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R. v. S.C.B. (1997), 104 O.A.C. 81 (CA)


[42] There are policy concerns and fundamental constitutional principles at play where the Crown seeks to tender evidence of a refusal to cooperate which are not engaged when the defence tenders evidence of an accused's cooperation with the police. Our criminal justice system accepts as a basic tenet the proposition that persons cannot be required to supply evidence which may assist in their ultimate conviction: R. v. Chambers (No. 2) (1990), 119 N.R. 321; 59 C.C.C.(3d) 321, at 340 (S.C.C.). Put differently, people are free to choose whether they will assist the police in their investigation. This fundamental liberty becomes a constitutional right when a person is detained or arrested: R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1; [1990] 5 W.W.R. 1; 57 C.C.C.(3d) 1; 77 C.R.(3d) 145; 49 C.R.R. 114; 47 B.C.L.R.(2d) 1. The freedom to choose whether to assist the state in the investigation of an alleged crime would be illusory if the failure to render assistance could, standing alone, be used as evidence against a person at trial. Similarly, the right to maintain the integrity of one's body against unauthorized state intrusion would lose its force if the exercise of that right could take on an incriminatory connotation at trial.

[43] Apart from constitutional considerations, the reasonable inference available from a refusal to cooperate with the police is very different from the reasonable inference which may be drawn where a person voluntarily assists the police by providing them with things like blood and hair samples.

As a person is under no obligation to assist the police in most circumstances, a refusal to assist is nothing more than the exercise of a recognized liberty and, standing alone, says nothing about that person's culpability.

Evidence that a person assisted the police when he was not obliged to do so and provided them with evidence which, if he committed the offence, could be used to convict him may, depending on the circumstances, be reasonably capable of supporting the inference that the accused had nothing to fear because he did not commit the crime. There is no logical inconsistency between the admission of evidence that a person cooperated with the police and the exclusion of evidence that a person did not cooperate with the police [see footnote 3].

Jim O'Neil, LL.B.

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