Right Against Self-Crimination

From Criminal Law Notebook

General Principles

See also: Principles of Fundamental Justice

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

Purpose

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".[1]

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".[2]

Silence at Investigative Stage

The right begins only after the suspect is detained and not anytime before.[3]

An accused person has the right to remain silent at the investigative as well as the trial stage of a prosecution.[4]

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.

Accused Not Required to Cooperate in Prosecution

No person will be compelled to assist the state in his own prosecution unless by statute.[5]

Where it is required under statute, it does not mean that the evidence given can necessarily be used in a prosecution against the accused.[6]

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".[7] This includes drawing adverse inferences of credibility against the accused.[8]

Select Waiver

The right exists in relation to certain matters even where the accused decides to speak about other matters.[9]

State Agency

A psychologist who receives a spontaneous confession is not a state agent.[10]

No Prohibition on 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 volunariness remains.[11]

No Application to Third-parties

Voluntary statements to third parties such as cellmates does not invoke the right to silence.[12] An exception to this is made where the statement to a cellmate is actively elicited by undercover members.[13]

  1. ↑ Griswald, Professor Erwin N. (1955) The Fifth Amendment Today, Harvard University Press, Cambridge. Cited in: Thomas, Hon. Mr JusticeE.W. (1991) “The So-Called Right to Silence”, New Zealand Universities Law Review, vol. 24, p 314
  2. ↑ Edson Haines, Studies in Canadian Criminal Evidence, R. Salhany and R. Carter ed. (Toronto: Butterworths, 1972), at 322
  3. ↑ R v Hebert, [1990] 2 SCR 151, 1990 CanLII 118 (SCC), per McLachlin J
  4. ↑ R v WL, 2015 ONCA 37 (CanLII), per Speyer JA, at para 18
    Chambers, supra, at para 50
    R v Collins, Collins, [1987] 1 SCR 265, 1987 CanLII 84 (SCC)(complete citation pending) - first recognition of right to silence in interview
  5. ↑ RJS v The Queen, 1995 CanLII 121 (SCC), [1995] 1 SCR 451
    R v Turcotte, 2005 SCC 50 (CanLII), [2005] 2 SCR 519, per Abella J
    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")
  6. ↑ R v Jarvis, [2002] 3 SCR 757, 2002 SCC 73 (CanLII), per Iacobucci and Major JJ
  7. ↑ WL, supra, at para 18
    R v Creighton, 1995 CanLII 138 (SCC), [1995] 1 SCR 858, per Sopinka J, at para 38
  8. ↑ R v Palmer, 2008 ONCA 797 (CanLII), per curiam, at para 9
  9. ↑ WL, supra, at para 19
    R v GL, 2009 ONCA 501 (CanLII), per Blair JA, at para 39
  10. ↑ R v Gallup, 2004 ABCA 322 (CanLII), per Fruman JA
    see also Charter Applications#State Agent
  11. ↑ Hebert, supra
  12. ↑ Hebert, supra
  13. ↑ Hebert, supra

Constitution

This right is a principle of fundamental justice under s. 7 of the Charter.[1] 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".

  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."
    R v Hebert, [1990] 2 SCR 151, 1990 CanLII 118 (SCC), per McLachlin J - first recognition of protection under s. 7 of Charter, stating that "[t]he essence of the right to silence is that the suspect be given a choice; the right is quite simply the freedom to choose -- the freedom to speak to the authorities on the one hand, and the freedom to refuse to make a statement to them on the other.")
    R v Chambers, 1990 CanLII 47 (SCC), [1990] 2 SCR 1293, per Cory J

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]

The right consist of the following:[3]

  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.[4]

The right does not include the right to silence at the trial stage of the process.[5]

Purpose of Right to Silence

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.[6]

It is considered a "manifestation of the presumption of innocence".[7]

When is Right Engaged

The determination of whether the right to silence is on an objective standard.[8]

Pre-trial Silence

Pre-trial silence cannot be used as positive evidence of guilt.[9] Nor can it be used to incriminate the accuse or impeach their credibility.[10]

Extent of Right

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.[11] However, there is no common law power of a Peace Officer to determine identity. It must be derived from legislation.[12]

There is no duty on the part of the accused to assist in any way with the prosecution.[13]

Duration of the Right

The right to silence is engaged at the point that the accused is detained.[14]

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.[15]

Who are the Applicable State Actors

The right to silence relates to authorities including agents of the state and undercover police.[16]

Duties of State Actors

The police do not have a constitutional obligation to provide a detainee a caution of his right to silence.[17]

The application of the right with respect to undercover officers depends on whether the officer merely "observed" the statement or "actively elicited" the statement.[18]

Permissible Police Conduct

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".[19] The persuasive technique must maintain the "critical balance ... between individual and societal interests.".[20]

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.[21]

Permissible Crown Counsel Conduct

The crown may cross-examine on post-arrest silence where the accused makes it an issue at trial.[22] However, limiting instructions must be given.[23]

Extinguishment of Right

The right can be extinguished by waiver.[24]

The right to silence is not extinguished when an accused speaks to an officer with respect to some matters but not others.[25]

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.[26]

  1. ↑ See discussion in Thomson Newspapers Inc. v Canada, 1990 CanLII 135 (SCC), [1990] 1 SCR 425, at pp. 599-601
  2. ↑ Section s. 7 includes the "right to silence" as a Principles of Fundamental Justice as stated in R v Hebert, 1990 CanLII 118 (SCC), [1990] 2 SCR 151, per McLachlin J
    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 Darrach, [2000] 2 SCR 443, 2000 SCC 46 (CanLII), per Gothier, at para 54 ("The accused specifically objects to having to submit the affidavit on the grounds that it compels him to reveal his defence and to disclose evidence he hopes to call at trial. He claims that this violates his right to silence. The right to silence in s. 7 properly speaking comprises the right to silence before trial and the privilege against self-incrimination at trial; it is inaccurate to speak of an absolute right to silence at the trial stage of the criminal process")
  4. ↑ see also R v Broyles, 1991 CanLII 15 (SCC), [1991] 3 SCR 595, per Iacobucci J
    Hebert, supra, at para 47
    R v Liew, 1999 CanLII 658 (SCC), [1999] 3 SCR 227, per Major J
  5. ↑ Darrach, supra, at para 54
  6. ↑ Broyles, supra, at para 22
  7. ↑ Broyles, supra
    Hebert, supra
    R v Chambers, 1990 CanLII 47 (SCC), [1990] 2 S.C.R. 1293(complete citation pending)
  8. ↑ Hebert, supra ("The test to determine whether the suspect’s choice has been violated is essentially objective")
  9. ↑ R v Crawford, 1995 CanLII 138, per Sopinka J, at para 38
  10. ↑ R v Turcotte, 2005 SCC 50 (CanLII), per Abella J, 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), per LaForme JA, at pp. 114-19
    R v Palmer, 2008 ONCA 797 (CanLII), per curiam, at para 9
    R v Rohde, 2009 ONCA 463 (CanLII), per Laskin JA, at para 18
  11. ↑ R v Autio (M.), 1994 CanLII 9170 (AB QB), (1994), 159 A.R. 167 (ProvCt), per Davie J
  12. ↑ R v Gagné, 1989 CanLII 57 (SCC), [1989] 1 SCR 1584, per Lamer J
  13. ↑ R v Stinchcombe, [1991] 3 SCR 326, 1991 CanLII 45 (SCC), per Sopinka J, at p. 333
    R v MBP, 1994 CanLII 125 (SCC), per Lamer CJ, at p. 578
  14. ↑ Hebert, supra
  15. ↑ R v Chambers, 1990 CanLII 47 (SCC), [1990] 2 SCR 1293, 80 CR (3d) 235, per Cory J at 256
  16. ↑ Broyles, supra
  17. ↑ Liew, supra
    R v Van Den Meerssche, [1989] BCJ No. 2366 (BCCA), 1989 CanLII 7133 (BC CA), per Wallace JA
  18. ↑ Liew, supra
    Hebert, supra
  19. ↑ Hebert
  20. ↑ R v Singh, 2007 SCC 48 (CanLII), [2007] 3 SCR 405, per Charron J
  21. ↑ Singh, ibid.
  22. ↑ WL, supra
    R v MCW, 2002 BCCA 341 (CanLII), per Huddart JA
    See also Cross-Examinations
  23. ↑ MCW, ibid.
  24. ↑ Liew, supra
  25. ↑ R v GL, 2009 ONCA 501 (CanLII), per Blair J, at para 39
    R v WL, 2015 ONCA 37 (CanLII), per Speyer J, at para 19
    R v JS, 2018 ONCA 39 (CanLII), per Roberts JA, at para 51
  26. ↑ R v Ross, [1989] 1 SCR 3, 1989 CanLII 134 (SCC)(complete citation pending)

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 be 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 WL, 2015 ONCA 37 (CanLII), per Speyer J, at para 18
    R v Palmer, 2008 ONCA 797 (CanLII), per curiam, at para 8
  2. ↑ R v Prokofiew, 2012 SCC 49 (CanLII), per Moldaver J, at paras 20 to 21
  3. ↑ R v Noble, 1997 CanLII 388 (SCC), [1997] 1 SCR 874
  4. ↑ Noble, ibid.
  5. ↑ R v Miller (1998), 131 CCC (3d) 141 (Ont. C.A.), 1998 CanLII 5115 (ON CA), per Charron JA
  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), per curiam
    R v Cuff (1989), 49 CCC (3d) 65 (NLCA), 1989 CanLII 182 (NL CA), per Goodridge CJ

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, per McLachlin J
  2. ↑ R v Graham, 1991 CanLII 7134 (ON CA), (1991), 1 O.R. (3d) 499, per Finlayson JA
  3. ↑ Hebert, supra

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), per Abella J, 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, per Iacobucci J
  2. ↑ R v Moussavi, 2016 ONCA 924 (CanLII), per MacPherson JA, at para 23
  3. ↑ R v Potts, 2010 ABPC 143 (CanLII), per Van de Veen J

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, per Moldaver J

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, per Sopkina J, at para 35
  2. ↑ Martineau v M.N.R. 2004 SCC 81 (CanLII), [2004] 3 SCR 737, per Fish J

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


– 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 depend on the nature of the prior evidence, the circumstances of the case, and the efficacy of adequate jury instructions.[5]

Requirements

Section 13 is engaged when an "incriminating" discovery transcript that was compelled 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 an 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, per Iacobucci J
  2. ↑ R v Dubois, 1985 CanLII 10 (SCC), [1985] 2 SCR 350, per Lamer J
  3. ↑ R v Bari, 2006 NBCA 119 (CanLII), per Deschênes JA
  4. ↑ R v Henry, 2005 SCC 76 (CanLII), [2005] 3 SCR 609, per Binnie J
    cf. Dubois, supra
  5. ↑ R v Noël, 2002 SCC 67 (CanLII), [2002] 3 SCR 433, per Arbour J
  6. ↑ R v Nedelcu, 2012 SCC 59 (CanLII), per Moldaver J
    R v White, [1999] 2 SCR 417, 1999 CanLII 689 (SCC), per Iacobucci J (6:1)
  7. ↑ Nedelcu, supra, at para 30
  8. ↑ R v Fitzpatrick, [1995] 4 SCR 154, 1995 CanLII 44 (SCC), per La Forest J
    White, supra
  9. ↑ Marcoulx And Solomon v The Queen, 1975 CanLII 10 (SCC), [1976] 1 SCR 763, per Dickson J - accused's participation in a line-up
  10. ↑ R v Henry, 2005 SCC 76 (CanLII), [2005] 3 SCR 609, per Binnie J
  11. ↑ See s. 487.016

See Also

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