Globe and Mail

Arbour displays Supreme confidence

Top-court judge willing to go against grain in defending rights of the accused

KIRK MAKIN
JUSTICE REPORTER
Globe and Mail
Monday, October 16, 2000

Madam Justice Louise Arbour was crisp and respectful in dissent, but she left no doubt that her Supreme Court of Canada colleagues had been hopelessly wrong-headed.

Six of them had ruled that the Crown was right to use an alleged confession by an accused arsonist, Richard Oickle. They were not fazed that police had tricked the Nova Scotia man into believing he had failed a polygraph test and that such tests are invariably right.

Moreover, the police also made it clear that Mr. Oickle's girlfriend would be given a polygraph test as well unless he confessed.

It was the kind of ruling that police and prosecutors hunger for. But Judge Arbour was aghast at what she viewed as unfair threats and inducements. In a dissenting opinion that was bold, coming from such a junior judge, she noted that polygraph results are so flagrantly unreliable that they have long since been banned from trials.

Mr. Oickle was thrust into a Catch-22 position, she said. The only way for him to challenge the veracity of his purported confession was to tell the jury about the polygraph test he allegedly failed.

The effect on the jurors would be "overwhelming," Judge Arbour wrote.

"Suffice it to say, a 'failed' polygraph test is likely to be perceived as simply a confession by another name," she said. "It is difficult to imagine a more devastating, self-inflicted blow to the accused's credibility, led through useless, unreliable and prejudicial evidence."

It was precisely the sort of stand that supporters of the former international war-crimes prosecutor pictured two years ago, when she returned from The Hague to fill a vacancy on the court.

Whether tramping the Serbian countryside rooting out evidence against war criminals or weaving through a court of nine strong-willed justices, Judge Arbour has never been one to tread lightly.

"She is a very experienced judge," said Professor Dianne Martin of York University's Osgoode Hall Law School. "She is not one to think she should sit quietly and not take a position."

However, it is not in her nature to become a professional contrarian, Prof. Martin added. "She is known as a mature person who thinks things through," she said.

A lifelong defender of the rights of the accused, Judge Arbour has a curriculum vitae that includes teaching evidence at Osgoode Hall and heading a year-long inquiry into violence at the federal Prison for Women.

Now, with the evaporation of a thin majority that used to routinely toss out dubious evidence and order new trials in controversial cases, Judge Arbour increasingly stands out.

"The others seem to be all over the place," said Don Stuart, a professor of law at Queen's University. "Justice Arbour's dissents indicate quite clearly she is going in a different direction to the court. I really admire her for having the guts to go off like that and write her own judgment in a high-profile case. I'm beginning to think she is the only dove in a pack of hawks."

The Oickle case marks something of a turning point for the court, Prof. Stuart said.

"It is a case where the court's change of direction is very subtle, but the end result is incredibly pro-state on the issue of interrogations," he said. "They have authorized a much more coercive form of interrogation. The police can now threaten people's relatives and use polygraphs as a coercive mechanism."

Judge Arbour is not alone in upholding the rights of the accused. A core of other judges has often done so: primarily Mr. Justice Ian Binnie, Mr. Justice Jack Major, Chief Justice Beverley McLachlin and Mr. Justice Frank Iacobucci, who wrote the majority decision in Oickle. But none has displayed the absolute consistency of Judge Arbour.

"I think Major and Iacobucci are drifting away," Prof. Stuart said.

In a second ruling, issued the same day as R. v. Oickle, Judge Arbour again struck out on her own. Initially, she agreed with the majority that the accused, Marty Morrissey, should get the mandatory minimum sentence of four years for criminal negligence causing death with a firearm.

However, Judge Arbour departed from the majority over whether the mandatory sentence is likely to be suitable for all cases. There are bound to be marginal cases where it is simply too harsh and cruel a punishment, she reasoned.

Lest any doubt remain, she described the stand adopted by the majority as "inappropriate and unworkable." (Chief Justice McLachlin signed on to her opinion.)

Prof. Stuart said what makes Judge Arbour distinctive on the court is her having "lived and breathed" criminal law. She has seen firsthand that police really do skirt the law at times, and that innocent people can be buffaloed into making false guilty pleas.

"Louise Arbour knows about prisons," Prof. Martin said. "She also knows how grotesque an interrogation can become, and that you can put no faith at all in a confession derived out of a polygraph test.

"She knows that that 'magic machine' is devastatingly potent. When it says you did it, the mind has to come up with a way to make sense of things, whether you are guilty or innocent."

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