R. v. Béland and Phillips, (1987) 79 N.R. 263 (SCC)

• Judge: Dickson, C.J.C., Beetz, McIntyre, Lamer, Wilson, Le Dain and La Forest, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 15, 1987
• Jurisdiction: Canada (Federal)
• Citations: (1987), 79 N.R. 263 (SCC);[1987] 2 SCR 398;3 WCB (2d) 69;[1987] CarswellQue 96;79 NR 263;60 CR (3d) 1;[1987] SCJ No 60 (QL);9 QAC 293;JE 87-1124;36 CCC (3d) 481;43 DLR (4th) 641;1987 CanLII 27 (SCC)

R. v. Béland (1987), 79 N.R. 263 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

R. v. Alain Béland and Bruce Phillips

Indexed As: R. v. Béland and Phillips

Supreme Court of Canada

Dickson, C.J.C., Beetz, McIntyre, Lamer, Wilson, Le Dain and La Forest, JJ.

October 15, 1987.

Summary:

The two accused were charged with conspiring to commit a robbery. The evidence against them was given by an informer. The accused testified on their own behalf, denied their guilt and offered to take a polygraph examination. After close of the evidence at trial, they applied to reopen their defence to permit them to take the polygraph examination and submit the results in evidence. The trial judge dismissed the application and convicted the accused. The accused appealed.

The Quebec Court of Appeal allowed the appeal and held that the polygraph examination results should be submitted to the trial judge for a ruling on their admissibility. The Crown appealed.

The Supreme Court of Canada per McIntyre, J. (with Dickson, C.J.C., Beetz and Le Dain, JJ., concurring) and La Forest, J., allowed the appeal and held that polygraph examination results were inadmissible.

Wilson, J., dissenting (Lamer, J., concurring) was of the opinion that the evidence was relevant and admissible.

Criminal Law - Topic 5443

Evidence and witnesses - Testimony respecting the accused - Expert opinion respecting accused's veracity - Polygraph examination results - [See Evidence - Topic 2725].

Criminal Law - Topic 5449

Evidence and witnesses - Testimony respecting the accused - Character of accused - General - The Supreme Court of Canada stated the rule that if the accused calls evidence of his good character, witnesses other than himself are restricted to evidence of general reputation and not evidence of specific incidents - The court held that polygraph examination evidence, being evidence of a person other than the accused and evidence not of general character but of veracity on a specific occasion, would violate the rule - See paragraphs 13 to 14.

Evidence - Topic 1130

Relevant facts, relevance and materiality - Relevance of evidence offered - Prior consistent statements - The Supreme Court of Canada discussed the rule against the admission of prior consistent statements and stated that the crux of the objection to such evidence was that consistent statements, past or not, were liable to be self- serving - The court held that the admission of the results of a polygraph examination would violate the rule - See paragraphs 10 to 12.

Evidence - Topic 2725

Special modes of proof - Polygraph - Admissibility - The Supreme Court of Canada held that expert testimony by a polygraph technician about the results of a polygraph examination taken by the accused were inadmissible to show that the accused was telling the truth - The court held that the admission of polygraph examination evidence would violate four well-established rules of evidence: the rules against oath-helping and the admission of consistent statements and the rules relating to character evidence and expert evidence - Further, the admission of such evidence on the collateral issue of credibility served no useful purpose and would disrupt and delay trials.

Evidence - Topic 4023

Witnesses - General - Credibility - Oath-helping - The Supreme Court of Canada discussed the ancient and now prohibited mode of proof called oath-helping - The court held that the admission of expert opinion on the results of a polygraph examination would violate the rule against oath-helping - See paragraphs 7 to 9.

Evidence - Topic 7000

Opinion evidence - Expert evidence - General - The Supreme Court of Canada discussed and explained the nature and purpose of opinion evidence, particularly expert evidence - The court stated that normally a witness must testify only about observed facts and not about inferences from observed fact, which was opinion - The court stated that in matters calling for special knowledge an expert's function is to provide a judge and jury with a ready-made inference, which they are unable to formulate - The court held that truth or credibility is an issue within the experience of judges and juries and expert evidence, particularly expert evidence of the results of a polygraph examination, is not needed - See paragraphs 15 to 17.

Cases Noticed:

R. v. Phillion, [1978] 1 S.C.R. 18; 14 N.R. 371, appld. [paras. 2, 32].

R. v. Kyselka (1962), 133 C.C.C. 103 (Ont. C.A.), consd. [paras. 3, 7, 44].

R. v. Burkart; R. v. Sawatsky, [1965] 3 C.C.C. 210, appld. [para. 7].

R. v. Clarke (1981), 32 A.R. 92; 63 C.C.C.(2d) 224 (C.A.), appld. [para. 7].

Jones v. South-Eastern and Chatham Railway (1917), 87 L.J.K.B. 775 (C.A.), appld. [para. 10].

R. v. Campbell (1977), 38 C.C.C.(2d) 6 (Ont. C.A.), appld. [para. 10].

R. v. Hardy (1794), 24 St. Tr. 199, consd. [para. 10].

R. v. Barbour, [1938] S.C.R. 465, consd. [para. 13].

R. v. Close (1982), 68 C.C.C.(2d) 105 (Ont. C.A.), consd. [para. 13].

R. v. McFadden (1981), 65 C.C.C.(2d) 9 (B.C.C.A.), consd. [para. 13].

R. v. McNamara (No. 1) (1981), 56 C.C.C.(2d) 193 (Ont. C.A.), consd. [para. 13].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30, appld. [para. 16].

Davie v. Magistrates of the City of Edinburgh, [1953] S.C. 34, consd. [para. 16].

R. v. Miller (1952), 36 Cr. App. R. 169, consd. [para. 29].

R. v. Wickham (1971), 55 Cr. App. R. 199, consd. [para. 29].

Lowery v. R., [1974] A.C. 85 (P.C.), consd. [para. 29].

R. v. Cook (1960), 127 C.C.C. 287 (Alta. C.A.), consd. [para. 31].

R. v. Martin (1980), 53 C.C.C.(2d) 425 (Ont. C.A.), consd. [para. 32].

R. v. Wong (No. 2) (1976), 33 C.C.C.(2d) 511, revd. 41 C.C.C.(2d) 196 (B.C.C.A.), consd. [para. 40].

R. v. Nelson, [1982] Qd. R. 636 (Q. Ct. of Crim. App.), consd. [para. 48].

City of Saint John v. Irving Oil Co., [1966] S.C.R. 581, consd. [para. 53].

R. v. Lupien, [1970] S.C.R. 263, consd. [para. 53].

Frye v. United States (1923), 293 F. 1013 (D.C. Cir), consd. [para. 55].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 577(3) [para. 31].

Authors and Works Noticed:

Abbell, Michael, Polygraph Evidence: the Case Against Admissibility in Federal Criminal Trials (1977), 15 Am. Crim. L. Rev. 29 [para. 17].

Cross, Sir Rupert, Evidence (5th Ed. 1979), pp. 269-272 [para. 8].

Cross, Sir Rupert, Evidence (6th Ed. 1985) [para. 32].

Elliott, D.W., "Lie-Detector Evidence: Lessons from the American Experience", in Well and Truly Tried, Edited by Enid Campbell and Louis Waller. (Sydney, Australia: Law Book, 1982), pp. 129-130 [para. 11].

Holdsworth, Sir William Searle, A History of English Law (7th Ed. 1956), vol. 1, pp. 305-308 [para. 20].

McWilliams, Peter K., Canadian Criminal Evidence (2nd Ed. 1984), pp. 1078 [para. 8]; 353 [para. 10]; 275, 282 [para. 13]; 279 [para. 36].

McCormick, Mark, Scientific Evidence: Defining a New Approach to Admissibility (1982), 67 Iowa L. Rev. 879 [para. 55].

Phipson on Evidence (13th Ed. 1982), paras. 13-63 [para. 8].

Schiff, Stanley, A., Evidence in the Litigation Process (2nd Ed. 1983), vol. 1, p. 585 [para. 8].

Walsh, William Francis, Outlines of the History of English and American Law (New York: New York University Press, 1926), pp. 99-100 [para. 20].

Wigmore on Evidence (Chadbourn Rev. 1972), vol. 4, pp. 233-234 [para. 7]; 255 [para. 10].

Counsel:

Jean-François Dionne and François Landry, for the appellant, Crown;

Vincent Rose and Joseph Elfassy, for the respondent Béland.

Solicitors of Record:

Jean-François Dionne, Québec;

François Landry, Joliette, for the appellant;

Elfassy, Rose 7 Associés, Montréal, for the respondent Béland.

This case was heard on March 31, 1987, at Ottawa, Ontario, before Dickson, C.J.C., Beetz, McIntyre, Lamer, Wilson, Le Dain and La Forest, JJ., of the Supreme Court of Canada.

On October 15, 1987, the judgment of the Supreme Court of Canada was delivered and the following opinions were filed:

McIntyre, J. (Dickson, C.J.C., Beetz, and Le Dain, JJ., concurring) - see paragraphs 1 to 21;

La Forest, J. - see paragraph 22;

Wilson, J. (dissenting) (Lamer, J., concurring) - see paragraphs 23 to 58.