David Debenham – Partner, McMillan LLP
Forensic investigators sometimes have occasion to weigh the credibility of witnesses as part of planning and prosecuting their investigation. While the ultimate question of credibility is left to the court, or tribunal, one cannot help but be directed by witnesses you find credible, and to discount avenues of investigation of witnesses you do not believe. Some witnesses are also, by their nature, more credible than others. Police officers, for example, are reliable. They are skilled observers, professionally trained, and have no interest in the outcome, That makes them reliable, right?
Consider the case of R. v. Schertzer, 2013 ONSC 22 (CanLII). The 5 police officers were convicted of willfully attempting to obstruct, pervert or defeat the course of justice by practicing deception in the form of giving a false or misleading account of events in their memo books, and by lying to the court in their testimony, in order to conceal that a search done at a residence was done without a search warrant. The conviction included some officers being convicted of perjury for testifying that they did not enter the subject residential premises prior to the arrival of a search warrant.
One must readily admit that the suspect in question appears to have been a “bad actor”, an alleged trafficker in heroin, and the convicted officers were simply being over-zealous in righteous cause. The court did not accept the argument that the fact that the accused were engaged in investigation of drug traffickers is a mitigating circumstance because “noble cause corruption has the potential to seriously undermine the repute of the administration of justice” according to the trial judge. While cases like this one are rare, they are not unprecedented, as in:
- R. v. Sheremetta, where a police officer suggested to a junior officer that he falsify a report to conceal his involvement,
- R. v. Liebrecht and Bergen, where the accused officers attempted to interfere in an investigation of impaired driving by a mayor by altering records, and
- R. v. Boulton, where the accused police officer conducted a warrantless search, and was ordered by a superior officer to prepare an affidavit to obtain a search warrant that concealed the fact that he had already opened the crate in question and searched it without authorization,
The lesson, of course, is that “true believers” in any cause, no matter how honourable, are prone to an unconscious bias that slants their evidence. In rare cases they cross the line and consciously lie to secure what they believe to be a just result. The danger of noble cause corruption was linked to “tunnel vision” in the Report on the Prevention of Miscarriages of Justice:
“Tunnel vision has been defined as ‘he single minded and overly narrow focus on an investigation or prosecutorial theory so as to unreasonably colour the evaluation of information received and one’s conduct in response to the information.’ Tunnel vision, and its perverse by-product “noble cause corruption,” are the antithesis of the proper roles of the police and Crown Attorney. Yet tunnel vision has been identified as a leading cause of wrongful convictions in Canada and elsewhere.”
Disengaging these comments from their immediate context, one can say that even the most honest witness can become fixated on a certain theory of what happened to the point that their very rectitude in pursuing their view of what is right and wrong compromises, and in extreme cases, negates, their ability to tell the truth, the whole truth, and nothing but the truth. The expression, “the ends justify the means” comes to mind. Because of this, no forensic investigator can be satisfied that any particular witness, or group of witnesses, is telling the truth and be completely guided by that belief. If you do, you may be the one with tunnel vision, and your pursuit of justice may end in noble cause corruption.