The SCC has screwed it up again...

ZOMBIES CAN'T TESTIFY

Warning: this post has nothing to do with politics, zombies or anything all that interesting to anyone who doesn't have a copy of Sopinka on Evidence on their bookshelf.

There has been a hole in the common law for some time. It is the difference between discoverable evidence, admissible evidence and compellable evidence. This case makes this the hole bigger, not smaller.

The law of hearsay evidence in Canada is guided by two key principles found in the Starr test. Hearsay evidence is admissible under an exception to the hearsay rules if:

a) it is relevant; and
b) it is reliable.

In a five plus one v. three decision this morning, the Supreme Court of Canada has decided that evidence obtained under post-hypnosis is no longer admissible as evidence in a court of law.

This is a bad decision for policy reasons, but it is also a violation of fundamental justice. That is because evidence flows both ways: to help convict a defendant and to help exonerate him. In the case at bar, it was evidence that helped lead to the conviction of a defendant - along with a mountain of other evidence. Now he is getting a new trial with this piece of evidence excluded.

What this decision effectively does is prevent an accused from using a statement obtained by the police under hypnosis (a fairly common tool for finding and clarifying evidence) that exonerates them as a prior inconsistent statement (a standard hearsay exception) if the witness in question is called as a witness for the prosecution. Plain and simple: unconstitutional - an accused should be allowed to adduce any and all evidence that directly clashes with evidence adduced by the Crown. Let the 'trier of fact' assign weight to the evidence - but ultimately, the discretion to consider it should rest on its probative value, not scientific uncertainty.

Of course, the Court screwed that up too. They say that this type of evidence is, holis-bolis, unreliable. I call bullshit. If for no other reason than I have seen people be hypnotized and then give a completely different account of a series of facts - and these are people who have nothing to gain by providing their evidence. People are people- and sometimes they just get stuff wrong.

The minority view is the correct one, and that hypnotically obtained evidence, like all evidence, should be examined and probed on a case by case basis to assure that the best evidence is admitted. If it is found to lack probative value, the other side will discredit it in cross-examination.

This is not a call for all witnesses to be hypnotized before taking the stand - far from it - because every person reacts differently to the procedure. This is a call for Parliament to examine the ramifications of this decision and understand that not all evidence is the same - and that the test for hearsay ought to be applied to all evidence.

Evidence should be admitted if it has probative value as to its relevancy and it is reliable as delivered. The hearsay exceptions are for pieces of evidence which can't be cross-examined. You can test the reliability of any individual piece of hypnotically obtained evidence without making the trial about how hypnosis is fraught with moral, ethical and evidential problems.

Or you can just call the person who put the person under the trance. If it is a vampire, then you can exclude the evidence. PHDs and upstanding professionals shouldn't be treated like vampires.

A clear statement from a witness that "Mr. X did it" has to be supported by some other evidence to lead to a conviction. A statement, obtained under hypnosis, that says "Mr. X was wearing a green shirt" when other evidence suggests that the murderer wasn't wearing a shirt allows for an accused to bring about a reasonable doubt as to the veracity of the witnesses account.

Hell, even a statement that says "Mr. X didn't do it" has value - as a prior inconsistent statement.