Right Against Self-Crimination

This page was last substantively updated or reviewed June 2022. (Rev. # 96056)

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General Principles

The right against self-crimination and right to silence protects an accused from cooperating in their own conviction and abuse by state power.

The right rise from the common law and section 7 of the Charter.

The right consist of the following:

1. the right to silence before trial and
2. the "privilege against self-crimination".

It also includes the right to choose whether to make a statement to authorities.

The right to silence is not absolute and will cede to other interests including other Charter values.

Start of the Right

The right is not "engaged" on detention by police. It exists at any point of contact.

Source and Purpose

This right is a principle of fundamental justice under s. 7 of the Charter. This right is also part of the protections found in s. 11(c) of the Charter which states that "[a]ny 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".

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.

The exercise of silence cannot be used as a "sword" from which an inference of guilt may be drawn. Nor can it amount to a "snare" or "delusion."

It is considered a "manifestation of the presumption of innocence."

The "right to silence" originates from the common law. It is a constitutional right under s. 7 and s. 11(c).

The right to silence has been described as "an expression of one of the fundamental decencies in the relationship we have developed between government and man."

Critics have described it as "the greatest obstacle to efficient criminal law enforcement" that "contributes to the high success ratio of crime", "frustrates police, comforts criminals and encourages disrespect for the law."

Contents of Right

Accused Not Required to Cooperate or Participate in Prosecution

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

Where it is required under statute, it does not mean that the evidence given can necessarily be used in a prosecution against the accused.

There is no duty on the part of the accused to assist in any way with the prosecution.

No Negative Inferences to Refusal to Cooperate

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

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

Violation of Right

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

Requests by Police

It is possible for police to request that the accused participate in a line-up or polygraph, however, it may be necessary the person be permitted to access counsel before participating.

Silence Prior to Investigation

The right not have silence be used against the accused includes a prohibition on attacking credibility for not contacting police after making observations.

Silence at Investigative Stage

The right begins only after the suspect is detained and not anytime before.

An accused person has the right to remain silent at the investigative as well as the trial stage of a prosecution.

Silence at the Trial Stage

The right to silence does not include full silences at the trial stage of the process.

"Testimonial silence" cannot give rise to an inference of guilt. However, testimonial silence will permit the trier of fact--when faced with uncontradicted evidence of guilt beyond reasonable doubt--to find that the accuseed failed to provide reason to conclude otherwise.

Accused Cannot be Forced to Testify

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 Obligation to Reveal Defence Evidence

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.

Agency

State Agency

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

A psychologist who receives a spontaneous confession is not a state agent.

Duties of State Actors

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

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

"Active elicitation" exists where the agent is actively seeking out information in a manner akin to an interrogation.

For active elicitation to exist there is no need to show:

• an atmosphere of oppression;
• the undercover lied;
• the undercover permitted himself to be misidentified; or
• the undercover engaged in subterfuge.

Exceptions

Alibi

It is well established that the main exception to the right is with an alibi defence.

Permissible Crown Counsel Conduct

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

Permissible Police Conduct and Questioning

The right to silence does not limit the police's right to question a suspect after they have had access to counsel. There is no restriction on the use of reasonable persuasion techniques so long as voluntariness remains.

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." The persuasive technique must maintain the "critical balance ... between individual and societal interests.."

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. The question is always whether the accused still had the choice to say nothing.

No Application to Third-parties

Voluntary statements to third parties such as cellmates do not invoke the right to silence. An exception to this is made where the statement to a cellmate is actively elicited by undercover members.

No Application to Protect Suspect Identity

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. However, there is no common law power of a Peace Officer to determine identity. It must be derived from legislation.

No Application to Lies to Police

An accused who chooses to lie to police can be used by the Crown.

It can be used for the purpose of establishing identity. And for assessing credibility.

Waiver

Select Waiver

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

Extinguishment of Right

The right can be extinguished by waiver.

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

Accused's Choice Not to Testify

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”.

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.

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. 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.

However, in certain cases the decision not to testify to provide an innocent explanation to his conduct can have the effect of "undermin[ing] the alternative inferences" available on the evidence.

Section 4(6) of Evidence Act

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

4
[omitted (1), (2), (3), (4) and (5)]

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; 2014, c. 25, s. 34, c. 31, s. 27; 2015, c. 13, s. 52.

– CEA (CanLII), (DOJ)

---

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

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.

Police 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?

– {{{2}}}

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.

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?

– {{{2}}}

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

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.

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

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. A failure to do so may result in prejudice to the accused.

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.." Factors to consider include whether the driver had a subjective belief that they were giving a statement under compulsion or not.

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

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.

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.”

Section 11(c) is invoked where:

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

Self-crimination by Testimony in Prior Proceedings

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

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

Section 13 of the Charter states:

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

– CCRF

---

Section 5 of the Canada Evidence Act states:

Incriminating questions

5
[omitted (1)]

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.
R.S., 1985, c. C-5, s. 5; 1997, c. 18, s. 116.

– CEA (CanLII), (DOJ)

---

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. This only applies to testimonial evidence and not documents. It does not apply to those who chose to testify at a retrial.

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 depend on the nature of the prior evidence, the circumstances of the case, and the efficacy of adequate jury instructions.

Requirements

Section 13 is engaged when an "incriminating" discovery transcript that was compelled is used to impeach the accused's credibility. 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."

Factors

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

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.

Not Cover Conduct

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

Not Cover Records

The protections of s. 13 does not extend to incriminatory documents such as business records.

Transcripts of Accused Testimony

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.

Documents

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

See Also

• Compelled Admissions
• Charter Applications