Marcoulx And Solomon v. The Queen, [1976] 1 SCR 763

SUPREME COURT OF CANADA

Marcoulx And Solomon v. The Queen, [1976] 1 S.C.R. 763

Date: 1975-03-07

Joseph Marcoux and Albert Solomon Appellants;

and

Her Majesty the Queen Respondent.

1974: October 30; 1975: March 7.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Criminal law — Evidence — Admissibility—Self-in­crimination—Identification—Admissibility of evi­dence of refusal of identification line-up.

At the trial of the accused before judge and jury on the charge of breaking and entering and theft the iden­tification of Marcoux was the critical issue. After the arrest of the accused, Marcoux had been asked whether he would participate in a line-up. He had refused. Later that morning the alleged victim was shown two men walking down a hallway and identified one of them, Marcoux, as the person he had seen earlier in his hotel bedroom. The trial judge admitted evidence that Mar­coux had refused to participate in a line-up and the appellants were convicted. The case went to appeal on the grounds that the evidence that Marcoux refused to participate in the line-up was inadmissible and that the trial judge should have instructed the jury that they could draw no adverse inference from such refusal. The Court of Appeal was of the opinion that the appeal should fail.

Held: The appeal should be dismissed.

The exhibition of the person of an accused at a police line-up for observation by an alleged victim is not itself a violation of the privilege against self incrimination. It should not be overlooked that the use of force to compel participation in a line-up may raise a question as to the powers of the police in relation to detained persons. Reasonable compulsion to this end is an incident to the police power to arrest and investigate. The evidence of Marcoux's refusal to take part in a line-up was admis­sible in the present case, not for the purpose of proving guilt, but to explain the failure to hold an identification parade and the necessity, as a result, to have the witness confront Marcoux. The trial judge did not err in men­tioning to the jury the accused's refusal to participate in

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a line-up.

Evidence of the offer and refusal of a line-up will not, however, be relevant and admissible in every case in which the identification of an accused is in issue. Admissibility depends on the circumstances of the case. If at trial, the Crown has to explain the omission of a line-up or accept the possibility of the jury drawing an adverse inference then it would seem that evidence of refusal is both relevant and admissible. In other circum­stances such evidence should not normally be tendered as it might impinge upon the presumption of innocence and leave the jury with the impression. that there is a duty on the accused to prove his innocence.

R. v. Judge of the General Sessions of the Peace for the County of York, ex parte Corning Glass Works of Canada Ltd., [1971] 2 O.R. 3; Curr v. The Queen, [1972] S.C.R. 889; A.-G. (Que.) v. Begin, [1955] S.C.R. 593; Validity of Section 92(4) of the Vehicles Act, 1957 (Sask.), [1958] S.C.R. 608; Holt v. United States (1910), 218 U.S. 245; Schmerber v. California (1966), 384 U.S. 757; United States v. Wade (1967), 388 U.S. 218; R. v. Burns, [1965] 2 O.R. 563; R. v. Shaw (1964), 48 W.W.R. 190; Rochin v. California (1952), 342 U.S. 165; Dallison v. Caffery, [1965] 1 Q.B. 348; R. v. Brager (1965), 52 W.W.R. 509; People v. Ballott (1967), 20 N.Y. 2d 600; R. v. Seiga, [1961] Crim, L.R. 541; R. v. John, (abridged) [1973] Crim. L.R. 113 referred to.

APPEAL from a judgment of the Court of Appeal for Ontario[1] dismissing an appeal by the accused from their convictions by Graburn Co. Ct. J. sitting with a jury on a charge of breaking and entering and theft. Appeal dismissed.

R. Carter, for the appellants.

C. Scullion, for the respondent.

The judgment of the Court was delivered by

DICKSON J.—An important pre-trial step in many criminal prosecutions is the identification of the accused by the alleged victim. Apart from identification with the aid of a photograph or

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photographs, the identification procedure adopted by the police officers will normally be one of two types: (i) the showup—of a single suspect; (ii) the line-up-presentation of the suspect as part of a group. In this case the accused Marcoux refused a line-up and a showup followed.

The question is whether there was error on the part of the trial judge in admitting evidence of the refusal. The question also arises whether, the evi­dence having been admitted, there was error in failing to instruct the jury that Marcoux had a legal right to refuse to participate in a line-up and no adverse inference could be drawn from refusal. The two accused were tried and convicted before a judge and jury at the City of Toronto on the charge of breaking and entering and theft of a wallet. The theory of the Crown was that Marcoux in early morning had entered a hotel room occupied by Gerard Fleskes and his wife, that Fleskes had awakened and had spoken, whereupon Marcoux fled, taking Fleskes' wallet, and escaped in a car in which the co-accused Solomon was waiting. A bellman at the hotel recorded the licence number of the departing car. The critical issue at trial was the identification of Marcoux by Fleskes. The two accused were arrested shortly after the theft and escorted to the police station where one of the investigating officers, Detective Starrett, asked Marcoux whether he would partici­pate in a line-up. Marcoux's refusal was emphatic and unambiguous. Later in the morning Fleskes was shown two men walking down a hallway, one of whom, Marcoux, he identified as the person he had seen earlier in his hotel bedroom. Five minutes later Fleskes was taken to a room occupied by Marcoux and a police constable, and there confronted Marcoux, and gave the classic response, "Yes, sir, that is him."

At the conclusion of the examination in chief of Fleskes, the trial took an unusual turn. Counsel for

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the accused Solomon, who was not counsel before this Court, moved that the case be then taken from the jury on the ground the evidence of identifica­tion was insufficient in law to justify continuance. Counsel questioned the probative value of Fleskes' evidence. He emphasized that the identification had taken place in response to a question by a police officer, "Is that the man?" and while Mar­coux was in custody. The motion was denied as premature, and the trial continued. During his evidence in chief Detective Starrett told the jury he had asked Marcoux whether he would partici­pate in a line-up, and Marcoux had refused. Detective Starrett was subjected to vigorous and lengthy cross-examination; in particular counsel faulted him for failure to conduct a line-up or identification parade in accordance with the regu­lations and procedure of the Metropolitan Toronto Police. It was suggested that Starrett had broken "every rule that is in the book" in parading Mar­coux, that it was not "a proper line-up at all in any manner, shape or form", that Marcoux should have been allowed to have a lawyer present to see that the line-up was conducted fairly, that twelve people are supposed to be in the line-up and not just one. At the conclusion of the Crown evidence, the motion for a directed verdict of acquittal was renewed. Counsel for Marcoux maintained that the instructions and pamphlets of the Metropolitan Toronto Police respecting identification parades had been "spat upon" and what had occurred at the police station was a "mockery". It was in the light of this unequivocal, if somewhat intemperate and, in the circumstances, unwarranted, attack on police procedures that the trial judge in the course of his charge to the jury said:

I have one other matter of law that I wish to refer to before reviewing the evidence with you. There is no statutory authority to force an accused person or a suspect or a person at a police station into a line-up. It will be for you to decide on the totality of the evidence what significance you will attach to Mr. Marcoux's refusal to participate in a suggested line-up.

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As I have said, the appellants were convicted. The case went to appeal on the grounds that the evidence that Marcoux refused to participate in the police line-up was inadmissible, and the trial judge should have instructed the jury they could draw no adverse inference from such refusal. A majority in the Court of Appeal for Ontario (Schroeder J.A., Jessup J.A. concurring) were of opinion the appeals must fail. Schroeder J.A. said police line-ups were a regular part of police routine when a crime was being investigated in which identification was an issue, that the invitation was extended to Marcoux for no improper purpose and failure to make a line-up or identification parade available might well have been a matter of adverse comment on the part of counsel for the accused. The majority of the Court did not regard the evidence in question to be inadmissible; it was but a circumstance which, together with all other cir­cumstances, the jury were entitled to take into consideration in determining the guilt or innocence of the accused. Brooke J.A. did not agree. The rationale of his dissent is, I think, encapsulated in the following passage of his judgment:

The privilege against self-incrimination vested in the appellant the right to refuse to participate in the line-up. To allow a negative inference to be drawn from the exercise of that right would amount to a partial denial of the right itself.

In my opinion (i) an accused's privilege against self-incrimination is not violated if, while in cus­tody and under pretrial investigation, he is placed in a police line-up; (ii) an issue of police power in respect of detained persons may, however, arise if physical compulsion is necessary; (iii) evidence of refusal to take part in the police line-up was admissible in the circumstances of this case; (iv) this evidence formed part of the totality of the evidence from which the jury was required to draw an inference of innocence or of guilt.

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I

The limit of the privilege against self-incrimina­tion is clear. The privilege is the privilege of a witness not to answer a question which may incriminate him. That is all that is meant by the Latin maxim nemo tenetur seipsum accusare, often incorrectly advanced in support of a much broader proposition. The extent of the maxim is stated in Broom's Legal Maxims (10th ed.) as follows, pp. 660-661:

It may be stated as a general rule that a witness in any proceeding is privileged from answering, not merely where his answer will criminate him directly but also where it may have a tendency to criminate him.

(Italics added)

See R. v. Judge of the General Sessions of the Peace for the County of York, ex parte Corning Glass Works of Canada[2]. This Court in Curr v. The Queen[3], held that the "history of the privilege as a Canadian derivative from the English common law is accurately reflected in the way it is expressed in s. 2(d)" of the Canadian Bill of Rights. Section 2 of the Bill of Rights provides that no law of Canada shall be construed or applied so as to:

(d) authorize a court.. . to compel a person to give evidence if he is denied ... protection against self-crimi­nation or other constitutional safeguards .. .

Laskin J., as he then was, said at p. 912:

.. I cannot read s. 2(d) as going any farther than to render inoperative any statutory or non-statutory rule of federal law that would compel a person to criminate himself before a court or like tribunal through the giving of evidence, without concurrently protecting him against its use against him.

The privilege, historically and comprehensively analyzed in 8 Wigmore on Evidence (McNaughton revision 1961) art. 2250, pp. 284 et seq., devel­oped in revulsion from the system of interrogation practised in the old ecclesiastical courts and the Star Chamber, i.e. summoning a person, without

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giving him warning of the charge against him, and examining him on oath. The general rule evolved that no one was bound to answer any question if the answer would tend to expose him to a criminal charge. As applied to witnesses generally, the privilege must be expressly claimed by the witness when the question is put to him in the witness box, Canada Evidence Act, R.S.C. 1970, c. E-10, s. 5. As applied to an accused, the privilege is the right to stand mute. An accused cannot be asked, much less compelled, to enter the witness box or to answer incriminating questions. If he chooses to testify, the protective shield, of course, disappears. In short, the privilege extends to the accused qua witness and not qua accused, it is concerned with testimonial compulsion specifically and not with compulsion generally: Attorney-General of Quebec v. Begin[4]; In re Validity of Section 92(4) of the Vehicles Act 1957 (Sask.)[5]; see also the helpful article "Is there a right against self-incrimination in Canada" by Professor Ed. Ratushny, (1973) 19 McGill Law Journal 1.

American jurisprudence on the Fifth Amendment, which protects a person against being com­pelled "to be a witness against himself", and Canadian jurisprudence on the privilege against self-incrimination, have followed parallel courses, limiting the application of the privilege to its his­toric reach, i.e. protection against testimonial com­pulsion. Such a limitation gives rise to a distinction between coerced oral or documentary disclosures which fall within the privilege, and what has been termed "real or physical" evidence, i.e. physical evidence taken from a person without his consent, which, broadly speaking, falls outside the privilege.

The leading American case in which this distinc­tion first appears is Holt v. United States[6]. There the question was whether evidence was admissible that the accused, prior to trial and over his protest,

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put on a blouse that fitted him. It was contended that compelling the accused to submit to the demand that he model the blouse violated the privilege against self-incrimination. Mr. Justice Holmes, speaking for the Court, rejected the argu­ment as "based upon an extravagant extension of the Fifth Amendment," and went on to say, pp. 252-253:

(T)he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communi­cations from him, not an exclusion of his body as evidence when it may be material. The objection in principle would forbid a jury to look at a prisoner and compare his features with a photograph in proof.

The Supreme Court of the United States in Schmerber v. California[7] held that, p. 761;

...the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or com­municative nature

and in the more recent case of United States v. Wade[8], considered whether a suspect's privilege against self-incrimination had been violated when he was forced to stand in a line-up, wear stripes on his face and speak certain words. The majority of the court held that neither the line-up itself nor anything shown by the record that Wade was required to do in the line-up violated his privilege against self-incrimination.

An accused cannot be forced to disclose any knowledge he may have about an alleged offence and thereby supply proof against himself but (i) bodily condition, such as features, exhibited in a courtroom or in a police line-up, clothing, fingerprints, photographs, measurements (see the Iden­tification of Criminals Act, R.S.C. 1970, c. I-1), and (ii) conduct which the accused cannot control, such as compulsion to submit to a search of his

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clothing for concealed articles or his person for body markings or taking shoe impressions or com­pulsion to appear in Court do not violate the principle. As Wigmore, supra has observed, Art. 2265, p. 386: "When the person's body, its marks and traits, itself is in issue, there is ordinarily no other or better evidence available for the prosecu­tor." Difficult questions have arison when pretrial police procedures went beyond mere physical examination to the taking of blood and other bodily fluids for the purpose of analysis and use in evidence (see R. v. Burns[9], and s. 237(2) of the Criminal Code)—or when considering the right of the police to require performance of physical tests to determine whether a person is impaired (R. v. Shaw[10]) or in extracting physical evidence from a person's body without his consent (Rochin v. California[11]. See also "Self-Incrimination by the Accused in English Law" by Professor G.D. Nokes, 2 U.B.C. Law Review 316.) But those cases are not this case. I am in no doubt that the exhibition of the person of an accused at a line-up for observation by an alleged victim is not itself a violation of the privilege against self-incrimination.

II

Apart altogether from the concept of the privi­lege against self-incrimination, it should not be overlooked that the application of force to compel an accused or a suspect to take part in a line-up may raise a question as to the limits on the powers of the police in relation to detained persons. Reasonable compulsion to this end is in my opinion an incident to the police power to arrest and investigate, and no more subject to objection than compelling the accused to exhibit his person for observation by a prosecution witness during a trial,

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The powers of peace officers with respect to persons under arrest were dealt with by the Court of Appeal in England in Dallison v. Caffery[12] where Denning M.R. stated at p. 367:

When a constable has taken into custody a person reasonably suspected of felony, he can do what is reasonable to investigate the matter, and to see whether the suspicions are supported or not by further evidence. ... The constable can put the suspect up on an identifi­cation parade to see if he is picked out by witnesses. So long as such measures are taken reasonably, they are an important adjunct to the administration of justice.

The extent of the right of the police to force a suspect to take part in a line-up against his will does not, of course, squarely arise in this case, as the police accepted Marcoux's refusal, and indeed the question will usually be of very little practical importance, as the introduction of a struggling suspect into a line-up might make a farce of any line-up procedure. Additionally, as Professor Glan­ville Williams has observed in 1963 Criminal Law Review, pp. 479, 480:

... if the suspect objects the police will merely have him "identified" by showing him to the witness and asking the witness whether he is the man. Since this is obvious­ly far more dangerous to the accused than taking part in a parade, the choice of a parade is almost always accepted.

In Attorney-General for Quebec v. Begin, supra, Fauteux J. said that to his knowledge there has never been exclusion as inadmissible from the evidence at trial of the report of facts definitively incriminating the accused and which he supplies involuntarily as for example, inter alia, his iden­tification when for this purpose he is lined up with other persons. His words were, p. 602:

Also to my knowledge there has never been, for these reasons, exclusion, as inadmissible, from the evidence at the trial, of the report of facts definitely incriminating

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the accused and which he supplies involuntarily, as for example:— his bearing, his walk, his clothing, his manner of speaking, his state of sobriety or intoxication; his calmness, his nervousness or hesitation, his marks of identity, his identification when for this purpose he is lined up with other persons; the presence on him of stolen objects or objects the possession of which, being forbidden to the public, constitutes a breach of the law and affords ground for criminal prosecution, such as narcotics, spirituous liquors unlawfully manufactured or imported, and others. Without doubt, the method used for obtaining this kind of evidence may, in certain cases, be illegal and may even give occasion for recourse to civil or even criminal action against those who have used it, but there is no longer any discussion of the proposi­tion declaring that in such cases the illegality affecting the method of obtaining the evidence does not affect, per se, the admissibility of this evidence at the trial.

III

As to the admissibility of evidence of refusal by Marcoux to participate in a line-up, it is only necessary to observe that the trial tactics of defence counsel made this evidence admissible beyond any question; admissible, not for the purpose of proving guilt, but to explain the failure to hold an identification parade and the necessity, as a result, to have Fleskes confront Marcoux, a procedure which counsel for Marcoux so roundly criticized. See R. v. Brager[13] at p. 511.

As Professor Williams notes in the article to which I have referred, p. 481:

The Courts have come to expect that evidence of iden­tification should be subjected to the test of a parade, especially where mere confrontation of a witness with the suspect during investigations might not produce reliable results, either because the witness had only a fleeting glimpse of the culprit or because his memory seems not sufficiently definite about the culprit's appearance.

New York cases since People v. Ballot'[14] have found the failure to employ a line-up by the police, absent imperative circumstances, violative of due process—see "Pretrial Identification", (1971) 55 Minnesota Law Review 779, at p. 791.

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The Court of Criminal Appeal of England has commented adversely on the absence of an identification parade and failure to explain the omission to hold one: R. v. Seiga[15]. In R. v. John (unreported, abridged in (1973) Crim. L.R. 113) evidence was given by a detective constable that the accused had refused an identification parade. On appeal from conviction, it was urged, unsuccessfully, that the trial judge had wrongly allowed one of the wit­nesses to identify the accused in the dock when she had not identified him before the trial. Lord Jus­tice Cairns, delivering the judgment of the Court of Appeal, said:

This method of identification ought to have been avoided if possible. It might have been possible in this case if the Appellant had been willing to submit to an identification parade. Leaving out altogether the ques­tion of whether or not it was reasonable for him to refuse an identification parade, the fact was that the Prosecution did not have that very much better method of identification available and, that being so, it does not appear to this Court to be wrong to allow that method of identification to be used by that witness, Miriam Baker.

I should make it clear, however, that I do not think evidence of the offer and refusal of a line-up will be relevant and admissible in every case in which identification of an accused is in issue. Admissibility will depend upon the circumstances of the case. If, at trial, it unfolds that the Crown must explain the omission of a line-up or accept the possibility of the jury drawing an adverse inference, then in those circumstances it would seem that evidence of refusal is both relevant and admissible. In other circumstances I do not think such evidence should normally be tendered. The danger, as I see it, is that it may impinge on the presumption of innocence, the jury may gain the impression there is a duty on the accused to prove he is innocent. However, on the facts of the present case, I have no doubt whatever that evidence of Marcoux's refusal to take part in the line-up was admissible, coming as it did after the issue was

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opened by defence counsel following upon the evidence in chief of Fleskes.

IV

I find nothing wrong with the judge's charge to the jury. He told the jury there was no statutory authority to force an accused person or a suspect or a person at a police station into a line-up. That is a correct statement; if it is subject to any criticism, it is that it is too favourable to the accused. The judge then told the jury it was up to them to decide on the totality of the evidence what significance they would attach to Marcoux's refusal to participate in a suggested line-up. I do not think the judge erred in so instructing the jury. The evidence of the refusal was simply one more piece of evidence bearing upon the single issue, identification. It explained the failure to hold a line-up. The jury could take it into account. It was relevant and admissible and an inference could be drawn from it—if it was not open to any inference it was not relevant and not admissible. Even in such a matter as the failure of an accused to testify, although neither judge nor counsel can comment upon the failure, a jury is free to draw, and I have no doubt frequently does draw from the failure, an inference adverse to the accused.

I would dismiss the appeals.

Appeal dismissed.

Solicitor for the appellants: Robert J. Carter, Toronto.

Solicitor for the respondent: The Attorney Gen­eral for Ontario, Toronto.