On the one hand, it is arguable that evidence of identity, one’s name and sufficient particulars to make one unique, should be considered as different than other kinds of evidence, because such facts cannot be incriminatory nor conscripted evidence, any more than the colour of one’s eyes or the shape of one’s face could be incriminatory or conscripted. In Leclair and Ross v. The Queen 1989 CanLII 134 (SCC), [1989] 1 SCR 3, Mr. Justice Lamer said this about that issue. “It is true that, as a general matter, the identity of the accused is not evidence emanating from the accused, nor is it evidence which cannot be obtained but for the participation of the accused. A person’s identity is pre-existing “real evidence” inasmuch as a person’s physical characteristics exist irrespective of any Charter violation or of any steps taken by the police.”
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