Here are some important judicial aspects of Polygraph testing
The polygraph examination and its result are not admissible as evidence in Canada's criminal justice system. This statement of law was made by Justice McIntyre in R. v. Béland and Phillips [1987] 2 S.C.R. 398 Docket: 18856.
The courts of Canada hold that the result of a polygraph examination is an opinion put forth by the polygraph examiner and that evidence of this type should not supersede the role of the judge and jury to decide the credibility of a witness. Trial by judge and jury has long been the cornerstone of Canada's criminal justice system. However, the testimony of the polygraph examiner can be heard on a see dire when a confession has been obtained.
The result of a polygraph examination can be admissible in civil court or in labour court. The law, however, as it pertains to the admissibility of such evidence, is unclear and civil courts across Canada have adopted a variety of views, ranging from acceptance of polygraph evidence to partial acceptance to non-acceptance. Some judges have taken the view that the decision of Justice McIntyre in R. v. Béland and Phillips applies to civil as well as to criminal matters, while others have taken the stance that any evidence of witness credibility — if probative and relevant — should be admitted, including polygraph evidence.
Jurisprudence, as it pertains to the admissibility of a confession following a polygraph examination, is divided in Canada. According to the provinces and the different courts involved, there is essentially the same number of decisions for one side as for the other. Recent decisions, however, have shown that each case must be treated individually.
R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, Docket: 26535
During the police investigation of a series of eight fires, the suspect Richard Floyd Oickle agreed to submit to a polygraph examination. At the conclusion of the test, the officer informed the suspect that he had failed it. During a lengthy and skillful interrogation that followed, Oickle confessed to arson.
The trial judge ruled on a voir dire that the suspect's statements were voluntary and admissible and subsequently convicted Richard Floyd Oickle on all counts.
The Court of Appeal for Nova Scotia disagreed with the finding of the trial judge and entered an acquittal.
The Supreme Court of Canada would be called upon to rule on the voluntariness of Richard Floyd Oickle's confession, on whether the polygraph had created an oppressive atmosphere for the suspect, and on whether the police had improperly induced the suspect's confession in any way.
On 29 September 2000, the Supreme Court of Canada ruled that Richard Floyd Oickle's confession was given voluntarily, the findings of the trial judge were upheld and the conviction was restored.
Lamothe v. General Accident Insurance Company, Court of Québec, REJB 1998-10865.
Judge Robert held that the opinion of the polygraph examiner was admissible when he stated:
[Translated from the French judgement] Proof that has been obtained following a polygraph examination constitutes an innovative scientific technique that is admissible in evidence. The opinion of the polygraph examiner is also admissible in evidence because he is not giving an opinion as to the credibility of the witness. Moreover, his function consists in interpreting specific physiological findings and determining whether these findings correspond to those of a person who is telling the truth.
Hotel Central Victoriaville Inc. v. Reliance Insurance Company, Québec Court of Appeal, REJB 1998-06721.
Judge Philippon states:
[Translated from the French judgement] A distinction must be made between the criminal and the civil courts' requirements for the admissibility of evidence proof that has been obtained by polygraph.
He stated that certain rules of evidence must be respected, such as establishing the validity of the fundamental principle of the polygraph technique, evaluating the capacity of the polygraph instrument and the method that was followed by the polygraph examiner in the case concerned.