subpoena.

1989]

SELF-INCRIMINATION

In R. v. Racette,’8 the Saskatchewan Court of Appeal had occasion to con-
sider whether a statutory provision’82 permitting the obtainment of blood sam-
ples from suspected impaired drivers contravened section 7 of the Charter.
Although it is a case that could have been resolved on the basis of section 8 of
the Charter, or according to the section 7 principle of fundamental justice
against the conduct of invasive procedures,’83 the reasoning of Vancise J.A. for
the majority engages in a broader analysis which has some semblance of the
principle of the absence of pre-trial obligation. His Lordship concluded that the
accused’s right to security of the person included “the public interest in being
left alone, as manifested by the individual interest in being secure against a
requirement to provide a sample of bodily substance for the purpose of analy-
sis…”.. He then concluded that section 7 was contravened by the impugned
statute since it deprived persons of their security of the person in a manner that
was not in accord with the principles of fundamental justice; the procedural
safeguards associated with the section failed to provide for prior judicial
authorization.

Notwithstanding the language used in the decision, the Racette case cannot
be counted as an endorsement of the principle of the absence of pre-trial obli-
gation. This is because Vancise l.A., through the mode of analysis he employed,
left the principle without any substantive protection. He did this by concluding
that the “interest in being left alone” was part of the right to “the security of the
person”. This being so, there would be a Charter violation only if that “interest
in being left alone” (the absence of pre-trial obligation) was denied in a way that
was inconsistent with the principles of fundamental justice. Naturally, what His
Lordship then focussed upon were procedural questions relating to the way in
which the interest in being left alone was compromised. It follows that had the
procedures employed by the statute been acceptable, there would have been no
problem with compromising the interest in being left alone. By treating the
absence of pre-trial obligation as an aspect of security of the person and not as
constituting one of the principles of fundamental justice, the judgment left the
principle of the absence of pre-trial obligation without substantive protection.8 5

‘I8 Supra, note 163.
8 2Provided for in the Vehicles Act, 1983, S.S. 1983, c. V-3.1, s. 168(6), as am., S.S. 1983-4, c.
1
20.

183His Honour laid the groundwork for this analysis at 278 by citing Re Laporte and R. (1972),
29 D.L.R. (3d) 651, 18 C.R.N.S. 357, 8 C.C.C. (2d) 343 (Sask. C.A.), and the common law right
of persons to refuse to provide blood samples.

s’4Supra, note 163 at 282.
185A similar approach appears to have been taken in the case of R. v. Legere (1988), 43 C.C.C.
(3d) 503 at 513 (N.B.C.A.) where it was held that the forcible taking of hair samples from the head
of an accused “in the absence of legislation authorizing such acts, is an infringement of the right
to security of the person” and contravenes section 7 of the Charter. If the approach in these cases
proves correct it will effectively render useless any substantive principles relating to protection
against invasive procedures.

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E. Section 24(2)

It is in the context of section 24(2) that a mutant principle has developed,
obscuring the important distinction between testimonial self-incrimination, on
the one hand, and the obtainment of real evidence through the enforced partic-
ipation of the accused person, on the other. In the case of R. v. Collins”8 6 Lamer
J., for the Court, created a distinction between evidence, the admission of which
would affect the fairness of the trial, and evidence, the admission of which
would not. According to this distinction, where the admission of the evidence
would undermine the fairness of the trial it ought almost automatically to be
excluded. In defining when the admission of evidence obtained in the shadow
of a constitutional violation would render the trial unfair, s7 the Court began by
keying in on, and indeed articulating, the principle against self-incrimination.
Speaking of how it was the nature of the evidence and not so much its manner
of obtainment that determined whether its admission would cause the trial to
become unfair Lamer J. said:

Real evidence that was obtained in a manner that violated the Charter will rarely
operate unfairly for that reason alone. The real evidence existed irrespective of the
violation of the Charter and its use does not render the trial unfair. However, the
situation is very different with respect to cases where, after a violation of the
Charter, the accused is conscripted against himself through a confession or other
evidence emanating from him. The use of such evidence would render the trial
unfair, for it did not exist prior to the violation and strikes at one of the fundamen-
tal tenets of a fair trial, the right against self-incrimination. 88

For the most part, then, the distinction that His Lordship drew appears to be the
principled one that I have argued for in this paper, and, for the reasons given
above I am thoroughly persuaded by the view that self-incriminatory statements
ought to be excluded much more readily than real evidence. Yet, even this pas-
sage in Collins presaged that the distinction of principle that would ultimately
be drawn would not rest completely on the principle against self-incrimination.
Lamer J. employed the phrase, “or other evidence emanating from him”, and to
illustrate it, cited the Therens s9 case which involved the compelled provision by
the accused of a species of real evidence, a breath sample. In subsequent cases
in developing the “unfair trial” distinction the Court moved away from discus-
sions about self-incrimination and focussed on the broader question of whether
the accused was “conscripted against himself”; in other words, the question

‘ 6Supra, note 89.
187In light of the decision in R. v. Strachan, [1988] 2 S.C.R. 980, [1989] 1 W.W.R. 385 it is no
longer accurate to speak of constitutionally obtained evidence when referring to section 24(2)’s
exclusionary reach. The Court in that case held that the unconstitutional act need not cause the dis-
covery of the evidence for it to be subject to section 24(2) exclusion.

’88Supra, note 89 at 284.
’89Ibid. at 275ff. commenting on Therens, supra, note 158.

19891

SELF-INCRIMINATION

became whether the principle of the absence of a pre-trial obligation had been
infringed.

In R. v. Pohoretsky”9′ this criterion was employed to buttress a decision to
exclude the results of a blood sample where the blood was taken from the
accused. The Court emphasized that the effect of the extraction and analysis of
the accused’s blood “was to conscript the appellant against himself”.’9
Subsequently, in the case of Leclair and Ross v. R., 92 the category of evidence
whose admission would render the trial unfair was extended even beyond “other
evidence emanating” from an accused. In Ross the accused were made to par-
ticipate in a police line-up despite the fact they had not yet successfully con-
tacted counsel. In deciding to exclude the evidence of the line-up identification,
Lamer I. said, for the Court:

In Collins we used the expression “emanating from him” since we were concerned
with a statement. But we did not limit the kind of evidence susceptible of render-
ing the trial process unfair to this kind of evidence. I am of the opinion that the
use of any evidence that could not have been obtained but for the participation of
the accused in the construction of the evidence for the purposes of the trial would
render the trial process unfair.’ 93

Despite the language employed in the earlier decision of Collins,9
this new
articulation represents a clear rejection of the principle against self-
incrimination as the basis for distinction in determining whether the admission
of evidence will effect the fairness of the proceedings. 95 Moreover, this new
articulation represents a clear embrace of Ratushny’s principle of the absence of
a pre-trial obligation as one of the primary indicia in exclusionary decisions. It
gives that principle a life it never had, for it will be recalled that at common law,
unlike the principle against testimonial self-incrimination, the principle of the
absence of pre-trial obligation did not have the vitality necessary to cause the
exclusion of evidence; at most it disallowed the drawing of adverse inferences
in some cases.

I have said enough to make the point that the “fairness of the trial” distinc-
tion employed by the Supreme Court of Canada has lost the thread. It is also
worth noting, however, that the Court’s approach to section 24(2) produces a
curious result. Section 24(2) jurisprudence, dealing with a remedial provision of
the Charter, takes much of its content from the principle of the absence of a pre-
trial obligation, while the substantive provisions of the Charter leave it with

19Supra, note 167.
’91Ibid. at 949.
192Supra, note 161.
193Ibid. at 16.
19’Supra, note 89.
195After all, in Marcoux, supra, note 49 at 773-74, the Court rejected the view that self-

incrimination considerations were relevant to the conduct of a line-up.

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[Vol. 35

precious little protection. In the result, courts will be able to vindicate the prin-
ciple only where there is some other coincidental Charter violation upon which
to base the section 24(2) jurisdiction.

Conclusion

The question of whether the Charter adequately protects the principle
against self-incrimination turns upon the interpretation of section 7. Because of
textual limitations, even together sections 11(c), 13 and 10(b) cannot do the job.
The thing which has prevented section 7 from qualifying already as the clear
refuge for this essential principle is the contention that the principle against self-
incrimination does not affect the admissibility of evidence obtained in informal
settings, a view which, despite its frequent repetition, does not reflect accurately
the state of the law. In contrast, the principle of pre-trial obligation has received
more than its due in the context of section 24(2) authority. This latter develop-
ment is troublesome, not only because it provides what I would argue is an
overly agressive exclusionary rule, but also because it threatens the recognition
of the principle against self-incrimination as a principle of fundamental justice.
Unless a clear line is drawn between compelled admissions and the enforced
participation in the production of real evidence, the costs of recognizing a prin-
ciple against self-incrimination might appear too great to tolerate. A unitary
principle like the principle of the absence of pre-trial obligation would threaten
the conduct of line-ups, and the compelled provision of breath and blood sam-
ples. If the scope of the relevant principle is confined, on the other hand, to tes-
timonial evidence, it will appear far less threatening, for it will be a familiar
doctrine, one that we have lived with, despite representations to the contrary, for
a number of years.

Self-Incrimination: Removing the Coffin Nails

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