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Report No. 87

VI. Canada

In Canada, in one reported case.1 in the Ontario Court of Appeal in 1973, consideration was given to the question whether it was proper for the prosecution to give evidence that an accused had refused to take part in an identification parade. In his summing up the trial judge said that there was no statutory authority to force an accused person, or a suspect, or a person at a police station, into a line up, and that it was for the jury to decide, on the totality of the evidence, what significance should be attached to Mr. Marcoux's refusal to participate in a suggested line up. On appeal, two judges of appeal held that this direction did not conflict with the principle that no man should be compelled to incriminate himself. They said:

"That privilege relates to the obtaining of oral confessions or statements from a prisoner. Here the evidence adduced relates to the conduct of the accused, not to something that he stated or did not state as to the charge against him. Thus it is not an invasion of his rights under the maxim (namely, the privilege against self-incrimination). It is but a circumstance which together with all the other circumstances the jury are entitled to take into consideration."

In a dissenting judgment, Brooke J. A said that the privilege against self-incrimination vested in the appellant the right to refuse to participate in the line-up, and that to allow a negative inference to be drawn from the exorcise of that right would amount to a partial denial of the right itself.

1. R. v. Marcoux and Solomon, (1973) 23 CRNS 51 (Ontario) referred to by Departmental Committee on Evidence of Identification in Criminal Cases, (1976), p. 193.

Identification of Prisoners Act, 1920 Back

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