What is the test for producing evidence in a criminal case?

Ontario, Canada


The following excerpt is from R. v. Talbot, 2017 ONCJ 814 (CanLII):

In order to understand the American case law, the following principles and language must be kept in mind: • The Fifth Amendment states that “[n]o person…shall be compelled in any criminal case to be a witness against himself”; • “Foregone Conclusion Doctrine” – Where the location, existence and authenticity of the purported evidence is known with reasonable particularity, the contents of an individual’s mind are not used against him, and therefore no Fifth Amendment protection is available: Doe, 670 F.3d 1335 [citing Fisher v. U.S., 425 U.S. 391(1976)]; and • “An act of production can be testimonial when that act conveys some explicit or implicit statement of fact that certain materials exist, are in the subpoenaed individual’s possession or control or are authentic and the ‘touchstone’ of whether production is testimonial is if the government compels the individual to use the contents of his own mind to explicitly or implicitly communicate some statement of act”: Doe, p. 1345.

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