Background
COURT FILE NO.: 12-SA5081
DATE: 2014/03/21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Y.C.B.
Accused
Suzanne Schriek, for the Applicant
Russell Silverstein, Shannon O’Connor, for the Respondent
HEARD: February 10, 2014
Decision on Admissibility of offer to take polYgraph test
Lalonde j.
Background
[1] Y.C.B. is a public school teacher. He is accused of twelve counts of sexual offences in relation to five complainants, all of whom are former students at schools where Y.C.B. worked as an occasional teacher between December 2010 and November 2011.
[2] On January 25, 2011, Y.C.B. attended at the Ottawa Police Station for a video interview with Detective Joanne Marelic concerning allegations that he had touched little girls in his classroom. He was not charged at the time. However, he had spoken to a lawyer and had been cautioned.
[3] At the end of the interview, Detective Marelic decided to ask if Y.C.B. would be willing to take a polygraph test. Without hesitation, Y.C.B. offered to take the test and the time and place was discussed between the police officer and Y.C.B. Then, just before the end of the interview, the police officer told Y.C.B. that the results of the polygraph test are not admissible in evidence in Canada.
Issue
[4] Does Y.C.B.’s offer to take a polygraph test have probative value?
[5] Counsel for Y.C.B. rely on R. v. S.C.B., (1997) 1997 6319 (ON CA), 36 O.R. (3d) 516 (C.A.), for the proposition that although the offer to take a polygraph test is normally inadmissible, it can be admitted in certain circumstances to establish consciousness of innocence. It is a piece of circumstantial evidence that is after-the-fact conduct and that is related to the question of whether an accused has done the criminal act or not.
[6] Doherty and Rosenberg JJ. A. state at para. 33 of R. v. S.C.B.:
33 The admissibility of after-the-fact conduct by an accused to support an inference that the accused did not commit the crime alleged should be approached on a principled basis. If the evidence is relevant, its probative value is not substantially outweighed by its prejudicial effect and it is not excluded by some policy-driven exclusionary rule, the evidence should be received when proffered by the defence: R. v. Watson (1996), 1996 4008 (ON CA), 108 C.C.C. (3d) 310 at 327 (Ont. C.A.).
[7] Dealing with this case, counsel for Y.C.B. point out that Detective Marelic had asked Y.C.B. to come to the police station voluntarily. Y.C.B. did not know what he would be charged with aside from knowing about the allegations of lifting the dress of one student. Y.C.B. was cooperative as he gave his version of the incidents and he knew that what he said could be used in evidence against him.
[8] Detective Marelic asked Y.C.B. if he knew what a polygraph test was and Y.C.B. replied that he knew and that he wanted to take the test immediately.
[9] Defence counsel urges me to balance the Crown’s allegations of consciousness of guilt due to Y.C.B.’s conversation with H.T. in class and his phone call to H.T.’s mother that evening with the proposed evidence of consciousness of innocence, namely Y.C.B.’s cooperation with Detective Marelic during the two-hour interview.
[10] Crown counsel argues that this case is distinguishable from R. v. S.C.B., as in R v. S.C.B. the issue was identification. The accused in that case had provided a sample of his blood, his hair from his scalp, pubic hair, scrapping from his nails and bits of clothing. The accused had not exercised his right to counsel.
[11] Crown Counsel refers to para. 36 of R. v. S.C.B., which states:
36 The admissibility of after-the-fact conduct is not without its risks. There is always the danger that the trier of fact will read too much into that behavior. Conduct, which is no more than unusual, rash or thoughtless can take on an unwarranted significance when viewed in hindsight at trial. The danger that after-the-fact conduct will be over-emphasized by a trier of fact exists whether evidence of that conduct is offered by the Crown or the defence. That risk is best avoided by a judicious use of the power to exclude prejudicial evidence even though it has some probative value.
Analysis and Decision
[12] I find that paragraphs 28 to 31 in R. v. S.C.B. instruct further on the uses that can be made of this after-the-fact conduct. They are reproduced as follows:
28 We would find considerable force in the Crown's submission if the respondent's evidence consisted solely of an indication that he offered to take a polygraph test. Evidence from an accused that he offered to take a polygraph test is, in effect, evidence that the accused previously made a statement which is consistent with his testimony that he did not commit the crime alleged. Generally speaking, evidence of a prior consistent statement is not admissible because it has very limited, if any, probative value and serves to expand unnecessarily the ambit of the trial inquiry: R. v. Beland and Phillips (1987), 1987 27 (SCC), 36 C.C.C. (3d) 481 at 489-90 (S.C.C.); R. v. Toten (1993), 1993 3427 (ON CA), 83 C.C.C. (3d) 5 at 26-27 (Ont. C.A.).
29 Evidence that an accused offered to take a polygraph test has probative value only to the extent that it reasonably yields the inference that the accused was prepared to do something which a guilty person would not be prepared to do. In fact, an accused who offers to take a polygraph test risks nothing since the results are inadmissible: R. v. Beland and Phillips, supra, at 494-95. An inference favourable to the accused from such an offer could only be drawn if, despite the inadmissibility of the results, the accused believed that a negative test result could be used against him at trial. There is no evidence that the respondent had any such belief.
30 Even if there was evidence that an accused believed that a polygraph test result could be used against him, the admissibility of a mere offer to take the test is still problematic. An offer to take the test is hardly an unequivocal act. Its probative value depends on a number of factors. What did the accused know about the accuracy of the test? Did the accused believe he could "fool" the machine? What advice did the accused have before making the offer? Was the offer a bona fide one? These and other possible considerations could lead to extensive inquiries into matters which are far removed from the question of the accused's culpability in the offence charged. Evidence proffered by the defence will be excluded where its probative value is substantially outweighed by its prejudicial effect on the proceedings: R. v. Seaboyer (1991), 1991 76 (SCC), 66 C.C.C. (3d) 321 at 391 (S.C.C.). In many cases, evidence of a mere offer to take a polygraph test will not pass that threshold of admissibility: R. v. Richards (1997), 1997 12470 (BC CA), 6 C.R. (5th) 154 at 161-63 (B.C.C.A.); McCormick on Evidence, 4th ed. (1992), Vol. I, at p. 913; B.K. Carpenter, "Propriety and Prejudicial Effect of Comment or Evidence as to Accused's Willingness to Take a Lie Detector Test" (1963), 95 A.L.R. 2d 819.
31 If the evidence of the respondent's offer to take a polygraph test stood alone, we would agree with the Crown's contention that the evidence had no probative value and should not have affected the trial judge's determination of the respondent's liability.
[13] In R. v. S.C.B., I find that what tipped the scales towards admissibility was the fact that the accused had provided so much more than a polygraph test, namely a blood sample, scalp and pubic hair samples, scrapping from his nails and his clothing. Furthermore, the Crown did not object to the admissibility of the evidence at trial.
[14] In this case, the Crown objected to the admissibility of the evidence. The central issue in this case is not identification but whether or not Y.C.B. sexually touched two grade three students in his classroom.
[15] Y.C.B. had the benefit of legal advice prior to his interview with Detective Marelic. I equate the offer to take a polygraph test as a protestation of innocence at some point prior to giving evidence, as was done by Y.C.B. during the interview and immediately prior to offering to take the test. I find both protestations of innocence to be self-serving and of no probative value.
[16] The application is dismissed.
Mr. Justice Paul F. Lalonde
Released: March 21, 2014
COURT FILE NO.: 12-SA5081
DATE: 2014/03/21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
– and –
Y.C.B.
Respondent
Decision on Admissibility of offer to take polYgraph test
Lalonde J.
Released: March 21, 2014