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UNIVERSITY OF VICTORIA, FACULTY OF LAW
Untied Hands The evolution of the principle of self-incrimination and its potential for use in prosecutions of police
misconduct
Ethan Plato
Submitted as a Major Paper for the Criminal Law Term
3/11/2016
This is a Draft Paper. It is made available to Community CLE registrants. This paper should not be distributed to others without the author’s express opinion.
1
Contents Introduction ..................................................................................................................................... 2
PART I: Examination of the Law ................................................................................................... 3
A. History .............................................................................................................................. 3
B. Leading Supreme Court of Canada Cases ........................................................................ 8
R v Fitzpatrick......................................................................................................................... 8
R v White .............................................................................................................................. 10
R v Jarvis and R v Ling......................................................................................................... 13
C. Current state of the law .................................................................................................. 14
PART II: Analysis......................................................................................................................... 16
A. Application by courts ..................................................................................................... 16
Cluster 1: Regulatory offences with documentary testimony ............................................... 17
Cluster #2: Spontaneous responses to State Agents ............................................................. 19
B. Conclusions/Practice Tips .............................................................................................. 21
(1) The more regulated the environment and sophisticated the party, the less likely the
exclusion ............................................................................................................................... 22
(2) Statutorily compelled documentary testimony has a high likelihood of inclusion
absent use immunity ............................................................................................................. 23
(3) Public interest is a significant overriding force of the principle against self-
incrimination ......................................................................................................................... 23
PART III: Application to Police Accountability .......................................................................... 25
A. Canvassing of case law in this area ................................................................................ 26
Use of Force Reports, police notes, and other documentary evidence ................................. 26
Compelled Statements .......................................................................................................... 30
B. Case Study on Body Cameras ........................................................................................ 31
Hypothetical fact pattern ....................................................................................................... 31
Analysis................................................................................................................................. 32
Conclusion .................................................................................................................................... 36
2
Introduction
Under examination is the principle against self-incrimination as it relates to statutorily
compelled testimony in Canada. While there are self-incrimination guarantees found in sections
10 and 13 of the Charter,1 this work is focused on the residual protection found under section 7.
Far from being an ironclad constitutional principle, its application is heavily contextual and its
scope has evolved over the last twenty years. This paper will examine cases where the principle
against self-incrimination is balanced against the principle that the trier of fact has all relevant
evidence before them. Consideration is given to the common law roots of privilege against self-
incrimination, the post-Charter interpretation of that privilege as a principle of fundamental
justice by the Supreme Court, and an analysis of the decisions of trial courts.
Three conclusions are drawn: (1) the more regulated the environment and sophisticated
the party, the less likely the exclusion; (2) statutorily compelled documentary testimony has a
high likelihood of inclusion absent use immunity; and (3) public interest is a significant
overriding force to the principle against self-incrimination. With this framework, the principle
against self-incrimination is considered in the context of police officers charged with criminal
offences. A hypothetical case study is undertaken involving a police-involved death that is
recorded on a statutorily mandatory body camera worn by the officer under investigation. The
conclusion is reached that such compelled testimony would be admissible in a criminal
investigation against that officer.
1 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada
Act 1982 (UK), 1982, c 11.
3
PART I: Examination of the Law A. History
The historical origins of the principle against self-incrimination are nearly as inconsistent
as its application in Canadian jurisprudence. Understanding the roots of the principle will help to
situate the discussion on its modern use. Examining the common law history also is necessary
because the protections afforded to individuals in the Charter do not explicitly protect against the
use of statutorily compelled testimony. The protection under s.7 is residual, as a principle of
fundamental justice, to those already found in s.11(c) and 13.2 A more fulsome description of the
law will follow this historical examination.
Before going any further however, an important distinction needs to be drawn between
the privilege and principle against self-incrimination. Lamer CJ described the difference in
Jones3:
The principle is a general organizing principle of criminal law from which particular
rules can be derived (for example, rules about non-compellability of the accused and
admissibility of confessions). The privilege is merely one rule that has been derived
from the principle. When the protection against self-incrimination is limited to the
privilege against self-incrimination, then the underlying rationale for the various
common law rules protecting against self-incrimination is lost and principled
decisions about particular cases as they arise become impossible. It is therefore
important to bear in mind throughout this judgment that it is the principle against
self-incrimination and not the privilege for which I am claiming status as a principle
of fundamental justice.4
With that in mind, the Supreme Court of Canada’s preferred line on the origin of the principle
against self-incrimination is this statement from Wigmore on Evidence:
2 R v Fitzpatrick, [1995] 4 SCR 154, 1995 CanLII 44 (SCC) at para 21 [Fitzpatrick].
3 R v Jones, [1994] 2 SCR 229, 1994 CanLII 85 (SCC) at pp 248-249 [Jones].
4 Ibid at pp 249-250.
4
…the individual is sovereign and … proper rules of battle between government
and individual require that the individual…not be conscripted by his opponent to
defeat himself…5
The roots of this privilege come from the maxim Nemo tenetur prodere seipsum, which
translates to “no one is obliged to accuse himself.”6 It was relied on by Christians of Europe who
sought to make confessions to priests without risk of criminal prosecution. Later, in the 1600s
the Nemo tenetur maxim was relied on by Puritans wishing not to participate in inquisitorial
courts of the High Commission and Star Chamber in England.
Political tensions culminated in 1641, with Parliament abolishing both courts and
prohibiting the ecclesiastical courts from forcing accused persons to testify through a procedure
called an Ex Officio Oath.7 Wigmore’s point of view was that “a decided effect [was] produced,
and [was] immediately communicated, naturally enough, to the common law courts.”8 Langbein
challenges this assumption, and argues that there was a shift from an “accused speaks” trial to a
“testing the prosecution” trial that, and that the latter is at the heart of the modern formulation of
the privilege.9 Until defence counsel became more common, the only way an accused could
present a case was if they spoke themselves. Given the thinking of the day with regards to
punishment, the alternative was certain death. Accordingly, most accused spoke at their trials.
5 Wigmore on Evidence, vol 8 (McNaughton rev 1961), §2251, at p 318 as quoted in Jones.
6 John Langbein, “The Privilege and Common Law Criminal Procedure: The Sixteenth to the Eighteenth Centuries”
in R Helmholz, “The Privilege Against Self-Incrimination: It’s Origins and Development” (Chicago: University of
Chicago Press, 1997) at p 100 [Langbein]. 7 Ibid, p 101
8 Ibid, p 102
9 Ibid, p 100. A more fulsome discussion of why Wigmore was wrong about the precise origins of the privilege’s
migration to the common law courts is outside the scope of this paper, but is persuasive.
5
With the increased ‘lawyerization’ of the trial process,10
accused persons spoke less and the
system more closely resembled the adversarial system recognizable to many today.
The impact of this misinterpretation of the moment the privilege started becoming an
essential element of the criminal trial may be significant. What is reproduced below are the last
two of Wigmore’s justifications and his conclusion, as quoted and emphasized by Justice Wilson
in Thomson Newspapers:
(11) The privilege prevents torture and other inhumane treatment of a human
being.
(12) The privilege contributes toward a fair state-individual balance by
requiring the government to leave the individual alone until good cause is
shown for disturbing him and by requiring the government in its contest with
the individual to shoulder the entire load.
Wigmore favoured the last two of these policy justifications, stating at p. 318:
In summary, it should be reiterated that the policy underpinning the privilege is
anything but clear and it can be noted that the privilege is in fact used for all
sorts of reasons, most of them having little or no relation to any tenable theory
as to its purpose. The significant purposes . . . are two: The first is to remove
the right to an answer in the hard cores of instances where compulsion might
lead to inhumanity, the principal inhumanity being abusive tactics by a zealous
questioner (Reason (11) supra). The second is to comply with the prevailing
ethic that the individual is sovereign and that proper rules of battle between
government and individual require that the individual not be bothered for less
than good reason and not be conscripted by his opponent to defeat himself
(Reason (12), supra.) 11
(Emphasis in original)
Justice Wilson then came to her own conclusion:
10
This started in the 1730s and being effectively universal by the 1830s: Albert Alschluer, “A Peculiar Privilege in
Historical Perspective” in R Helmholz, “The Privilege Against Self-Incrimination: It’s Origins and Development”
(Chicago: University of Chicago Press, 1997) at p 194 [Alschluer]. 11
Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices
Commission), [1990] 1 SCR 425, 1990 CanLII 135 (SCC) at p 478 [Thomson Newspapers].
6
Having reviewed the historical origins of the rights against compellability and
self-incrimination and the policy justifications advanced in favour of their retention
in more modern times, I conclude that their preservation is prompted by a concern
that the privacy and personal autonomy and dignity of the individual be respected by
the state. The state must have some justification for interfering with the individual
and cannot rely on the individual to produce the justification out of his own
mouth. Were it otherwise, our justice system would be on a slippery slope towards
the creation of a police state.12
Though Wilson J wrote in dissent in that case, her endorsement of the preferred justifications
was subsequently incorporated in the current statement of the law. In Jones, Lamer CJ
concluded:
The modern-day rationale for the principle against self-incrimination is found in the
two fundamental purposes for the principle that have been recognized by this Court:
(1) protection against unreliable confessions; and (2) protection against the abuse of
power by the state.13
Later in Fitzpatrick, these twin rationales were affirmed.14
If one considers the modern rationale articulated by the Court in Jones with Wigmore’s
scholarship on the privilege, there is an important aspect of discord. Wigmore states that “the
privilege contributes toward a fair state-individual balance by requiring the government to leave the
individual alone until good cause is shown for disturbing him”15
(emphasis added). By leaving the
balancing aspect out of the rationale, the Court appears to have made the principle stand for
something stronger than it actually was intended to be. Indeed, the confusing judgement in Thomson
Newspapers16
was relied upon by appellant in Fitzpatrick to stand for a “broad, abstract principle
12
Ibid, at p 480. 13
Jones, at p 250. 14
Fitzpatrick, at para 43. 15
Thomson Newspapers, p 478. 16
201 pages long, with multiple dissents on different aspects of the questions before the Court.
7
against self-incrimination as a principle of fundamental justice under s. 7.”17
Instead, in R v S (RJ)
Iacobucci J used his discretion within s.7 to balance the interests of one principle against another:
I begin this inquiry by asserting that any rule demanded by the principle against self-
incrimination which places a limit on compellability is in dynamic tension with an
opposing principle of fundamental justice. That is the principle which suggests that,
in a search for truth, relevant evidence should be available to the trier of fact.18
Heureux-Dubé J (Gonthier J concurring) wrote a spirited dissent concerning the over-expansion of
the common law principle:
In summary, when objections are made to the constitutionality of evidence obtained
through breathalyzers, fingerprinting, searches, or compelled production of
documents, those objections are only recognized under the Charter in so far as they
address the manner in which that evidence was obtained. Objections to the fact that
such evidence may be gathered, and to the fact that the individual was compelled to
assist in its production, are not recognized under the Charter. With all due respect, I
believe that the fact that such evidence exists and is constitutionally permissible is
mute yet powerful testimony that the operating principle against self-incrimination is
not as broad as my colleague suggests.19
(emphasis added)
As such, she concluded that, “unlike my colleague, I do not see the operative principle against
self-incrimination to be in "dynamic tension" with other fundamental principles of our legal
system.”20
Indeed, and as Heureux-Dubé J mentioned, there are many examples where we accept the
state forcing an accused to provide compelled information. Commentators have long criticized a
blanket privilege against self-incrimination. 21
Perhaps a broad, rigid rule against self-
incrimination is too blunt of an instrument for the delicate balancing of state and individual
17
Fitzpatrick, at para 21. 18
R v S (RJ), [1995] 1 S.C.R. 451, 1995 CanLII 121 (SCC), at p 517-518 [S(RJ)]. 19
Ibid, at p 598. The decision was split 5:4. 20
Ibid, p 598. 21
See, for example Steven Penny, “What’s Wrong with Self-Incrimination? The Wayward Path of Self-
Incrimination Law in the Post-Charter Era, Part III: Compelled Communications, the Admissibility of Defendants’
Previous Testimony, and Inferences from Defendants’ Silence” (2003-2004) 48 Crim LQ 474.
8
interests. Not surprisingly, as set out below, the Court’s enthusiastic embrace and broadening of
this principle has diminished in recent years. Or, as others have said,22
the principle once
described as “the single most important organizing principle in criminal law”,23
was reduced to a
principle of “limited scope”.24
B. Leading Supreme Court of Canada Cases
R v Fitzpatrick
Fitzpatrick is the first of a string of three Supreme Court of Canada decisions that address
the issue of statutorily compelled statements and the principle against self-incrimination. The
facts are straight -forward. The appellant was a commercial fisherman subject to the authority of
the Fisheries Act25
and required under s.61 of that Act to submit fishing logs and hail reports to
authorities. At trial, the Crown sought to adduce their fishing logs and hail reports as evidence.
The trial judge excluded them on the basis of the principle against self-incrimination in s.7 of the
Charter. The Court of Appeal reversed this decision and admitted the evidence. The Supreme
Court considered the case, and sided with the Court of Appeal.
In considering the appeal, La Forest J (writing for the Court) considered the principles of
fundamental justice in the context of a self-reporting requirement in the regulatory sphere. He
squarely rejected the appellant’s argument for a broad, abstract principle against self-
22
Lisa Dufraimont “The Patchwork Principle against Self-Incrimination under the Charter” (2012) 57 SCLR (2d)
241; see also David Stratas, “R v B(SA) and the Right Against Self-Incrimination: A Confusing Change of Direction”
(2004) 14 CR 227. 23
R v P(MB), [1994] 1 SCR 555, 1994 CanLII 125 (SCC) at p 577. 24
R v SAB, [2003] 2 SCR 678 (SCC), 2003 SCC 60 (CanLII) at para 57. 25
RSC 1985.
9
incrimination.26
The Court clarified that it was not helpful to pronounce such a statement, but
that:
Instead, we must begin “on the ground”, as it were, with a concrete and contextual
analysis of the circumstances raised before us, and the ways in which concerns
about self-incrimination may or may not be legitimate.27
The Court stressed the importance of situating the appeal in its regulatory context, stating that “in
evaluating [its] constitutionality, we must be careful to keep the interests of both the individual
and society in mind.”28
La Forest looked at two factors to come to the conclusion that the appellant’s s.7 rights
did not extend to the case before him: the lack of an adversarial relationship and the lack of
coercion.29
For the first factor, he considered the relationship between the accused and the state
at the time of the compulsion. He concluded that far from being adversaries, the two were
actually partners “joined together in the need (1) to protect the fishery as a valuable resource
through conservation measures and (2) to fairly allocate the fish that do exist between all those
who seek to have access to them.”30
He relied on a second factor more heavily. Contrasted to other cases like Thomson
Newspapers, where individuals were compelled to testify on pain of contempt, the appellant in
Fitzpatrick had a choice to enter into this regulatory arena. Indeed, “free and informed consent is
the essence of the relationship between the state and the individual in this context.”31
La Forest J
26
Fitzpatrick, at para 21. See above discussion about the residual protections under s.7, contrasted with a more
American model of an absolute right against self-incrimination. 27
Ibid, at para 25. 28
Ibid, at para 27. 29
Ibid, at para 34 30
Ibid, at para 36 31
Ibid, at para 37
10
noted the “licensing argument” from Wholesale Travel.32
In that case, the Court justified
subjecting regulatory actors to a lower standard of fault than for true crimes by virtue of their
presumption to have known and accepted the terms and conditions of the regulatory sphere. The
appellant in Fitzpatrick likewise was found to have made a free choice to enter into a highly
regulated sphere, was licensed, and was always “free to resign from the commercial fishery, and
thereby to be released from this obligation.”33
In the end, Fitzpatrick stands for a limitation of the
principle against self-incrimination in a highly regulated sphere, especially when there is
documentation compelled for the management of that regulated arena, and certainly when no
investigation has been initiated. Taken together with the next case, Fitzpatrick represents one
pole in the field or continuum of the principle against self-incrimination.
R v White
The circumstances in White34
were quite different. The accused in that case was charged
with failing to stop at the scene of an accident, contrary to section 252(1) of the Criminal Code
of Canada.35
At issue was the question whether statements made by the accused to the police
were statutorily compelled under section 61 of the Motor Vehicle Act36
and therefore
inadmissible at the criminal trial. The accused had three conversations with police. The first was
her call to report the accident, her second was with an officer who attended her home, and the
third was after she received legal advice that same day. The trial judge excluded all statements
on the view that they were procured in violation of section 7. The Crown appealed. The BC
Court of Appeal split 2:1 on the issue, with the majority following the decision of the trial judge.
32
[1991] 3 SCR 154, 1991 CanLII 39 (SCC) [Wholesale Travel]. 33
Fitzpatrick, para 41. 34
[1999] 2 SCR 417, 1999 CanLII 689 (SCC) [White]. 35
RSC 1985, c C-46 [Criminal Code]. 36
RSBC 1979, c 288.
11
The Supreme Court ruled that all three conversations were made under compulsion of the Motor
Vehicle Act and therefore not admissible in the accused criminal trial.
Iaccobucci J writing for the majority, began the judgment by re-stating that the principle
against self-incrimination found in s.7 does not provide “absolute protection for an accused
against all uses of information that has been compelled by statute or otherwise.”37
He went on to
describe the residual protections s. 7 as “specific, and contextually-sensitive.”38
He then
considered Fitzpatrick and identified the following four factors present in that case: (1) the lack
of real coercion by the state in obtaining the statements; (2) the lack of an adversarial
relationship between the accused and the state at the time the statements were obtained; (3) the
absence of an increased risk of unreliable confessions as a result of the statutory compulsion; and
(4) the absence of an increased risk of abuses of power by the state as a result of the statutory
compulsion.39
The facts of the case were then examined in the context of those factors, leading to a
different outcome than in Fitzpatrick. First, the majority contrasted driving and commercial
fishing, distinguishing the former that it was a “necessity of life.”40
Second, it was held that “the
provincial decision to vest the responsibility for taking accident reports in the police has the
effect of transforming what might otherwise be a partnership relationship into one that is
potentially adversarial.”41
Third, unlike the catch reports in Fitzpatrick, Iacobucci J found that
the mandatory accident report created a very real prospect of unreliable confessions by finding
37
White, at para 45 38
Ibid, at para 45. 39
Ibid, at para 51. 40
Ibid, at para 55. This reasoning seems inconsistent, considering the reasoning in Fitzpatrick. For many people
working in the commercial fishing sphere is a necessity of life, no more than driving. 41
Ibid, at para 58.
12
that a driver compelled to provide a statement in the presence of a police officer would
reasonably experience fear or prejudice, and that knowledge of use immunity for that statement
would assuage that fear.42
Fourth, the majority found a “real and serious” possibility of abuse of
state power, citing a strong incentive for police to over-emphasize the duty to report.43
The majority also clarified that to avail oneself of the principle, the accused must hold a
reasonable subjective belief in the compulsion. An accused who freely divulges information can
then not rely on s.7 protections they were unaware of:
The requirement that an honest belief be reasonably held is an essential
component of the balancing that occurs under s. 7. The application of the
principle against self-incrimination begins, and the societal interest in the
effective investigation and prosecution of crime is subordinated, at the moment
when a driver speaks on the basis of a reasonable and honest belief that he or she
is required by law to do so.44
Finally, Justice Iacobucci clarified that s.24(1) of the Charter was appropriate to use to
exclude evidence properly obtained but improperly used:
Although I agree with the majority position in Harrer, supra, that it may not be
necessary to use s. 24(1) in order to exclude evidence whose admission would
render the trial unfair, I agree also with McLachlin J.'s finding in that case that s.
24(1) may appropriately be employed as a discrete source of a court's power to
exclude such evidence. In the present case, involving an accused who is entitled
under s. 7 to use immunity in relation to certain compelled statements in
subsequent criminal proceedings, exclusion of the evidence is required. Although
the trial judge could have excluded the evidence pursuant to his common law duty
to exclude evidence whose admission would render the trial unfair, he chose
instead to exclude the evidence pursuant to s. 24(1) of the Charter. I agree that he
was entitled to do so.45
42
Ibid, at para 62. 43
Ibid, at para 64. 44
Ibid, at para 77. 45
Ibid, at para 89.
13
Taken together, the two cases appear to set out a contextual approach to the s.7
protections against self-incrimination. Placed on a spectrum, Fitzpatrick represented the anchor
point for inclusion of evidence in a regulatory investigation, and White represented the anchor
point for exclusion of evidence that is more clearly connected to criminal proceedings. There
appeared ample room between each for varying facts. However, subsequent cases have muddied
the relative clarity of the Fitzpatrick/White framework.
R v Jarvis and R v Ling
Jarvis46
(and Ling47
as a companion case) concerns tax audits and investigations. In
Jarvis, the accused was audited by the Canada Revenue Agency and the information provided to
the auditors led to the issuance of a search warrant. The accused was then charged under the
Income Tax Act.48
At issue before the Supreme Court of Canada was whether there was a
distinction between the Canada Customs and Revenue Agency’s (“CCRA”) audit and
investigative functions under the Income Tax Act. The Court answered:
Ultimately, we conclude that compliance audits and tax evasion investigations
must be treated differently. While taxpayers are statutorily bound to co-operate
with CCRA auditors for tax assessment purposes (which may result in the
application of regulatory penalties), there is an adversarial relationship that
crystallizes between the taxpayer and the tax officials when the predominant
purpose of an official's inquiry is the determination of penal liability.49
Notably, the Court did not use the four factors identified in White in its analysis. Instead, it
focused exclusively on the existence of an adversarial relationship. In determining that
relationship, the Court held that “where the predominant purpose of a particular inquiry is the
determination of penal liability, CCRA officials must relinquish the authority to use the
46
[2002] 3 SCR 757, 2002 SCC 73 (CanLII) [Jarvis]. 47
[2002] 3 SCR 814, 2002 SCC 74 (CanLII) [Ling]. 48
RSC 1985. 49
Jarvis, at para 2.
14
inspection and requirement powers under ss. 231.1(1) and 231.2(1)”,50
In the Court’s words,
“officials 'cross the Rubicon' when the inquiry in question engages the adversarial relationship
between the taxpayer and the state.”51
C. Current state of the law
Christopher Sherrin analyzed the decisions of White, Fitzpatrick, and Jarvis and offered
this commentary on the state of the law:
Jarvis and Ling seem to significantly alter the law based on White and Fitzpatrick.
Jarvis and Ling suggest that admissibility of compelled statements is dependent
on one factor: the presence or absence of an adversarial relationship (which is
determined by the state's predominant purpose). White and Fitzpatrick, on the
other hand, state that admissibility is dependent on four factors, only one of which
is the presence or absence of an adversarial relationship. Even though Jarvis and
Ling were criminal cases, this change presumably impacts Fitzpatrick as much as
White. White adopted and applied the reasoning of Fitzpatrick, so any impact of
Jarvis and Ling on White rebounds to the application of Fitzpatrick. The bottom
line after Jarvisand Ling, therefore, may be that compelled statements are
sometimes admissible in criminal trials — namely, where they were compelled
for regulatory purposes and not for the predominant purpose of determining penal
liability — and, conversely, that compelled statements are sometimes
inadmissible in regulatory trials — namely, where they were compelled for the
predominant purpose of determining penal liability.
The law in practice, however, seems to be different. Courts subsequent to Jarvis
and Ling have not treated the cases as determinative. In considering the
admissibility of compelled statements in both criminal and regulatory trials,
courts have usually ignored Jarvis and Ling and only considered Fitzpatrick
and/or White (with typical results), although they have sometimes ignored
Fitzpatrick and/or White and only considered Jarvis, applied all three cases
serially, or sought (in an unhelpful way) to distinguish Jarvis and Ling or
Fitzpatrick. As the law has developed, therefore, Jarvis and Ling do not seem to
have significantly changed the impact of White and Fitzpatrick. At least outside of
50
Ibid, para 88. 51
Ibid, para 88.
15
the tax context, the state seems to be only able to use compelled statements
against those accused of regulatory offences.52
In the recent case of R v Kelly53
the Newfoundland Provincial Court canvassed the above
cases, and agrees with Sherrin about the limited scope of Jarvis. It pointed to Justice Karakatanis’
dissent in Hart54
as a strong indicator that the White/Fitzpatrick factors remain good law. What
follows is a comprehensive statement of the law from Kelly:
In summary, the principles applicable to determining if a statement made by an accused
person was compelled in violation of the right to silence and thus subject to use immunity, are
as follows:
(1) the onus of proof rests with the accused and is on a balance of probabilities55
(2) if the accused faces the potential of imprisonment the use of statutorily compelled
information engages section 7 of the Charter;56
(3) the principle against self-incrimination seeks to protect against unreliable
confessions and to protect against the abuse of power by the state;57
(4) the principle against self-incrimination is not absolute and does not absolutely
prohibit the subsequent use of information that has been obtained by compulsion,
against an accused person;58
(5) determining when the right against self-incrimination will prevent the subsequent
use of compelled information against an accused ("use immunity") involves a
contextual analysis which requires a balancing of the interests of the individual and
those of society;59
(6) this balancing includes as a consideration that relevant evidence should be
available to the trier of fact in the search for truth;60
(7) the principle against self-incrimination demands different things at different times,
with the task in every case being to determine exactly what the principle demands,
if anything, within the particular context at issue;61
(8) for use immunity to apply the information must have been obtained by
compulsion;62
(9) the test for compulsion involves determining whether there was a denial of free and
informed consent;63
52
Christopher Sherrin, “Distinguishing Charter Rights in Criminal and Regulatory Investigations: What’s the
Purpose of Analyzing Purpose?” (2010) 48 Alta L Rev 93 at pp 99-100. Sherrin’s article is a useful look at the
‘predominant purpose’ test as it relates to regulatory offences. 53
R v Kelly, [2014] NJ No 408, 2015 CarswellNfld 206 [Kelly]. 54
R v Hart, [2014] 2 SCR 544, 2014 SCC 52 (CanLII) [Hart]. 55
White at para 81. 56
Fitzpatrick at para 20. 57
Fitzpatrick at para 43. 58
White at para 45. 59
Fitzpatrick at para 27. 60
White at para 108. 61
R v S (RJ) at para 102. 62
White at para 172. 63
Ibid at para 53.
16
(10) an accused person seeking use immunity must establish that she or he provided the
information in issue based upon an honest and reasonably held belief that they were
required by law to provide the information; and64
(11) there are four factors which must be applied in determining if the admission of an
accused person's compelled statement will violate section 7's protection against
self-incrimination and thus be subject to use immunity:
a. was there an adversarial relationship between the accused and the
investigative agency at the time the statement was provided;
b. was there any coercion involved in the obtaining of the accused person's
statement;
c. is there a risk of unreliability as a result of the statutory compulsion; and
d. would permitting the use of the statement lead to an increased risk of abusive
state conduct.65
(12) The correct remedy for exclusion of statutorily compelled evidence is through
24(1) 66
of the Charter as it was not obtained in a way that offended the Charter67
PART II: Analysis A. Application by courts
Most of the trial decisions since Fitzpatrick and White have clustered around the two in
what has been called an “investigatory continuum for admissibility”68
with each case
representing a point. Where there is a highly regulated arena with a sophisticated actor and
where the evidence tends to be created much before an adversarial relationship is formed,
admissibility has generally flowed. Where there has been a more fluid blending of criminal
investigation and compulsion, courts have been reluctant to admit. This section canvasses
different recent trial and appellate decisions across Canada, and draws out conclusions and trends
of potential use to practitioners in this corner of the law.
64 No matter what the accused thinks, if it was not actually required then the held belief cannot be said to be
reasonable: R v Frazer, 2011 BCSC 983 at para 53 [Frazer]. In other words, an person who believes they are duty
bound to testify (no matter how reasonable that belief may be), will not be protected if no such duty exists in reality 65
White at para 51. 66
White at para 89. 67
Kelly at para 193, modified by this author to include the authorities for each principle. 68
R v Rizvi, 2014 ONCJ 404, [2014] OJ No 3985 at para 122 [Rizvi]. For a comprehensive list of factors favoring
both inclusion and exclusion, see paras 140 and 141.
17
Cluster 1: Regulatory offences with documentary testimony
There are a series of decisions that have similar facts to Jarvis: the evidence is generally
documentary, the actors have made a choice to engage in a highly regulated activity, and the
offence is regulatory in nature. Each of the following cases resulted in inclusion of the statutorily
compelled testimony at issue. This is a typical result,69
but as we will see with cases of police
misconduct in the next section, there are this is not an absolute rule.
First, in R v D’Amour70
the accused was a welfare recipient who neglected to declare
income she was receiving. This resulted in $14,000 in overpayments. The Crown’s case relied on
T4 tax statements submitted to the Canada Revenue Agency to prove her failure to report
income. Doherty JA for the Ontario Court of Appeal concluded that there was no need to do a s.7
analysis because “documents that exist prior to, and independently of, any state compulsion do
not fall under the protection of the principle against self-incrimination (even if a person is legally
compelled to produce those documents to the state)”71
(emphasis added). This statement does not
stand for a hard rule regarding all previously existing documents, as the document in question in
this case was a T4 statement submitted to the CRA from the accused’s employer. The Supreme
Court also reviewed this particular issue, holding that it did not “stand for the proposition that a
warrant is not required for a regulatory authority to transfer material to law enforcement officers
— and that this empowers the officers to examine the transferred materials without a warrant.”72
69
Sherrin (note 50) comes to a similar conclusion on cases of this nature. 70
[2002] OJ No 3103, 2002 CanLII 45015 (ON CA). 71
Ibid, at para 43. 72
R v Cole, 2012 SCC 53, [2012] 3 SCR 34.
18
Even so, in Labrador Sea Products73
a search of a crab processing plant by Department
of Fisheries officers, copies of documents were made were not excluded under s.7. While there
was no risk of imprisonment in that case, the trial judge nonetheless commented that the
documents “were all business records, obviously created prior to the inspection, and all created
in the context of a highly regulated industry”74
The Court notes that the appellant were “all freely
participating in the fishing industry, are aware of the regulated nature of the industry, and in
some cases the obligation to create records.”75
The Alberta Court of Appeal has recently pushed this cluster even further. It appears that,
even in circumstances that may lead to future criminal charges, statutory compulsion of
testimony and documents can pass muster. In Beaudette v Alberta (Securities Commission)76
the
accused was facing compulsion under of the Alberta Securities Act.77
Section 42 gave the
Alberta Securities Commission (“ASC”) the authority to compel: (1) the attendance of witnesses
for investigations under s.41; (2) to give evidence under oath or affirmation; and (3) to provide
information and documents as part of the investigation. Section 46 allowed the Executive
Director of the ASC to share information with “law enforcement agencies and other
governmental or regulatory authorities in Canada and elsewhere” if they considers that “it would
not be prejudicial to the public interest to do so”.78
In challenging the constitutionality of those provisions, the appellant contended that the
ASC could share information compelled under the Securities Act with authorities in the United
73
Labrador Sea Products v Her Majesty the Queen, 2008 NLTD 167 [Labrador]. 74
Ibid, para 53. 75
Ibid, para 53. 76
2016 ABCA 9 [Beaudette]. 77
RSA 2000, c. S-4 [Securities Act]. 78
Beaudette, para 1.
19
States, which could lead to criminal sanctions in that country. The Alberta Court of Appeal had
this to say:
The fact that evidence that might be useful in the courts of a foreign rule of law
democracy with which Canada has friendly relations may become easier for that
foreign state’s authorities to locate or acquire because of the operation of a
Canadian law does not make the Canadian law per se the author or sponsor of an
infringement of s 7 of the Charter.79
In the end, the court held that the appellant failed to make out his claim for a generalized or
specific breach of his s.7 rights. Here we see the Alberta Court of Appeal pushing hard for the
limitation of the principle against self-incrimination in the highly regulated world of securities.
Cluster #2: Spontaneous responses to State Agents
The second string of cases have facts similar to White in that they generally involve a
state actor asking questions to a suspect/accused. At issue is if the questions are made under
compulsion of a statute, and if the suspect is answering in response to that compulsion.
In R v Rice80
the accused and two others were stopped by a conservation officer to
determine if the party had been hunting pursuant to his authority under s.95 of the Wildlife Act81
.
The trio had shot a moose and in the course of the conversation the officer asked, “who shot it?”
The accused answered, “I did”. The Court examined the Fitzpatrick factors, focusing on the
number one and two. First, it concluded that the accused was voluntarily participating in a highly
regulated activity (hunting), much like the fisherman in Fitzpatrick.82
As for the second factor
(adversarial relationship), the Court distinguished the questioning from White:
79
Ibid, at para 46. 80
2009 BCCA 569 [Rice]. 81
RSBC 1996, c 488. 82
Rice, at para 61.
20
In White the officer interrogated Ms. White for dual purposes. He conscripted
information for the purpose of the criminal investigation as well as for compliance
with the Motor Vehicle Act reporting requirements. Here, the predominant
purpose of the inquiry was to determine compliance with, and if necessary
enforcement of, the Wildlife Act. These facts are closer to Fitzpatrick than
White.83
In my view, the circumstances of White and Rice are very similar on the existence of an
adversarial relationship. The distinction that a criminal investigation being enough of a dual
purpose to justify engaging the protection when a conservation officer’s questioning does not is
difficult to reconcile. This decision could represent the tightening of the scope of the principle
against self-incrimination from its widest during White to its subsequent narrowing into the
2000s.84
That trend is also evident in R v Frazer.85
In that case, the accused was involved in a
motor vehicle accident. After police attended the scene, an officer approached the respondent
and asked who was driving the vehicle. The Crown sought to adduce the evidence of the
respondent’s affirmative response, and the trial judge excluded it based on the White factors. On
appeal to the BC Supreme Court, the court held that the accused belief that they were compelled
to answer a question by an officer after an accident was not sufficient to engage s.7 in the
absence of any real compulsion.86
The decision turned on the technical interpretation of s.84 of
the Motor Vehicle Act87
. As s.61 (the broad requirement to report on which White had been
based) had recently been repealed, the accused had to rely on the more restricted powers of
compulsion that an officer has.
83
Ibid, at para 62. 84
See the Dufraimont and Stratas articles at footnote 22 above for more on this point. 85
See note 62. 86
The previous section (s.61) that was the subject of White was repealed in 2008, a short time before the events at
issue in this case occurred. 87
RSBC 1996, c 318.
21
The principle does still exist to protect individuals from self-incrimination though. In R v
Choy,88
the accused foster parent was afforded protection under s.7 for statements she made.
Under their care, a foster child became seriously ill and taken to hospital. In the course of
seeking consent from the province for surgery to, the accused spoke on the phone with a crisis
centre run by the provincial government. The Crown sought to adduce those statements as
evidence in the accused’s criminal trial. At trial, the Judge analyzed the Fitzpatrick factors and
the issue turned on the adversarial relationship at the time the statements were made. In holding
that the circumstances were much closer to White than Fitzpatrick, the trial judge noted: “The
foster mother is not merely making routine reports such as obtaining authority to buy winter
clothing or non-prescription drugs for a child.”89
A similar result came down in R v Porter.90
In that case, the Alberta Court of Appeal held
that compelled statements of both an accident report per the Traffic Safety Act91
and insurance
reports per the Insurance Act92
were inadmissible. The Court also ruled that the compelled
statements could not also be used as grounds for a warrant.93
This is a strong indication that in
cases that are squarely analogous to White, s.7 protection is still robust.
B. Conclusions/Practice Tips
Having explored the historical origins of the principle against self-incrimination, its
modern importation into Canadian jurisprudence, and its evolution through trial and appellate
decisions, we can now draw conclusions and identify trends. Three conclusions will be explored:
88
2009 ABQB 343. 89
Ibid, para 27. 90
2015 ABCA 279 [Porter]. 91
RSA 2000, c T-6. 92
RSA 2000, c I-3. 93
Porter, at para 27. In reaching this conclusion, the Court of Appeal of Alberta relied on the appellate decisions of
R v Soules, 2011 ONCA 429, leave denied [2011] SCCA No 375 and R v Powers, 2006 BCCA 454, leave denied
[2006] SCCA No 452.
22
(1) the more regulated the environment and sophisticated the party, the less likely the exclusion;
(2) statutorily compelled documentary testimony has a high likelihood of inclusion absent use
immunity; and (3) public interest is a significant overriding force of the principle against self-
incrimination.
(1) The more regulated the environment and sophisticated the party, the less likely the
exclusion
The combination of the rationales for the principle against self-incrimination94
and the s.7
balancing of the principle against self-incrimination with the principle that in a search for truth,
relevant evidence should be available to the trier of fact95
mean that highly regulated, highly
sophisticated actors will rarely be afforded protection under s.7. This is even stronger when there
is documentary evidence of high reliability rather than compelled testimony. Working in the
background of this analysis are the four Fitzpatrick factors. As we have seen above though, in
spheres like securities regulation—and taxation to an extent—the needs of the regulatory state’s
truth seeking functions override the principle against self-incrimination. Further, this compelled
testimony can be used in prosecution, regulatory or criminal. Justice La Forest’s assertion that
“the Charter was not meant to tie the hands of the regulatory state”,96
supports this conclusion.
This is especially true for crimes that are incredibly hard to prosecute without some form of
evidence, like securities, tax fraud, chocolate price fixing97
and arguably police misconduct.98
This is also true when a party is sophisticated and making a choice to enter the field.99
94
(1) protection against unreliable confessions; and (2) protection against the abuse of power by the state: Jones. 95
S(RJ), at p. 517-18. 96
Fitzpatrick, para 29. 97
Yes, chocolate price fixing. See Treat Canada Limited v Leonidas, 2012 ONSC 464 for an interesting decision
regarding compulsion of a CEO in an American class action against chocolate companies. The Canadian
Commissioner of Competition was simultaneously involved as an invervenor in the American suit and prosecuting
the CEO for Competition Act related offences in Canada. The charges were eventually stayed in the fall of 2015: Jeff
23
(2) Statutorily compelled documentary testimony has a high likelihood of inclusion absent
use immunity
Documentary evidence is tricky. When it is clearly compelled and has a use immunity
provision under the compelling statute, 100
then it will likely not be admissible. Included in that is
the use of that inadmissible compelled testimony to form the basis on which a search warrant is
sought. In the absence of those circumstances, if a statute provides for its sharing, if collection is
done as part of an auditing function, or if it existed independently of compulsion, it may be
difficult to argue for exclusion, especially if there is little issue with reliability. Like the first
conclusion, this one operates with the Fitzpatrick factors running in the background, and the
contextual analysis required by that framework will mean that certain facts will run against these
observations.
(3) Public interest is a significant overriding force of the principle against self-
incrimination
In S(RJ), the Supreme Court held that the principle against self-incrimination was in
‘dynamic tension’ with the competing principle that relevant evidence should be available to the
trier of fact. In Fitzpatrick, the Court held that “In evaluating the constitutionality of this
procedure, we must be careful to keep the interests of both the individual and society in mind.” 101
Considering the developments in s.7 jurisprudence since 1995, this analysis may be out of date.
In Carter, the Supreme Court held:
In determining whether the deprivation of life, liberty and security of the person is
in accordance with the principles of fundamental justice under s. 7, courts are not
Gray, “Crown stays price-fixing charges against Nestlé, ex-CEO”, The Globe and Mail (18 November 2015), online
www.theglobeandmail.com. 98
As we will see in the case study, below. 99
The “licensing argument” from Wholesale Travel. See note 32. 100
Such as the Insurance Act or the Motor Vehicle Act. 101
Fitzpatrick, at para 27.
24
concerned with competing social interests or public benefits conferred by the
impugned law. These competing moral claims and broad societal benefits are
more appropriately considered at the stage of justification under s. 1 of the
Charter.102
The Court in Bedford and Carter clarified how s.7 and s.1 operate, displacing all social concerns
and government justification to the s.1 stage of a Charter analysis.103
Central to this evolution is
that the individual is best suited to prove their right is infringed, and the state is best positioned
to then justify it.104
But does Bedford stand for the proposition that all social analysis must be moved to s.1 to
the point that a contextual balancing of social and individual interests occurring within a
principle of fundamental justice must then be moved out of that principle? The language is stark:
“The question of justification on the basis of an overarching public goal is at the heart of s. 1, but
it plays no part in the s. 7 analysis, which is concerned with the narrower question of whether the
impugned law infringes individual rights.”105
On the other hand, the principle against self-incrimination necessarily involves that
balancing within its confines. Both the rationale from Jones and the analysis from Fitzpatrick in
the previous paragraph require it. The jurisprudence is clear106
that an on the ground, contextual
analysis is required, and that s.7 only offers a residual protection that does not stand for
102
Carter v Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331 at para 79 [Carter]. See also, Canada
(Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101 at paras 123 and 125 [Bedford]. 103
Bedford at para 126: “As a consequence of the different questions they address, s. 7 and s. 1 work in different
ways. Under s. 1, the government bears the burden of showing that a law that breaches an individual’s rights can be
justified having regard to the government’s goal. Because the question is whether the broader public interest
justifies the infringement of individual rights, the law’s goal must be pressing and substantial.” 104
Underlying this change was a concern that because the burden is on the right-seeker to prove a right was
infringed-upon, a debate about the public interest of that law would unfairly burden the individual when all they
really should have to prove is harm to them. 105
Bedford, at para 125. 106
See part 1 of this paper.
25
protection from compellability at all times. Addressing this very issue in Beaudette, the Alberta
Court of Appeal held:
While considerations of countervailing social interests outside of the legal
structure under consideration ordinarily belong within the s 1 of Charter analysis
rather than forming part of the delineation of the boundary of a principle of
fundamental justice for the purposes of s 7, even a recognized principle of
fundamental justice such as the privilege against self-incrimination in criminal
cases should not be so broadly defined as to amount to a vague generalization
about what our society considers to be some sort of a Marquess of Queensberry
rule governing investigations of misconduct by individuals in regulatory areas
directly affecting the public interest. Not everything those persons may know or
may possess is necessarily entitled to be privileged in the first place.107
Apparently unfazed, the Court appears to have taken Justice La Forest’s words to heart, and
appears very remiss to allow the Charter to tie the hands of the regulatory state.
Counsel should be alive to these concerns. The growing emphasis on the public interest
justification in upholding statutes that potentially offend the principle against self-incrimination
could prove incongruent with the Bedford understanding of the s.7. In running a case on either
side of an issue engaging this principle, one should be prepared to do battle both within the
principle itself, and (if it makes it there) later in s.1. And while a law that violates s.7 has never
been justified under s.1, the Supreme Court opened the door to that possibility wider than it has
ever been in Bedford.108
PART III: Application to Police Accountability
The final part of this paper will look at a string of cases involving the principle against
self-incrimination working in the discreet sphere of alleged police misconduct. Gathering
evidence and information on police misconduct is notoriously difficult. There is strong public
interest, high individual privacy and liberty interests at stake, and a complex regulatory
107
At para 44. 108
At para 127.
26
environment. It is with this arena that questions naturally arise as to the potential for statutory
compulsion of evidence from police, and any corresponding protections available to them under
section 7.
A. Canvassing of case law in this area
Use of Force Reports, police notes, and other documentary evidence
There is a string of cases out of Ontario that considers the question of statutorily
compelled testimony and police misconduct. The first is R v Wighton,109
which involved an
alleged assault by an on-duty police officer. The accused applied to exclude the ‘Use of Force’
report the officer was required to write pursuant to the Police Services Act.110
Ultimately, the
case turned on the history and rationale of the Government of Ontario for requiring Use of Force
reports, namely for training purposes and policy adjustment.111
As we will see, a clear indication
that certain compelled documentary could be used against an officer would likely result in
inclusion.
The second is R v Van Duzen112
which involved an accused charged with the assault of a
police officer that was arresting him. Mr. Van Duzen requested the Use of Force report written
by his arresting officer as part of their disclosure package. The Court held in this case that no
privacy interest attached to the report, and distinguished Wighton:
109
[2003] OJ No 2611, 13 CR 2003 CarswellOnt 2502. 110
RSO 1990, c P15 under section 14.5 of Regulation 926 RRO 1990, which states that that a police officer must file
a Use of Force Report whenever the officer:
(a) draws a handgun in the presence of a member of the public, or discharges a firearm;
(b) uses a weapon other than a firearm on another person; or
(c) uses physical force on another person that results in an injury requiring medical attention. 111
Ibid, at paras 14-22. 112
2006 ONCJ 429 [Van Duzen].
27
A major difference is that he could go to jail if convicted of a criminal offence or
face other penal ramifications. The officer is not the accused. The use of his report
to impeach him is no different from non-accused witnesses faced with their
compelled testimony at other proceedings. There is a huge distinction between the
report being used against the officer qua accused as opposed to as witness.113
The third is R v Schertzer,114
which involved the use of police notes in the subsequent
criminal trial of a Toronto Police officer. Judge Nordheimer admitted the notes after doing a full
analysis of the White/Fitzpatrick factors and distinguished the case before him from Wighton:
[35] It is distinguishable, at least in part, because police officers are required to
complete Use of Force reports for a very different reason from the ones that
underlie the requirement that they make notes. The evidence in Wighton was that
Use of Force reports are obtained solely for training and statistical purposes and
were intended to be destroyed within 30 days of their completion. This narrow
and limited purpose for the reports clearly, and understandably, coloured the
analysis in that case as to the use to which those reports could be put.
[36] Wighton is also distinguishable because there was an express commitment by
the Government not to use the reports against officers for disciplinary purposes —
similar to the disclaimer of use that was present in White. No such disclaimer is
present here.
[37] A further distinguishing feature is that in Wighton Madam Justice Weinper
found that there was a clear privacy interest in the contents of Use of Force
reports. Whether that finding is correct or not, I have already said that I see
minimal, if any, privacy interests in police officers' notes.115
The reasoning with regards to s.7 and the principle against self-incrimination and police notes
from Schertzer was wholeheartedly endorsed in R v Sandhu116
. It appears that the persuasive
power of Wighton has been limited to the narrow area (Use of Force reports) it concerned itself
with.117
113
Ibid, at para 123. 114
[2007] OJ No 3560, 2007 CarswellOnt 5901 [Schertzer]. 115
Ibid, at paras 35-37. 116
2015 ONSC 1679, at para 47 [Sandhu]. 117
For an interesting case, see R v Tran, 2015 ONSC 5607. In it, police witnesses are impeached through the use of
radio messages. The officers involved are now facing charges of obstruction of justice and perjury, see “Toronto
28
Factor #1: Presence of state coercion
When it comes to police officers, the case law suggests that they fall closer to the
fisherman in Fitzpatrick than to the motorist in White. Much like someone participating in a
fishery, in the securities market, or in a benefit scheme, a police officer chooses to become a
police officer. They are given great power and responsibility, but are also subject to all the rules
of that regulated environment. Judge Nordheimer’s comments on this factor are telling:
At the risk of stating the obvious, no one is compelled to become a police officer. Persons
make a free decision to become police officers and they do so with full knowledge of
what that decision entails. Persons deciding to become police officers surely know that
their actions as police officers will be subject to scrutiny in a variety of ways including by
their superiors, by their fellow officers, by the public, by the media and by the courts. The
training that individuals go through in order to become police officers fully informs those
persons regarding their duties and obligations as such118
In making this determination, the court relied on a Court of Appeal of Ontario decision regarding
the complaints procedure and the requirement to write notes. There, the Court held: “The mere
possibility that the information the officers record in their notebooks may later be used in an
adversarial proceeding does not mean that the state is guilty of coercing these individuals to
incriminate themselves.”119
What distinguished Wighton was the fact that officers were not
aware that the reports could be used against them, and the evidence suggested that they were told
explicitly that they would not.120
police officers to be charged with obstruction, perjury in 2014 drug case: reports”, CBC News (27 January 2016)
online CBC News <www.cbc.ca/news>. 118
Schertzer, at para 14. 119
Ontario (Police Complaints Commissioner) v Kerr, [1997] OJ No 42, 1997 CarswellOnt 387 at para 12 [Kerr]. 120
Wighton, at para 35: The officer's purported option to relinquish his professional life, rather than comply with the
Regulation and submit a Use of Force Report, has no application where the officer reasonably expects, at the point
he may purportedly exercise that option, that the Use of Report will not be used against him.
29
Factor #2: Existence of an adversarial relationship
The fundamental issue in this factor is the timing. Compulsion to write notes or provide a
statement after a complaint has been made or an investigation begun will engage more serious
consideration under this factor. The nature of notes, and other documentary evidence created by
police, are such that most of the time “the notes [are] made at a time where the expectation
would have been that the applicants and the state would be allies in the investigation and
prosecution of possible criminal offences”121
The Court rejected the argument that the possibility
that the relationship between an accused officer and investigating police officers might become
adversarial by the nature of the police being involved, and would attract s.7 protection.122
Absent a ‘regulatory partnership’ between the province and the officers and with an
understanding that compelled testimony would not be used for incriminatory purposes—as was
the case in Wighton—protection will not be afforded.123
Factor #3: Risk of unreliable confessions
In Wighton, the Court found this to be a significant factor: “I have no doubt that fear of
prejudice and an incentive to lie may be operative in the context of officers being compelled to
provide Use of Force Reports which could then be used to incriminate them in criminal
proceedings.”124
Predictably, Schertzer held the opposite. The Court held that while there was a
risk that an officer will omit to take down notes if they willfully committed misconduct,125
“most
121
Schertzer at para 18. 122
Ibid, at para 19-20. The defence relied on White where Justice Iacobucci had this to say at para 58: “The
provincial decision to vest the responsibility for taking accident reports in the police has the effect of transforming
what might otherwise be a partnership relationship into one that is potentially adversarial” but the Court
distinguished this argument on the basis of the difference in immediacy between the two circumstances. 123
Wighton, at para 44. 124
Ibid, at para 47. 125
Schertzer, paras 23-24.
30
officers would view their notes as a shield against unfounded accusations or complaints or
attacks regarding their actions.”126
Factor #4: Abuse of Power
As one may have guessed, the divergence on this final factor of abuse of state power was
also predictable. In Schertzer, the Court found that there was a minimal expectation of privacy in
police notes, and analogized the notes to that of business records.127
This is significant, as it
places statutorily compelled documentary evidence created by officers squarely into the
Fitzpatrick end of the continuum. Unsurprisingly, Wighton held the opposite, holding that while
a ‘Use of Force’ report may not be ‘spontaneous utterances’, they represent a personal narrative
of an officer, and a privacy interest attaches to it.128
Compelled Statements
One of the most comprehensive cases on the principle against self-incrimination under
s.7 involving police officers is an application to exclude evidence out of Newfoundland in the
aforementioned case of R v Kelly.129
In that case, an officer was charged with making an indecent
telephone call and having made a false statement to the police, contrary to sections 140(1)(b) and
372(2) of the Criminal Code. A young woman received a lewd phone call at her place of
employment, a furniture store. Police were called to investigate, and an Officer Curtis called the
only cell phone number on the list. The number belonged to her colleague, another officer, who
answered the phone. The accused made numerous statements to police in the subsequent
investigation, and sought to exclude them on the basis that use violated s.7 and because they
were compelled by virtue of his duty to follow the orders of senior officers. After an extensive
126
Ibid, at para 25. 127
Ibid, at para 29. 128
Wighton at para 52. 129
See note 51.
31
review of the law, and applying the White/Fitzpatrick factors, the trial judge held that the
statements made by the accused to fellow officers were not compelled, and could be admitted
into evidence.130
B. Case Study on Body Cameras
The use of body cameras by police officers is a proposal that has gained momentum in recent
years, and was one of 84 recommendations made by retired Supreme Court of Canada Justice
Frank Iacobucci in his report to Toronto Police Chief Bill Blair.131
This final case study will be
forward looking to a hypothetical fact pattern, with a view of assessing whether video evidence
from a body camera would be admissible in a criminal trial of an accused police officer.
Hypothetical fact pattern
Assume that all police in British Columbia are required by provincial statute to wear
body cameras132
that record video of their interactions with the public. There is no use immunity
included in the statute, and all police are made aware of their duty to record and the absence of
this immunity. Assume further that, in an escalating altercation, an officer uses lethal force in an
interaction with a person in crisis in an urban environment. There are no witnesses other than the
officer, and the victim is pronounced dead at the scene. The cause of the death was gunshot
130
Kelly, at para 252: In summary, these factors favor denial of use immunity in this case because they illustrate
that the statement and answers provided by Mr. Kelly to Staff Sergeant Elliott, in the particular circumstances of this
case, were not compelled as a result of statute or Mr. Kelly's inferior rank. In White, the Supreme Court pointed out,
at paragraph 76, that if "a declarant gives an accident report freely, without believing or being influenced by the fact
that he or she is required by law to do so, then it cannot be said that the statute is the cause of the declarant's
statements. The declarant would then be speaking to police on the basis of motivating factors other than s. 61 of the
Motor Vehicle Act." That is exactly what occurred here. Mr. Kelly freely spoke to Sergeant Buckle and Staff
Sergeant Elliott. Mr. Kelly did not speak to either of them because he felt compelled to do so.130
131
Frank Iacobucci, “Police Encounters with People in Crisis: An Independent Review Conducted by The
Honourable Frank Iacobucci for Chief of Police William Blair, Toronto Police Service” (2014) online:
www.torontopolice.on.ca [Police Encounters]. 132
For more information, and further analysis on other issues relating to body cameras, see pp. 255-57 of Police
Encounters.
32
wounds. The subsequent review of the video evidence, Crown proceeds with criminal charges
for murder against the accused officer. Counsel for the accused applies to have the video
evidence excluded on the bases that it is statutorily compelled testimony and violates s.7 rights,
specifically the principle against self-incrimination.
Analysis
Before moving to the Fitzpatrick/White factors that will occupy the bulk of this analysis,
some preliminary matters need to be addressed. First, this is a criminal trial for murder, so the
accused faces the potential for imprisonment. Second, there is no issue here of if the testimony
was made by statutory compulsion, as it is mandated in provincial legislation. Third, there is the
question of how to characterize video evidence. On the face, video evidence is reliable as it
cannot be altered and is an accurate representation of what occurred, not a memory of what
transpired. That being said, it can be misinterpreted and may not provide a full picture of what is
going on. Despite this, the fact that the Court in Schertzer found that police notes—arguably a
less reliable form of evidence—were analogous to business records would strongly suggest that a
court would find video evidence to be documentary in nature.
Factor #1: Presence of state coercion
The determinative issue in this factor will be if there was ‘free and informed consent’ at
the essence of the relationship between the state and the individual.133
As canvassed above, there
is strong case law to suggest that becoming a police officer is a choice, and in making that choice
an officer chooses to be subject to all the requirements in this highly regulated area. In addition,
the very sphere that an officer works in (law enforcement) is one that they are an expert in. An
133
Fitzpatrick at para 37.
33
officer, through training and experience, should fully understand the implications of committing
a crime. They are particularly well suited to understand what personal risk they face by choosing
to become—or continue to be—an officer where body camera footage could be used to
inculpate.
Nonetheless, an enterprising defence counsel may find room in White’s characterization
of driving as a necessity of life: “When a person needs to drive in order to function meaningfully
in society, the choice of whether to drive is not truly as free as the choice of whether to enter into
an industry.”134
This argument would perhaps be stronger for a senior officer who might face
significant challenges switching careers at a late stage of his life, making the implementation of
the body cameras less of a choice.
Factor #2: Existence of an Adversarial Relationship
Given the case law on documentary evidence that is created before criminal charges are
laid or an investigation begins, this factor is likely to come down on the admissibility side of the
coin. The debate present in Schertzer and Wighton firmly establishes that a requirement to use
police notes that could turn into an adversarial relationship is no reason not to admit. Much like
in a tax environment (like Jarvis), a taxpayer is required to submit information for assessment. A
taxpayer who commits fraud and is subsequently investigated cannot exclude those properly
compelled regulatory documents. The ‘Rubicon’ in this case is not crossed until a complaint is
made. Until then, an officer and the police truly are “partners, joined together,”135
not in fisheries
regulation but in the need to (1) uphold the rule of law and investigate crimes and (2) protect
against the abuse that can flow from the power vested in police forces.
134
White, at para 55. 135
Fitzpatrick, at para 36.
34
Factor #3: Risk of Unreliable Confessions
The issues present in the case law surrounding confessions are negligible in this case.
Unlike the cases of Schertzler, Wighton, and Kerr, there is no drafting of a statement that needs
to be made. The only choice an officer has is whether to turn the camera on, if that would even
be a choice.136
In fact, the use of video evidence would be an even stronger shield than that of
police notes for protection against unfounded claims. Where notes are the account of an officer,
and therefore subject to a challenge in their reliability and possibly credibility, this is less of a
concern with video footage. There is no post-encounter action required, and much like
Fitzpatrick, it would be hard to characterize video footage of this nature as a confession at all.137
Factor #4: Abuse of Power
The requirement to have police officers use body cameras is a tool that could result in
both inculpation and exculpation. It helps further the interests of society and police officers writ
large. The concerns in Wighton regarding compelled documentary evidence authored by the
accused pointing to state of mind are not present with cameras. In Fitzpatrick the Court held that
the alternatives to mandatory self-reporting (in that case) would actually lead to more abusive
conduct on the part of the state138
. The same is true here. There is a large public interest in
addressing serious issues of police misconduct. Like many regulatory realms, prosecution is very
difficult, especially in cases of police-involved deaths, because the only witnesses are usually the
officer(s). Other methods at getting to the truth, such as compelling testimony from the accused
and other officers more clearly infringes fundamental values, and risks violation of s.13 of the
136
Again, see Police Encounters for an overview of the concerns and considerations of mandating body cameras. 137
Fitzpatrick, at para 44. 138
Ibid, at para 47.
35
Charter. The use of a body camera strikes the right balance between those of society and those of
the individual.
Overall, both the general and specific case law suggests that evidence from body cameras
should be admissible in a criminal proceeding involving the wearing police officer as an accused.
Nonetheless, it may be possible a court would find that admission of video evidence from a body
camera violates s.7. Assuming the violation was properly made out, would this be an example of
an impugned law being justified under s.1 of the Charter?
Given the strong public policy reasons for body cameras, this scenario may be a good
candidate for the first successful justification. If the reasoning in Beaudette regarding public
interest analysis within s.7 proves inconsistent with Bedford, then these circumstances may prove
to be the right mix of individual and state interest. Bedford arguably opens the door for just this
type tension: “Depending on the importance of the legislative goal and the nature of the s. 7
infringement in a particular case, the possibility that the government could establish that a s. 7
violation is justified under s. 1 of the Charter cannot be discounted.”139
As an editorial comment,
the strength of the public policy argument in these circumstances cannot be underestimated.
Officers who perform their duties diligently and courageously put themselves in harm’s way
should welcome objective evidence to support their good work. Officers who do not, and until
now have been protected by a combination of police culture and silence, will finally be subject to
the same laws they have sworn to uphold.
139
At para 129.
36
Conclusion
The principle against self-incrimination is a flexible, contextual tool used to craft
appropriate solutions to difficult problems that arise when the individual and the state interact.
From a broad organizing principle to a residual doctrine of little consequence, it means different
things at different times. As the reach and proliferation of the regulatory state grows, the legal
profession will need to be vigilant to the principle being restricted too far. On the other hand, the
case law suggests that the law is progressing in such a way to allow the state to encroach on
rights in spheres that are otherwise difficult to prosecute. The motorist or foster parent who faces
spontaneous and asymmetric interactions with a state agent will certainly be protected. But the
securities trader, CEO, or police officer who uses specialized skillsets, sophistication, and
expertise to break the law—or otherwise avoid prosecution—may find themselves with a small
shield against a sword wielded by the untied hands of the regulatory state.140
140
It is with regret that this paper could not explore other regulatory environments that lead to criminal prosecutions.
Further research is needed to identify regulatory spheres with quasi-criminal consequences, which are difficult to
prosecute for lack of uncompelled evidence, and involve sophisticated actors. Environmental offences, price fixing,
and other white collar crimes come to mind.