Practice Relating to Rule 100. Fair Trial Guarantees
Section J. Compelling accused persons to testify against themselves or to confess guilt
Canada’s LOAC Manual (1999) provides: “No force of any kind may be imposed upon a PW [prisoner of war] to cause the PW to plead guilty.”
It further states that in cases of non-international armed conflicts: “Accused persons shall not be compelled to testify against themselves or to confess their guilt.”
Canada’s LOAC Manual (2001) states in its chapter on the treatment of prisoners of war (PWs):
No PW may be tried or punished for any offence, which was not, at the time of its commission, forbidden by International Law or the law of the Detaining Power. No force of any kind may be imposed upon a PW to cause the PW to plead guilty.
In its chapter on non-international armed conflicts, the manual states: “As a minimum, accused persons: … f. shall not be compelled to testify against themselves or to confess their guilt”.
In the Lia case before a Canadian Federal Court in 2004, Justice Andrew MacKay held:
I agree … that evidence obtained by torture, or other means precluded by the International Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, ought not to be relied upon by a panel considering a refugee application.
The Federal Court of Appeal in 2005 held that “[s]tatements obtained by torture or other cruel, inhumane or degrading treatment or punishment are neither credible or trustworthy”.
In 2004, in Application under s. 83.28 of the Criminal Code (Re), the Supreme Court of Canada noted:
70. This Court has recognized that the right against self-incrimination is a principle of fundamental justice: S. (R.J.), supra, at para. 95; Branch, supra; R. v. Jarvis,  3 S.C.R. 757, 2002 SCC 73. In Jarvis, at para. 67, the right against self-incrimination was described as “an elemental canon of the Canadian criminal justice system”. It has further been recognized in relation to the principle of individual sovereignty and as an assertion of human freedom: S. (R.J.), supra, at para. 81; R. v. Jones,  2 S.C.R. 229, at pp. 248-49; and R. v. White,  2 S.C.R. 417, at para. 43. Having recognized the centrality of the principle in Canadian law, this Court’s jurisprudence has further articulated general principles regarding the relationship of self-incrimination to criminal law more broadly. To this end, testimonial compulsion has been invariably linked with evidentiary immunity. Beginning in S. (R.J.), supra, and continuing in Branch, supra, Phillips, supra, and Jarvis, supra, the more recent jurisprudence of our Court on self-incrimination developed such that three procedural safeguards emerged: use immunity, derivative use immunity, and constitutional exemption.
71. Use immunity serves to protect the individual from having the compelled incriminating testimony used directly against him or her in a subsequent proceeding. The derivative use protection insulates the individual from having the compelled incriminating testimony used to obtain other evidence, unless that evidence is discoverable through alternative means. The constitutional exemption provides a form of complete immunity from testifying where proceedings are undertaken or predominately used to obtain evidence for the prosecution of the witness. Together these necessary safeguards provide the parameters within which self-incriminating testimony may be obtained.
[emphasis in original]
In 2005, in R. v. Turcotte, the Supreme Court of Canada noted:
41. Under the traditional common law rules, absent statutory compulsion, everyone has the right to be silent in the face of police questioning. This right to refuse to provide information or answer inquiries finds cogent and defining expression in Rothman v. The Queen,  1 S.C.R. 640, per Lamer J.:
In Canada the right of a suspect not to say anything to the police … is merely the exercise by him of the general right enjoyed in this country by anyone to do whatever one pleases, saying what one pleases or choosing not to say certain things, unless obliged to do otherwise by law. It is because no law says that a suspect, save in certain circumstances, must say anything to the police that we say that he has the right to remain silent, which is a positive way of explaining that there is on his part no legal obligation to do otherwise. [Footnotes omitted; p. 683.]
42. Although its temporal limits have not yet been fully defined, the right to silence has also received Charter benediction. In R. v. Hebert,  2 S.C.R. 151, the first decision from this Court recognizing it as a s. 7 right, an accused, who had been arrested and advised of his rights, refused to provide a statement to the police after consulting counsel. He was then placed in a cell with an undercover officer posing as a suspect under arrest. During the course of their conversation, the accused incriminated himself. The question before the Court was whether the statement to the undercover officer was admissible. Writing for the majority, McLachlin J. held that it was not admissible because it violated the accused’s right to silence found in s. 7 of the Canadian Charter of Rights and Freedoms.
43. In addition to emphasizing the importance of providing protection from the power of the state, McLachlin J. founded the s. 7 right to silence in two common law doctrines: the confessions rule and the privilege against self-incrimination, explaining that both emerge from the following unifying theme:
[T]he idea that a person in the power of the state in the course of the criminal process has the right to choose whether to speak to the police or remain silent. [p. 164]
44. It would be an illusory right if the decision not to speak to the police could be used by the Crown as evidence of guilt. As Cory J. explained in Chambers, where the trial judge failed to instruct the jury that the accused’s silence could not be used as evidence of guilt:
It has as well been recognized that since there is a right to silence, it would be a snare and a delusion to caution the accused that he need not say anything in response to a police officer’s question but nonetheless put in evidence that the accused clearly exercised his right and remained silent in the face of a question which suggested his guilt. [p. 1316]
45. Although Chambers dealt specifically with silence after the accused had been cautioned, it would equally be “a snare and a delusion” to allow evidence of any valid exercise of the right to be used as evidence of guilt.
46. Moreover, as Doherty and Rosenberg JJ.A. explained in R. v. B. (S.C.) (1997), 36 O.R. (3d) 516 (C.A.), since, in most circumstances, individuals are under no obligation to assist the police, their silence cannot, on its own, be probative of guilt:
… a refusal to assist is nothing more than the exercise of a recognized liberty and, standing alone, says nothing about that person’s culpability. [p. 529]
47. Evidence of silence is, however, admissible in limited circumstances. As Cory J. held in Chambers
, at p. 1318, if “the Crown can establish a real relevance and a proper basis”, evidence of silence can be admitted with an appropriate warning to the jury.
[emphasis in original]
In 2007, in R. v. Spencer, the Supreme Court of Canada noted:
11. At common law, statements made by an accused to a person in authority are inadmissible unless they are made voluntarily. This Court set out the test for ascertaining the voluntariness of such statements in Oickle. That case “recast the law relating to the voluntariness of confessions. … It rejected resort to fixed and narrow rules”: D. M. Paciocco and L. Stuesser, The Law of Evidence (4th ed. 2005), at p. 290. As Iacobucci J. explained in Oickle, at para. 27, the rule “is concerned with voluntariness, broadly understood”. He also emphasized that a contextual approach is required (at para. 47):
The application of the rule will by necessity be contextual. Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over- and under-inclusive. A trial judge should therefore consider all the relevant factors when reviewing a confession.
12. In Oickle, the Court recognized that there are several factors to consider in determining whether there is a reasonable doubt as to the voluntariness of a statement made to a person in authority, including the making of threats or promises, oppression, the operating mind doctrine and police trickery. Threats or promises, oppression and the operating mind doctrine are to be considered together and “should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule” (Oickle, at para. 63). On the other hand, the use of “police … trickery” to obtain a confession “is a distinct inquiry … [given that] its more specific objective is maintaining the integrity of the criminal justice system” (para. 65).
13. With respect to promises, which are at issue in the present appeal, this Court has recognized that they “need not be aimed directly at the suspect … to have a coercive effect” (Oickle, at para. 51). While Iacobucci J. recognized in Oickle that the existence of a quid pro quo is the “most important consideration” when an inducement is alleged to have been offered by a person in authority, he did not hold it to be an exclusive factor, or one determinative of voluntariness. On the contrary, the test laid down in Oickle is “sensitive to the particularities of the individual suspect” (para. 42), and its application “will by necessity be contextual” (para. 47). Furthermore, Oickle does not state that any quid pro quo held out by a person in authority, regardless of its significance, will necessarily render a statement by an accused involuntary. For example, an offer of psychiatric or psychological assistance, although “clearly an inducement, … is not as strong as an offer of leniency and regard must be had to the entirety of the circumstances” (para. 50). Inducements “becom[e] improper only when … standing alone or in combination with other factors, [they] are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne” (para. 57).
14. To the extent that any distinction in law may be asserted between the traditional “confessions rule” in Ibrahim v. The King,  A.C. 599 (P.C.), at p. 609, per Lord Sumner, and this Court’s decision in Oickle, the latter must prevail. In my view, however, Lord Sumner’s formulation of the “narrow” rule does not mean that any quid pro quo will automatically render a statement involuntary. Indeed, Lord Sumner required that in order for a statement to be admissible, it must not have been “obtained from [the accused] either by fear of prejudice or hope of advantage”. In the subsequent case of Director of Public Prosecutions v. Ping Lin,  A.C. 574 (H.L.), at p. 595, Lord Morris asked: “was it as a result of something said or done by a person in authority that an accused was caused or led to make a statement”.
15. Therefore, while a quid pro quo
is an important factor in establishing the existence of a threat or promise, it is the strength of the inducement, having regard to the particular individual and his or her circumstances, that is to be considered in the overall contextual analysis into the voluntariness of the accused’s statement.
[emphasis in original]
In 2007, in R. v. Singh, the Supreme Court of Canada noted:
3.1 Self-incrimination: The Overarching Principle from Which Both the Confessions Rule and the Right to Silence are Derived
21. Although historically the confessions rule was more concerned with the reliability of confessions than the protection against self-incrimination, this no longer holds true in the post-Charter era. Both the confessions rule and the constitutional right to silence are manifestations of the principle against self-incrimination. The principle against self-incrimination is a broad concept which has been usefully described by Lamer C.J. as a “general organizing principle of criminal law” from which a number of rules can be derived: R. v. Jones,  2 S.C.R. 229, at p. 249. Similarly, Iacobucci J. in R. v. White,  2 S.C.R. 417, described the principle against self-incrimination in these words:
The jurisprudence of this Court is clear that the principle against self-incrimination is an overarching principle within our criminal justice system, from which a number of specific common law and Charter
rules emanate, such as the confessions rule
, and the right to silence
, among many others. The principle can also be the source of new rules in appropriate circumstances. Within the Charter
, the principle against self-incrimination is embodied in several of the more specific procedural protections such as, for example, the right to counsel in s. 10(b
), the right to non-compellability in s. 11(c
), and the right to use immunity set out in s. 13. The Charter also provides residual protection to the principle through s. 7
. [Emphasis added; para. 44.]
[emphasis in original]