Detection of deception equipment, such as the polygraph and the psychological stress evaluator, is used in British Columbia not only by the police as an aid to investigation, but also by commercial examiners and testers.
Companies may engage commercial operators of such equipment in the pre-employment screening of potential employees, in the private investigation of incidents of theft or loss attributed to employees, in periodic examinations of employees concerning possible incidents of theft or loss, and in the investigation of insurance claims.
We have occasionally acted on behalf of persons who have complained to us that they have wrongly been subjected to pressure by their employers to submit to examination by detection of deception equipment operators, or that they have been required to agree to such examinations as a condition of employment. Our concern, and our reason for submitting this brief, is that the use of detection of deception equipment by employers with respect to their employees may in many circumstances involve a violation of the employees’ civil rights.
We applaud the report of the British Columbia Police Commission’s Task Force on Private Policing in B.C. The Task Force was understandably and properly concerned that the use of detection of deception equipment may involve a violation of the subject’s civil rights. It reported:
[T]he P.S.E. (psychological stress evaluator)… can be used surreptitiously by telephone or with other electronic devices. We consider the use of this equipment in this manner an invasion of the person’s privacy and civil rights. (p. 212)
The Task Force right requires in its proposed Polygraph Examiners Act [section (22/1/a) and (b)] that any examinees be informed both as to the nature of the examination and that their participation in it is voluntary. Moreover, because of the facility with which the P.S.E. can be used surreptitiously, and because the P.S.E. was judged less accurate than the polygraph (p. 213), section (6) of the proposed legislation was written in such a way as to prohibit the use of the psychological stress evaluator for the “purposes of detecting deception or verifying truthfulness.” We agree with this judgement of the Task Force concerning this equipment.
We submit the proposals listed and explained below because we think that the Task Force’s proper concern to protect the civil rights of persons examined, and to ensure the reliability of the equipment used and of its operators, could better be served if several important changes were made in the proposed Act.
Moreover, since the report of the Task Force was written, Mr. Justice Donald Morand has written the report of the Ontario Royal Commission into Metropolitan Toronto Police Practices. In this report, Mr. Justice Morand describes his extensive investigation of the validity and reliability of the polygraph. The Royal Commission took evidence from psychologist, psychophysiologists and polygraphists concerning both the theory and the use of this machine. Although the widespread belief in the accuracy of the “lie-detector” is based on a belief in its “objective and physical nature,” Mr. Justice Morand concluded that “all the [polygraph] test amounts to is a subjective interpretation of behaviour and conduct” (p. 262). Mr. Justice Morand recommended strongly against the use of the polygraph in employment screening and periodic employment testing (p. 261). We will refer below to the arguments and evidence contained in this Royal Commission Report.
- We recommend that a clause be added to the proposed Polygraph Examiners Act prohibiting the use of the polygraph in the area of employment. Employers, with the exception of police departments, should be prohibited from engaging a polygraph examiner to test anyone whom he employs or who is applying for employment with him.
We believe that a prohibition of this sort is necessary to ensure that no one takes a polygraph examination under duress. The Task Force wished to ensure this and therefore, in section (22) of the proposed Act, it requires the examiner to notify an examinee that participation is voluntary, and in section (14) of the Regulations to the Act requires the operator to ensure that the examinee signs a consent form. However, one who is under pressure to submit to a polygraph examination because of the explicit or implicit threat of loss of employment is also under pressure to sign a required consent form. We therefore think that the guarantees proposed by the Task Force are not sufficient, and we think that no guarantee short of prohibiting the use of the polygraph in the area of employment would be sufficient.
The Task Force quoted at length (pp 204-5) the arguments of United States Senator Sam. J. Ervin, J.C., before a U.S. House of Representatives Committee studying the use of the polygraph:
- Many proponents of the polygraph and P.S.E. argue there are no violations of civil rights where the examinee consents to the act. One can hardly consider the consent given by an employee to such testing to be voluntary given the pressure on an employee in the employment relationship. The unequal bargaining position of a prospective employee in the face of the economic necessity of employment, and in face of the widespread requirement of submission to testing, necessarily removes the voluntary element which is crucial to the concept of consent.
- What you have is an invasion of personal rights through economic power.
The Task Force does not attempt to answer Senator Erwin’s arguments, rather it in effect leaves the question of the use of the polygraph in the area of employment up to the labour unions to resolve through collective bargaining (p. 220). Unfortunately, the employees who most need protection are often non-unionized.
It should be noted that employers have other more traditional, if time consuming, methods of investigating suspected employees and prospective employees. For example, incidents of theft and loss may warrant the employer in requesting a police investigation, or in improving his accounting procedures. However, with regret, we think that police departments may be permitted to have a consenting police employee tested by the polygraph, should a case arise in which a police department employee is suspected of having committed an indictable offence and is under police investigation. In connection with this, please see our recommendation 6 below.
Mr. Justice Morand wrote:
- Because of the dangers and abuses implicit in denying a person the right to earn a living on the basis of this test, Minnesota has legislated a prohibition of the use of the polygraph in the sphere of employment. Other states have legislated standards for polygraph operators, and in an attempt to restrain unethical practices, have established licensing requirements. Unfortunately, except in those jurisdictions that have forbade employment testing, the scope of such tests is enlarging at an alarming rate. In Canada as well, employment testing is increasing, and in view of the conclusions one must take from a close look at the polygraph industry, it is to be sincerely hoped that our legislators will concern themselves with this issue before the regrettable American experience becomes ours. (p. 262)
The following states of the United States have enacted legislation which, to various degrees, prohibits the use of detection of deception equipment in the area of employment: Alaska, California, Connecticut, Delaware, Hawaii, Idaho, Maryland, Massachusetts, Michigan, Minnesota, Montana, New Jersey, Oregon, Pennsylvania, Rhode Island, Washington. In addition, more than a half dozen states have established licensing requirements. We believe that the best legislation with respect to detection of deception equipment is that of New Jersey and Oregon.
We recommend that the use of the polygraph be prohibited in the area of employment is our major recommendation. If it is accepted, we proposed changing the name of the Act to the Polygraph Regulation Act.
- We recommend that clauses (6) of the proposed Act, which concerns standards of instrumentation, be amended to prohibit the use of any instrument or device for the purpose described which has not been shown by scientific laboratory and field testing approved by the proposed Board of Polygraph Examiners to have a rate of accuracy significantly greater than that achievable by a competent examiner unaided by any mechanical device.
Clause (6) was designed by the Task Force to prohibit the use of machines, such as the P.S.E., considered to be less accurate than the polygraph. Clause (6) therefore simply requires an instrument used for the detection of deception to record at least the physiological changes recorded by the polygraph. However, in view of the serious doubts about the accuracy of the polygraph itself, which were expressed in testimony before the Morand Commission by various expert witnesses, we believe that this clause as it stands is not sufficient to ensure that instruments used have an acceptable level of accuracy.
Mr. Justice Morand found that the appearance that the polygraph is an objective scientific instrument which detects deception by measuring involuntary physiological changes is very misleading. He concluded that the polygraph test amounts to a “subjective interpretation of behaviour and conduct” which is “neither scientifically reliable nor scientifically accepted” (p. 262). He stated that “The machine used in an unscientific tool” (p. 259), and that “There is no credible data that supports the high claims for accuracy on which the growing acceptance of the polygraph in the United States is based.” (p. 260). Most of the data is supplied by polygraph companies themselves.
We believe that a person can be justified in offering the service of detecting deception or testing truthfulness through the use of a mechanical device only if that device can be shown to be an aid to these purposes. We therefore suggest that machines be prohibited which cannot be shown by a scientific investigation to have a rate of accuracy significantly greater than that achievable by an unaided competent examiner. A company wishing to license operator of a given type of detection of deception equipment should be required to pay the Board the cost of having the equipment tested for accuracy by a reputable scientist, unless the instrument has already been tested by the Board. Independent testing commissioned by the Board is necessary in view of the finding of the Morand Commission of a lack of credible data to support the reliability of the polygraph, or of any other device for detecting deception.
- We recommend that clause (13/j) of the proposed Act, which concerns standards for licensing, be amended to require an applicant for a license to pass not only a technical qualifying examination, but also an examination designed to show whether the rate of accuracy he can attain using his instrument or device is significantly greater than that achievable by a competent examiner unaided by any mechanical device.
The proposed Act is well designed to ensure that licensed examiners are experienced and well trained. However, as Mr. Justice Morand found, an experienced and well trained examiner need not have a high rate of accuracy (pp. 256-58), for the accuracy of a polygraph test depends not only on the skill and training of the individual operator, but also on his good faith and perceptivity (p. 249). Mr. Justice Morand concluded that the accuracy of the test depends “almost entirely” upon these four factors (p. 249). We therefore think that individual operators should be tested for their perceptivity by being required to pass an accuracy test. The Board should seek to develop a standardized accuracy test.
- We recommend that a clause be added to section (22) of the proposed Act stating that prior to every Polygraph Examination the examiner is required to ensure that the person being examined completes a polygraph consent form as prescribed in the Regulation to the Act.
At present this requirement is not stated in the Act, but is confined to section (14) of the Regulations. Hence, an examiner who fails to ensure that a consent form is signed is not subject to the sanctions provided in section (22) of the Act. We believe that this may have been an oversight by the Task Force, for it did desire to ensure that a person not be tested who has not consented to the test.
- We recommend that clauses (12/1) of the proposed Act, which concerns the composition of the Polygraph Examiners Board, be amended to ensure a greater degree of independence of the Board from the polygraph industry. As the clause now reads, two of the three members are to be active accredited polygraph examiners. We recommend that at most one of the three members be a polygraph examiner and that the other members have no interest in any polygraph-related business.
- We recommend that consideration be given to amending clause (3/a) to allow application of the Act to members of municipal police forces and members of the RCMP while acting in B.C. as municipal or provincial police officers. We believe that if the polygraph is genuinely useful as an investigative tool, and used in a proper way as an investigative tool while respecting the rights of the persons examined, then nothing would be lost to the police, and the rights of examinees would be more secure, if police offices executing duties under provincial jurisdiction were made subject to the requirements of the Act.
- We noticed some apparent errors of drafting. In clauses (12/2), (12/4) and (12/5) of the proposed Act, the word “Commission” should be replaced with “Board”. In clause (27), “25” should be replaced with “26”. In section (13/2) of the regulations, “Section (22) and (23)” should be replaced by “section (24).”