In his contention that the protection against self-incrimination guaranteed by s. 2(d) extended to the enforced production of documents, counsel for the appellants placed particular reliance on the following passage in the judgment of Dickson J. in Marcoux and Solomon v. The Queen (1975), 1975 CanLII 10 (SCC), 60 D.L.R. (3d) 119 at pp. 123-4, [1976] 1 S.C.R. 763 at p. 769, 24 C.C.C. (2d) 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 "parallel courses" in the development of the American and Canadian law on self-incrimination to which Mr. Justice Dickson referred would appear to have been chiefly concerned with the distinction between "testimonial compulsion" and "physical evidence taken from a person without his consent", which was what was in issue in that case. In my respectful opinion he did not intend to address the question whether s. 2(d) of the Canadian Bill of Rights guaranteed protection against self-incrimination by the enforced production of documents, but was merely referring to the statement of the essential distinction with which he was concerned, as it is found in American jurisprudence.
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