Legal Aspects of the Polygraph

Admissibility

The polygraph examination and its result are not admissible as evidence in Canada's criminal justice system. This statement of law was made by Justice McIntyre in R. v. Béland and Phillips [1987] 2 S.C.R. 398 Docket: 18856.

The courts of Canada hold that the result of a polygraph examination is an opinion put forth by the polygraph examiner and that evidence of this type should not supersede the role of the judge and jury to decide the credibility of a witness. Trial by judge and jury has long been the cornerstone for Canada's criminal justice system. However, the testimony of the polygraph examiner can be heard on a voir dire when a confession has been obtained.

The result of a polygraph examination can be admissible in civil court or in labour court. The law, however, as it pertains to the admissibility of such evidence, is unclear and civil courts across Canada have adopted a variety of views, ranging from acceptance of polygraph evidence, to partial acceptance, to non-acceptance. Some judges have taken the view that the decision of Justice McIntyre in R. v. Béland and Phillips applies to civil as well as to criminal matters, while others have taken the stance that any evidence of witness credibility — if probative and relevant — should be admitted, including polygraph evidence.

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 courts involved, there is essentially the same number of decisions for one side as for the other. Recent decisions, however, have shown that each case must be treated individually.

Judgments of Interest

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

During the police investigation of a series of eight fires, the suspect Richard Floyd Oickle agreed to submit to a polygraph examination. At the conclusion of the test, the officer informed the suspect that he had failed it. During a lengthy and skillful interrogation that followed, Oickle confessed to arson.

The trial judge ruled on a voir dire that the suspect's statements were voluntary and admissible, and subsequently convicted Richard Floyd Oickle on all counts.

The Court of Appeal for Nova Scotia disagreed with the finding of the trial judge and entered an acquittal.

The Supreme Court of Canada would be called upon to rule on the voluntariness of Richard Floyd Oickle's confession, on whether the polygraph had created an oppressive atmosphere for the suspect, and on whether the police had 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.

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

Judge Robert held that the opinion of the polygraph examiner was admissible when he stated:

[Translation] Proof that has been 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.

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Hotel 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 in evidence proof that has been obtained by polygraph.

He stated that certain rules of evidence must be respected, such as establishing the validity of the fundamental principle of the polygraph technique, evaluating the capacity of the polygraph instrument and the method that was followed by the polygraph examiner in the case concerned.

Other Judgments of Interest

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

Judge Pierre Dalphond stated that in order to make a decision as to the probative value of polygraph evidence, the premise of the polygraph should be supported by scientific or medical evidence, that is, that 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 manifested by a person who is telling the truth, but who is 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 showed, in a clear and preponderant way, evidence as to the validity of polygraph examinations and the validity of the results obtained.  According to the arbitrator, the evidence had to prove that when questions were asked of witnesses by polygraph examiner John Galianos, the witnesses were telling the truth at that time.