Court File and Parties
COURT FILE NO.: CR-23-14-0000
DATE: 2023 12 18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
ISRAEL PEREZ
Counsel: C. Eastwood, for the Crown D. Robinson, for the Accused
HEARD: November 30, 2023
RULING
PUBLICATION RESTRICTION NOTICE
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant or witness may not be published, broadcasted or transmitted in any manner.
CHOZIK J.
Introduction:
[1] Mr. Perez is charged with two counts of sexual assault and two counts of sexual interference in respect of his former domestic partner’s children, G. and R. At the time of the alleged offences, G. was 7 or 8 years old, and R. was 11 years old.
[2] The issue before me is whether evidence that Mr. Perez offered to take a polygraph test should be admitted at trial. The defence concedes that the result of the polygraph test is not admissible.
[3] A jury trial started before Mills J. on October 16, 2023. On October 18, 2023, Mr. Perez testified before the jury with the assistance of Spanish interpreters. Part way through Mr. Perez’s testimony, Mills J. declared a mistrial because of concerns about the interpretation of Mr. Perez’s evidence. Justice Mills’ ruling on the mistrial application is found at R. v. Perez, 2023 ONSC 6323.
[4] At the start of that first trial, Mills J. heard and ruled on the defence application to adduce evidence that Mr. Perez had agreed to take a polygraph test. The substance of the evidence on the application was that when his domestic partner, Ms. L. first confronted Mr. Perez with the allegations of sexual assault made by G., Mr. Perez immediately denied it. He said: “Oh my god. No, I didn’t do that”. She asked him to take a polygraph test and he agreed. He then took a polygraph test and ‘passed’.
[5] The Crown took no issue with the admission of Mr. Perez’s utterance: “Oh my god. No, I didn’t do that” but opposed the admission of the polygraph evidence.
[6] The issue on the application before Mills J. was whether the evidence that Mr. Perez was asked to take a polygraph, and that he agreed to take one, should be admitted at the trial.
[7] In a ruling given orally on October 17, 2023, Mills J. held that this evidence was not admissible. She found that:
a. The results of the polygraph had no probative value.
b. This case was very different from cases like R. v. B.(S.C.) (1997), 1997 6319 (ON CA), 36 O.R. (3d) 516 (Ont. C.A.) and R. v. Gill, 2021 ONSC 6328 where the accused offered extensive assistance to the police.
c. In this case Mr. Perez was asked to take the polygraph by Ms. L., which is different from the offering assistance to the police.
d. There was no probative value in Mr. Perez offering to take a polygraph test, nor in his insistence that it be done.
e. The probative value of the offer to take a polygraph, if any, was outweighed by the prejudicial effect to the trial process of presenting such evidence to the jury.
[8] Justice Mills concluded that it was not realistic or fair to admit the fact that Mr. Perez agreed to take the polygraph without also admitting the evidence that he took the test and the result. She concluded that the admission of the offer to take the polygraph would be prejudicial to the fairness of the trial as it would significantly distract the jury from the central issues in the case.
[9] Mr. Perez now presents a reworked version of essentially the same application to admit at the re-trial the same evidence as to his conversation with Ms. L., as well as evidence that when he was interviewed by the police four weeks later, he offered to take a polygraph test again.
[10] At the conclusion of the hearing, I dismissed Mr. Perez’s application with reasons to follow. These are my Reasons.
ISSUE ONE: HAS MR. PEREZ REBUTTED THE PRESUMPTION IN S. 653.1 OF THE CRIMINAL CODE?
[11] There is a presumption in the Criminal Code in favour of preserving prior rulings where there has been a mistrial or a re-trial. Common sense suggests there will normally be no good reason to revisit such rulings where the reason for the mistrial is not related to the reasons supporting the ruling.
[12] Section 653.1 states:
653.1 In the case of a mistrial, unless the court is satisfied that it would not be in the interests of justice, rulings relating to the disclosure or admissibility of evidence or the Canadian Charter of Rights and Freedoms that were made during the trial are binding on the parties in any new trial if the rulings are made — or could have been made — before the stage at which the evidence on the merits is presented.
[13] This presumption is rebuttable. It can be rebutted if the accused can satisfy the court that it would be contrary to the interests of justice to confirm and apply the prior ruling: R. v. Victoria, 2018 ONCA 69, 359 C.C.C. (3d) 179, at para. 31.
[14] The purpose of the presumption is to avoid time and expense associated with re-litigation of issues already decided and to avoid the prospect of conflicting decisions on the same issues and evidence: Victoria, para. 34. Put simply, in the absence of good reason to suggest why a different ruling should be obtained, there is no reason to relitigate such matters.
[15] Mr. Perez argued that the presumption is rebutted here because the factual and legal basis for his application is different from what was before Mills J. He argued that the difference lay in two things:
(1) the fact that he has now adduced evidence before me that when Mr. Perez was interviewed by the police he offered to take a polygraph test. His offer to police was not in evidence on the application before Mills J., and
(2) the defence puts forth a new legal argument. It is submitted that Mr. Perez’s offer to take a polygraph falls under an exception to the rule against the admission of prior consistent statements carved out in Ontario Court of Appeal decision in R. v. Edgar, 2010 ONCA 529. This argument was not made before Mills J.
[16] I am not persuaded that the defence has rebutted the presumption contained in s.653.1. These two things do not render the prior ruling contrary to the interests of justice.
[17] Before Mills J., this was a defence application. The fact that Mr. Perez offered to take a polygraph when interviewed by police shortly after he was arrested was known to the defence. It is in his statement to the police, which was disclosed a long time ago. The defence must have reviewed the statement because it was agreed that the statement was voluntary for the purpose of the Crown cross-examining Mr. Perez at the first trial.
[18] The fact that Mr. Perez offered to take a second polygraph to police was certainly known and could have been placed before Mills J. on the application. There is no explanation before me why this fact was withheld.
[19] I am also of the view that this ‘new’ (really just ‘additional’) fact would have made no difference to the ruling. The fact that Mr. Perez offered to the police to take the polygraph test does not bring this case within the ambit of R. v. B.(S.C.) (1997), 1997 6319 (ON CA), 36 O.R. (3d) 516 (C.A.) or R. v. Gill, 2021 ONSC 6328. As Mills J. held, in those cases the accused did a lot more than offer to take a polygraph.
[20] In R. v. B.(S.C.) the court admitted the evidence of the accused’s offer to take a polygraph because the accused assisted the police and offered to provide other evidence that, unlike the polygraph results, could be used to convict him. He volunteered to take a polygraph and to provide samples of his blood and pubic hair.
[21] The Court of Appeal held that in certain circumstances, an inference could be drawn that a guilty individual would not agree to undergo a polygraph but such an inference could only be drawn where an accused believed that an unfavourable result could be used against him in a trial: B.(S.C.), at para. 29. The court also held that the offer to take the polygraph was admitted because that offer was made in conjunction with the offers of the DNA samples. For present purposes, it is significant that the Court of Appeal held that in most cases, a mere offer to undergo a polygraph test would not meet the threshold admissibility requirement: B.(S.C.), at para. 30.
[22] In Gill, the accused offered to complete a polygraph test and give a statement to police. He also offered to voluntarily turn over his devices to be searched and to allow police to search his house without a warrant. It was because the accused offered to do all these things that evidence of the offer to take the polygraph became somewhat probative.
[23] In Gill, the trial judge reasoned that if the accused could be relatively sure that he knew this offer could lead to incriminating evidence that could be used against him, then the offer to take a polygraph in conjunction with it could be somewhat probative: Gill, at paras. 1262-1264. At the same time, the trial judge noted that there are so many unknown variables associated with this after-the-fact conduct that little weight would be attributed to it.
[24] These authorities, and others cited by the parties establish that the reason why an offer to take a polygraph is of such limited probative value is because an accused who offers to take a polygraph (and seeks out or agrees to no other specific investigative tests or processes) risks nothing since the results are inadmissible. In most cases, an offer to take a polygraph test of itself does not expose an accused to any risk of the evidence being used against him in a trial; such evidence is inadmissible as a matter of law: B.(S.C.) at para. 29. In most cases a mere offer to undergo a polygraph test without more would not meet threshold admissibility requirements: Gill, at para. 1263; B.(S.C.), at para. 30.
[25] Justice Mills considered the decisions in B.(S.C.) and Gill and found that the evidence of Mr. Perez’s agreement to take a polygraph was not admissible. In my view, the mere fact that there is now evidence that Mr. Perez also told the police that he would take a polygraph test (not just Ms. L.) changes nothing about the application of the law in this case: an offer to take a polygraph without more is of no probative value: B.(S.C.), at paras. 31, 32, 37.
[26] There is no evidence that Mr. Perez subjectively believed that the results of an adverse polygraph test would be used against him at a trial. The defence argued that there was no evidence that he knew the results would be inadmissible and that the average lay person would think that they were. I am not prepared to make this finding. It is not something I am prepared to just assume.
[27] I am of the view that the fact that Mr. Perez offered to take a polygraph to the police is not a fact that could rebut the presumption in this case. It would make no difference to Mills J.’s ruling, let alone render that ruling contrary to the interests of justice.
[28] I am also of the view that the “new” legal argument does not rebut the presumption. The Edgar exception to the admission of prior consistent statements is not new. The decision is from 13 years ago. It does not represent a change in the law. There is no reason apparent on the record why, through due diligence, the argument that the Edgar exception applies was not made before Mills J.
[29] It cannot be that every new argument will rebut the presumption in s.653.1 of the Criminal Code. If the presumption could be rebutted because an argument was not initially put forward, it would, practically speaking, turn every reconsideration into a hearing de novo. Since the section clearly does not intend to make every retrial into a fresh “kick at the can”, that cannot be correct.
[30] More importantly, I am of the view that had the argument been made before Mills J., it would not have made any difference in the result. The apparent merit of the new argument being advanced is, in my view, absent: Victoria, at para. 55.
[31] Therefore, I conclude that nothing has changed since the application was heard and decided. The defence has not rebutted the presumption that the prior ruling is binding on the parties at this re-trial. Mills J.’s ruling is binding.
[32] The defence application can be dismissed on the basis that the presumption preserving the prior ruling applies.
[33] For the avoidance of doubt, I should note my own views; even if the defence had rebutted the presumption, I would not allow this application. I would not admit evidence of Mr. Perez’s offers to take the polygraph for the following reasons:
Polygraph evidence is not admissible in Canada. It is not admissible in Canada for multiple good reasons. An offer to take a polygraph is not “consciousness of innocence” as the defence puts it.
Mr. Perez’s offers to take a polygraph, both to Ms. L. and to the police, is a self-serving prior statement that is not admissible. It does not fall within the Edgar exception of the rule against the admission of prior consistent statements as a “spontaneous utterance” or as admissible evidence of an accused’s reaction to the allegations.
Admission of this evidence would significantly impair the fairness of the trial by distracting the jury and introducing irrelevant highly prejudicial evidence. Any probative value of the evidence, which I find to be marginal at best, is far outweighed by its significant prejudicial effect.
[34] I will address each issue in turn.
ISSUE TWO: IS MR. PEREZ’S OFFER TO TAKE THE POLYGRAPH ADMISSIBLE AS “CONSCIOUSNESS OF INNOCENCE”?
[35] The defence argues that Mr. Perez’s offers to subject himself to a polygraph test is relevant and probative as evidence of “consciousness of innocence” or an exculpatory out of court statement. By this, I understand the defence to mean that the offer to take a polygraph is after the fact conduct which the jury may find to be consistent with innocence and inconsistent with guilt. The reasoning the defence would invite the jury to follow would be along the lines of: ‘No guilty person would subject himself to a polygraph test and therefore Mr. Perez must be innocent’.
[36] The SCC considered almost this exact scenario in the landmark decision R. v. Béland, 1987 27 (SCC), [1987] 2 SCR 398. In that case, two accused offered during their testimony before a jury to take a polygraph test to show that their denials of any wrongdoing were true. At that time, the law was that polygraph evidence was admissible. There could be some probative value to the offer because the accused knew his offer could lead to incriminating evidence that could be used against him at trial but offered it any way.
[37] Despite this inference being an available one in Béland, the Supreme Court of Canada held that “[p]olygraph evidence aimed at supporting the credibility of the accused is not receivable ‘as evidence’ in Canada” (at para. 17).
[38] The Supreme Court of Canada reached this conclusion because the admission of polygraph evidence offends multiple well-established rules of evidence. In particular, it offends the rule against oath-helping, the rule against admission of prior consistent statements and the expert evidence rule. Although evidence that an accused person took or is willing to take a polygraph test is offered to support an inference that his denial of offence on the stand is more credible, the Supreme Court of Canada concluded that the polygraph “has no place in the judicial process where it is employed as a tool to determine or test the credibility of witnesses” (Béland, at para. 18). The credibility of witnesses is ultimately for the trier of fact. The reliability of polygraph evidence, which is really opinion evidence as to the truthfulness of a person cloaked in the “mystique” of science renders such evidence particularly dangerous: Béland, at para. 20.
[39] As I set out earlier, the law now is that an accused who offers to take a polygraph generally risks nothing because the results are inadmissible at a trial. An offer to take the polygraph is exculpatory only to the extent that the accused believed that by offering to take it he was somehow offering evidence of a crime. The offer to take a polygraph therefore cannot be consistent with innocence. Mr. Perez risked nothing by offering to take a polygraph.
[40] That Mr. Perez risked nothing is particularly pronounced in this case because of ruse used when he took the polygraph test. Mr. Perez took the polygraph under false pretenses. He and Ms. L. told the polygraph operator that the test was in respect of alleged infidelity by Mr. Perez with a woman named G., not sexual abuse of Ms. L.’s minor child G. The Crown has adduced evidence from the polygraph operator that this false premise invalidated Mr. Perez’s test results. The results of the polygraph test Mr. Perez took are totally unreliable. They are a nullity.
[41] Mr. Perez concedes that the results are not admissible. What Mr. Perez really seeks to do is to adduce what amounts to a prior self-serving statement – that he denied the allegation and was willing to subject himself to a forensic process (the polygraph) that is inherently unreliable and the results of which are inadmissible at a trial. In my view, the probative value of this evidence is marginal, at most. It is not admissible.
ISSUE #3: IS MR. PEREZ’S OFFER TO TAKE A POLYGRAPH AN EXCEPTION TO THE RULE AGAINST ADMISSION OF PRIOR CONSISTENT STATEMENTS UNDER R V. EDGAR?
[42] The defence argued that Mr. Perez’s offers to take a polygraph are admissible as an exception to the rule against the admission of prior consistent statements as a “spontaneous utterance”, and that this evidence is relevant to establish the accused’s reaction to an allegation, which is relevant to his credibility. It relies on the Court of Appeal decision in Edgar in support of these propositions.
[43] I do not accept this argument.
[44] I find that the evidence the defence wants to adduce in this case does not fall under the Edgar exception to the rule against prior consistent statements. I also find that evidence of an accused’s reaction to an allegation is of limited probative value and requires caution if it is admitted.
[45] In Edgar, the Court of Appeal held that an accused’s out of court statement made upon arrest or when first confronted with an accusation could be admitted as an exception to the general rule excluding prior consistent statements. It could be admitted as evidence of the reaction of the accused to the accusation and as proof of consistency of his testimony, provided the accused takes the stand and exposes himself or herself to cross-examination. In that case, the statement was admitted not for the truth of its content but as evidence of the “reaction of the accused, which is relevant to the credibility of the accused and as circumstantial evidence that may have a bearing on guilt or innocence”: R. v. Edgar, at para. 72.
[46] When he was arrested, Mr. Edgar made statements that the court found were “spontaneous”, meaning they were made within minutes of his arrest for murder, when he was in a highly agitated state and had little time to think or to fabricate a story. In particular, upon arriving at the police station, he said: "she had the knife. The bikers are going to kill me. I'm telling you." Shortly after, he started yelling "the bikers are going to kill me. She had the knife. She was trying to kill me." He also yelled "she kissed me and tried to kill me. I took the knife out of her hands. I got one of the knives out of her hands. She was trying to kill me. Why would she try to kill me? She had two knives": Edgar, at para. 16.
[47] The Edgar decision stands for the proposition that where the accused’s reaction is a “spontaneous utterance” made in circumstances where the accused had no time to think or fabricate and that “spontaneous utterance” is consistent with his present testimony, it may be relevant to his credibility.
[48] Mr. Perez’s agreement to take the polygraph to Ms. L. is not a spontaneous utterance of his creation. He did not suggest taking the test. It was Ms. L.’s idea. She proposed it. He had some time to think about it and accepted it. It is not his spontaneous utterance.
[49] Mr. Perez’s offer to take the polygraph to the police during this interview was not spontaneous whatsoever. He had been confronted by allegations of sexual assault of G. four weeks earlier. He had time to think. He took a polygraph test under false pretences. Time had passed.
[50] He was then removed from the home, arrested for sexually assaulting both G. and R. Though there is no evidence before me as to the circumstances of the arrest, it is clear from the transcript of Mr. Perez’ statement to the police that it was in an interview room after he had been cautioned and had some time to consider his position. His offer to take a polygraph test again in those circumstances was hardly “spontaneous”. It had none of the markings of trustworthiness or reliability upon which the Edgar exception is premised or which justifies in law the reception of a spontaneous utterance.
[51] Mr. Edgar’s statements were admissible because they showed more than a blanket denial of any wrongdoing. Rather, the statements were admissible to show his confused and agitated mind and to support his defences of automatism and lack of intent. His spontaneous utterances also contained details of how events had transpired which were relevant to the defence of self-defence and were consistent with his evidence at trial. In those circumstances, the prior consistent statement was found to be probative.
[52] Mr. Perez’s agreement to Ms. L.’s request to take a polygraph, and his offer to do so in his police interview, are not prior statements that are consistent with any evidence he would be permitted to give at the trial.
[53] The defence argued that Mr. Perez’s offers to take the polygraph tests were admissible as evidence of an accused’s reaction to being confronted with an allegation, which the Court of Appeal in Edgar held could be relevant to his credibility. I disagree. In Edgar, the accused’s reaction was not a simple denial of wrongdoing.
[54] In my view, Mr. Perez’s denial of wrongdoing is the type of reaction evidence that the Court of Appeal has cautioned repeatedly is dangerous to rely on in R. v. Levert (2001), 2001 8606 (ON CA), 159 C.C.C. (3d) 71 (Ont. C.A.), R. v. J.S.W., 2013 ONCA 593,301 C.C.C. (3d) 252, and R. v. Chafe, 2019 ONCA 113, 145 O.R. (3d) 783.
[55] In Chafe, the Court of Appeal held that evidence of an accused’s reaction to being confronted by allegations of a criminal wrongdoing, and the impression of the confronter as to what this reaction meant, may not be admissible. If such evidence is admitted, the jury must be cautioned of the dangers of relying on it and that it is entitled to no weight: Chafe, at para. 45.
[56] I am of the view that Mr. Perez’s offer to take a polygraph is neither a prior consistent statement nor a spontaneous utterance. It is more akin to the type of ‘reaction’ evidence that is dangerous to rely on.
[57] The defence argued that the cautious approach adopted in the Chafe line of cases does not apply to exculpatory evidence proffered by the defence. I disagree.
[58] Whether tendered by the Crown or defence, evidence that relies on stereotypes, myths and unwarranted assumptions, feeds on unconscious biases, or requires unsupported leaps of logic has no place in the fact-finding process. Evidence of an accused’s reaction to allegations is of limited, if any, probative value because the inferences to be drawn from such evidence rest on assumptions about how a “normal” person would react. Judicial experience has taught us that these assumptions are often wrong: Chafe, at para. 38. Evidence proffered by the defence will be excluded here if its probative value is substantially outweighed by its prejudicial effect on proceedings: R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577, at para. 48.
[59] Mr. Perez’s offers to take the polygraph do not fall within the Edgar exception to the rule against admission of prior consistent statements. Nor is it admissible evidence of an accused’s reaction to an allegation.
ISSUE #4: IS THE PROBATIVE VALUE OF THE EVIDENCE OUTWEIGHED BY ITS PREJUDICIAL EFFECT?
[60] Even if a jury could identify and engage with whatever limited probative value could be extracted from this evidence, I am of the view that its prejudicial effect far outweighs it.
[61] This evidence has significant potential to undermine the fairness of the trial. The actual test is problematic because of the fictional (i.e. false) foundation for it. The fact that Mr. Perez ‘passed’ the polygraph test is of no assistance whatsoever to the jury. The results were a nullity in this case.
[62] If evidence that Mr. Perez offered to take the polygraph were admitted, there are two routes for jury instruction. Either, the jury could be told nothing else about the situation, or, they could be told that Mr. Perez indeed took the polygraph test.
[63] If the jury is not told about Mr. Perez taking the test, it is likely that they will wonder what happened and turn to speculation. If the jury is told that Mr. Perez agreed to take the polygraph, then they would have to be given an instruction that the results of the test are inadmissible, and they are not to speculate about whether he indeed took the test or what the results were. The jury would further have to be instructed more specifically that the purpose of this evidence is only to speak to Mr. Perez’s state of mind, that results from polygraph tests are not reliable forms of evidence, therefore directly and immediately undercutting any weight the jury would place on the offer.
[64] Like Mills J., I am of the view that to admit evidence of Mr. Perez’s offers to take the polygraph test without more would leave the jury at a cliff hanger. The jury would be left wondering whether he took it, and what at the results were. To understand and properly make use of the evidence that he offered to take one, the jury would have to hear evidence about the circumstances under which Mr. Perez took the test and the results of the test. The operator of the polygraph would have to be called to give what is, in law, inadmissible expert opinion on the ultimate issues.
[65] The jury would then have to be instructed that they are to disregard the results of the polygraph test and not rely on the evidence of the polygraph operator.
[66] The jury would also have to be instructed that evidence of an accused’s reaction to an allegation of criminal wrongdoing is of little assistance because different people react differently when confronted with such allegations, and there is no “normal” way for a person to react: Chafe, at paras. 38-40 and 45.
[67] The jury would have to be told in no uncertain terms that the fact that Mr. Perez previously denied the allegations must not be used by them to conclude that his denial is more worthy of belief by reason of the prior consistent statement and that they must not use the evidence in a manner that is inconsistent with the rule against oath helping.
[68] In the end, admission of evidence that Mr. Perez agreed to take a polygraph when confronted by Ms. L. and offered to take one when he spoke to the police would be highly prejudicial to the fairness of the trial. It would create a huge distraction from the issues the jury has to decide. Those issues are whether Mr. Perez touched G. and R. sexually as they alleged.
[69] I conclude that the probative value of the evidence is far outweighed by its prejudicial effects.
CONCLUSION:
[70] For these reasons, evidence that Mr. Perez offered to take a polygraph was not admitted at his trial. The defence application was dismissed.
Chozik J.
Released: December 18, 2023
COURT FILE NO.: CR-23-14-0000
DATE: 2023 12 18
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
Israel Perez
RULING
Chozik J.
Released: December 18, 2023