Globe and Mail

Supreme injustice

The Supreme Court just said it's fine to use threats and lies to get confessions. Lawyer CLAYTON RUBY is appalled

CLAYTON RUBY
Globe and Mail
Tuesday, October 17, 2000

For centuries, the law has been careful to exclude from evidence confessions obtained by threats, promises, or oppressive police conduct. Why? It's simple: Oppressive interrogation techniques commonly produce false confessions. When other evidence is weak or absent, the innocent can easily be convicted on the basis of a confession they made under duress. Research repeatedly shows that jurors find it difficult to believe that anyone would confess falsely. So our law excludes confessions that are not truly voluntary.

The Supreme Court of Canada itself says, "The abhorrence of society to the use of involuntary confessions turns on the deep-rooted feeling that the police must obey the law while enforcing the law . . . life and liberty can be as much in danger from illegal methods used to convict those thought to be criminals as from the actual criminals themselves." But let's look at what the court did, not what it said, in the case of Oickle v. The Queen.

Back in 1994 and 1995, Waterville, N.S., was hit by eight mysterious fires, two involving vehicles. As it happened, one vehicle belonged to the father of Waterville volunteer fireman Richard Oickle, and one to Mr. Oickle's fiancé. As a volunteer fireman, Mr. Oickle had been among those responding to each fire. There was no evidence against him -- except a confession obtained during a police questioning process that stretched from 5 p.m. one afternoon to 2:45 a.m. in the morning.

During the questioning, the accused was emotionally uspet, often in tears. His defence team pointed this out, but failed to soften the hearts of the Supreme Court judges. With Madame Justice Louise Arbour dissenting, the judges wrote: "The mere fact that a suspect begins to cry when he or she finally confesses is not evidence of emotional disintegration. Tears are to be expected when someone finally divulges that he committed a crime."

This is a Catch-22. Had Mr. Oickle not cried, there would have been no emotional disintegration. But even if he does cry, there is still no emotional disintegration because tears are, after all, to be expected.

Tapes of the interrogation show that the police deliberately minimized the seriousness of the crimes: "They're not all-that-bad fires. They are old empty buildings in Waterville. . . . I know the building, it's an eyesore. Let's assume you burned it down . . . what is really wrong with that? Probably not a whole lot."

Although Waterville had eight, separate fires the police suggested to Mr. Oickle that it made no difference; if he confessed, they could be "bundled" together. This was a lie. ("We look at it almost as one incident . . . if it's one or it's 10 [fires], it doesn't matter. Okay . . . you're a good man. Let's just deal with that.")

The police had a strong idea that all the fires were caused by the same arsonist, but they repeatedly lied in order to get Mr. Oickle to admit to one -- his fiancé's car. Trying to persuade Mr. Oickle that they thought it was unlikely that he was responsible for all the fires, they suggested that he had set fire to his fiancé's car so she could collect insurance. If so, this would make her a criminal, too. But if he confessed, they wouldn't have to submit her to the extensive interrogation through which they were forcing him. ("We don't want to put Tanya through any -- I mean, she is going to be going through half of what you went through today. It's no fun," they said. To which Mr. Oickle responded, "No, no.")

The police persuaded Mr. Oickle to take a lie detector test, failing to inform him that in Canada a lie detector test is considered unreliable and is not admissible evidence to determine whether an accused is lying or telling the truth. Instead, the police repeatedly said that a polygraph is infallible. This, too, was a lie.

No matter how often he denied having set the fires, the police told him he was not being truthful. They simply would not accept his denials.

The transcripts show the officers working to create a false atmosphere of trust: "If you burned the buildings, we need to get you some help, Richard . . . I'm talking about maybe seeing a psychiatrist, Richard." And later, "Take that load off your back, okay? Okay, Richard. Okay . . . let us help you." In the midst of this last statement, the transcripts of the interrogation reveal that Mr. Oickle collapsed. Leaning forward, with his head in his hands, he began to sob while a police constable comforted him, patting and rubbing his shoulder. With some additional prompting, and encouragement, Mr. Oickle confessed.

Such treatment sets Canada's standards at the lowest common denominator of civilized behaviour. Our values are revealed. They are these: Lie, cheat, mislead if you must. Ignore tears and repeated protestations of innocence. But get a confession from whomever you have in your hands. That's the message the Supreme Court has just sent to police forces across our land. We're playing with fire.
Clayton Ruby is a Toronto lawyer.

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