Is refusal to permit a denial in court constitutionally wrong?

When a suspect in Canada is arrested and placed in a small interview room in a police station and then questioned by two police investigators, for the most part, the suspect will deny having committed the crime. He is either telling the truth or lying through his teeth. And often when the evidence that he is clearly guilty is staring him right in his face, he will continue denying that he committed the crime.

It is for this reason that judges generally won’t permit a jury to hear any evidence in court in which the accused was heard denying that he committed the crime he is on trial for. The judges have felt that most guilty suspects will lie and try to convince the investigators that they didn’t commit the crime and permitting juries to hear such lies, will be pointless.

The question that comes to the fore is; is denying the right of an accused to being out information that right from the onset of his interview with the police, he denied doing any wrong; contrary to his charter rights guaranteeing him a fair trial? I believe that it is.

Here is a case in point. When Guy Paul Morin was driving to band practice in a small community in Southern Ontario in 1985, the last thing he expected was a police cruiser pulling him over. What followed was even more unexpected. He was arrested and charged with the murder of a nine-year-old girl who was a neighbour of him and his family. He was later found innocent when it was established that his DNA wasn’t the DNA found in the girl who had been raped and later murdered. For the years of inconvenience that he was subjected to, he was well compensated by the province of Ontario.

When he was questioned about the rape and murder, he flatly denied that he had anything to do with the rape and murder of his young neighbour. He wasn’t lying. He really was innocent. His denial (which was legitimate and sincere) was not heard by the jury that originally convicted him. The judge hearing the case ruled (out of the hearing of the jury) that Morin’s statements were inadmissible because of the general feeling of judges that such statements where the suspects deny committing the crimes they are accused of at the time of their arrests are self-serving and therefore are of limited value.

Quite frankly, I find that reasoning rather stupid. I feel that it is up to the jury, (which is the trier of the facts) to decide for itself as to the authenticity of the suspect’s denial and not the role of the judge when he is only the trier of the law.

Think about this. How many times has a judge permitted a police investigator who is on the stand, to quote the accused when the accused admitted to the investigator that he committed the crime? A great many times.

Many years ago, I was called upon to investigate a case where the accused (a janitor) was found guilty of murdering a five-year-old girl and disposing of her remains in the building’s furnace. At his trial, he testified that he only confessed to the crime to stop the police from beating him. His confession was permitted to be presented to the jury who then found him guilty based entirely on his confession and nothing else. Even the Court of Appeal in Ontario and the Supreme Court of Canada accepted his confession as being valid. The man was hanged. Years after he was hanged and I was called upon to reinvestigate the crime, I learned that the police later realized that the wrong man was hanged.

Nowadays, confessions in police stations are looked on by the courts and juries alike with a jaundice eye and for the most part, they aren’t permitted to be heard by juries without the court first ordering a trial within a trial to determine the authenticity of the confession. The innocent janitor never would have been found guilty if the only evidence against him was a confession which he claimed was obtained from him under torture.

However, if he hadn’t confessed but simply said that he didn’t commit the crime; that statement would not be permitted to be presented to the jury because (according to the judges) his denial would be self-serving.

There is something terribly wrong in that kind of thinking.

In England, for more than 30 years, the courts have permitted juries to hear evidence of denials by the accused when they were interrogated by the police. In a 1980 case heard by the English Court of Appeal, the court said in part; “One of the best pieces of evidence that an innocent man can produce in court is his immediate reaction to an accusation of a crime.”

Imagine if you will, you are suddenly and unexpectedly arrested and accused of a crime you not only didn’t commit but didn’t even know about. During the police interrogation, you denied committing the crime and even knowing about it until the moment of your arrest. And while you are in the interview room, there is a TV camera aimed at your face and anyone looking at the image of your face, can see that you are shocked at being accused of committing the crime. Later a recording of your response is run through a stress evaluator test machine and the operator of the test concludes that you are telling the truth when you deny having committed the crime or having any personal knowledge of it. Now at your trial, your lawyer tells the judge that he wants the jury to watch the playback of the televised interview and hear the testimony of the man who tested your voice reaction on the stress evaluator machine. How would you feel if the judge refused your lawyer’s request because the judge felt that your denial and your shocked reaction are self-serving? You would feel as I do, you have been royally screwed by the judge who is supposed to protect your right to a fair and just trial.

Years ago in Florida, there was a man who was royally denied a fair trial through the antics of his prosecutor. As a result, he spent years in prison. Later he was found innocent. He couldn’t get any compensation for the wrong did to him but he certainly got revenge on the man who did him wrong. The prosecutor had been retired for several years and was practicing law as a lawyer when the wronged man came to his office to meet with him. Yes. You guessed right. He got his revenge. The man threw gasoline on the surprised lawyer and then set him on fire. As the man walked out of the office, the former prosecutor died screaming in his office. What the man did was legally wrong and he was sent to prison again. But no one could ever convince him that what he did was morally wrong. I am not suggesting that what he did was right but I can appreciate the anger he had at the moment he burned his former prosecutor to death.

Back in the 1980s while I was a process server, a former boxer attacked me after I served his wife with a summons. I managed to get the better of him and knocked him to the floor. A month later, I was arrested and charged with hitting him with a 14-inch flashlight which was actually in my car at that time. He and his wife later admitted in court that they saw nothing in my hand when I struck him. The prosecutor (assistant crown attorney) was one of the few prosecutors in Canada who is dishonest. She had just talked with the ex-boxer and his wife and adult daughter in court who told the prosecutor that I had nothing in my hand when I struck him and knocked him to the floor. Despite having that knowledge, she approached my lawyer and said that if I agreed to testify that I hit him with the flashlight (which was now on the prosecutor’s table) she would withdraw the charge of assault with a weapon and reduce it to a charge of common assault. Needless to say, I refused and after I gave my testimony, the judge acquitted me and chastised the ex-boxer for attacking me in the first place. Was I angry at the antics of the prosecutor? Oh, yes. But not enough to set her on fire.

I have cited these two cases to illustrate that it is indeed frustrating to find yourself in a trial in which the parties who should be protecting your rights to a fair trial are doing what they can to deny you your rights to a fair trial. It is extremely difficult to fight a system that has all the cards in its hand and you are denied even one card to play with. When judges deny accused persons their right to present whatever evidence they wish to present at their trials in order to prove their innocence, there is a clear denial of a fair trial.

In his 1998, report from an inquiry into Guy Paul Morin’s wrongful conviction, Mr. Justice Fred Kaufman asked the government to consider a legislative amendment that would allow Canada to follow the English approach, permitting accused persons to introduce statements uttered at the time of their arrest that may support their innocence. That would be contingent on the accused taking the witness stand where he can be cross examined on his testimony. He said that allowing an accused person to explain that he had denied his guilt when first questioned would prevent juries from speculating what he might have said when first questioned by the police.
Unfortunately, it is one of the jurist’s recommendations that were never implemented.

On the other hand, according to Professor David Paciocco, a law professor at the University of Ottawa, admitting evidence of denials could gradually diminish the right to silence by creating the expectation that an innocent person should talk.

I don’t agree with his position in this matter. Accused persons have a constitutional right to refuse to testify in court and it is incumbent on a jurist to remind a jury that accused persons are under no obligation to give oral statements in evidence and the fact that they choose to exercise that right is not to be reflect badly on the accused.

Professor Alan Young, a law professor at the Osgoode Law School at the University of Toronto whom I studied under in the early 1970s, said, “If a jury is considered competent to assess the reliability if an inculpatory statement tendered by the Crown, (prosecution) then surely it has the same ability with respect to exculpatory statements tendered by the defence.”

George Grant said in 1976, “Once we deny justice to any human life, then we are well on the road to the kind of thinking that impels a fascist dictatorship to the horrors of the death camp and the purge.” He said that with respect to abortion rights but it can apply to any form of injustice.

There is no such thing as absolute justice. Like its bedfellow, public interest, the pursuit of punishment for wrongdoers has left in its wake, the wreckage of fair trials. Judicial policy that is rigid and immovable, is not justice at all for true justice is pliable to meet the expectations of the innocent. Alas, in Canada as elsewhere, there is a need to revise old policies on justice to fit the needs of contemporary societies.