What's Wrong with Self-Incrimination? The Wayward Path of Self-Incrimination Law in the Post-Charter Era

Abstract

This article, published in three parts in volume 48 of the Criminal Law Quarterly, reviews and critiques the Supreme Court of Canada's Charter-era self-incrimination jurisprudence. The Court's interpretation of the Charter of Rights and Freedoms has resulted in a distinctly Canadian approach to self-incrimination law, bringing self-incrimination concerns to bear on aspects of criminal investigation and evidence collection that were not previously thought to raise self-incrimination issues. In so doing, the Court has begun to develop a comprehensive self-incrimination theory governing the collection and use of evidence at all stages of the criminal justice process. The central assumption of this theory is that criminal suspects should, as a matter of principle, have a measure of freedom to choose whether or not to provide self-incriminating evidence to the state. I call this the free choice rationale. At times, the Court has also been cognizant of the need to discourage unwarranted invasions of privacy and cruel interrogation practices (the abuse prevention rationale). It has also occasionally recognized that rules protecting individuals from self-incrimination may be needed to increase adjudicative accuracy (the reliability rationale). But it has focused on the idea that suspects should generally have a deontological right to silence in the face of criminal accusations.

I argue, in contrast, that there is nothing inherently wrong with compelling self-incrimination and that the Court's free choice approach too often elides the legitimate interests at stake in the criminal justice process. The reliability and abuse-prevention rationales often provide good, pragmatic reasons to regulate the collection and use of self-incriminating evidence. Neither rationale, however, justifies a general right to silence. Put simply, there is nothing wrong with denying criminal suspects the right to choose whether to respond to criminal accusations, as long as the state has sufficient grounds for suspicion, avoids cruel methods of inducing cooperation, and ensures that compelled evidence is reasonably reliable.

Applying this theoretical framework to contemporary doctrine reveals that many of the rules limiting the collection or use of self-incriminating evidence are justified; often, however, for reasons that differ from those invoked by the Supreme Court. But in other cases, the Court's devotion to preserving free choice has denied courts access to reliable evidence in defiance of sound criminal justice policy. My proposal avoids this unfortunate outcome and helps to resolve many of the most contentious debates in self-incrimination doctrine, such as the scope of the voluntary confession rule, the meaning of waiver in the context of the right to counsel, the acceptability of using of undercover agents to elicit jailhouse confessions, the nature of the immunity that should attach to compelled testimony, the appropriateness of drawing adverse inference from silence before or during trial, and the admissibility of unconstitutionally obtained, self-incriminating evidence. Part I examines the three main justifications for rules preventing self-incrimination; Part II deals with police investigations; and Part III looks at compelled communications, the admissibility of defendants' previous testimony, and inferences from defendants' silence.

Keywords: Self-incrimination, confessions, Charter, evidence, interrogations, Miranda, counsel