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JURISPRUDENCE

JURISPRUDENCE


Jurisprudence, as it pertains to the admissibility of a confession following a polygraph examination, is divided in Canada. According to the provinces and the different tribunals, there is essentially the same number of decisions for one side as for the other. Recent decisions show that each case must be treated separately.


JUDGMENTS


R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, Docket: 26535


During the police investigation into a series of eight fires that occurred in 1994 and 1995, in Waterville, Nova Scotia, the suspect Richard Floyd Oickle agreed to submit to a polygraph examination. At the conclusion of the test, the officer informed the suspect he had failed it. After a lengthy interrogation that followed, Oickle confessed to arson.


The trial judge ruled on a Voir Dire that Richard Floyd Oickle’s statements were voluntary and admissible, and subsequently convicted him on all eight counts of arson.


The Court of Appeal for Nova Scotia disagreed with the finding of the trial judge and entered an acquittal on Oickle’s behalf.


The Supreme Court of Canada was called upon to rule on the voluntariness of Oickle’s confession. Had the polygraph created an oppressive atmosphere for the suspect? Had the police improperly induced the suspect’s confession in any way?


On 29 September 2000, the Supreme Court of Canada ruled that Richard Floyd Oickle’s confession was given voluntarily, the findings of the trial judge were upheld, and the conviction was restored.


Lamothe v. General Accident Insurance Company, Court of Québec, REJB 1998-10865


Judge Robert held that the opinion of the polygraph examiner was admissible in evidence when he wrote:


[Translation] Proof obtained following a polygraph examination constitutes an innovative, scientific technique that is admissible in evidence. The opinion of the polygraph examiner is also admissible in evidence because he is not giving an opinion as to the credibility of the witness. Moreover, his function consists in interpreting specific physiological findings and determining whether these findings correspond to those of a person who is telling the truth.


Hôtel Central Victoriaville Inc. v. Reliance Insurance Company, Québec Court of Appeal, REJB 1998-06721


Judge Philippon states:


[Translation] A distinction must be made between the criminal and the civil courts’ requirements for the admissibility of proof that has been obtained by polygraph.


Judge Philippon specified that certain rules of evidence must be respected, such as, establishing the validity of the fundamental principle of the polygraph technique and evaluating the capacity of the polygraph instrument, as well as the method used by the polygraph examiner in the case concerned.


Vêtements Paul Allaire inc. v. La Citadelle, compagnie d’assurances générales, Québec Superior Court, REJB 2000-19632


Judge Pierre Dalphond stated that, to make a decision as to the probative value of polygraph evidence, the premise of the polygraph must be supported by scientific or medical evidence, that is, a person who is not telling the truth manifests certain physiological reactions that are measurable by a polygraph examination. These physiological reactions would be different from those exhibited by a person who is telling the truth, but may be influenced by stress or any other factor.


QUÉBEC LABOUR COURT


Fraternité des policiers et policières de Longueuil inc. v. Ville de Longueuil, Québec Labour Court, D.T.E. 2001 T-534


Arbitrator Pierre Descoteaux came to the conclusion that the union had shown evidence as to the validity of polygraph examinations and the validity of the results obtained in a clear and preponderant way. According to the Arbitrator, the evidence had to prove that when the witnesses answered questions asked by polygraph examiner John Galianos, they were telling the truth at that time.