CCLA Before Supreme Court to Protect the Principle Against Self-Incrimination

The CCLA will appear today as an intervener before the Supreme Court of Canada in R. v. Korduner.

This case is about the scope of the principle against self-incrimination, which is a principle of fundamental justice under s. 7 of the Charter. Simply put, the state should not be able to force you to help build a criminal case against yourself.

The CCLA will make three main submissions.

First, a compelled statement cannot be used for any purpose by the state in a criminal proceeding, including as the basis for obtaining other evidence. For example, if the Crown argues the police were justified in searching your person or vehicle, they cannot rely on a statement you were required by law to provide.

Second, there is a meaningful difference between a statement which a person provided because they felt they had to and a law that required them to. Narrow exceptions that allow the state to use the former in a criminal trial do not apply here.

Third, the principle against self-incrimination is a privilege held by an accused person. Evidentiary rules that permit an accused’s statement to be relied upon by the state in some circumstances do not oust the protection that exists when the state requires a person to speak.

You can read the CCLA’s factum here.

We are grateful to Matthew Gourlay and Taylor Wormington of Henein Hutchison Robitaille LLP for their excellent pro bono representation in this case.