Right Against Self-Crimination

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General Principles

The right against self-crimination protects an accused from cooperating in their own conviction and abuse by state power. This right is a principle of fundamental justice under s. 7 of the Charter.[1]

An accused person has the right to remain silent at the investigative and trial stage of a prosecution.[2]

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

No person will be compelled to assist the state in his own prosecution unless by statute.[3]

The exercise of the right to silence cannot generally be used for any "positive evidence to infer guilt".[4] This includes drawing adverse inferences of credibility against the accused.[5]

The right exists in relation to certain matters even where the accused decides to speak about other matters.[6]

  1. section 7 states "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."
  2. R v WL, 2015 ONCA 37 (CanLII) at para 18 per Speyer JA
    R v Chambers, 1990 CanLII 47 (SCC), [1990] 2 SCR 1293, at para 50 per Cory J
  3. R.J.S. v The Queen, 1995 CanLII 121 (SCC), [1995] 1 SCR 451
    R v Turcotte, 2005 SCC 50 (CanLII), [2005] 2 SCR 519
    R v MBP, [1994] 1 SCR 555, 1994 CanLII 125 (SCC), (5:4) per Lamer CJ for Majority at para 36 ("Perhaps the single most important organizing principle in criminal law is the right of an accused not to be forced into assisting in his or her own prosecution")
  4. WL, supra at para 18
    R v Creighton, 1995 CanLII 138 (SCC), [1995] 1 SCR 858 at para 38
  5. R v Palmer, 2008 ONCA 797 (CanLII) at para 9
  6. WL, supra at para 19
    R v GL, 2009 ONCA 501 (CanLII) at para 39 per Blair JA

Procedure

Upon arrest the peace officer should inform the accused of their right to silence and right against self-crimination protected under section 7 and section 11(c) of the Charter.

The script read to the accused will go something like the following:

POLICE WARNING:
I wish to give you the following warning: You need not say anything. You have nothing to hope from any promise or favour and nothing to fear from any threat whether or not you say anything. Anything you do say may be used as evidence.

Do you understand?


Secondary Caution

Where there had been previous communication between the police and accused prior to the reading of the first police warning, the police will usually provide what is called a "secondary caution" or "warning" that informs the accused that nothing said by the police prior to the first warning should influence the accused in the decision to make a statement. This is to avoid the tainting and exclusion of potential statement as "derived statements" following a previously involuntary statement.[1]

The script read is similar to the following:

SECONDARY POLICE WARNING:
I wish to give you the following warning: You must clearly understand that anything said to you previously should not influence you or make you feel compelled to say anything at this time. Whatever you felt influenced or compelled to say earlier, you are now not obliged to repeat, nor are you obliged to say anything further, but whatever you do say may be given as evidence.

Do you understand?


For details on the admissibility of Admissions and Confessions see Admissions and Confessions.

  1. See Voluntariness for details

Right to Silence

See also: Right to Counsel

The "right to silence" originates from the common law.[1] It is a constitutional right under s. 7 and s. 11(c).[2] It includes the right to choose whether to make a statement to authorities.[3]

Pre-trial silence cannot be used as positive evidence of guilt.[4] Nor can it be used to incriminate the accuse or impeach their credibility.[5]

There is no duty on the part of the accused to assist in anyway with the prosecution.[6] The purpose of the right to silence is to "limit the use of the coercive power of the state to force an individual to incriminate himself", it is not simply to protect a person from incriminating himself per se.[7]

The right to silence is engaged at the point that the accused is detained.[8]

The right to silence extends throughout the proceedings. It includes preparation of the defence wherein the accused does not have any obligation to reveal the defence evidence at any point before calling evidence.[9]

The right to silence relates to authorities including agents of the state and undercover police.[10]

The right can be extinguished by waiver.[11]

The police do not have a constitutional obligation to provide a detainee a caution of his right to silence.[12]

The application of the right with respect to undercover officers depends on whether the officer merely "observed" the statement or "actively elicited" the statement.[13]

The right to silence does not extend to a right to conceal one's identity. A peace officer has a right to inquire into the identity, including name, date of birth, and place of residence of a person who is under investigation.[14] However, there is no common law power of a Peace Officer to determine identity. It must be derived from legislation.[15]

The determination of whether the right to silence is on an objective standard.[16]

The use of persuasion "short of denying the suspect the right to choose or of depriving him of an operating mind, does not breach the right to silence".[17] The persuasive technique must maintain the "critical balance ... between individual and societal interests.".[18]

A police officer's persistent questioning where the accused has asserted his right to silence will not necessarily result in a violation of that right.[19]

The right to silence is not extinguished when an accused speaks to an officer with respect to some matters but not others.[20]

The crown may cross-examine on post-arrest silence where the accused makes it an issue at trial.[21] However, limiting instructions must be given.[22]

  1. See discussion in Thomson Newspapers Inc. v Canada, 1990 CanLII 135 (SCC), [1990] 1 SCR 425 at p. 599-601
  2. Section s. 7 includes the "right to silence" as a Principles of Fundamental Justice as stated in R v Hebert, [1990] 2 S.C.R. 151
    Section 10(c) provides "11. Any person charged with an offence has the right ... (c) not to be compelled to be a witness in proceedings against that person in respect of the offence;"
  3. R v Broyles 1991 CanLII 15 (SCC), [1991] 3 SCR 595
    R v Hebert 1990 CanLII 118 (SCC), [1990] 2 SCR 151 at para 47
    R v Liew, 1999 CanLII 658 (SCC), [1999] 3 SCR 227
  4. R v Crawford, 1995 CanLII 138 at para 38
  5. R v Turcotte, 2005 SCC 50 (CanLII) at para 48
    R v Poirier (2000), 2000 CanLII 3294 (ONCA), per Borins JA, at para 18 ( “when it is the accused whose testimony is being impeached, an allegation that he or she did not speak out, or give an explanation of his or her conduct, at an early opportunity, conflicts with his or her right to remain silent”)
    R v Rivera, 2011 ONCA 225 (CanLII), at paras. 114-19
    R v Palmer, 2008 ONCA 797 (CanLII), at para. 9
    R v Rohde, 2009 ONCA 463 (CanLII), at para. 18
  6. Stinchcombe, [1991] 3 SCR 326, 1991 CanLII 45 (SCC), at p. 333
    R v MBP, 1994 CanLII 125 (SCC) at p. 578
  7. Broyles, supra at para 22
  8. Hebert, supra
  9. R v Chambers, 1990 CanLII 47 (SCC), [1990] 2 SCR 1293, 80 CR (3d) 235 at 256
  10. Broyles, supra
  11. Liew, supra
  12. Liew, supra
    R v Van Den Meerssche, [1989] BCJ No. 2366 (BCCA)(*no link)
  13. Liew, supra
    Hebert, supra
  14. R v Autio (M.), 1994 CanLII 9170 (AB QB), (1994), 159 A.R. 167 (ProvCt)
  15. R v Gagné 1989 CanLII 57 (SCC), [1989] 1 SCR 1584
  16. Hebert, supra ("The test to determine whether the suspect’s choice has been violated is essentially objective")
  17. Hebert
  18. R v Singh, 2007 SCC 48 (CanLII), [2007] 3 SCR 405
  19. Singh, ibid.
  20. R v GL, 2009 ONCA 501 (CanLII) para 39
  21. R v W.L., 2015 ONCA 37 (CanLII)
    R v MCW, 2002 BCCA 341 (CanLII)
  22. MCW, ibid.

Accused's Choice Not to Testify

See also: Credibility#Failure to Call Witnesses

When assessing an accused’s credibility, the judge is “prohibited from using the silence of an accused as a basis for drawing an adverse inference as to credibility”.[1]

Inferences
The right to silence generally prohibits drawing a negative inference from the fact that he chose not to testify. The failure to testify itself, cannot be used as evidence of anything.[2]

No inferences of guilt may be drawn from the fact that the accused failed to testify. The exercise of the right to silence is neither inculpating or exculpatory. [3] The only exception is where the accused advances an alibi defence. In such a case the trier-of-fact may draw a negative inference from the accused's failure to testify.[4]

Section 4(6) of Evidence Act
Section 4(6) of the Evidence Act operates separately from the rule against negative inferences.[5] Section 4(6) states:

4... Failure to testify
(6) The failure of the person charged, or of the wife or husband of that person, to testify shall not be made the subject of comment by the judge or by counsel for the prosecution.
R.S., 1985, c. C-5, s. 4; R.S., 1985, c. 19 (3rd Supp.), s. 17; 2002, c. 1, s. 166.


[http:// CEA]

Section 4(6) is not violated where the judge provides instructions affirming the existence of the accused's right to silence.[6] However, the reference to any failure to testify cannot by necessary implication leave the impression that the failure to testify amounts to evidence and can be used to infer guilt.[7]

In a joint trial with two or more accused, one accused may comment on another Accused's failure to testify or give a statement as long as it does not render the trial unfair.[8]

  1. R v W.L., 2015 ONCA 37 (CanLII) at para 18
    R v Palmer, 2008 ONCA 797 (CanLII) at para 8
  2. R v Prokofiew, 2012 SCC 49 (CanLII) at paras 20 to 21
  3. R v Noble, 1997 CanLII 388 (SCC), [1997] 1 SCR 874
  4. Noble
  5. R v Miller (1998), 131 CCC (3d) 141 (Ont. C.A.), 1998 CanLII 5115 (ON CA)
  6. Prokofiew, supra, at para 3
  7. Prokofiew, supra, at paras 20-21
  8. R v Unger (1993), 83 CCC (3d) 228 (Man. C.A.), 1993 CanLII 4409 (MB CA)
    R v Cuff (1989), 49 CCC (3d) 65 (NLCA), 1989 CanLII 182 (NL CA)

Statements to Undercover Officers

An undercover officer cannot "actively elicited information" from the accused without violating their s. 7 right to silence.[1]

Statements that are spontaneous will not violate the right to silence.[2] The police conduct must not "subvert" the accused's rights.[3]

  1. R v Hebert, 1990 CanLII 118 (SCC), [1990] 2 SCR 151
  2. R v Graham, 1991 CanLII 7134 (ON CA), (1991), 1 O.R. (3d) 499
  3. Hebert

Obligation to Speak to Police and Compelled Statements

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

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

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

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

Statements Compelled by Statute

Certain provincial traffic legislation compels the driver to describe the collision on demand. The statement given may still be admissible depending on "whether, at the time that the accident was reported by the driver, the driver gave the report on the basis of an honest and reasonably held belief that he or she was required by law to report the accident to the person to whom the report was given.".[1] Factors to consider include whether the driver had a subjective belief that they were giving a statement under compulsion or not.[2]

A compelled statements to social services may not be admissible in a criminal trial.[3]

  1. R v White, 1999 CanLII 689 (SCC), [1999] 2 SCR 417
  2. R v Moussavi, 2016 ONCA 924 (CanLII) at para 23
  3. R v Potts, 2010 ABPC 143 (CanLII)

Failure of a Co-Accused to Testify

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

  1. R v Prokofiew, 2012 SCC 49 (CanLII), [2012] 2 SCR 639

Compellability of the Accused

Section 11(c) of the Charter states:

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

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

...


CCRF

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

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

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

  1. a person is compelled to testify in a proceeding;
  2. the proceeding in against the person;
  3. it is regarding an offence.
  1. R v Amway Corp., 1989 CanLII 107 (SCC), [1989] 1 SCR 21, at para 35, per Sopinka J.
  2. Martineau v M.N.R. 2004 SCC 81 (CanLII), [2004] 3 SCR 737

Self-crimination by Testimony in Prior Proceedings

The accused has a constitutional right not to have their testimony in a prior proceeding be used to incriminate them in a criminal proceedings.[1]

This right is protected under s. 13 of the Charter and prior to the introduction of the Charter, under s. 5(2) of the Canada Evidence Act.

Section 13 of the Charter states:

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


CCRF

Section 5 of the Canada Evidence Act states:

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


CEA

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

Section 13 is intended to protect a person from being indirectly compelled to incriminate themselves.[2] This only applies to testimonial evidence and not documents.[3] It does not apply to those who chose to testify at a retrial.[4]

Under s. 13, the accused may only be cross-examined on the testimony from a prior proceeding where the judge is satisfied that there is "no realistic danger" that the prior testimony will incriminate the accused. The danger will depends on the nature of the prior evidence, the circumstances of the case, and the efficacy of adequate jury instructions.[5]

Section 13 is not engaged when a non-incriminating discovery transcript is used to impeach the accused's credibility.[6] In this context, incriminating evidence is any evidence which if admitted, would "prove or assist in proving one or more of the essential elements of the offence for which the witness is being tried".[7]

There are four factors to consider whether a person's right against self-incrimination has been violated by statutory requirements to provide statements: [8]

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

This right does not generally cover an accused's conduct.[9]

The crown cannot admit into evidence as part of its case a transcript of the accused prior testimony in a trial. This would be an indirect manner of compelling the accused's testimony.[10]

Documents prepared by that individual pursuant to a order of production under 487.012 cannot be used against that person in criminal proceedings unless for perjury or related offences.[11]

  1. e.g. R v White, 1999 CanLII 689 (SCC), [1999] 2 SCR 417
  2. R v Dubois, 1985 CanLII 10 (SCC), [1985] 2 SCR 350
  3. R v Bari 2006 NBCA 119 (CanLII)
  4. R v Henry, 2005 SCC 76 (CanLII), [2005] 3 SCR 609
    c.f. Dubois
  5. R v Noël, 2002 SCC 67 (CanLII), [2002] 3 SCR 433
  6. R v Nedelcu, 2012 SCC 59 (CanLII)
  7. Nedelcu at para 30
  8. R v Fitzpatrick, [1995] 4 SCR 154, 1995 CanLII 44
    R v White [1999] 2 SCR 417, 1999 CanLII 689
  9. Marcoulx And Solomon v The Queen, 1975 CanLII 10 (SCC), [1976] 1 SCR 763 - accused's participation in a line-up
  10. R v Henry, 2005 SCC 76 (CanLII), [2005] 3 SCR 609
  11. See s. 487.016

See Also