Ontario (Attorney General) and O.P.S.E.U. (Khan), 1989 CanLII 9348

Re The Crown in right of Ontario (Ministry of Attorney-General) and Ontario Public Service Employees Union (Khan)

[Indexed as: Ontario (Attorney General) and O.P..S.E.U. (Khan), Re] Ontario, Crown Employees Grievance Settlement Board, KB Swan, W Walsh, W Lobraico. April 26, 1989.

EMPLOYEE GRIEVANCE alleging unjust discharge. Grievance allowed.

D.I. Bloom, R. Stoykewych and others, for the union. J. Zarudny and others, for the employer. EDITORIAL NOTE: This award, which was not reported when issued, has been the subject of considerable interest, and is referred to in Re Canadian Oxy Ltd. and Pulp, Paper & Woodworkers of Canada, Loc. 5, infra, p. 313. It is reported here in part as a contribution to the jurisprudence on a recurrent issue.

DECISION (in part) Hearings in this matter began on September 4, 1986, and continued through more than 30 days of evidence and argument to March 23, 1988. At the outset of the hearings, both parties were agreed that the board's jurisdiction to hear and determine this matter was not at issue. This arbitration relates to the discharge of Ms. Sandra Khan on January 11, 1985. Ms. Khan had previously been suspended with pay from August 24, 1984, pending a further investigation by the employer of her case. The allegations against her are set out in a number of different documents, but amount to a number of accusations of theft, further accusations of mishandling of funds, and alternative accusations of negligence in the performance of her duties.

We begin by observing that a case of this length is extremely difficult to synthesize into a written award. There are a number of substantial factual and legal issues to be resolved, each of which is central to the disposition of the matter before us. There were also, we feel obliged to observe, a number of blind alleys in the evidence, and a large number of procedural rulings which we were required to make from time to time. In the interests of maintaining some control over this award, we have limited ourselves to those findings of fact and law which we consider to be essential to our decision. Reasons for a number of interlocutory decisions were given orally in the course of the hearing, and we have only reproduced here those which lead directly to the outcome. If either counsel requires written reasons for any other interlocutory findings, a written request with notice to the other party will be sufficient to have us render such reasons.

We propose to begin with a chronological overview of the events in question, to provide context for our specific findings to be set out in greater detail below. We shall then detail the issues which arise between the parties, each of which requires a number of findings of fact and determinations of law. We shall then proceed to set out those findings on each of the issues, from which findings the result of this case will necessarily emerge.

1. Chronological overview

All of the material events in this arbitration involve the employment of Ms. Sandra Khan in the office of the Public Trustee in Toronto. The Public Trustee is a corporation sole, and the incumbent is appointed by the Lieutenant-Governor in Council pursuant to the Public Trustee Act, R.S.O. 1980, c. 422. The Public Trustee has duties to perform under that legislation, as well as under the Crown Administration of Estates Act, R.S.O. 1980, c. 105, the Charities Accounting Act, R.S.O. 1980, c. 65, and any other duties assigned by the Lieutenant-Governor in Council from time to time. In general, those duties involve the probate and administration of the estates of deceased persons who have not appointed someone else so to act, and the administration of the estates of living persons who are, for one reason or another, disabled from seeing to their own affairs; such persons include infants, persons found mentally incompetent, and persons who voluntarily assign their estates to the Public Trustee for management. The office also has responsibility for administering new charitable trusts and reviewing the operation of other established charities, and in respect of the winding-up of corporations. For the purposes of this arbitration, the important functions are those performed in relation to the receipt, realization, recording, investment and disbursement of property, whether in the form of cash, securities or personal property, received in trust for "clients" of the Public Trustee.

The grievor, Sandra Khan, was employed at all material times in those operations in the Public Trustee's office. She is a native of Trinidad, has lived in Canada since 1972, and has been a Canadian citizen since 1978. She completed a secondary school education in Trinidad, and following her arrival in Canada studied bookkeeping, business machines, accounting, English and mathematics at George Brown College and Ryerson Polytechnical Institute, from which she received a certificate in business education. She began in the Public Trustee's office as a bookkeeping machine operator in 1975, and worked from time to time as "Cash Cashier" as a replacement for employees on maternity leave prior to becoming permanent Cash Cashier in 1979. From then until her discharge, she worked either as Cash Cashier or, on a replacement basis, as "Securities Cashier". The two cashiers work in adjoining "cages". The cages front on a reception area to which the public has access, and sliding glass partitions are provided to permit the cashiers to deal face to face with the public or with members of the Public Trustee's staff as required. The cages back onto an office area where a number of other employees have desks. Access to the cages is provided by locking doors leading from the office area; the sliding windows into the reception area do not provide access, except possibly for an arm and hand, into the cages. The cages are open at the top, but a wooden partition topped by a glass panel surrounds both cages and separates them from each other. A tall person could reach over this partition, but would have to do so in full view of anyone in the office at the time. As the job titles imply, the Cash Cashier is responsible for receiving and accounting for cash which is delivered to the Public Trustee. This cash comes from a variety of sources, as will be seen, and the handling required by the procedures then in place differed somewhat depending upon the source and the circumstance of the payment of the cash to the Public Trustee. In general, our concern is with the operation of the cash cage, including the payment in of cash, the accounting for it upon receipt, the storage of cash while in the custody of the Cash Cashier, and the deposit of cash in the unsegregated trust accounts maintained by the Public Trustee. In addition, the Cash Cashier deals with the receipt, processing and deposit of other negotiable documents, such as cheques, bonds and bond coupons. The responsibility for securities is shared with the Securities Cashier, who also deals with a wider range of less liquid securities, as well as some items of personal property. While there is some dispute as to the precise implications of the relationship, it appears that the Securities Cashier was the more senior of the two cashiers, and that the Cash Cashier was generally expected to respond to directions received from the Securities Cashier on matters such as organization of work, relief and assistance of one cashier by the other. At all material times, the Securities Cashier was Ms. Anna Mores. Ms. Mores was appointed in a competition in 1982, in which the grievor was also a candidate. She had previously worked from time to time as a Cash Cashier, and in other jobs in the Public Trustee's office. Her hours of work were from 7:30 a.m. to 3:30 p.m., while the grievor's hours were from 9:00 a.m. to 5:00 p.m. As a result, the practice was that, in normal circumstances, the Securities Cashier would open up both cages in the morning, placing cash boxes and documents in both cages after receiving them, with the assistance of a custodian, from the main vault. The Cash Cashier would reverse this process at night, closing both cages and removing cash boxes and documents to be placed in the vault overnight. When either cashier was absent from her cage, the other cashier would receive securities or cash, as the case may be, for the other and turn it over upon her arrival or return. As will be seen, the procedure for handling by one cashier of receipts for the other was totally devoid of any safeguards, and therefore dependent upon trust and the integrity of both cashiers. In addition to these two employees, two others, Ms. Marcia Brown and Mr. Randolph Firebrace, also acted as required during the material period as Cash Cashier. This involved replacing the grievor when she was absent on any occasion, or when she was required to act as Securities Cashier because of the absence of Ms. Mores. Once again, as we will see, the procedures for safeguarding cash being held by the Cash Cashier were rudimentary at best, and this system of relief for back-up cashiers also depended heavily upon trust and the integrity of the people involved. Unfortunately, in circumstances which could only involve a breakdown in the integrity of one or, less probably, more of these persons, or less probably still of some unidentified employee of the Public Trustee's office, irregularities occurred in the handling of cash in the last months of 1983 and the beginning of 1984. During the months of August and September, 1983, there were suspicious delays between the apparent time of receipt of certain cash amounts in the cash cage and the deposit of those amounts in the bank. On six other occasions, beginning on September 26, 1983, and ending on March 9, 1984, sums of cash apparently received in the cash cage were never deposited, and have never been traced. The total amount involved is $2,679.35, and the only reasonable inference is that this amount of money was stolen from the Public Trustee. At the time of the thefts, and the apparent delayed deposits, the events went unnoticed. On April 12, 1984, however, the disappearance of a sum of $856 in cash, paid in on February 20, 1984, to the grievor for an automobile sold by the Public Trustee on behalf of a client's estate, was discovered by a trust officer who had been planning to use those funds to meet certain obligations of the estate. This led to accounting inquiries and a physical search for the funds, but they were not found either as cash or as an entry in any of the Public Trustee's accounts. The grievor herself was approached, but she was unable to offer any explanation.

When it appeared that certain documentation for the cash had also disappeared, the search for the missing funds was broadened. Ms. Margaret Thompson, internal auditor in the Public Trustee's office, reviewed transactions in the Cash Cashier's cage over an extended period, and discovered that there were in fact six losses, each involving cash received at the cages which ultimately disappeared, without arriving in any of the Public Trustee's accounts. As will be seen, the grievor was connected in some way to each of these amounts of money, or at least had access to them at some point. As will be seen, however, so did at least one of the other three individuals mentioned above. Ms. Thompson's investigation also revealed the "late deposits", as we shall call them for ease of reference, subject to further analysis below as to what they actually reveal. Her evidence was that the grievor, confronted with these findings in late May, 1984, was unable to provide any explanation. Meanwhile, the loss of the original $856 and the subsequent discoveries were reported to the Public Trustee, Mr. Albert McComiskey. The record indicates that Mr. McComiskey was becoming more and more concerned about the original loss as time went by, particularly because he was unable to get a reasonable explanation from any of the employees involved, whether directly or peripherally. Moreover, he discovered in the course of his own investigation serious shortcomings in the cash accounting procedures, to which we shall have greater reference below, which had permitted cash to be removed without immediate discovery and, indeed, with the possibility that it might not be discovered at all but for a chance occurrence such as that which brought the missing $856 to light. As a consequence, Mr. McComiskey met with the grievor on May 16, 1984, at which time they discussed the missing $856. There was some dispute between them, in subsequent correspondence, as to exactly what was said at that meeting; that dispute continued until the time of the hearing. In any case, the other discrepancies were now coming to light, and the investigation by Ms. Thompson was continuing.

Ms. Thompson ultimately requested the assistance of the Audit Services Branch of the Ministry of the Attorney General, the ministry which supervises the Public Trustee's office. An extensive report dated July 25, 1984, was provided to the Public Trustee, detailing the shortcomings in the cash control system and making certain recommendations for improvement. On July 26, 1984, Mr. McComiskey wrote a formal letter to the grievor demanding an explanation for the discrepancies relating to the six losses and the late deposits. He proposed a meeting at which the grievor would be entitled to be accompanied by her union representative. That meeting apparently took place on August 8, 1984, but led to no successful resolution of Mr. McComiskey's concerns. On August 9th, therefore, he reported the matter to the Metropolitan Toronto Police, and two detectives from the investigation office of 52 Division attended at the Public Trustee's office on August 17th. Following interviews with Ms. Thompson and other management employees, the detectives concluded that the best course of action would be to arrange polygraph tests of the employees upon whom suspicion had fallen, and in particular the grievor. The grievor agreed to undergo such a test, and she was taken the same afternoon to the Metropolitan Toronto Police polygraph unit, where Sergeant Nelson Scharger, a qualified polygraph operator, administered a test. As will be seen, the grievor "failed" the polygraph test, in the sense that Sergeant Scharger concluded, based upon his training and experience, that the results of the test indicated that she was deceptive about her answers denying responsibility for the missing sums of money. He then engaged in a "post-test interview", a form of interrogation, the outcome of which was that the grievor made certain statements to him and to another police officer, first orally and then in writing, which amounted to an alleged "confession". In the result, the grievor was arrested and charged with theft. She was released on her own recognizance the same evening. When news of the criminal charges reached the Public Trustee, the grievor was suspended from employment with pay by letter dated August 22, 1984, pending further investigation. A preliminary inquiry commenced during the autumn of 1984, during the course of which evidence relating to the confession was heard. The result was an indictment, preferred by the Crown at the opening of the trial on April 14, 1986, for theft, to which the grievor pleaded not guilty. The trial was by judge and jury, and in the course of the trial the confession evidence was again offered. It was ruled inadmissible on voir dire, apparently with the acquiescence of the Crown. The polygraph evidence was not tendered either at the preliminary inquiry or at the trial. On April 28, 1986, the jury returned a verdict of guilty. The grievor was remanded to May 15, 1986, for sentencing, at which time the presiding judge, Whealy D.C.J., entered an absolute discharge, after a very strong statement of his disagreement with the jury verdict.

The grievor appealed against the conviction, and the Crown appealed against sentence. During the course of the hearing before us, the matter came before the Ontario Court of Appeal, and the conviction was quashed and an acquittal entered. The appeal against sentence, of course, was dismissed. In the meantime, as we have observed, a decision was taken by the ministry, pursuant to the Public Service Act, to dismiss the grievor. This was done effective January 11, 1985, thus terminating the series of suspensions with pay which began August 24, 1984. The decision to discharge was certainly informed by the various investigations conducted, and the evidence which had been presented at the preliminary inquiry, but it is clear that the discharge was independent of the criminal prosecution, since it long pre-dated the grievor's conviction. The reasons for the discharge as set out in the letter of dismissal are as follows:

Mr. McComiskey's recommendation is based on a review of certain incidents, concerning missing monies, which occurred in the Public Trustee's Office and which involved you over the period from September of 1983 to March of 1984 inclusive, the details of which have been discussed with you.

2. The issues

While this case includes a myriad of subissues, as will be seen, the major matters to be considered are only three in number:

1. Does the evidence relating to the events in the Public Trustee's office meet the onus of proof on the employer to make out the allegations against the grievor upon which the discharge was based?

2. Is the evidence of the result of the polygraph test admissible in these proceedings, and if so what weight is to be placed upon it?

3. Is the evidence relating to confession admissible in these proceedings, and if so what weight is to be placed upon it?

It will be observed that each of these issues requires somewhat different analysis. The evidence regarding the events at the Public Trustee's office during the relevant period is essentially circumstantial evidence; there is no direct evidence of the grievor either taking or being wrongfully in possession of a particular sum of money at any material time. It is therefore necessary to sort through many days of testimony on the circumstantial issues to decide whether or not the evidence is sufficient to meet the standard of proof.

On the other hand, the two other issues really involve what might be called direct evidence, rather than circumstantial evidence. If we find that the polygraph evidence is admissible, and that it is probative, then we must find that the grievor was lying when she denied having taken the money in the course of the polygraph test. Those same denials in evidence before us must also be lies, and we would have to conclude that the entirety of her evidence is in serious question. Taken at its highest, therefore, the polygraph evidence would almost of itself establish the grievor's guilt. The employer argues, in addition, that polygraph evidence may be placed on the scales to bolster the circumstantial evidence, since even if it is not absolutely determinative of truth or falsehood, it enhances the probability that the grievor took the money. We shall return to these arguments at great length below. Similarly, if we accept that the confession evidence is admissible and trustworthy, it may also be used either as a conclusive determination of quilt, or simply as a makeweight to bolster the case based on circumstantial evidence. These matters, too, will occupy some length below.

3. The circumstantial evidence

[The details of the circumstantial evidence are omitted.] We turn, therefore, to a characterization of this evidence. To begin with, we observe that the onus of proof in this matter is squarely on the employer, and that the standard of proof to be met, where the alleged misconduct is criminal in nature, is that there must be clear and convincing proof appropriate to the seriousness of the conduct alleged. While it is clear that the proof must be only on a balance of probabilities, and not on the basis of proof beyond a reasonable doubt, the jurisprudence of courts of civil jurisdiction, arbitrators in the private sector, and the Grievance Settlement Board are all to the effect that an allegation of criminal conduct must be made out on the basis of clear and convincing proof: see Daggit, No. 531/85, the reasoning of which we adopt in this case. The fact that the only evidence here being considered is circumstantial evidence does not make it impossible for the employer to meet this standard of proof. There are no special rules in relation to circumstantial evidence in civil cases, as there are in criminal cases, and we are entitled to draw such inferences from the evidence as appear to us to be reasonable and appropriate, and to act upon the balance of probabilities based upon all of the circumstances. On the other hand, when circumstantial evidence is tested against the "clear and convincing" standard, it will be obvious that, like all other evidence, it will be tested more carefully than might be the case where less serious allegations are at issue. In Erwin, No. 1377/86, the Grievance Settlement Board dealt with the issue as follows, beginning at p. 9:

The weighing of circumstantial evidence is thus largely a process of excluding alternative possibilities. In so doing we have to take notice of what is humanly possible in the circumstances. We cannot cast an onus upon the grievor to prove to us that there are alternatives, although he would certainly help his own cause with every plausible alternative he proposed. Rather, the onus is still on the employer to prove by clear and convincing evidence that there are no such alternatives.

We were referred to several cases which deal with circumstantial evidence. In the case of Sunnybrook Hospital and Sunnybrook Hospital Employees Union, Loc. 777 (Gastis), June 27, 1986, an unreported award of arbitrator Michel Picher, he writes at p. 17:

"In the arbitrator's view, where the evidence is principally circumstantial, it must be determined whether, in balancing the probabilities, there are other reasonable explanations equally probable or more probable than the proposition which is advanced by the party that bears the burden of proof. If there are no reasonable alternative possibilities of equal or greater probability, it may be concluded, as a matter of evidence, that the allegation advanced is established on the balance of probabilities."

While we agree with the statement of Mr. Picher in the above case, we would add the caveat that in a case involving an allegation of dishonesty we must, in the final analysis, still be convinced by a degree of proof that meets the high standard commensurate with the gravity of the allegation.

We are, in general, in agreement with these propositions, although we think it is important to observe that the statement of the proper approach in the Sunnybrook Hospital case is susceptible of misunderstanding. In our view, it would not be correct to decide a case based on circumstantial evidence on the basis merely that the allegation sought to be proved is the most attractive among a number of possible alternatives. It may be that the evidence suggests so many possibilities that no single one of them, even the most appealing, can rise to the standard of clear and convincing proof of the allegation. Put in the terms of the present case, it is not enough simply to find that the grievor is the most probable suspect among all of the people who had access to these funds. What is required is that we find that it is more probable than not, on the basis of clear and convincing proof, that the grievor did what she was alleged to have done, and stole the money here at issue. In our view, once the test is properly stated, it is obvious that the employer's case, to the extent that it is based upon the circumstantial evidence, must fail. We come to this conclusion on the basis of our review of the evidence above, which demonstrates that there are simply too many plausible alternative explanations to find that the employer has made out its case. While this is our own decision based upon the evidence before us, we observe that the Internal Auditor, the Public Trustee, the ministry auditors, the police and, except for a jury verdict which was set aside in circumstances already described, the courts have all come to a similar conclusion on the weight of circumstantial evidence in this case. It is not enough for the employer to succeed for it to identify the grievor as the prime suspect; since it cannot go the further step to show that the grievor, on clear and convincing evidence, more probably than not stole this money, its case must fail unless either the polygraph evidence or the confession evidence, neither of which has been considered in a final way in any earlier proceedings, leads us to a different conclusion. We therefore turn to those issues.

4. The polygraph evidence

Courts and tribunals in several Canadian jurisdictions have dealt with the admissibility of polygraph evidence, and the weight to be placed upon the opinion of polygraph operators, in a number of different contexts. It appears, however, that we have had the most complete exposition of all of the various issues arising from this kind of evidence of all of these tribunals. We shall therefore review these submissions in some detail, and hope that we can make some contribution to the continuing debate as to the scientific, legal and policy considerations which underlie the use of polygraph evidence before courts and tribunals in this country, and especially before arbitrators.

We begin with a description of the polygraph test as it is generally used, and more particularly as it was used by the polygraph unit of the Metropolitan Toronto Police in this specific case. The polygraph itself is an electromechanical device designed to monitor a number of physiological variables. The variables are measured on a continuous basis by a tracing on a moving graph paper. The Metropolitan Toronto Police apparatus tracks three variables. A sensor placed around the upper chest of the subject measures upper respiration. Galvanic skin response is measured by sensors placed on the hands to detect differences in sweat gland activity. Blood pressure is also monitored by a cuff placed on the upper arm. During the course of the test, the examiner provides a number of stimuli to the subject in the nature of questions, to which we shall return below. The timing of each question is marked mechanically on the graph, so that the examiner can subsequently assess the changes, if any, in the various physiological responses connected with each question. In general, it is not the amplitude of these responses which is of interest, but rather changes in the values connected with certain questions in comparison with others. The theory of the polygraph is that the measurement of physiological responses to psychological stimuli in the form of questions can indicate the psychological reaction of the subject in relation to the questions. Obviously, for the polygraph to constitute a "lie detector", and thus to have some usefulness in law enforcement, it is necessary to find some link between the physiological responses of the subject and a deceptive answer to a question relevant to the investigation. The major obstacle to this exercise is the fact, admitted by all scientific opinion, that there is no clearly identifiable physiological response for deception. While the polygraph clearly shows even the most minute variation in the physiological responses, it is impossible to distinguish among the psychological reactions to a particular question which might have caused that variation. For example, a subject who reacts very strongly to answering a particular question might be reacting out of fear, elation, anger, relief, or some mixture of these and other psychological responses. There is no method now available to demonstrate that the cause of a particular physiological reaction is an attempt to deceive. This incontrovertible, and so far unavoidable, fact led to the discrediting of the polygraph as a scientific test of deception for many decades.

In an attempt to improve the reliability of the polygraph, there have been several attempts to develop mechanisms for channeling the stimuli to be applied with a view to improving the value of the measured responses. In 1947, a John Reid developed a method called the "control question technique", which in refined form is the method most widely used today, and which was used in this particular instance. The theory of this technique is to attempt to measure physiological responses to questions relevant to the investigation against physiological responses to questions that are designed to induce deceptive answers. Thus, the response to the relevant question can be compared directly to a response that, if the theory works, clearly demonstrates deception.

The technique depends upon the skill of the examiner in formulating questions, in the course of a pre-test interview with the subject, which are calculated to lead the subject to give a false answer. The idea is to induce the subject to answer, in the negative, a question asking about generalized dishonest or reprehensible behaviour in the past, unconnected with the incidents relevant to the investigation. For example, a subject might be asked if he or she had ever done anything dishonest prior to the time when the relevant events occurred. The theory is that everyone has done something dishonest, and therefore no one could answer the question honestly in the negative. Subjects who attempt to answer the question in the affirmative are dissuaded from doing so by encouraging them to reveal the nature of the dishonesty, and then to exclude the revelations by formulating the question "Apart from what you have told me ...". The examiner's purpose is to continue to exclude all revelations until the subject finally gives a negative answer. Since the theory is that no one could ever give a negative answer, and everyone must be hiding something further, the answers to those questions will provide a "control", in the sense that they will show the subject's physiological reactions to an act of deception. The pre-test interview has, in fact, a number of other purposes besides the formulation of the control questions. Part of the exercise is designed to assess the subject's suitability for a polygraph examination, by excluding such factors as mental illness, influence of prescription or non-prescription drugs, or any unwillingness to co-operate. The interview is also designed to condition the subject to an acceptance of the validity of the polygraph test. Information about the test will be supplied by the examiner, in the case of the Metropolitan Toronto Police polygraph unit in the form of a small booklet which the subject is asked to read. It is an undenied purpose of the pre-test interview to condition the subject to a belief as near absolute as possible in the efficacy of the polygraph in detecting deception, apparently on the theory that this will enhance the reactions to deceptive answers and make them stand out more clearly, whether those deceptive answers are given to relevant questions or control questions. To further enhance this conditioning, and also to ensure that the polygraph is working properly and that the subject is giving usable readings, a "double verification test" is carried out, in which the subject is asked to choose a number from a set of numbered cards, and then to give a negative answer when each number is read out. The examiner then catches the subject in a lie by identifying the number which the subject has chosen, and the subject is thereby convinced of the accuracy of the machine. In fact, this is a trick. Even if one accepts the accuracy of the control question technique, this approach would be unlikely to identify accurately the false answer because there is no control question against which the deception related to the number can be measured. In addition, a lie about a number, particularly a lie deliberately told at the examiner's request, is unlikely to evoke much of an emotional reaction in anyone. Therefore, by a system of marked cards or something of that nature, the examiner knows which number has been selected, and deceives the subject into thinking that the polygraph has revealed the lie.

In the standard test, the subject is asked questions of three kinds: relevant questions, which deal directly with the matter under investigation; irrelevant questions, which may have to do with the weather, geography or the subject's family, and control questions which have been produced by the process set out above. There may be hybrid, or "quasi-relevant" questions, as well. The subject is asked these questions three times, with the order of asking them varied in accordance with a pre-set formula so that each control question may be compared with a different relevant question in each test. The graphs of the physiological responses thus produced are then assessed in accordance with a predetermined scoring system which measures the difference between the reaction to each relevant question and the associated control question. The irrelevant questions are not scored, and really have nothing to do with the test at all. All of the answers to the scored questions will, of course, be in the negative. As to the control questions, a negative answer has already been pre-conditioned by the way in which the questions are formulated. As to the relevant questions, an affirmative answer would be tantamount to a confession, which would thus render scoring of the test unnecessary. Presumptively, therefore, all of these answers will be negative too. The scoring is based on the premise that innocent people will have a less marked reaction to the relevant questions, to which they can be truthful, than to the control questions, to which they cannot. Guilty people will have a more marked reaction to the relevant questions, since they cannot be truthful to any question, but the relevant questions will be of far more significance because of their relationship to the investigation. The sign of the score assigned (positive or negative) therefore depends on whether the reaction is greater to the control question or to the relevant question; a negative sign indicates a greater reaction to the relevant question, and therefore is considered to show deception. The value of the score, which can be from one to three, measures the ratio of the differing reactions to the questions. A "0" score indicates identical reactions to both questions. The scores for each pair of questions are then added together. There are three pairs of questions per test, three physiological measurements are taken, and three tests are run, so the scores could theoretically be as high as 81, with either a positive or a negative sign. A score between —5 and +5 is considered to be indeterminate. A score of —6 or lower is considered to be a clear indication that the answers to relevant questions were deceptive, while a score of +6 or higher is considered to demonstrate truthfulness. The usual procedure is for all of the tests, including the number test which is designed to trick the subject into a heightened respect for the accuracy of the polygraph, to be run consecutively. When all are completed, the examiner retires from the polygraph room and scores the test. After scoring, the usual practice is to return to the subject and reveal the result of the test in a post-test interview If the test does not demonstrate deception, this interview is normally quite short. If it does demonstrate deception, it is customary for the post-test interview to take on the nature of an interrogation with a view to eliciting a confession. In fact, confessions during post-test interviews where a result indicating deception has been found are very common, and it is probably fair to say that the quest for a confession in the post-test interview is one of the primary purposes for using the polygraph test in police investigations. We shall return below to a more critical examination of this practice in general, and of the way in which it was conducted in this case. First, however, we shall concentrate on the examination itself. The polygraph test in this particular case was administered by Sergeant Nelson Scharger, who has been with the Metropolitan Toronto Police polygraph unit since 1983. His training in polygraphy techniques began with a 15-week course at the Canadian Police College, followed by two weeks' field training with an experienced examiner. He then did polygraph tests for Metropolitan Toronto Police, submitting the first five, and five out of the next 25 tests to the Canadian Police College for quality control. After satisfactory completion of these requirements, he was certified as a polygrapher. His previous experience with the Metropolitan Toronto Police, which began October, 1963, included far more than the prerequisite five years of investigative experience. Since certification, he has attended a further two-week in-service advanced seminar at the Canadian Police College, and has twice assisted in training new polygraphers. He is a member and director of the Canadian Association of Police Polygraphists and a member of the American Polygraph Association.

His involvement with this case took place on August 17, 1984, when the grievor was brought to the polygraph unit by Sergeant James Hughes to keep an appointment made earlier in the day. Sergeant Hughes was one of the investigating officers who attended at the Public Trustee's office that morning to interview various people, including the grievor. Sergeant Hughes asked the grievor if she would be willing to undergo a polygraph test, and his evidence is that she agreed without hesitation to do so. The evidence is somewhat equivocal as to whether all of the persons who might have had access to the money were also asked to undergo a polygraph test. In any case, as it transpired, no one else except the grievor was tested. The evidence indicates that the grievor arrived at the polygraph unit at 1:53 p.m. on August 17th. She was introduced to Sergeant Scharger, and it seems likely that he was given to believe by Sergeant Hughes that she was the prime suspect in relation to these thefts. From that point on, the grievor was alone with Sergeant Scharger in the polygraph room in relatively restricted physical surroundings. After a few brief preliminaries, she was given a copy of the Metropolitan Toronto Police publication entitled "Your Rights When Asked to Take a Polygraph Examination", and was left to read it. This booklet, which is mostly in question and answer form, is obviously designed to allay any concerns the subject might have about "failing" the test when telling the truth, and at the same time to convince the subject that any deception will be detected. Without going into detail, this document includes a number of half-truths, and at least one or two statements which are demonstrably false. In particular, the booklet includes the following statement:

We know of no verified instance of a competent polygraphist reporting a truthful person as untruthful. It can happen, however, that an untruthful person is reported to be truthful, but even this occurs rarely (about once out of 100 cases).

As will be seen below, this statement about the accuracy of the polygraph is not accepted by even its most ardent supporters. We make no moral judgment on this document; obviously the form of the document is designed to achieve a purpose and to prepare the subject psychologically for the test. We make these observations only to give some indication of what the grievor's state of mind might have been during and after the polygraph examination. Shortly after leaving her to read the booklet, Sergeant Scharger returned to the polygraph room and had a brief discussion about the investigation and her willingness to take the polygraph test. He then began to fill out a standard polygraph procedure form which required him to read the customary warning from his warrant card, and to ask her if she understood. She indicated that she did, and was asked to sign a consent form in the following terms:

I, Sandra Khan, do hereby voluntarily, without threats, promises of immunity or reward and without duress, coercion or force, agree to take a polygraph (lie detector) examination, to be given to me by a member of the Metropolitan Toronto Police Force. I fully realize that I am not obliged to say anything and that anything I say may be given in evidence.

The grievor signed this form at 2:04 p.m., and her signature was witnessed by Sergeant Scharger, who added a quotation from the grievor, "I'm here on my own will", beneath his signature. The timing of this document gives some indication as to the amount of time given to the grievor to reflect on the information booklet which she was asked to read. The rest of the form is used to assist the polygrapher in preparing control questions and the relevant questions, and in gathering further details about the matter to be investigated. This document, and another document entitled "Polygraph Background Information", asks a number of quite personal questions, including questions relating to medical history, medications being taken, pregnancy and menstruation. The Polygraph Background Information form indicates that it was started at 2:05 p.m., and completed at 2:25 p.m. At this point, using a form entitled "Modified Zone Comparison Questions Wordings", Sergeant Scharger prepared the 10 questions to be asked on the test. The test form provides for a question confirming the subject's name, and then includes three irrelevant questions. There are spaces for three relevant questions, but in fact Sergeant Scharger only asked one question three times, posed in slightly differing ways, whether between September, 1983 and March, 1984, the subject stole any of the missing money. The control questions were: "Not connected with this case, do you remember ever stealing anything?", "Besides what you have told me, not connected with this case, do you remember ever cheating anyone out of anything?", and "Not connected with this case, do you remember ever doing anything you were ashamed of?" The somewhat different form of the second question is apparently because, in the course of discussion, the grievor admitted to a concern not here relevant. It should be observed that there is no record of how these questions were actually compiled, and Sergeant Scharger's evidence was couched in the form of what he would have done, rather than what he actually did do in these circumstances. In any case, he was able to negotiate with the grievor three control questions to which she would answer in the negative, and he thus had all of the questions which he needed to complete the test.

Following this exercise, he returned to the polygraph room, connected the sensors to the grievor's body, proceeded through the number test already referred to, and then went directly on to the three formal tests. During the first of these tests, there was some difficulty with the galvanic skin reaction sensor, but the other indicators appeared to be working properly. Sergeant Scharger made some adjustments between the first and second test, and readings were obtained from all three sensors for the second and third tests. Following the test, Sergeant Scharger took the graph with him outside the test room, leaving the grievor connected to the machine. He scored the test and got a final score of —11, which fit clearly into the defined deceptive range. He concluded that the grievor was deceptive, and returned to the room to inform her of his findings. At that point he disconnected her, and the post-test interview began, a matter to which we shall return in more detail below. In his evidence before us, Sergeant Scharger gave his opinion that the grievor was deceptive in her answers to the relevant questions asked to her on August 17, 1984. The employer seeks to put this opinion into evidence as the expert opinion of a skilled polygrapher. It will be obvious that, if this evidence is both admissible and reliable, the grievor must also have been deceptive when she gave negative answers to essentially the same questions before us, from which one can only conclude that she did indeed take the money. It therefore becomes of central importance in this case to assess the extent to which polygraph evidence is admissible before us, and the extent to which we can reasonably place reliance on Sergeant Scharger's opinion as to the truthfulness of the grievor's answers on August 17, 1984, and, by extension, in evidence before us. We therefore turn to a detailed consideration of those issues.

The union's first objection to the polygraph evidence is that it is, as a matter of law, not admissible in judicial or quasi-judicial proceedings in Canada. While there has been a substantial amount written on this issue in lower courts, the most significant decision is the recent judgment of the Supreme Court of Canada in R. v. Beland and Phillips (1987), 43 D.L.R. (4th) 641, 36 C.C.C. (3d) 481, [1978] 2 S.C.R. 398, 79 N.R. 263. In that case, the court upheld its previous decision in Phillion v. The Queen (1977), 74 D.L.R. (3d) 136, 33 C.C.C. (2d) 535, [1978] 1 S.C.R. 18, 14 N.R. 371. Phillion had been decided on the basis that a statement by an accused to a polygraph operator asserting his innocence and bolstered by the polygraph operator's expert opinion that the statement was truthful would offend against the hearsay rule, since the accused had not testified himself. In Beland and Phillips, both accused had testified at trial, and the polygraph evidence was sought to be introduced to bolster the credibility of the denial given in evidence by the accused. When the matter came before the Supreme Court, the majority found four reasons to reject it as inadmissible. The first three reasons, because of the dynamics of the particular case, are not really relevant to the way in which the present matter comes before us. The fourth ground, however, is directly relevant, and must be explored in greater detail. The majority determined that to permit this evidence to be called would be an improper use of expert evidence. The court's analysis [at pp. 653-6] is as follows:

Expert evidence It was also argued that the polygraph evidence was receivable as expert evidence. The polygraph operator, as an expert, was trained and qualified to give his opinion as to the veracity of the witness, based solely on his interpretation of the significance of the responses made by the witness to the questions put on the examination.

The role of the expert witness was defined in this Court in R. v. Abbey (1982), 68 C.C.C. (2d) 394, 138 D.L.R. (3d) 202, [1982] 2 S.C.R. 24. Speaking for the Court, Dickson J. (as he then was) said, at p. 409 C.C.C., p. 217 D.L.R., p. 42 S.C.R.:

"With respect to matters calling for special knowledge, an expert in the field may draw inferences and state his opinion. An expert's function is precisely this: to provide the judge and jury with a ready-made inference which the judge and jury, due to the technical nature of the facts, are unable to formulate. 'An expert's opinion is admissible to furnish the Court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of the expert is unnecessary': (R. v. Turner (1974), 60 Cr. App. R. 80, at p. 83, per Lawton L.J.)"

It was said in David v. Magistrate of City of Edinburgh, [1953] S.C. 34 at p. 40, by Lord Cooper:

"Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence."

The function of the expert witness is to provide for the jury or other trier of fact an expert's opinion as to the significance of, or the inference which may be drawn from, proved facts in a field in which the expert witness possesses special knowledge and experience going beyond that of the trier of fact. The expert witness is permitted to give such opinions for the assistance of the jury. Where the question is one which falls within the knowledge and experience of the triers of fact, there is no need for expert evidence and an opinion will not be received.

Here, the sole issue upon which the polygraph evidence is adduced is the credibility of the accused, an issue well within the experience of judges and juries and one in which no expert evidence is required. It is a basic tenet of our legal system that judges and juries are capable of assessing credibility and reliability of evidence. This question has been the subject of a comment by Michael Abbell in "Polygraph Evidence: The Case Against Admissibility in Federal Criminal Trials" (1977), 15 Am. Crim. L. Rev. 29, who said, at p. 55:

"Witness or defendant veracity has seldom been viewed a technical issue on which untrained' laymen are unqualified to reach intelligent determinations after being exposed to all of the evidence in a case. Indeed, it has been the traditional function of jurors in our system to apply their own daily experiences to the testimony and the other evidence presented to them to determine which witnesses are truthful. It is the jurors' own expertise' in conducting their personal and business affairs which our judicial system has long regarded as making them specially qualified to make this determination."

I adopt these words, and I am therefore of the view that polygraph evidence aimed at supporting the credibility of the accused is not receivable as evidence in Canada.

In conclusion, it is my opinion, based upon a consideration of rules of evidence long established and applied in our courts, that the polygraph has no place in the judicial process where it is employed as a tool to determine or to test the credibility of witnesses. It is frequently argued that the polygraph represents an application of modern scientific knowledge and experience to the task of determining the veracity of human utterances. It is said that the courts should welcome this device and not cling to the imperfect methods of the past in such an important task. This argument has a superficial appeal but, in my view, it cannot prevail in the face of the realities of court procedures.

I would say at once that this view is not based on a fear of the inaccuracies of the polygraph. On that question we were not supplied with sufficient evidence to reach a conclusion. However, it may be said that even the finding of a significant percentage of error in its results would not, by itself, be sufficient ground to exclude it as an instrument for use in the courts. Error is inherent in human affairs, scientific or unscientific. It exists within our established court procedures and must always be guarded against. The compelling reason, in my view, for the exclusion of the evidence of polygraph results in judicial proceedings is two-fold. First, the admission of polygraph evidence would run counter to the well-established rules of evidence which have been referred to. Second, while there is no reason why the rules of evidence should not be modified where improvement will result, it is my view that the admission of polygraph evidence will serve no purpose which is not already served. It will disrupt proceedings, cause delays, and lead to numerous complications which will result in no greater degree of certainty in the process than that which already exists.

Since litigation replaced trial by combat, the determination of fact, including the veracity of parties and their witnesses, has been the duty of judges or juries upon an evaluation of the statements of witnesses. This approach has led to the development of a body of rules relating to the giving and reception of evidence and we have developed methods which have served well and have gained a wide measure of approval. They have facilitated the orderly conduct of judicial proceedings and are designed to keep the focus of the proceedings on the principal issue, in a criminal case, the guilt or innocence of the accused. What would be served by the introduction of evidence of polygraph readings into the judicial process? To begin with, it must be remembered that however scientific it may be, its use in court depends on the human intervention of the operator. Whatever results are recorded by the polygraph instrument, their nature and significance reach the trier of fact through the mouth of the operator. Human fallibility is therefore present as before, but now it may be said to be fortified with the mystique of science. Then, it may be asked, what does it do? It provides evidence on the issue of the credibility of a witness. This has always been a collateral issue and one to be decided by the trier of fact. Is the trier of fact assisted by hearing, firstly from witness "A" that he was not present at the scene of the crime, and then from witness "B", a polygraph operator, that "A" was probably truthful? What would the result be, one may ask, if the polygraph operator concluded from his test that witness "A" was lying? Would such evidence be admissible, could it be excluded by witness "A", could it be introduced by the Crown? These are serious questions and they lead to others. Would it be open to the opponent of the person relying upon the polygraph to have a second polygraph examination taken for his purposes? If the results differed, which would prevail, and what right would there be for compelling the production of polygraph evidence in the possession of a reluctant party? It is this fear of turmoil in the courts which leads me to reject the polygraph. Like Porter C.J.O. in Kyselka, I would not wish to see a return to the method of pre-Norman trials where parties relied heavily on oath-helpers who swore to their veracity. For a description of the role of the oath-helper in early times, see Holdsworth, A History of English Law, 7th ed. (1956), vol. 1, at pp. 305-8, and Walsh, Outline of the History of English and American Law (N.Y. Univ. Press, 1926) at pp. 90-100 (footnote II). I would seek to preserve the principle that in the resolution of disputes in litigation, issues of credibility will be decided by human triers of fact, using their experience of human affairs and basing judgment upon their assessment of the witness and on consideration of how an individual's evidence fits into the general picture revealed on a consideration of the whole of the case.

One of the two judges who did not concur in the entirety of the majority decision adopted "human fallibility in assessing the proper weight to be given to evidence cloaked under the mystique of science, and the inadvisability of expending time on collateral issues" as the sole basis of joining in the result, and thus joined in the part of the decision relevant to the proceedings before us. Wilson J. dissented, on the basis that the evidence did not offend any of the exclusionary rules, and ought therefore to be admitted, subject to the traditional tests of relevancy and helpfulness.

It will be observed that even these observations do not fit precisely the situation before us. All of the reported Canadian criminal cases are "defence polygraph" problems, and it seems to be almost universal practice not to call polygraph evidence for the prosecution in Canada. Our problem is different. This is a case where the polygraph evidence is designed to impeach the credibility of the grievor and, in effect, to tip the balance of a marginal case based on circumstantial evidence. Nevertheless, the decision of the court on the "expert evidence" ground is very broadly stated, and stated in terms of policy that simply cannot be ignored. It is of interest that the court does not rely upon a fear of the inaccuracies of the polygraph, but rather relies upon a central issue of process, that polygraph evidence will serve no purpose which has not been already served, and that the putative value of polygraph evidence would be far outweighed by its prejudicial effect before juries, and its considerable complication of the judicial process. We are aware that our jurisdiction is broader than that of the courts bound by the decision of the Supreme Court of Canada, in that we have jurisdiction to receive evidence whether or not it is inadmissible in court. On the other hand, what the Supreme Court seems to have decided is that polygraph evidence, even if admitted, would be of questionable cogency. We would therefore be extremely reluctant to rely upon this evidence on the basis that it has been found, as a matter of principle, to be inadmissible by the court of last resort of this jurisdiction. We shall turn subsequently to our assessment of the value which the polygraph evidence might offer to a decision-maker. Before doing so, however, we think it is essential to record our entire concurrence in the concerns expressed by the Supreme Court of Canada that polygraph evidence will "disrupt proceedings, cause delays, and lead to numerous complications". In the case before us, it was necessary to call not only the polygrapher who had performed the examination, but also an expert witness to support the employer's case, and an expert witness to support the union's case. While some of the employer's expert evidence was aimed at more general questions of the accuracy of polygraph evidence, a significant amount of it was directed to the questions of whether this polygraph examination had been properly carried out in accordance with established procedures, and whether the determination of deception was based on an accurate reading of the charts.

The employer therefore produced an expert to testify that the grievor was deceptive, and another expert to testify that the first expert was qualified to offer such opinion evidence, had been trained in accordance with accepted practices, had conducted the test in accordance with generally accepted methods, and had come to a correct conclusion from the readings obtained. Although the union chose not to attack the evidence on these technical grounds, another party might, in an appropriate case, decide to do exactly that. As will be seen, there is scope for a great deal of judgment in administering a polygraph test, and in scoring the results obtained. There is also a significant degree of distrust of many polygraph training programs, although not of the one involved here, and there will obviously always be a significant question of the competence of any particular polygraph operator. As the Supreme Court of Canada observes, this is an enormous complication in the judicial process. Before us, the evidence took days, even without a significant challenge to the polygraph test on a technical basis. As a matter of policy, before embarking on such an exercise, one would want to be assured of some significant contribution to the fact-finding process. We shall discuss below our view of the magnitude of that contribution, but at this stage we wish to observe that, if such a dramatic change is to be made in the way in which credibility is to be assessed in our courts and tribunals, it ought to be done in an authoritative and universal way, so that the question of accuracy and admissibility does not have to be litigated in every single case, and so that the qualifications required to render someone an expert in polygraphy can be firmly established in a way that will command general acceptance. This might be done by statutory intervention through the legislative process, or following a Royal Commission report, or possibly by an authoritative decision of the Supreme Court of Canada in a case where the relative usefulness of polygraph evidence can properly be weighed against the disruption to be caused. Without such an authoritative signal of a change of direction in our law, however, we would be entirely content to deal with the polygraph evidence in this case on the basis of the important issues of principle relied upon by the Supreme Court of Canada, and we would exercise our statutory discretion to accept or reject such evidence in favour of rejection. Because of the significance of the arguments made in this case, however, and the fact that we received a full exposition of a number of other important issues, we shall proceed to deal with those matters as well. We observe that, prior to the decision of the Supreme Court in Beland and Phillips, there had been a number of observations by tribunals in the labour relations area to essentially the same effect as the majority of the Supreme Court of Canada. On policy grounds, stated in even stronger terms in respect of labour relations hearings than by the Supreme Court, arbitrators and labour relations boards have been most reluctant to embark upon the road to institutionalized use of the polygraph. One of the earliest decisions was that of this board in Re Adams and Ministry of Correctional Services (1978), No. 140/77, where the board dealt with the matter partly on the basis of perceived unreliability, and partly on the basis of labour relations policy issues. In a similar vein is Re Kingsway Transports Ltd. and Teamsters Union, Loc. 938 (1983), 10 L.A.C. (3d) 440 (Brandt), which proceeds largely on the basis of a comparison of the advantage to be expected from the polygraph evidence weighed against the enormous increases in cost and complexity. A further decision along the same lines is Olympia & York Developments Ltd. and L.I. U.N.A., Loc. 183 (1986), 11 C.L.R.B.R. (N.S.) 412 (Abella) (O.L.R.B.), in which the Ontario Labour Relations Board considered these issues in relation not only to the two cases cited immediately above, but also in relation to the Employment Standards Act, R.S.O. 1980, c. 137, ss. 39a to 39d, and concluded that the discretion given to that board to accept evidence whether or not admissible in a court of law, materially identical to our discretion, should be exercised against the admission of polygraph evidence. While the Employment Standards Act provisions did not apply directly to the circumstances in which polygraph evidence was sought to be introduced in that case, as they do not in the case before us, the board nevertheless feared the "unintended and undesirable erosion of the protection given by statute to employees from polygraph testing". Specifically, the board was concerned that the introduction of polygraph evidence into the proceedings of the Labour Relations Board would put significant and irresistible pressures on employees contesting matters before the board to submit to polygraph testing under the pressure of being at a disadvantage in critical litigation against parties who had undergone such testing for the purposes of that litigation. Again, the board balanced the overriding benefit to be expected against the danger to the existing process if polygraph evidence were to be admitted, and concluded that whatever benefit there might be would not be worth it. To a similar effect, in somewhat different circumstances, is a U.S. arbitration award, Re Kisco Co. Inc. (1980), 75 L.A. 574 (Stix). This is not to say that the jurisprudence has been uniformly against reliance on polygraph evidence. In addition to a number of cases, both in this country and in the United States, where the evidence appears to have been admitted without any real critical discussion either of its propriety or its value, there are two Canadian cases which require closer scrutiny. The first of these is Re Haldimand-Norfolk (Regional Municipality) (Grandview Lodge) and Health, Office & Professional Employees, Loc. 206 (1985), 20 L.A.C. (3d) 131 (Samuels), which constitutes the first interim decision relating to the admissibility of polygraph evidence in that case; the second interim decision is found under the same style of cause at 22 L.A.C. (3d) 123. These decisions were based on an analysis of the admissibility question which has, of course, been cast into considerable doubt by the decision of the Supreme Court of Canada in Beland and Phillips, supra. More to the point, however, the arbitration board appears to have proceeded on the basis that the polygraph evidence was relevant, and could be of some use, and therefore ought to be received and assessed just like any other piece of evidence for its cogency and weight. The majority award appears to come to the conclusion that, because the polygraph evidence may be of some assistance, the other policy concerns raised in the cases to which we have referred above should simply be placed on hold until the value of the polygraph evidence can be determined. We regret that we do not agree with the position of the board in the Haldimand-Norfolk case on the issue of the balancing exercise inherent in the policy issue. With great respect to the majority of that board we recognize that our approach may be shaped to some extent by the decision of the Supreme Court of Canada in Beland and Phillips, as well as by the decision of the Ontario Labour Relations Board in Olympia & York. Perhaps more to the point, however, we readily acknowledge that our view of how the balance ought to be struck, between the value of the test and the complexities of relying upon it, is significantly influenced by our view of the value of such evidence, to which we turn below. It is significant that, throughout the Haldimand-Norfolk case, the majority insist that they are making no judgments about the value of polygraph evidence whatsoever, but are open to persuasion that its value might overweigh the difficulties in its use. In many ways, the majority award is doing nothing more than we did, orally in the course of the hearing before us, in permitting the parties to put in their evidence on this issue, subject to this determination of its admissibility and weight. We do not think that the Haldimand-Norfolk case can be ascribed any greater meaning than this. Virtually the same observation can be made about Re Workers' Compensation Board and Workers' Compensation Board Employees' Union (1986), 25 L.A.C. (3d) 53 (Fraser), a decision which is based on a fact situation parallel to that before us. The grievor in that case had been discharged for an alleged theft, and the employer sought to rely upon polygraph evidence produced during a police investigation of the theft. The majority of the board of arbitration agreed to receive this evidence for reasons which rely heavily upon the first interim decision in the Haldimand-Norfolk case, and which therefore suffer, in our view, from the same difficulty in relation to the Supreme Court of Canada's decision in Beland and Phillips, although that board did have the opportunity to consider, and reject, the view of the Ontario Labour Relations Board in the Olympia & York case. Once again, however, the decision does no more than to permit the employer in that case to attempt to convince the board that the polygraph evidence is of value, and should be taken into account in assessing the central issue of the credibility of the grievor. The additional evidence received by us in the present case puts us at a stage considerably beyond the determination of the boards of arbitration in both of these cases. We therefore turn, finally, to our assessment of the scientific evidence placed before us by the parties as to the reliability of polygraph evidence in general, and the evidence of Sergeant Scharger in relation to this polygraph examination in particular. The employer called as its expert witness Dr. David Raskin, Professor of Psychology at the University of Utah. There is little doubt that Dr. Raskin is the leading expert on polygraphy, in which he is involved on many levels from experimental research into the accuracy of polygraph testing to actual administration of polygraph tests. He is also a consultant for a large number of institutional users of polygraphy, in the United States and around the world, and is involved on a consulting and teaching basis in a number of training programs, including that at the Canadian Police College where Sergeant Scharger received his training. We have summarized a substantial amount of Dr. Raskin's evidence above in our discussion of how polygraph examinations work, and we are indebted to him for his careful, thorough and frank appraisal of the current state of scientific knowledge about the accuracy of polygraph tests.

The second aspect of Dr. Raskin's evidence was his assessment of Sergeant Scharger's test in this particular case. He spoke with high approval of the training program at the Canadian Police College, to which he consults on a regular basis, and was therefore prepared to vouch for the quality of the training which Sergeant Scharger had received. He indicated that the Canadian Police College course is of a very high order, and that results produced by its graduates thus do not suffer from the considerable difficulties that are often encountered when polygraph testing is done by unskilled and badly trained operators.

He also testified that, in his opinion, the test which Sergeant Scharger used was the most effective form of polygraph examination available, one which he uses regularly in his research and consulting, and that, to the extent that he was able to assess such matters from the paper record and Sergeant Scharger's own testimony, he was satisfied that the test had been carried out in accordance with proper procedures. Finally, he testified that his evaluation of the charts produced during the grievor's examination, which he did "blind", not knowing how Sergeant Scharger had scored the test, indicated that Sergeant Scharger's scoring was accurate, and that it compared favourably to his own scoring, and to a scoring done by a computer-based system developed under his supervision at the University of Utah. He also testified that the difficulties encountered with the galvanic skin response in the first test did not, in this particular case, make any difference to the reliability of the results. We accept all of this evidence without reservation, and we observe that the union essentially did the same, since it made no real effort, apart from careful testing on cross-examination, to challenge the result of the test on technical grounds. The real dispute between the parties is at a much more fundamental level, since the union argues that polygraph tests are inherently unreliable, and therefore should not be given any weight in judicial or quasi-judicial proceedings. The scientific literature reveals that there has been an ongoing debate in the scientific community about the validity and accuracy of polygraph testing. Dr. Raskin has been, we think it is fair to say, the most prominent proponent of polygraph tests as a valid tool for detecting deception. The most prominent opponent of the tests has been Dr. David Lykken, of the University of Minnesota. More recently, Dr. John Furedy, Professor of Psychology at the University of Toronto, has emerged as another prominent critic of the accuracy of the test, certainly the most active researcher in this area in Canada. Dr. Lykken did not testify before us, although we were provided with a number of his writings. Dr. Furedy was the union's expert witness in these hearings. We should observe that we were impressed by the frankness and integrity of both of the expert witnesses who appeared before us, and while they differ significantly from each other, we acknowledge that they hold their differing opinions honestly, and that their disagreement is measured and respectful. We begin with an analysis of the two positions as presented to us at the hearing. Dr. Raskin's research, and his analysis of the research of others, may be found described in D.C. Raskin, "The Polygraph in 1986: Scientific, Professional and Legal Issues Surrounding Application and Acceptance of Polygraph Evidence", Utah L. Rev. (1986), No. 1, p. 29f Dr. Raskin reviews the research to that date in his article, and reaches a number of conclusions which he repeated, with some elaboration based on subsequent research, in his evidence before us. Based on the results of five "laboratory mock crime experiments" between 1978 and 1982, all but one of which was performed under his own direction, he concluded that "a combined accuracy of decisions was 959ô". This percentage figure, however, requires some elaboration. First, inconclusive results, which make up about 8% of the total of all of these tests, are counted as correct for the purpose of the accuracy calculation. Second, the majority of errors are "false positive", diagnosing deception in subjects who were actually truthful, which outnumbered "false negative" results by a ratio of between 2 to 1 and 3 to 1. Based on this study, Dr. Raskin was prepared to conclude that, on all of his experience, the polygraph was on average 90% accurate in detecting deception, although there was a tendency for considerably more "false positive" results than "false negative" results.

(For the purposes of clarity, we shall use the terms "false deceptive" to describe a result that wrongly shows a truthful person to be deceptive; and "false truthful" for the opposite. The terms used in the literature are confusing, particularly since a negative sign on a test score indicates deception.) It must be observed that the accuracy figures discussed here are based on those laboratory studies which Dr. Raskin was prepared to accept as properly carried out. As we have noted, he was one of the investigators, presumably the principal investigator, in four of the five studies which he accepts. Indeed, the thrust of Dr. Raskin's research and writings is that polygraph testing, as practised particularly in the United States, is extremely inaccurate because of poor technique and poor training, but can be made much more accurate through careful attention to the procedural improvements which he has promoted for many years. Other researchers have not achieved nearly the accuracy rates that he has achieved in laboratory tests. Even the one other study which he accepts, that performed by Dawson in 1980 (see Dawson, "Physiological Detection of Deception: Measurement of Responses to Questions and Answers During Countermeasure Maneuvers", 17 Psychophysiology 8 (1980)) reported a 17% false deceptive rate among innocent subjects. Studies by other researchers, which for one reason or another have been rejected by Dr. Raskin as untrustworthy, have found even higher false deceptive rates.

Moreover, all of the accepted results are based upon laboratory simulation of crimes. Subjects are instructed whether to commit the mock crime or not, and are then offered a reward, usually a monetary bonus, if they can obtain a truthful test outcome on polygraph examination. Dr. Raskin's 1986 article makes the following observation, at p. 42:

These error rates indicate the limitations of the control question technique, even when it is performed under carefully controlled conditions by highly skilled examiners with extensive psychological training expertise.

Because laboratory simulations are not real life situations„ especially in terms of the negative consequences of failing the test and the rewards of passing the test, additional studies are required to estimate the accuracy of polygraph examinations conducted in actual criminal investigations.

(Emphasis added.) Unfortunately, there is not yet a satisfactory body of evidence based on field studies of the accuracy of polygraph testing. Any number of factors confound the researcher in this area, in particular the difficulty in finding acceptable criteria for innocence and guilt. Obviously judicial outcomes are not sufficient, since the degree to which they may depart from actual guilt or innocence is difficult to measure. Some of the mechanisms attempted have been to compare polygraph results with the opinions of panels of experienced attorneys and judges who have reviewed the complete case. A 1983 study by the Office of Technology Assessment of the U.S. Congress purported to qualify 10 field studies as meeting minimal scientific criteria for adequate methodology, but Dr. Raskin rejects many of these as not meeting his standards of methodology. His views on field studies in 1986 may be summarized in his own words, at p. 46:

If one accepts only those studies that used criminal suspects, experienced polygraph examiners and normal procedures for evaluating polygraph charts, then the accuracy of decisions in field studies is approximately 90% for guilty and innocent subjects. Nevertheless, problems and questions concerning all field studies remain. More research is needed to obtain definitive answers about accuracy based on field data.

Against Dr. Raskin's sanguine views on the accuracy of the polygraph, we must set Dr. Furedy's reservations. Dr. Furedy has been at the University of Toronto since 1967, where one focus of his work has been psychophysiology, the study of psychological processes using physiological measures. His impressive academic credentials include publications relating to experimental work in several areas of psychophysiology, including applications of the principles of this science to both biofeedback techniques and polygraphy. His particular interest in the nature of scientific controversy led him to take special note of the high profile dispute between Dr. Raskin and Dr. Lykken about the accuracy of polygraph examinations. As a consequence, he has been engaged in the 1980s with the merits of this controversy, and has come to the conclusion that Dr. Lykken is closer to the truth than Dr. Raskin. His views on the controversy are set out most fully in Furedy and Heselgrave, "The Forensic Use of the Polygraph: A Psychophysiological Analysis of Current Trends and Future Prospects", to be published in Jennings et al. , Advances in Psychophysiology, vol. 3, an advance copy of which was provided to us in evidence. The essence of his argument is that the polygraph test, even when carried out in accordance with accepted standards and by qualified operators, has the possibility of a high order of error. He reasons that the control question technique relies on a non-standardized procedure, and thus is simply not susceptible of scientifically based analysis and validation. There are really two aspects to these concerns. The first is that the so-called control question is not a control in the normal scientific sense of the term. There is no basis to assume that the reaction identified as deception will in fact be the same, in the sense that it is identifying identical psychological reactions, to the control questions and to the relevant questions. The control questions may be evoking deception in the subjects, or they may not; the difficulty is that it is absolutely impossible to know what it is that the reaction to the control questions is measuring. The second difficulty is that the control question technique relies upon a "control" which is not standardized in any real sense. It is, at best, worked out between the examiner and the subject, and is therefore a function of the skill of the examiner, and the rapport between the examiner and the subject. In Dr. Furedy's view, it is simply impossible to make a meaningful comparison of the response to a relevant question with that to a control question, when the factors which affect the usefulness of that question are so unquantifiable and uncontrollable. Dr. Furedy essentially dismisses all laboratory experiments on the accuracy of polygraphs as being irrelevant to the accuracy of the test as used in actual criminal investigations. The motivation of the subjects is very different, there is no element of moral guilt, and there is no fear either of discovery or of false accusation. He is of the view that the only relevant studies are field studies, of which he was prepared to accept three as demonstrative of the likely accuracy of the control question technique. According to those studies, it is entirely possible for error rates to range as high as 50%, and while he is prepared to concede that the polygraph produces results that are better than chance in the hands of an experienced polygrapher, he is not prepared to admit to any more enhanced accuracy rate than that. We should observe that Dr. Raskin had already rejected two of these studies in his own evidence as being based on questionable methodology. The one experiment which both Dr. Raskin and Dr. Furedy appear to accept as valid is described in Ginton et al. , "A Method for Evaluating the Use of the Polygraph in a Real-Life Situation" (1982), Journal of Applied Psychology 67, pp. 131-7. This experiment is a hybrid between laboratory and field testing. Subjects were Israeli police officers on a course, who were given a test as a part of the course which provided an opportunity to cheat. The test also provided, however, an absolute indication of whether the subject had cheated or not. Seven of the 21 subjects in fact cheated. Sometime later, the subjects were told that some of them were suspected of cheating, and were offered the opportunity to take a polygraph test. It was made clear that their future careers in the police might depend on the outcome of such a test. After refusals and outright confessions, 15 subjects were tested, of whom two had actually cheated. A number of steps were taken in the methodology to ensure that the polygraph charts were evaluated blindly and free of any inherent bias. Leaving aside the ethical concerns of an experiment of this kind, which obviously concerned the experimenters, the data are susceptible of a range of interpretations. The experimenters expressed concern about the original group of polygraphers, on the basis that they knew in advance that their judgments would have no adverse consequences for the subjects, but could have significant consequences for their own reputations as polygraphers. Nevertheless, this group did not achieve an impressive accuracy rate. A second group of polygraphers, who scored the tests again some months later, "must be treated with great caution". This group included five of the original polygraphers, plus three more, and the experimenters were concerned that some feedback or discussion may have assisted them in enhancing their accuracy rate the second time around. In any case, even the second set of chart evaluations demonstrate a significant false deceptive outcome. Every one of the second, more accurate group of polygraphers found at least one innocent subject to be deceptive, and two found four out of 13 to be deceptive using a "global evaluation", involving the whole chart. While the use of the "field scoring technique", the method advocated by Dr. Raskin and used by Sergeant Scharger, increased the number of inconclusive results dramatically, it "did not improve the accuracy of the polygraphers in the present study". The over-all false deceptive rate was 17%, considerably higher than Dr. Raskin's estimate of false deceptive rates based on laboratory experiments.

We are aware of only one other proceeding in which evidence of reliability has been tested through examination and cross-examination of expert witnesses. That proceeding was a voir dire in R. v. John Doe (No. 2), an unreported decision of Judge S.R. Kurisko of the Ontario District Court [reported 38 C.C.C. (2d) at p. 11, 1 W.C.B. (2d) 58. The proceedings took place in Thunder Bay, Ontario in the context of a trial on two charges of indecent assault and one charge of sexual assault against the father of a 12-year-old complainant. The polygraph examination was a defence polygraph which, presumably, would have supported the accused's exculpatory testimony. Judge Kurisko concluded that the polygraph evidence was admissible. To that extent, therefore, his ruling is directly overruled by the Supreme Court of Canada in Beland and Phillips. Judge Kurisko had available to him as expert witnesses Dr. Ben Silverberg, the polygrapher who did the test sought to be admitted, Dr. Raskin and Dr. Lykken. We begin by admitting unreservedly that Judge Kurisko's analysis of the literature and the issues is thorough, scholarly and most impressive. We have not pretended in this opinion to anything like the same degree of scholarly analysis, simply because to do so would be to reproduce the work of Judge Kurisko. Nevertheless, we hope that we have given the material before us at least the same anxious and careful consideration which was obviously given by Judge Kurisko. Unfortunately, however, we have come to a different conclusion on the question of the accuracy of polygraph evidence from that arrived at by the learned judge. Judge Kurisko made a finding of fact in two parts, which he calls the "validity fact":

[Part 1] Inferences about truth and deception accurate to a significantly high degree of probability can be made from an objective evaluation of the physiological responses shown on the charts obtained during a polygraph examination employing the Control Question Technique in relation to a specific-incident criminal investigation.

[Part 2] When such objective evaluation is performed by examiners trained in the numerical system of evaluation used at the University of Utah the rate for interraterreliability is extremely high (not less than 90%).

The issue of interraterreliability is one not really much disputed before us. It is a measurement of the ability of properly trained polygraphers to reach the same conclusion as to the appropriate score to be applied to a particular test chart. We understood both Dr. Raskin and Dr. Furedy to accept a high interraterreliability factor, although such a finding is wholly irrelevant to Dr. Furedy's view of the accuracy of the polygraph. As to the first part of the validity fact, our discussion of the scientific evidence above will indicate quite clearly that what constitutes a "significantly high degree of probability" is not a matter free of dispute. To begin with, our review of the evidence would indicate that a determination of the kind made by Judge Kurisko can only be made on the basis of the laboratory experiments, whose relevance is open to considerable question, and upon field studies, most of which use questionable methodology. In cross-examination before Judge Kurisko, Dr. Raskin apparently was prepared to concede that some 15% of innocent people would fail the test, even if properly done according to his standards. This is a higher failure rate than Dr. Raskin admitted before us, and nothing in his evidence explains why he has altered his view in the interim. Before Judge Kurisko, Dr. Raskin apparently presented a revised calculation based on field studies meeting his criteria for acceptable methodology which showed a false deceptive rate of 10%. This appears to be the figure accepted by Judge Kurisko. There is another factor to be considered, and that is related to the dynamics of the question before Judge Kurisko. He was dealing with a subject who claimed to be innocent, and who wished to introduce a polygraph test "proving" that proposition. We are dealing with a subject who claims to be innocent, but who faces a polygraph test which proclaims her to be deceptive. The high false deceptive rate had no effect on the case before Judge Kurisko, since he was able to rely upon the relatively lower false truthful rate. All of the evidence, even if it is accepted at face value, suggests that the test is much more likely to be wrong in the case of our grievor than in the case of Judge Kurisko's accused, assuming for the sake of argument that they are in fact both innocent. In other words, the danger that the polygraph test will put a false light on the innocence which they claim is much higher for our grievor, and the consequences of accepting an incorrect polygraph test are much more serious. In our view, however, the real issue is not the absolute failure rate of polygraph tests, even if we accept that it is only in the range shown by the laboratory experiments and the most optimistic of the field tests, but rather is related to the question of the relevance of a disputed scientific technique to a fact-finding process of the present kind. That issue requires us to go considerably beyond the considerations dealt with by Judge Kurisko. Although, as will be seen from our discussion above, we have serious doubts about the evidence on which the assessment of accuracy of polygraph tests is based, we shall deal with these further factors on the basis that the accuracy of the test, properly performed by a skilled and experienced examiner, is such that about 15 out of every 100 innocent subjects tested will falsely be shown deceptive. We do not think that this is an unreasonable conclusion to reach if we accept the available evidence as valid and persuasive; we observe only that we would have some difficulty, having regard to Dr. Furedy's reservations, in making such a finding. But that would still mean that the average properly trained, experienced and skilled polygrapher would wrongly find one out of every seven innocent people to be deceptive, and inferentially guilty. We stress that, on the most favourable view of the evidence on accuracy, this is only an average. Even if interraterreliability can achieve a very high level, there must still be considerable variation in the abilities of polygraphers over the entirety of the test, including the pre-test interview and the formulation of the control and relevant questions. Dr. Raskin, when asked what happens in the pre-test interview, prefaced his long list of matters to be covered with the words "A lot!" The pre-test is a very important part of the exercise, and both Dr. Raskin and Dr. Furedy, commenting as experts in psychology, identified a number of ways in which the conduct of the pre-test could affect the accuracy of the test results. We must therefore consider not the success rate of the average polygrapher, but the success rate of Sergeant Scharger, and at that point we run up against a brick wall. No validity study has ever been done on Sergeant Scharger, nor is it likely that one could be, nor would it be possible to submit every polygrapher to a personal validity study in order to assess that person's ability to detect deception. The fact is that we simply cannot know how good Sergeant Scharger is. Even though he attended a highly praised polygraphy course, it is a commonplace that 50% of all polygraphers graduate in the bottom half of their class. He is convinced that his tests are accurate, and Dr. Raskin testified that he could see nothing in the material before him to indicate that this particular test was flawed, but this does not go very far to satisfy our concern that we simply cannot know how good he is as a polygrapher, and therefore whether his own success rate would tend toward the average, or be significantly better or worse than the average. That individual polygraphers can vary in skill, incidentally, is amply shown by an examination of almost all the studies, whether in the laboratory or in the field. Second, we cannot know anything about Sergeant Scharger's performance on the particular occasion when he tested the grievor. We do not know whether it was one of his good days, or one of his bad days; what we do know is that almost everyone varies in ability in their chosen profession from day to day. Much more important, we cannot know anything about how he interacted with the grievor. This is a very complex mix of psychological and interpersonal reactions, encompassing not only Sergeant Scharger's abilities as an examiner, and the grievor's own susceptibility to polygraphy, but the interaction of those two things, and their effect on the grievor's physiological responses. In this regard, we observe that the grievor in her evidence spoke about her feelings, her concerns and her nervousness. None of this, of course, is of any relevance. The grievor cannot know how those psychological states can affect her physiological reactions, and neither can we, and neither, except on the basis of probabilities, can Sergeant Scharger or Dr. Raskin. Nevertheless, what the employer asks us to do is to assume that this particular polygraph test will tend to the average accuracy, and act upon it on that basis. We simply cannot know that, and therefore cannot use this test unless we can validly rely upon statistical probability. As every school child learns, but gamblers regularly forget, probability has an independent effect on each repetition of an experiment. Flipping a coin to "heads" 10 times in a row does not improve the chances of flipping a "tail" on the eleventh chance, so even if this particular test tended to the average estimate of accuracy, and even if the average estimate of accuracy is valid, those averages give us no real assurance that the grievor's deceptive score is a false deceptive. Dr. Raskin very honestly said that he would feel very uncomfortable relying on a polygraph alone, and that he would only use it as a piece of evidence to be considered along with all the other evidence available. As an investigative tool, the polygraph can reasonably be used this way. But the dynamics of this case are that there is circumstantial evidence which is at best evenly balanced against the grievor. If we use the polygraph as a tie-breaker, and say that the test is more likely accurate than not, then ultimately the polygraph has decided this issue all by itself. It is one thing to assert that one is 85% confident of the accuracy of the test; it is quite another thing to say that one's confidence should then be used to decide someone's future. In this regard, certain considerations raised by Dr. Raskin in his 1986 article about the effect of base rates on statistical accuracy may be considered. The base rate is the prevalence of a particular state or condition in the population of individuals being tested for the presence or absence of that condition. In the case of a polygraph test, the applicable base rate is the percentage of those tested for deception who are in fact actually deceptive. Confidence in positive and negative test outcomes will be altered by the base rate. Dr. Raskin explains it best, at p. 55:

To illustrate how the base rate affects the interpretation of a test outcome, consider a hypothetical test that is 95% accurate in detecting cancer.

Confidence in positive and negative test outcomes is 95% only when exactly half of the people given the test actually have cancer. When the rate of cancer in people who take the test departs from 50%, confidence in test outcomes is no longer 95%. Assume that only 10% of the people who take the test actually have cancer. When the test outcome is negative (indicates no cancer), we can be almost certain (99% confidence) that a person does not have cancer. However, only 68% of those who obtain a positive test outcome will actually have cancer. That is a false positive rate of 32% and many people would undergo unnecessary, costly and life-threatening treatments on the basis of the test. On the other hand, consider a situation in which the test is administered only to those people who had already been given examinations that indicated a 90% likelihood that cancer was present. When the test outcome is positive, we would be virtually certain that a person has cancer. However, with a base rate of 90% cancer among those tested, only 68% of those who obtain negative results will be free of cancer. In other words, 32% of those whom the test indicates are free of cancer actually will have cancer and will not receive the necessary treatment.

On p. 57, Dr. Raskin comments on some practical applications of this phenomenon: The figures in Table 2 indicate that, regardless of which set of estimates of polygraph accuracy one adopts, confidence in a deceptive outcome is very high when the base rate of guilt in the population of subjects tested is very high. However, under those circumstances, the confidence in a truthful outcome is only moderate or low. Conversely, if only a small proportion of the population tested is guilty, confidence in a truthful outcome is very high but the confidence in a deceptive outcome is only moderate or low. The various base rates and the corresponding confidence in outcomes are related to the situations in which the polygraph might be applied.

Consider a situation in which a number of people are tested and one of them is guilty. That situation might occur in a commercial setting in which many employees had access to an area from which a large amount of cash disappeared and the employer required all of the employees to submit to polygraph tests. A similar situation might occur when the government investigates a leak of sensitive information to the press. Assume that ten people are tested and only one is guilty, a base rate of 10%. We would have almost complete confidence in the truthfulness of those who passed the test, and the guilty person would be among those who failed the test. It would be very risky to terminate employment or take other actions against a person who failed a polygraph test under those circumstances, especially if the polygraph testing had been stopped after the first deceptive result was obtained. Any action based on the test results would have at least a 50% risk of being wrong. The damage to the innocent individual and the possible litigation could be very costly.

It will be clear that the situation that Dr. Raskin describes is very similar to what occurred in this case, except that the polygraph testing was stopped after only one of the four people who "had access to an area from which a large amount of cash disappeared" had been tested. Had they all been tested, the base rate of guilt in the population could have been assumed, based upon the evidence which we have discussed above, to be 25%. Even had the entire group been tested, the confidence we could have in a finding of deception would be lowered significantly from the estimated accuracy of the test. Nevertheless, it would have told us rather more than what a single test of the grievor alone can tell us. To ask us to ascribe to the test performed on the grievor the theoretical accuracy of the polygraph is to assume that the base rate issue should be ignored for this particular test. Not much was made of this by either side in argument, and we do not propose to rely upon it very heavily, but we are struck by the similarity between Dr. Raskin's example and the case before us. Before leaving the polygraph, we observe that the employer suggested that the fact that all four employees had agreed to take the test bolstered the credibility of the other three employees, and thus inferentially reduced the grievor's credibility. We observe that the evidence is not perfectly clear that all others were asked to take the test and actually agreed, but even assuming that was the case, we observe that only the grievor actually went and did it, although she was only one of a number of people under suspicion, and there is nothing in the evidence to suggest that she was coerced into taking the test by any other pressures. Since the others were not actually required to sit down and take the test, we cannot be sure that they would have gone through with it. In the Ginton et al. study, for example, one guilty subject did not show up for the test, another guilty subject refused to take it, and three other guilty subjects confessed before actually taking the test. We are of the view that nothing can be assumed from the fact that the other three employees agreed, if indeed they did agree, to take a polygraph.

The conclusion which we come to from all of this is that whatever confidence one might have in the skill and experience of the polygrapher, and the theoretical accuracy of the test as a tool for investigation purposes, it would be dangerous and improper to use it as a tie-breaker in difficult cases where it amounts, because of the absence of any other conclusive evidence, to the effective proof of guilt. On the other hand, where the test amounts to only one piece of evidence to be weighed along with the others, rather than the conclusive and tie-breaking evidence, it would be outrageously expensive for the little additional value it would have. As a consequence, we have come to the conclusion with great respect that the Supreme Court of Canada was right, and that a careful examination of the evidence as to the accuracy of the polygraph test, as well as a review of what has occurred in this case and in the John Doe case, indicates that as a matter of policy polygraph evidence should not be permitted. Where the test will amount to the tie-breaker in hard cases, it is not safe or just to rely upon it. Where it is simply one piece of evidence to be considered, its probative value is far outweighed by the expense and inconvenience involved in assessing it properly. With his customary clarity, arbitrator Kevin Burkett has put the matter as well as it can be put in Re Canada Post and Canadian Union of Postal Workers (1982), 8 L.A.C. (3d) 60 at p. 69:

Notwithstanding the potential for error, however, polygraph evidence, if relied upon at all, will "typically have controlling weight in the arbitrator's resolution of credibility" [the quotation is from Re Kisco Co. Inc., 75 L.A. 574 (1980)]. When reference is had to the potential for error and to the probable effect where the issue before the trier of fact is one of credibility, it is not surprising that the courts, with few exceptions have refused to admit polygraphs. Where the opinion of a qualified polygraph examiner as to the truthfulness of a witness whose credibility is in dispute, carries with it a significant risk of error (even when based on a properly conducted polygraph examination), and where the opinion, which goes to the very issue in dispute, is likely to have "controlling weight", the risk of causing an injustice by relying on the polygraph evidence is such that it should not be given any weight.

The other aspect of the policy determination is the question of the balance of cost and complexity against probative value. On this point, there is only anecdotal evidence, but the experience of Judge Kurisko is instructive. After lengthy hearings and, if our experience is any yardstick, much lengthier agonized consideration of the evidence and arguments, culminating in a scholarly and lengthy judgment, Judge Kurisko ultimately gave the polygraph test no weight whatsoever because of his concern that the grievor's memory of the alleged incident might have been affected by a number of factors, including the use of prescription drugs. The accused was acquitted, but the polygraph evidence had absolutely no effect in bringing about that result. We are therefore persuaded that, even if polygraph evidence is admissible, and even if properly performed polygraph tests can achieve the accuracy rates claimed for them by their proponents, and even if this particular test can validly be assumed to have been properly performed, we should give the results no weight.

5. The confession evidence

Immediately following the polygraph test, which ended at 3:27 p.m., Sergeant Scharger left the polygraph room to score the test. The grievor remained connected to the polygraph machine during his absence, which lasted until 3:52 p.m. At that time, he returned to the polygraph room and began the post-test interview. There appears to have been no announcement that a different phase of the polygraph examination had been reached; Sergeant Scharger simply informed her that she had not told the truth to some of the questions on the test, and began what appears, so far as we are qualified to tell, to have been a very skilled interrogation. He took notes during the interview, and the next day he expanded those notes to clarify some of the more cryptic references. The expanded notes were subsequently typed, and were included as a part of a "will say" statement for the criminal prosecution which, after the end of the interview, Sergeant Scharger anticipated would be proceeding.

There is some dispute between the grievor and Sergeant Scharger about exactly what took place in the interview, in particular about the tone which he adopted in dealing with her. She testified that he appeared to lose his temper on a couple of occasions and raised his voice at her; he denies this. He quite frankly admits, however, that he had changed hats when he returned to the interview room, and that he was now in the role of the police officer who was satisfied that the grievor was guilty, rather than in the role of the test administrator who was neutral and open-minded. Indeed, his conviction of her guilt comes through very clearly in his own notes, and we have no doubt that he managed to convey it to the grievor in no uncertain terms. The post-test interview was not recorded except in the form of notes taken by Sergeant Scharger as he asked the questions and listened to the answers. Sergeant Scharger testified that, as a matter of practice, post-test interviews are not recorded in any way.

The difficulty is that Sergeant Scharger's notes of what occurred are nothing like a verbatim account. Arbitrators, like police officers, are skilled note-takers, and we think we can reasonably take notice that the notes Sergeant Scharger produced could not possibly be a complete and verbatim record of what occurred, nor do we understand him to testify that it was anything more than his best recollection of what he thought were the salient features of the interview. His expanded notes, moreover, were a reconstruction made on the next working day, which was in fact the Monday following a weekend, the polygraph test having taken place on a Friday. Finally, Sergeant Scharger's notes can be read, in an ordinary conversational tone, in about 10 minutes, while his time notations on those notes indicate that the actual elapsed time was from 3:52 p.m. to 4:55 p.m., with one brief interlude when the grievor telephoned her husband to change the arrangements for her transportation home. The notes are therefore, even allowing for expansion for a few remarks of his own which Sergeant Scharger identifies with a brief reference, unlikely to give any more than a superficial flavour of what occurred.

We do not propose to quote the entirety of Sergeant Scharger's reconstructed version of the interview. There are, however, a few comments which Sergeant Scharger attributes to himself which are of some interest. One feature of the interview is that he refers to the grievor throughout by her first name, and makes extensive references to her family, references which certainly came from the information form which he filled out with her during the pre-test interview, since he had no other opportunity to learn this information. This discussion of her family was obviously calculated to cause her considerable concern about the difficulty she would be in, and the reaction of those close to her, if she were charged with theft. The following questions are also of some interest (in all subsequent quotations, spelling is corrected but syntax is as in the original):

I have to look at this Sandra either you are an out and out thief and stole that money or you made a small mistake.

Do you know when somebody does something, intentions are an important thing.

We all make mistakes, that's why they put erasers on pencils.

Admitting it, that's what makes us men or women and different from kids, being able to accept responsibility. If you have a car accident you don't get in your car and run away, you admit your fault and say you are sorry.

You could do it in different ways. You can go to him and tell him, you can tell me and I can go out and speak to the investigator and tell them how you made this small mistake.

This could be cleared up with a simple explanation. You may not understand my intentions as to why I'm talking to you.

Sandra you can straighten this out whichever way you want. You can go and speak to your boss and do it that way if you want. If you want to tell me how you made this small mistake I'll tell the investigator, or call your boss here and you can talk to him.

If you ran into the side of a car you'd have no trouble admitting that. You had a small accident where you borrowed something and didn't put it back.

At some stage following the grievor's brief telephone call to her husband, Sergeant Scharger appears, on his version of events, to have got her attention with something that he said. It is not precisely clear from his own notes why her attention was captured, but in any case the following exchange occurred:

A. I'm listening. Q. You want to decide if your attitude is going to be catch me if you can. A. Can I think about it and talk to my boss on Monday. Q. That's not going to clear it up. This has been going on a long time. What would you like to do. A. I'd like to think about it. Q. You've had lots of time to think about it. A. You mean that I should just come out and say that I took it. Q. Why not. A. I haven't taken it. Q. There is no doubt that you have taken it and you know once a person loses their self-respect they've lost everything. People can understand people doing things out of love if they can't they are not human.

Q. I'll tell you, two thousand six hundred and seventy-nine dollars and thirty five cents for the total of the six.

A. I'm not going to admit I took that money but if I have to pay it back I will. How much does it add up to, I don't remember. They can cut my salary back.

A. If I decide to pay it back they can take it off my salary. Q. You can discuss that with your boss. A. Okay. Q. What I don't understand is why you want to pay it back. A. To clear myself. Q. Why don't you go one step farther and explain how you can [sic] to taking it. That would explain the whole thing. You would be bring [sic] suspicion on other people. This just doesn't affect you. You have to be fair.

A. Okay I'll pay the money back. Q. Sure why did you take the money in the first place. A. I signed for it. Q. You're agreeing to pay it back but you can't go one step further and admit you [sic] small mistake. You needed the money.

A. I'm responsible for that money right, so I'm going to pay it back. Q. Why did you take it, did you take some and wanted to put it back, and didn't have the money.

A. I don't know where that money went. Q. You do Sandra, think of your mother, what would she want you to do. Was it Chargex was it the loan on the house. Did you buy something for the children?

A. My children don't have too much. Q. What do you want to do. A. What do you want me to do. Q. Tell me the truth why it happened and how it got out of hand. We're like kids, we find it really hard to admit things to other people.

A. I could lose my job. Q. It's possible, I don't know. I don't really care what you spent the money on, whether it was for bills or not.

A. I told you I was going to pay it back. If I say I took it what reason would I give.

Q. That's up to you, I'm not going to put words in your mouth. How about the truth. A. So should I admit to you. Q. If you want to, what do you want to tell me. A. Okay I admit I took it. Q. Did you take the money each one of these times. A. What do you mean each of these times. Q. On six different occasions. The first on September 26, two hundred and fifty-one dollars and twenty one cents.

A. I'll admit to all of them. Q. You took the first one in September what did you do with the money. A. I took it I told you I used, I didn't bank it. The only thing I work for is expenses. Q. Did you take any of this money to pay back any of the money you took. A. No I just took it for expenses, I couldn't put it back. Q. Sandra this one late deposit did you take the money and put it back. A. No these late deposits were just laying in my cash box. He said these were pay days, I check, they're not pay days only one or two. I think the twenty fifth. Where was I going to get all that money to put back. I only clear five something.

Q. Do you want me to call Sergeant Hughes and we will tell him what we talked about that you took the money each time and used it for expenses.

A. Yeah that's what I'm admitting to.

At this point, Sergeant Scharger left the room, and called Sergeant Hughes. Shortly after, he returned to the room with Sergeant Hughes, and the following exchange, according to Sergeant Scharger's note, took place:

Q. We finished to [sic] test and Sandra didn't pass, and we have been talking. She stated that she took the money to pay expenses and wants to pay it back.

A. Yeah that's right I admit I took the money. Sgt. Hughes You pay some expenses with this money.

A. Yeah that's what I do with all my money.

At that point, all three left the polygraph room and went into the main office. There, Sergeant Hughes arrested the grievor and cautioned her on a charge of theft over $200 using the standard caution from the front of his memo book. He used the standard primary caution which includes the usual "You are not obliged to say anything unless you wish to do so but whatever you say may be given in evidence." He also added the secondary caution:

If you have spoken to any police officer or to anyone with authority or if any such person has spoken to you in connection with this case, I want it clearly understood that I do not want it to influence you in making a statement.

Sergeant Hughes testified that the grievor answered in the affirmative when he asked her if she understood. Sergeant Hughes then drove the grievor to 52 Division, which required driving a moderate distance through rush hour traffic. They arrived at about 5:25 p.m. Although he told the grievor not to speak about the case during the drive, he testified that she told him that she was sorry that she had taken the money, that she did not know why she had taken it, and that she had worked at the Public Trustee's office for so many years. She then asked if Sergeant Hughes thought she would be fired. Sergeant Hughes testified that he said nothing to the assertions, but answered to the question that he did not know. After they arrived at 52 Division, Sergeant Hughes procured a witness, a Sergeant O'Shea, and took a statement on a standard Metropolitan Toronto Police statement form. This form includes the primary caution at the top. The typed statement then reads as follows:

Q. Do you understand the charge? A. Yes. Q. Do you understand the caution I have just read to you? You do not have to say anything at all to me if you do not want to and it will have no effect on any decision made by anyone dealing with you and furthermore you have nothing to fear by not saying anything. It is your right not to say anything if you do not wish to speak to me about the charge?

A. Yes. Q. As I said before it is my duty to inform you that you have the right to retain and instruct counsel without delay. Do you understand?

A. Yes. Q. In September of 1983 and five times in 1984 money was stolen from the cash cage of the public trustee at 145 King Street West that was to be deposited in Trust accounts. What if anything can you tell me about this matter?

A. I signed for the cash then I took in like I say I put it in my box right and then I'm supposed to deposit it right O.K. like I admit it I took it. All I do is pay bills I didn't go on a trip or anything you know.

Q. Do you know what bills you paid? A. It would be you know I don't know which one my usual house bills most of my bills is charge cards.

Q. Do you know how much money you took in total? A. No like he was telling me he said two thousand something. Q. Do you remember the exact dates you took money? A. I don't remember any dates. Q. Do you wish to tell me if any other person knew what was going on? A. No, no. Q. Please read this statement aloud SIGN ONLY IF YOU WISH TO SIGN?

Sergeant Hughes testified that the grievor read part of the statement aloud and then went through it again with him and she read part and he read some of it along with her. There were typing corrections here and there throughout the text, and the grievor initialled them. Under the text on each of the two pages of the statement Sergeant O'Shea signed. On the front page the grievor signed at the very bottom of the page, with four blank lines in between. On the second page she signed immediately after the statement. On both pages diagonal lines are drawn underneath the typed text, presumably to prevent any additions. Sergeant Hughes says that the grievor added those lines; the grievor says that Sergeant Hughes put them in, and that she did not even know the purpose of the lines. While there was an attempt to shake her on cross-examination on this latter point by reference to similar lines on the Survey of Assets forms which she dealt with regularly, we observe that there is no suggestion that the grievor herself ever drew such lines on Survey of Assets forms, and that the kind of line drawn, a large "Z", is quite different from the diagonal scratches on the statement form. The employer asserted that this issue was a strong indication of a lack of credibility on the grievor's part; we think that it is wholly insignificant. The grievor was subsequently released on her own recognizance. It appears that very shortly after, possibly the next day, she consulted counsel. She says that she immediately told counsel that she had not intended to admit to theft, but only to responsibility for the loss of the money, with an undertaking to repay it. She denies having told either Sergeant Scharger or Sergeant Hughes that she took the money, and further denies saying anything about the case to Sergeant Hughes in the police car on the way to 52 Division. The grievor also says that she did not realize that she was being charged when she talked to Sergeant Hughes at the polygraph unit. She says she did not fully realize it until Sergeant Hughes began filling out the statement form at 52 Division. She says that the wording of the form was Sergeant Hughes', that she declined to admit taking the money when he typed out the form with that admission in it, and at that point he told her not to start that, that he had had a long day and wanted to get home. She says ultimately she signed the form because she felt threatened and was frightened and wanted to get out. It appears obvious from the record that the grievor must have taken the position very shortly afterward that the statement was false, and she has persisted in that position through a preliminary inquiry, a jury trial and many days of examination and cross-examination before us.

Sergeant Hughes denies the grievor's version of what happened at 52 Division. Sergeant O'Shea was not called to give evidence about these events. Based upon these facts, the union argues that the inculpatory statements allegedly made by the grievor have not been established by clear and convincing proof, and that even if they had been, they are inadmissible on the basis that they were not voluntary. Finally, the union argues that we should in any case exclude this evidence on the basis of s. 24(2) of the Canadian Charter of Rights and Freedoms. Despite the temptation to consider the interesting arguments raised about the Charter, we have decided not to deal with that issue. As will be seen, the findings which we have made on the other two issues do not require us to deal with the Charter argument. We should observe at the outset of our consideration of the other two issues that the question of admissibility before this board is not really the same as before the criminal courts, and we have some doubt as to the direct applicability of the criminal evidence rules in this regard. We are entitled to accept evidence whether or not admissible in court, and in any case the rule of civil evidence as to the admissibility of admissions made by a party is simply that they are admissible, to be considered for what they are worth as evidence against the party. Any difficulties in the way in which a statement is taken, such as a lack of voluntariness, are said to go only to weight, rather than to admissibility: see Sopinka and Lederman, The Law of Evidence in Civil Cases, supra, at p. 139 et seq., and Brown and Beatty, Canadian Labour Arbitration, 3rd ed. (1988), para. 3:4100. What faces us here is a statement which the grievor is alleged to have made to Sergeant Scharger, which she denies making in the form in which he says it was made, and which was made in circumstances which give rise to a number of the concerns which have exercised the criminal courts when considering voluntariness of confessions. It must be stated, first of all, that even on Sergeant Scharger's own notes of what occurred in the post-test interview, it is possible to draw the inference that the grievor did not intend to confess to stealing the money, but only to responsibility for its loss. While he does put in her mouth an admission that she "took" the money, and that she spent it for certain purposes, his version of what she said, taken as a whole, certainly leaves open the possibility that he is mistaken about what she said, or that she used the words which he put in her mouth without intending to broaden her admission of responsibility to a confession of theft. We must also observe that, even upon Sergeant Scharger's own version of events, it is possible to conclude that the grievor's statement was not voluntary, in the sense that it was procured by a hope or promise tendered by a person in authority, in this case a promise that somehow things would be all right if she only admitted to taking the money. In this regard, we observe that it is not necessary for us to find improper conduct on the part of Sergeant Scharger. What is really important is the perception of the grievor as to what would be the effect of "coming clean". On the entirety of Sergeant Scharger's version, it is quite easy to see that she might have concluded that admitting responsibility for the "mistake", and making arrangements to repay the money lost, might avoid criminal charges and permit her to keep her job. What happened at the interview must also be seen in the light of her earlier interaction with the employer, including a discussion at one point with Mr. McComiskey in which there was some discussion about the possibility of repaying the money. Mr. McComiskey and the grievor were at odds about exactly what was said on that occasion. The grievor herself, on the day after the interview, put her understanding in writing, and rejected the possibility of paying back the money on the basis that it would constitute an admission of guilt. That an improper inducement is a possible inference from Sergeant Scharger's notes seems to have been the conclusion reached by the judge at the criminal trial, and apparently accepted, according to the transcript, by Crown counsel. This of course does not relieve us from making our own independent judgment, but it does reinforce us in coming to the conclusion which we have reached.

There are, however, some other considerations before us. It is not entirely clear whether these matters emerged during the voir dire involving Sergeant Scharger's evidence at the criminal trial. These factors relate to the theory that the polygraph test is used in this country, where it is essentially inadmissible as evidence itself in criminal trials, as a confession-inducing mechanism designed to assist the police in persuading a suspect to incriminate him or herself. The most prominent academic proponent of this theory is Professor Furedy, who has postulated that there are a number of factors in the way in which the polygraph test is designed and administered by Canadian police forces which lead directly to the conclusion that the deception-detecting function of the polygraph examination is deliberately subordinated to the confession-inducing function, since the outcomes of polygraph tests are essentially not admissible in Canadian courts, while confessions, subject to strict controls, are admissible. Professor Furedy's main contributions to this analysis are John J. Furedy and John Liss, "Countering Confessions Induced by the Polygraph: Of Confessionals and Psychological Rubber Hoses" (1986), 29 C.L.Q., pp. 91-114; Furedy, "Credulous v Critical Police Use of Polygraph in Criminal Investigations" (1985), 27 Canadian Journal of Criminology, pp. 491-5, and Furedy, "Some Post-Phillionic Flight of Polygraphic Fancy" (1984), 6 Criminal Lawyers Association Newsletter. The first-cited article is the most complete, although it also causes us some difficulty in that Mr. Liss was the grievor's counsel in the criminal trial, and Dr. Furedy was his expert advisor on polygraphy, and the article relies heavily upon three Ontario cases involving polygraph evidence, one of which was the grievor's criminal trial. There are a number of assertions in this article which were not in evidence before us, and as a consequence we prefer to rely upon Dr. Furedy's evidence at the hearing rather than upon this article. Others not in our delicate position, will, however, find this a very helpful review of the psychological pressures on someone who has just been found deceptive in a polygraph examination. We may, however, summarize those pressures here from Dr. Furedy's evidence before us. He observed that the essence of the police use of polygraphy in Canada is to obtain a confession following a deceptive result, and that a number of factors, including the very detailed questionnaire administered prior to the test, which provides the examiner with ample material for interrogation, along with physical circumstances surrounding the application of the test that are calculated to increase the unease of the subject, will render the subject much more susceptible to interrogation. The emphasis on the infallibility of the test, which as we have already indicated is clearly misleading, also has the effect of producing in a subject found to be deceptive a feeling of helplessness. A subject like the grievor, already clearly under suspicion by her supervisors and by the police, finds herself in a position where a supposedly infallible and objective test has found her to be a liar on the central issue of the suspicion. That hopelessness, in Dr. Furedy's hypothesis, adds to the pressure on the subject to confess, even to confess falsely, if only to make the process of investigation and accusation come to an end. Of special importance, in this regard, is the deliberate failure to inform the subject that the polygraph evidence cannot be used in evidence in a criminal prosecution. Indeed, from all of the material used, quite the opposite impression is left. The subject who has "failed" the test is undoubtedly made to feel that conviction is certain. Dr. Furedy also pointed to a number of specific aspects of this particular post-test interview, all of which emerge from Sergeant Scharger's own notes of that interview, which could operate to heighten the anxiety of the grievor, prey upon her sense of responsibility for the losses, and increase her desire to bring the entire matter to an end. In his own evidence, Sergeant Scharger quite frankly agreed with the proposition that the post-test interview was a significant part of the polygraph examination where the test showed deception, and that his training included aspects of how to prepare for and conduct such a post-test examination. While he certainly did not agree to the inferences that Dr. Furedy drew, his evidence lends some weight to the view that the pressures placed on a polygraph subject are deliberately heightened for the purposes of extracting a confession if the test shows deception.

Dr. Raskin, as well, generally supported the proposition that the post-test interview was an essential part of the process where deception is indicated, and he testified that the confession rate following a finding of deception is very high, although he qualified that with the observation that confession rates in criminal investigations are always at a relatively high level. One does not have to accept all of the arguments raised by Professor Furedy and Mr. Liss in what is, quite clearly, a textbook for defence lawyers rather than a solemn scientific treatise, to come to the conclusion that the critical faculties of a decision-maker must be sharpened when dealing with a confession induced following a polygraph examination, even beyond what is the case when a confession arises out of ordinary interrogation by the police. Moreover, a number of courts have indicated a concern about the extent to which confessions obtained after a finding of deception can be considered to be voluntary: see R. v. Stuart Trry, unreported (Man. Prov. Ct.), Dubienski Prov. Ct. J., May 2, 1986; People v. Leonard, 397 NYS 2d 386 (1977); R. v. Fowler (1979), 23 Nfld. & P.E.I.R. 255 (C.A.); R. v. Romansky (1981), 6 Man. R. (2d) 408 (Co. Ct.); People v. Zimmer, 329 NYS 2d 17 (1972).

In the result, our reluctance to give significant weight to the grievor's oral statements which are, on all of the evidence, both ambiguous and of doubtful voluntariness, is heightened by the way in which they were obtained following the polygraph test, as it is more particularly described above. We would therefore not rely upon the oral "confession" and find it essentially equivocal in light of the grievor's immediate retraction and subsequent denial. We turn, finally, to the written statement which the grievor gave to Sergeant Hughes, which is coupled with his evidence about a statement which she gave to him in the police car on the way from the polygraph unit to 52 Division. The statement in the police car was, unfortunately, never recorded in Sergeant Hughes' notes. Whatever was said must have been said while Sergeant Hughes was driving, and while his attention was thereby somewhat distracted. It was never written down. He therefore did not have his notes to rely upon, and as almost any casual observer of police practice will know, it is very unusual for a police officer to testify without his notes, given the number of events which an officer might be required to testify about in any given day or week. This necessity to be prepared to testify is heightened in the case of a criminal investigator like Sergeant Hughes. Next, Sergeant Hughes testified about the events surrounding his taking of the written statement from the grievor at 52 Division.

These events were recorded in his notes, and he used those notes to refresh his memory at the preliminary inquiry, which took place in the autumn of 1984. When he testified before us, three years later, he had misplaced those notes and therefore testified based upon his memory, which he had refreshed with the transcript of the preliminary inquiry. The union demanded production of the notes; they were not forthcoming. We do not propose to review here the technical issues relating to the right of a police officer to testify in criminal cases without his notes. We simply observe that the usually heightened reliability of a police officer who testifies with carefully prepared notes is significantly undermined when those notes are not available. The ability of the union to cross-examine is significantly reduced, and testimony relying upon secondary sources is simply not as good. Finally, we observe that on purely objective grounds, the wording of the statement taken by Sergeant Hughes lends at least some support to the grievor's evidence that she was just trying to get it over with and to go home. There is a sense of exasperation and resignation even in the words which Sergeant Hughes wrote down for her to sign, and we have the sense that the entire statement is at least consistent with the grievor's characterization of what happened.

Finally, there is the question of "tainting" of the written statement to Sergeant Hughes by the factors rendering the oral statements to Sergeant Scharger of limited probative value. The case-law in the criminal jurisprudence on this issue is remarkably sparse. In R. v. Cybulski (1974), 19 C.C.C. (2d) 560, the Manitoba Court of Appeal observed [at p. 561], in circumstances quite different from those before us, that:

When an accused's statement has been preceded by statements made in earlier interviews, it is always a question for the appreciation of the trial Judge whether the final statement is so bound up with the earlier ones that it cannot be given effect to on its own. Each case will depend upon its particular facts. One relevant circumstance will assuredly be the time-gap between the earlier and the later utterances. A challenged statement coming hard upon a statement made in an earlier interview may not qualify for separate treatment as readily as one that comes after a longer interval.

In R. v. Hobbins (1980), 54 C.C.C. (2d) 353 [affd 66 C.C.C. (2d) 289 (S.C.C.)], similar observations, again in a case not much like the present, are made by the Ontario Court of Appeal.

While these cases are useful only in a negative sense, it is clear that in the case before us the written statement was taken almost immediately after the oral statements to Sergeant Scharger, which we have found to be unreliable. It followed the laying of criminal charges, which may have seemed to the grievor to be a betrayal of what she thought to be the purpose of her taking responsibility for the losses, or which may have increased her anxiety level even beyond what might have been the case in the polygraph post-test interview. Without relying on the technicalities of the "tainting" doctrine, as poorly elaborated as it is, we are not satisfied that the written statement given to Sergeant Hughes is any more reliable, in all of the circumstances, than the oral statements made to Sergeant Scharger and, to the extent that we can have any faith in their content, statements in the police car to Sergeant Hughes. The fact that a confession has been made by a suspect is always a matter of considerable concern. The usual reaction of ordinary persons is that no one would confess a crime who did not do it, but the totality of legal literature and jurisprudence indicates that people do indeed confess to things that they have not done, and people do indeed make false statements. The inducing factor is virtually always the influence upon those people, sometimes by circumstances, sometimes by aspects of their own psychology, sometimes by pressures placed upon them, inadvertently or advertently, by the interrogators. We cannot, of course, conclude on the basis of the evidence before us that the grievor made a false statement to the police. We can, however, conclude that the reliability of the statement which she made is not sufficient for us to accept it as any more probative of the issues before us than the other pieces of evidence which we have considered.

6. Conclusion

There are two observations which we think it is appropriate to make about the exercise upon which we have embarked in this case. The first has to do with the nature of scientific controversy, and the interaction of adjudicative processes with such controversy. The second has to do with the purpose and function of the burden of proof in civil as well as in criminal cases. Scientific controversy is very different from simple disputes of fact. Courts and tribunals are used to dealing with the latter; they are becoming more used to dealing with the former, but rarely in the theoretical and detached form in which this controversy came before us. Assuming that the controversy is real, and that both sides of the debate are acting honourably and rationally, adjudication is a very poor mechanism for deciding whether one side or the other of the controversy is correct. All of the usual tools of adjudication are largely useless when two scholars put forward competing opinions on a body of theory, experimentation and data which is in a state of flux. Far too often, the temptation is to conclude that one side or the other must win, and therefore to "accept" one body of expert evidence over the other. This requires "believing" one expert witness, and "disbelieving" the other. With the greatest of respect, we think there is some element of this misconception of how adjudication can deal with scientific evidence in the decision of Judge Kurisko in the John Doe case. We think it is entirely possible for adjudicators to deal effectively with scientific controversy, but that it is unlikely that most cases can be resolved by accepting one body of opinion over the other. There is likely to be truth and fallacy on both sides of any scientific controversy, since such controversies are invariably bound up with the opinion of scholars who are engaged in research to ascertain the "truth". Truth may often lie in the middle of a controversy, or even off to one side. Adjudicators should be reluctant to assume that the forensic processes of tribunals can elicit truth by subjecting the cut and thrust of scientific debate to the rules of evidence and judicial procedures. It is sometimes enough, and even correct, simply to say that a scientific controversy is beyond the scope of adjudication to decide. Where real disputes of fact arise, there will be cases where it is equally not possible to come to a conclusion that can be confidently asserted as truth. That is the case of the matter before us. From all of the evidence, we are left with the uncomfortable, but firmly held, opinion that we do not know what happened to the missing money. It follows that we do not know whether the grievor took it or not. Adjudicators rarely come to conclusions as equivocal as this, and we do so only after an exhaustive review of an enormous body of evidence of a number of different kinds. Having done so, we think it is important to observe that no tribunal should be reluctant to admit that it does not know the answer, in those rare cases where that is in fact the clear outcome of the evidence. To impose a clear answer where one is not justified is more inimical to the interests of justice than, occasionally, simply to admit that the adjudicative process cannot provide an answer. In circumstances like this, the burden of proof exists specifically to resolve the outcome of a case. The burden of proof is often misused by adjudicators to avoid hard decisions, and we have been concerned not to fall into that trap. After careful consideration, however, we think that the only proper resolution that can be made of this case is to say that the employer has failed to meet the burden of proof upon it, which is to show that the grievor committed the acts alleged against her, and to do so upon a standard of proof which requires clear and convincing evidence of criminal conduct.

We have adverted above to the employer's alternative argument that the grievor was so negligent that she should be discharged, even if she was not guilty of theft. We reject this argument on two grounds. First, negligence was not alleged in the original discharge letter, nor was it alleged in the letter of particulars provided at the request of the union at the outset of this hearing. To uphold the discharge on the basis of negligence would be to permit the employer to change the grounds for the discharge; no authority is needed for the proposition that this is improper. Second, the evidence is such that the grievor must either have been guilty of theft, or be herself a victim of someone who took advantage of the sloppy procedures in place at the Public Trustee's office. Her compliance with those procedures might well have been complacent, but has not been shown to be negligent, given the virtual absence of any real rules for her to follow or standards for her to meet. If the evidence cannot demonstrate dishonesty, it really cannot demonstrate negligence in any significant sense either. For all of the above reasons, therefore, the grievance must be allowed.

7. Remedy

The presumptive remedy in cases of unjust discharge is reinstatement with full compensation. In this particular case, however, there may be valid reasons why the grievor should not return to the Public Trustee's office. Some of those reasons will be obvious from the exposition of the evidence above; others would only be obvious to those of us who sat through the lengthy hearings in this matter and heard the hostility expressed by certain fellow employees to the grievor. While we do not necessarily accept this hostility as having a rational basis, it could certainly affect any future working relationships should the grievor be returned to employment in the Public Trustee's office. We therefore are content, for the moment, to order the grievor's reinstatement in employment and full compensation for all losses occasioned by her discharge, subject to the usual rules of the calculation of damages. The parties may wish to consider the implications of returning the grievor to work at the Public Trustee's office, and may wish to find ways to accommodate the grievor in other employment. The grievor herself may wish to consider whether her future properly lies outside government employment. We think it is sufficient for the moment to order her reinstatement with compensation, and to leave it to the parties to resolve whether, when, where, and in what circumstances she should return to work. We shall, of course, remain seised to resolve any difficulties which may arise in the course of the implementation of this award. We also expressly retain jurisdiction to deal with any issues which have not been resolved in this award, which we have deliberately attempted to constrain in order to deal with the issues central to the grievor's discharge. We reserve jurisdiction to issue, either on our own motion or at the request of either party, supplementary awards to deal with one or more of the collateral issues which arose during the course of this arbitration.