How police convince you to give up your charter rights

It’s polygraphs, don’t narc on yourself

In the Budget Committee meeting on Wednesday, Feb. 17, 2021, the East Coast Prison Justice Society highlighted that part of the HRP’s $88 million budget includes $260,300 a year on polygraph testing. When grilled on it by councillors, Kinsella said the HRP uses a polygraph because “it’s a tool used primarily investigatively. I’m not an expert on it and I don’t know all the details, but it is a tool that has value to our investigative ability so I’ll leave it at that.” It’s might be easy to assume the police are putting people in interrogation rooms, strapping on polygraphs, cranking up the pressure and getting people so stressed they confess just to get out of the room. How they actually use it is — somehow — worse. 

“It’s 100 times worse,” says Mike Scott, defence lawyer and partner at Patterson Law.  “Effectively it’s a way of circumventing someone’s right to silence.” 

Polygraphs vs the Charter of Rights and Freedoms

Section seven of the Canadian Charter of Rights and Freedoms encompasses a residual protection for the right to silence in the pre-trial context. Most people, Scott explained, understand that the results of a polygraph can’t be used in court. They also understand that they shouldn’t make a statement to the police. If someone doesn’t want to make a statement, police will acknowledge that, and then ask the person if they’ll take a polygraph instead. 

A polygraph is usually sold as a way to clear up confusion and help police better understand the situation. It preys on people’s instincts to help and explain their actions. It also preys on a misunderstanding of what aspects of a polygraph are inadmissible in court. People generally feel comfortable taking a polygraph because they know the results of a polygraph test are inadmissible, so they assume the whole thing is inadmissible, especially if they already said no to making a statement. People don’t understand that what they say during the polygraph test, if recorded, is admissible, even if they said no to making a statement. Which means they can use what you say to further their investigation, use it against you in questioning you if you take the stand, and use it against your defence team’s case if you don’t.

“So in effect, it’s really just a way of convincing you to give a statement,” says Scott. “Because in the polygraph test, they will just ask you the questions that they were going to ask you in an interview.”

Is that legal? 

Yes. A recorded polygraph test can be used in court by a crown attorney in the exact same way a statement can. Even if the polygraph test was administered after the person refused to make a statement. This is possible because the law uses a different standard of what a person should reasonably know. Even though a typical person would reasonably believe that a polygraph wasn’t a statement because they already said no to giving a statement, the law disagrees. 

The law says that a person should understand that a polygraph interview is a statement, even if they refused to make one. The law says they should understand that doing a polygraph to help the police clear up confusion counts as a statement that can be used against them. 

Whether or not crown attorneys use a statement acquired by polygraph in court is completely up to the individual crown, as their discretion is a constitutionally protected right. When asked how crown attorneys navigate the ethically questionable practice of using these polygraph statements a spokesperson for the Public Prosecution Service of Canada wrote in an email that they were “unable to respond to [the] question as this matter concerns legal advice.” 

“I think the genuine problem is that it violates the spirit of the charter,” said Scott. Because police are using polygraphs as a way to circumvent someone’s right to silence when they refuse to make a statement.

How is the polygraph money spent? 

Scott also doesn’t understand how the HRP spends $260,300 on a polygraph because “it’s a prop.” The same results could be achieved with a 1990s era laptop running flash, a blood pressure cuff, and some electrodes. When asked by Committee Trawler how the $260,300 polygraph budget was spent, the HRP spokesperson said it was the city’s responsibility to answer the question and the city said it was the HRP’s responsibility to answer the question. Best guess in researching this story indicates the cost is the salary of two officers being paid somewhere between $100,000 and $130,000 a year, with no clear idea about the cost of the polygraph equipment itself.  

So what? 

The HRP spends $260,300 a year on polygraph testing, which regardless of intent, uses people’s misunderstanding of the law to get them to give up their Charter rights. Police continue to fund the polygraph in their budget, even though there are pressing issues of their own making that could be solved with less than the budgeted $260,300.

A former Naval Officer turned journalist, Matt Stickland is committed to empowering his community to ensure that everyone has access to the information they need to make their city a better place.

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