R. v. Ermineskin, 2020 ABPC 40 - SummaryR v Ermineskin, 2020 ABPC 40 (CanLII)
Can an accused be forced to reveal a physical attribute to the court, for identification purposes? Judge D'Arcy DePoe, after careful consideration of the relevant case law, declined to follow the line of judgments led by Marcoulx And Solomon v. The Queen,  1 S.C.R. 763, and R. v. Cyr, 1997 CanLII 1039 (BC SC), and ruled that they cannot be.
Here, the suspect of a car robbery was described as missing fingers by the complainant [par. 3]. The accused hands were out of view during the trial, and so the Crown "made an application to the court to have the accused show his hands to the complainant", for identification purposes [par. 5]. It was denied [par. 6 & 39], mostly because it would go against the constitutional principle against self-incrimination under the Canadian Charter of Rights and Freedoms.
Judge DePoe noted that in R. v. Cyr, 1997 CanLII 1039 (BC SC), the court held that "the learned trial judge erred in holding that he had no power to order the respondent in court to bare his torso so the witness and the court could see if he had tattoos on his right arm and on his chest. The presiding judge has the discretion to make such an order and to draw an inference against the accused on the issue of identification if he fails to comply with the order." [Cyr, par. 9. Partially cited, Ermineskin, par. 10] In doing so, it relied on a pre-Charter decision touching on the privilege against self-incrimination Marcoulx And Solomon v. The Queen,  1 S.C.R. 763, which considered that "(i) bodily condition, such as features, exhibited in a court-room 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 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." [pp. 770-771] In support of this position, the Supreme Court quoted Wigmore on Evidence (McNaughton revision 1961), 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."
However, Judge DePoe went on to consider that Cyr overstated that discretion, considering the Charter rights involved, and so declined to follow it and its line of judgements [par 18]. Indeed, he found that the "Charter protection [against self-incrimination] goes well beyond the common law position articulated by the Supreme Court in 1975, in Marcoux." [par. 21] After explaining the principle against self-incrimination [par. 21-24], he explained that "[i]f an accused person cannot be lawfully compelled to say anything, or even participate in his trial, it is entirely illogical to me to suggest that he can be compelled, at trial, to expose a part of his body by order of the court at the request of the Crown. The court should not be placed in this position." [par. 25]
As such, "asking an accused to show his hands, or remove clothing to display tattoos, and the like, involves conscription of the accused, and as described in [R. v. P. (M.B.),  1 S.C.R. 555] makes him in an important way compellable. It has the effect of “forcing him into assisting in his or her own prosecution,” and therefore offends this broad, over-arching principle against self incrimination." [par. 26]
Importantly, Judge DePoe also considered that no adverse inference should be drawn against an accused who refused to comply with an order to show his body [par. 27]. He relied on R. v. Noble,  1 S.C.R. 874, standing for the proposition that "[t]he silence of an accused cannot be placed on the evidentiary scales by a trial judge", and on R. v. Henry, 2010 BCCA 462, standing for the proposition that "an adverse inference cannot be drawn against an accused for refusing to participate in a photo lineup" [par. 28]. He saw "no logical difference between that position, and a failure or refusal of an accused to show a tattoo, or any other not readily or normally visible feature of his body." [par. 28] Though phrased somewhat unfortunately, since it would be strange to draw any inference from refusal to follow an invalid order, we understand his conclusion to mean that no negative inference should be drawn from an accused who simply "take an entirely adversarial position against the Crown" [par. 29], including by reasonably covering themselves—"[t]he accused would be expected to be attired in a normal manner", though it "is a difficult line to be drawn here", "with the rights of the accused, described herein, firmly in mind" [par. 31]—or keeping some parts of their body out of view.
Interestingly, Judge DePoe then went on to add that, "[a]side from avoiding a breach of an accused person’s Charter rights", such an application also went against the dignity of the court and of the accused [par. 37]. As he notes, refusing to make such an order "would serve to avoid the appearance of the court losing the appearance of impartiality and becoming involved to some degree in obtaining evidence from a presumptively innocent (and silent) accused." [par. 37] As well, it "would also avoid the unseemly and undignified spectacle of an accused partially disrobing in the courtroom, or suffering potential embarrassment from the close, public, live scrutiny of some part of his body" [par. 38].
That does not mean that an accused is totally uncompellable. In the very limited way that ordinary participation at trial "incriminates" an accused, not Charter protection exists. As Judge DePoe puts it, "there is a discretion vested in the trial judge to direct an accused person to comply with what may be described as the normal expectations of an accused appearing in court." [par. 31] As such, "[p]assive observation of an accused at trial has always been perfectly acceptable", and "[h]e might be seen to move about in the courtroom, and a witness may view him where he sits in court." [par. 31]
And, as Judge DePoe notes, there are other, valid, means to achieve the aim of the Crown regarding identification "which would not infringe an accused person’s constitutionally protected right to be free from self-incrimination" [par. 36], including "viva voce evidence of the particular features of the accused" [par. 32], including "observations [by the police] of an accused relevant to identification during the course of an arrest and placing an accused into custody" [par. 34], the introduction of "a video recorded statement of the accused" [par. 33], "evidence of various kinds in respect to the identification of an accused, via the Identification of Criminals Act, RSC 1985, c I-1" [par. 34], and "video or photographs" obtained through a General Warrant [par. 35, referring to R. c. H.-G., 2005 QCCA 1160, and R. v. T.G.H., 2014 ONCA 460].
In the case at bar, there was non-conscripted evidence that the accused had "a congenital deformity to his right hand." [par. 4] Indeed, the accused’s mother testified about his hand [par. 32] and his hands were visible in his video-recorded statement, which was introduced without objection [par. 33]. We don't have access to the oral decision finding them guilty [par. 2], but we can assume this evidence likely played a role in the verdict. We should however remain cautious of thinking that such applications are valid when no such alternative evidence exist. Even when there would be no other way to prove identity, such applications remain invalid, for the reasons given by Judge DePoe.