Where the circumstances reveal that incentives of any kind were offered to induce a witness to testify, the presiding judge should have the discretionary power to exclude that witness’s entire testimony as unreliable. The position agreed on by the Board is not exactly the position taken by Mr. Bell in his own recommendations. The Board, for example, took no position on a recommendation that dealt with corroboration for testimony of an unreliable witness. That recommendation raised at least two problems for Board members: first, it appeared to usurp the traditional power of the jury to assess credibility, and second, it gave no indication how the judge would decide who was or was not an “unreliable” witness.
The Board concluded, however, that it was not necessary to resolve these problems in order to deal with the question of incentives. On the question of incentives alone, the Board arrived at the position stated in items 1 and 2 above for the following reasons:
The major question involving incentives can be put in this manner: should our law be dependent in any substantial way on payment of money or other incentives to witnesses as a part of the justice system? The Board’s answer was “no”. Such incentives, in themselves, tend to bring the administration of justice into question, if not into disrepute. It thus follows that evidence is ipso facto tainted when incentives of any kind are proven.
This conclusion was bolstered by the Board’s opinion that general uneasiness and dismay would result if the defence witnesses. If such a practice is abhorrent in relation to defence witnesses, then it should be equally abhorrent in relation to witnesses for the Crown.
Having arrived at its position, the Board decided to send the paper to the Criminal Justice Subsection of the B.C. Branch of the Bar Association and the Canada Law Reform Commission.
Payment for testimony: Is the price too high?
Most members of our North American society would likely agree that the use of informers is an established and acceptable investigative tool of police investigators. After all, the news media have highlighted and glorified the exploits of Anna Sage (she turned in John Dillinger), Joseph Valachi (who exposed the Cosa Nostra), Reino Hayhanen (who informed on the Russian spy Rudolph Abel), and Floyd Wells (who informed on the “In Cold Blood” mass murderers), to name only a few.
I would even hazard to guess that few would quarrel with the statement of the infamous J. Edgar Hoover:
Experience demonstrates that the cooperation of individuals who can readily furnish accurate information is essential if law enforcement is to discharge its obligations.
The objective of the investigator must be to ferret out the truth. It is fundamental that the search include the most logical source of information—those persons with immediate access to necessary facts who are willing to cooperate in the interest of the common good. Their services contribute greatly to the ultimate goal of justice—convicting the guilty and clearing the innocent. Necessarily unheralded in their daily efforts, they not only uncover crimes but also furnish the intelligence data so vital in preventing serious violations of law and national security.
There can be no doubt that the use of informants in law enforcement is justified…. 1
Only a brief examination of the history of the use of informers at common law suffices to give an explanation for this tacit acceptance.
Around 1690, as a public reaction to the failure of the constabulary to enforce existing laws, “reformation societies” were formed to “awaken the ’sleeping vigour’ of… laws against vice and immorality” 2. The great increase in convictions realized by these societies was based one extensive use of informers. Criticisms of this practice were rebuffed by suggesting that “to inform about breaches of the laws… (is) a duty of all sober Christians and good neighbours”3. The clergy naturally assisted in disseminating this philosophy:
To withhold information when ’the Truth contributes to the bearing down of Sin, is to serve the Devil… and deny that Service that is due to God’4.
In essence, the emphasis was on the actual enforcement of the laws rather than the manner in which they were enforced.
However, even this exaltation of the informer did not solve the entire enforcement problem. To increase assistance from the public the legislature finally realized they would have to appeal to the “common motives ’that govern the actions of mankind…’ whether honest citizens or rogues”5. The 1800s saw government, local authorities, private companies and private individuals offering inducements to criminals to betray accomplices and to spy upon their companions. Horatius Vindex, writing in 1816, expressed the prevalent philosophy:
The Legislative and Executive Government have repeatedly admitted the indispensable necessity of a counter-system of stratagem of incitements and rewards, to guard against the secret machinations and midnight plunders of the race of miscreants who have declared a predatory war against honest society…. It is idle to talk of fair play and open and candid proceeding towards the Republic of Criminals. How can the deep and consummate plans of such men be counteracted, but by stratagems and counter-plots—akin to their own—by simulation, duplicity, and the purchased aid of their faithless accomplices? How should the Offices of Police ever bring such offenders to Justice without a system of Espionage and Finesse, and sometimes even assuming the appearance of sham Robbers to detect and bring to Justice the real ones6.
The penal statutes of the time encouraged informers through various incentives such as impunity for offenders and exemption from performing public services for the honest citizens. However, financial rewards continued to be the most successful incentive, so much so that often ad hoc reward proclamations and rewards offered by victims of crime supplemented the statutory incentives.
Unfortunately, for those persons deeply involved in crime, money and impunity for one offence was not overly attractive when compared to the possibility of conviction for numerous other offences. To encourage informers from this group, the practice of offering them pardons for all crimes of the same nature committed before bringing their associates to justice was found to be effective. For example, in the early 18th century there were at least 14 statutes that gave a pardon as of right to an offender who secured the conviction of one or more accomplices7.
Similarly, when offenders for which there was no pardon as of right were apprehended, their cooperation was obtained by holding out the “equitable title to the mercy of the Crown”8. Naturally this type of pardon was of a lesser effect because the “garden” didn’t apply to previous offences.
Where pardons were not written into statutes, the government of the day would often cooperate with a victim of crime and agree to offer a pardon to complement the victim’s reward offer.
It is easy to see how pardons could be granted so frequently that they grew into a “regular system of jurisprudence”9. The resultant increase in testimony given by persons tainted by their association with crime was not welcomed by the jurists of the day. Samuel March Phillips acknowledged that testimony of accomplices should always be received with great caution:
For upon their own confession they stand contaminated with guilt; they admit a participation in the very crime, which they endeavour by their evidence to pin upon the prisoner; they are sometimes entitled to reward upon obtaining a conviction, and always expect to earn a pardon. Accomplices are therefore of tainted character, giving their testimony under the strongest motives to deceive….11.
From this brief synopsis I suggest it is understandable that a public concerned about proper enforcement of laws would accept continued use of testimony from informers and accomplices, once they have been reassured that tests to ensure reliability of the testimony will be routinely applied.
With this “basic precept” of reliability in mind it is interesting to look at the use made by the Crown of an accomplice/informer in the recent British Columbia case of R. v. Palmer et al12.
In 1972, Douglas and Donald Palmer were charged along with eight others with conspiring to traffic heroin. When the preliminary hearing ended in early 1973, six were committed for trial and the charges against three were dismissed because of insufficient evidence (one of these was Donald Palmer).
In 1974, the Crown entered stays of proceedings against all of those who had been committed. Almost immediately they followed up by laying new conspiracy charges naming these six and also including Donald Palmer who had been discharged a year earlier!
The second preliminary hearing and trial were highlighted by evidence from three “noteworthy” witnesses, Albert Herrmann, Ray William Twaddell and Frederick Thomas Ford.
Herrmann, who had an extensive criminal record, had six counts of heroin trafficking outstanding in Milwaukee. Testifying in Milwaukee, he stated he had bought heroin in Vancouver from two of the alleged conspirators, Turner and Dorn 14. He declared he had no direct dealings with either of the Palmers but that he had been told by Turner that they were involved in supplying these drugs. After giving his testimony five of his six trafficking charges were dismissed, his bail was reduced from $75,004 cash to a $2500 personal recognizance with no deposit, and he received $530 per month from the U.S. Government for an undetermined period.
Twaddell, whose criminal record dated back to 1943, was serving time at the B.C. Penitentiary on a 14 year sentence for drug trafficking and bank robbery when he appeared as a surprise witness at the trial. He testified he had bought heroin from Douglas Palmer and Turner on two occasions and from another alleged conspirator over the course of four years. He further stated that on the occasion of one of his “buys” from a conspirator, Donald Palmer was present and betrayed knowledge of the location of a heroin cache. Under cross-examination he related a “bizarre story” of he and his wife successfully bribing the Washington State Parole Board into releasing him from an American jail15. He also admitted that his testimony might help him to get out of prison sooner. The day after he testified, his sentence was reduced by the Court of Appeal from 14 to ten years.
Ford, who had been in trouble with the law all his life, admitted to convictions for theft, breaking and entering, wounding with intent, and perjury! His involvement in the Palmer case started in 1972 when he agreed to supply information on a trafficker, William De Ruiter, in return for a release for his nephew. During these dealings with the police, Ford dropped the name of Douglas Palmer but was not prepared to testify against him. He further alleged that he was fired as a back-end man for Douglas Palmer and Turner because they suspected he had been involved with De Ruiter’s arrest. He also alleged Douglas Palmer threatened ’big trouble’ if he ever confirmed his suspicions. In December l973 Ford was charged with robbery and possession of stolen property. After numerous remands, the police agreed to dispose of the charges in return for his testimony against Douglas Palmer. In early 1975 Ford was shot several times in the face and body. When the police discovered he suspected Douglas Palmer, they prevailed upon him once again to testify regarding the conspiracy charges. Apparently one of the conditions of his agreement was a $1200 per month living expense. At the preliminary hearing and the trial his testimony was simply that he had worked for Douglas Palmer and Turner in a drug capping operation. His only reference to Donald Palmer was that he had said “hi” to him on one occasion when he met Douglas Palmer at the trucking business run by Donald.
Although it may be somewhat presumptuous to state that the only evidence against the Palmers was that from Herrmann, Twaddell, and Ford, I think it fairly to say that the only solid direct inculpatory evidence did come from Twaddell and Ford.
In his written reasons for convicting both Palmer brothers, as well as other conspirators, Mr. Justice Macfarlane addressed himself to the evidence of the informers and notwithstanding their prior records and the incentives offered by the police, concluded:
I have also come to the conclusion that beyond any reasonable doubt, that the evidence of Ford, Twaddell, Herrmann, and Will (Herrmann’s wife) is true; and I accept it despite the fact that there is no corroboration in law to support if.
Obviously, Macfarlane, J. did not have the fears expressed by Phillips! I wonder if his confidence in the reliability of the evidence was shaken by what developed shortly after his decision?
In June 1976, the Georgia Straight published a story that Ford had been paid $25,000 by the R.C.M.P. immediately after the trial and that this may have been only a portion of the $60,000 that had been promised! It was later confirmed by the R.C.M.P. that certain members of the force had told Ford they would recommend to Ottawa that he receive $60,000 and that in fact $25,000 had been paid for his services18.
After this disclosure, Ford attempted to play both sides to his advantage. For the defence, he swore affidavits that he had perjured himself at the trial after being brow beaten, intimidated, sedated and coached by the R.C.M.P. and the prosecutor. When these documents became common knowledge19, Ford contacted the police to assure them the affidavits didn’t mean anything because they had been made under duress.
Obviously the greatest fears of Phillips, Harney and Cross manifested in the person of Ford. His actions and statements after the trial are clearly sufficient to render anything he said at preliminary or trial totally unreliable.
To strike this home to the Court of Appeal, the defence endeavoured to have all this new evidence introduced, confident that having heard this evidence, and in particular the disclosure of the $25,000, which was not known to Macfarlane J., the appeal judges would order a new trial, the defence was in for a shock. The Court of Appeal refused to admit the new evidence! Their reasons for the rejection were given on June 23, 1977:
Section 610(1) provides that for the purposes of an appeal under Part XVIII of the Code the Court of Appeal may, if it considers it in the interests of justice, receive the evidence of any witness. Parliament has here given the Court a broad discretion to be exercised having regard to its view of the interests of justice. In my opinion it would not serve the interests of justice to receive the tendered evidence of Ford and Twaddell because it is simply not capable of belief. I am satisfied that it is untrue and that any intelligent adult would reject it as wholly untrustworthy. Moreover, the trial Judge was well aware of the weaknesses in the testimony of Ford and Twaddell. He had not found them to be honourable, upright witnesses but the accepted testimony that they gave because it was consistent with, and in harmony with, other testimony placed before him. He found the testimony, not the witnesses, to be credible. In my opinion the tendered evidence if adduced before the trial Judge or other tribunal of fact could not possibly affect the verdict.
No mention was made of the $25,000 payment, or of the affect of its non-disclosure at the trial.
In this decision, the Court of Appeal sanctioned the payment of substantial amounts of money to informers for testimony, regardless of whether their background indicates this could have a disastrous effect on the reliability of the evidence. Moreover, it would appear that the police and the Crown can do so and rip the scales of justice their way without fear that disclosure after the fact will per se jeopardize a conviction obtained at trial.
Consider the problem defense counsel face. Without knowing of such a payment, he or she will attack the witness’s credibility but still runs the risk of having the evidence held to be truthful because it “fits in” with and perhaps “ties together” other evidence. Then, after the client is convicted, he or she discovers that the witness was well paid for his or testimony and may have perjured him or herself. R. v. Palmer et al says “too bad”!21
It is not clear how widespread the practice of paying for testimony is in Canada. Understandably, the police don’t volunteer information about the practice, and as long as they follow through on their payments there is no reason for the payees to come forward. It has been documented in one other case and I suggest that it is time for the judiciary to face the problem squarely and to develop a means of dealing with such evidence to avoid abuses.
To do so requires a re-examination of the rules of evidence:
Admissibility-of testimony of accomplices
At common law, there was no rule or law that the evidence of an accomplice must be confirmed23. However, as indicated previously, as a reaction to concern about reliability, the judiciary developed the practice of warning the jury of the danger of convicting on uncorroborated evidence of an accomplice. The English Court of Criminal Appeal went so far as to say the rule of practice as to warning the jury had become equivalent to a rule of law24. The Supreme Court of Canada has adopted the same position:
It is now settled law that in a criminal trial, where a person who is an accomplice gives evidence on behalf of the prosecution, it is the duty of the judge to warn the jury that, although they may convict upon his evidence, it is dangerous to do so unless corroborated25.
Obviously then, this rule of evidence will never exclude the type of evidence in question in Palmer.
The question of whether a paid informer is an accomplice becomes purely academic since a jury or a judge sitting alone can convict on his or her evidence despite there being no corroboration at law. The most one could hope for would be an appeal based on a failure to give the requisite warning.
Admissibility of the evidence of disreputable persons
In Rex v. Podluzny26, the Manitoba Court of Appeal had occasion to examine ’the safeguards built’ in to our criminal rules of evidence to ensure reliability. They felt that regardless of any rules of practice or law, evidence from certain sources because of the very nature of the source should always be accompanied by a warning as to corroboration:
The law requires corroboration in a number of cases other than that of an accomplice. To prove some offences, corroboration is required by statute. In other cases it is merely a rule bf practice. There are numerous cases in which by statute the jury should be cautioned as to the necessity of corroboration. ’Apart, also, from any specific rule of law or practice, the Judge should, in general, caution the jury of the danger of acting on the uncorroborated testimony of… disreputable witnesses’: Phipson on Evidence, 8th Ed., p. 479; R. v. Graham (1910), 4 Cr. App. R.218; Taylor on Evidence, 1lth ed., p. 73,and 13 Hals., 1st ed., p. 604, are to the same effect27.
Adamson, J.A. was even more forceful later in his judgement:
…the fundamental reason for the necessity of corroboration, namely: the unreliability of the tainted evidence of a disreputable witness28.
When confronted by the position put forward in Podluzny, the B.C. Court of Appeal did some neat stepping in R. v. Horvat29. Not wanting to take on Phipson they “assumed” the statement was correct and then held there had been corroboration in this case anyway. Had the decision stopped there, perhaps the issue would have remained open. However, Robertson, J.A. went on to quote an earlier decision of the B.C. Court of Appeal in R. v. Morrison where McIntyre, J.A. said:
…Counsel for the appellant sought to have this Court impose a standard upon a trial Judge in the case of evidence of disreputable witnesses that would have been the same as the rule which applies in respect to evidence of accomplices. I can find no basis in law for such a proposition30.
Obviously then, if MorrisonR. v. Dutrisac31, three judges of the Court of Appeal held:
However, there is no rule of law, nor is it desirable that there should be one, requiring a trial Judge, in a case where a witness may have been moved by self-interest, to warn the jury that it is dangerous to convict upon that person’s uncorroborated evidence in the same manner as if that person were an accomplice.
Later, three different judges held a different view, as the headnote of R. v. Agawa and Mallet33indicates:
There are cases where the trial judge should, as a matter of prudence, direct the jury to view the evidence of a witness with caution, for example, because of his unsavoury character, motives of self-interest, or previous contradictory statements.
In Quebec, Hugessen, A.C.J. sitting in the Quebec Superior Court addressed himself to this question in Re: United States of America and Sheppard (No. 2)34:
While normally the task of searching out hidden motives behind a witness’s testimony is left to cross-examining counsel and the weighing of the effect of such motives upon the value of his testimony is left to the trier of fact, there can come a point at which the circumstances in which the evidence is given render it so manifestly untrustworthy that to found a verdict of guilty thereon would amount to a miscarriage of justice. I think that that point is reached when a witness is testifying not only under the influence of past and fulfilled promises but also of a present threat and future inducement held out to him by the prosecutor. His testimony becomes that of a puppet and it is simply impossible to tell whether his words are his own or those of his unseen master35 36.
To resolve all of these decisions is not easy. What is obvious is that there is no clear and binding consensus of opinion on the matter. With all respect to the judges who decided Horvat, Morrison, and Dutrisac, I suggest they were hung up on deciding whether there was an existing rule of practice which bound them. Unfortunately, they were not imbued with the foresight of Kingsmill-Moor, J. as expressed in People v. Casey (No. 2)37:
The category of circumstances and special types of case which call for special directions and warnings from the trial judge cannot be considered as closed. Increased judicial experience, and, indeed, further psychological research, may extend it38.
On the other hand, the judges in Podluzny and Sheppard, unrestricted by established practice, zeroed in on the real problem, the reliability of the evidence, and I feel their judgements are preferable.
In addition, since Sheppard (No. 2) was affirmed by the Federal Court of Appeal, it is likely the Shepherd philosophy that will prevail there. Therefore consistent application of the law will only be achieved if the other appellate courts adopt the same reasoning.
The practice that I am suggesting would be that once the court has determined that a witness is “disreputable” corroboration becomes a necessary precedent to the admissibility of that person’s evidence.
One immediate reaction will likely be “what factors make a person disreputable”? There is little case law to fall back on but I am confident that any judge with the goal of reliability of evidence in mind will have little trouble making the classification.
In addition, I would re-emphasize the duty of the Prosecutor as an officer of the court and require him or her to make certain disclosures to the court to enable a proper adjudication of the question. At a minimum, the witness’s complete record should be available to the defence and the court and where the witness has been promised “payment” for his or her testimony. The court should be apprised of that fact. If the “payment” is discovered only after trial it should be grounds for immediate re-examination of the original admissibility of the payee’s testimony.
I suspect that the judiciary will not welcome this suggestion because it would add to the already onerous task of addressing juries and might lead to additional voir dires. However, since they are unwilling to come out and directly criticize such treatment of witnesses some guidelines must be laid down to deal with the resultant testimony.
Judicial discretion to exclude certain evidence
The leading pronouncements on judicial discretion came from the Supreme Court of Canada in R. v. Wray39. In his widely cited decision, Maitland, J. left only a narrow scope for any exclusionary discretion:
It (Kuruma) recognized a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against the accused. Even if this statement be accepted, in the way in which it is phrased, the exercise of discretion by the trial Judge arises only if the admission of the evidence would operate unfairly. The allowance of admissible evidence relevant to the issue before the Court and of substantial probative value may operate unfortunately for the accused, but not unfairly. It is only the allowing of evidence gravely prejudicial to the accused, the admissibility of which is tenuous, and whose probative force in relation to the main issue before the court is trifling, which can be said to operate unfairly40.
It is not immediately clear from this statement what considerations come into play in the determination of gravely prejudicial, tenuous admissibility and trifling probative force. Some insight can be gained from a study of some of the case law in this area.
Criminal cases from England and Australia have recognized seven distinct fields where a discretion to exclude exists41:
- illegally obtained evidence
- improperly obtained evidence
- evidence of similar facts
- cross-examination of the accused as to character
- admissions by accused persons
- evidence calculated to prejudice the course of the trial.
Since the activity giving rise to classifying evidence as illegally or improperly obtained occurs prior to any trial, the rationales for excluding the evidence are generally concerned with controlling this activity. It is said that public officials such as police officers will be deterred from continuing their improper/illegal conduct if the result is exclusion of that evidence. In addition, the court runs the risk of being considered a party to the impropriety by admitting the evidence and “judicial integrity” is damaged. The final rationale is that our judicial system is founded on an individual’s freedom from self-incrimination42 43.
Where excluding evidence, which, by its nature, is prejudicial, different concerns prevail. Such evidence is excluded because its reliability is suspect despite its relevance to the case or because the probative value a jury is likely to ascribe to the evidence is greater than it really warrants44 45.
I concede that an exclusionary discretion will never be a totally effective control over improper police conduct because of the problem of derivative evidence. This would be a cause for concern where it not for the fact that other factors also come into play:
In practice the dominant criteria in determining whether to exclude an item of evidence have been its probative value, its truth, its reliability…. Even in respect of improperly obtained evidence it remains true that truth and reliability have been the most significant factors in most cases47.
Hence, any improper police conduct would lead to evidence of questionable reliability or evidence which by its nature is unreliable should be excluded. Can there be any question that promising a convicted perjurer $60,000 for his or her testimony should demand the exclusion of his or her testimony?
The answer to that question is obvious. Once again, however, the court will only be aware of the full potential for unreliability if the Crown is forced to make a full disclosure of the “incentives” offered to witnesses.
Proposal for Federal Evidence Code
The report of the Law Reform Commission of Canada regarding the need for reform of the law of evidence was published in December 197548. It generated a great deal of response, mostly negative, which necessitated a further series of “consultation sessions” with the bench and bar49.
The “Resolutions Book”, a compilation of the consultation results, is apparently to be published shortly50. At this point I don’t propose to discuss the appropriateness of the entire report but it is interesting to look at the Commission’ recommendations regarding admissibility.
The cardinal principles regarding admissibility are found under the general principles section. Section 4 makes all relevant evidence admissible unless expressly excluded by some other rule or statute. Section 5 is the first such rule and gives the judge an exclusionary discretion where the probative value of the evidence is substantially outweighed by the probability that its admission will, inter alia, mislead the jury. These sections don’t appear to change the existing law in any way.
Section 7 would create some significant changes to the course of trials. Judges would now have a duty to determine “the existence of preliminary facts, namely facts upon which depend the admissibility of evidence… “51. Such a determination is to be conducted in the absence of the jury52and only in specific situations, which include:
(a) in determining whether evidence should be excluded on the ground that it was obtained under such circumstances that its use in the proceedings would tend to bring the administration of justice into disrepute…
(d) whenever the interests of justice so require….53
During the voir dire which must take place, the judge would be guided by section 15, which requires an absolute exclusion if the evidence falls within section 7(4)(a) above. Section 15(2) lists several of the factors which must be considered such as social values, human dignity, seriousness of the case, infliction of harm, and any justification due to urgency.
It appears, then that the Code would not substantially change the existing basis for judicial exclusionary discretion. It does, however, formalize the process somewhat and forces a judge to make a decision as to what could discredit the whole justice system. I hope that the judiciary will consider that the discover of payments of substantial sums to “disreputable persons” for their testimony tends to discredit the system.
The question of disclosure by the Crown at, or prior to, trial would take on a new significance under the Code. Section 11 would allow an appeal based on an erroneous admission of evidence only if the admission had resulted in a substantial wrong or miscarriage of justice. Section 11(2) goes on to imply that if a timely and specific objection to the admissibility were not made by the defense the ground of appeal would be lost! Therefore, unless the Crown is compelled to inform the defence and the court of “incentive payments” prior to trial, the defence will be denied the opportunity to raise the “improper administration of justice” objection, and any post-trail disclosure would not be a ground for appeal. Also, the defence would be denied the right to take full advantage of sections 52 and 63, which allow the tendering of relevant evidence of substantial probative value to attack a witness’s credibility. Except for the prior record of a witness, the fact that he or she has been paid to testify must surely be the most relevant evidence available and must be disclosed by the Crown.
Sections 32 through 45 wouldn’t give a police officer a privilege except in cases of national security so he or she would be required to answer defence questions regarding “incentives”. Unfortunately, this is really no protection if unscrupulous prosecutors choose not to call officers who had made the actual promises of payment.
The full impact of the exclusionary sections discussed above and the extent to which they would have to be used really strikes home when looking at some of the other changes proposed by the Code. Section 88 would completely do away with any rule of law which requires either corroboration or a warning regarding corroboration, presumably the Commission feels that a judge’s comments on credibility under section 10 are sufficient:
The Code throughout is based on the premise that juries have the necessary experience and common sense to evaluate the testimony before them, and in doing so to take into account such matters as its source and the fact that it is unsupported by other evidence. There is no evidence to suggest that juries are more likely to be misled by the evidence of accomplices than by any other witness. And there is no reason why cross examination and counsel’s argument to the jury cannot expose the frailties of the testimony given by these witnesses as effectively as it exposes the weaknesses in the testimony of any other witnesses54.
Without the ability to have certain “unreliable” evidence excluded because of a lack of corroboration, there is still the possibility that a jury would convict on that evidence. I am not convinced there is a predictable “experience and common sense” present in all juries, and would prefer to avoid that possibility by having the unreliable evidence excluded from them.
The use of informants as an investigative tool has been accepted by our society for years and is likely here to stay. It is only when the police or prosecutors exploit the use of informers by offering substantial incentives for testimony, which raises serious questions as to its reliability, and then relying-on such testimony as the sole basis for a conviction, that they overstep the limits of acceptability.
If such practice is not going to be curtailed by either political or judicial pronouncement, the law of evidence must adopt new rules to ensure the reliability of “paid-for” testimony.
First, the Crown must be required to disclose any and all incentives paid to any of its witnesses. In addition, there should be no restriction on defence counsel’s access to criminal records of any witness.
Second, when the Crown tenders such evidence the court must examine the question of the necessity of corroboration. Where the circumstances reveal the witness is a disreputable character, no conviction should lie solely on that evidence without corroboration.
Finally, where the circumstances reveal the combination of a disreputable character being offered large incentives to testify, the judge should exclude his entire testimony as totally unreliable.
On December 20, 1977 the Supreme Court of Canada granted leave to appeal in the Palmer case. The appeal will likely be heard in the fall of 1978. It will be interesting to see if the Supreme Court will take a definite position regarding payment for testimony, or whether they will base their decision on other grounds and make no comment.
1. Malachi L. Harney and John C. Cross, The Informer in Law Enforcement, 2nd ed.) 18 (My emphasis).
2. S. Radzinowjcz, A History of English Criminal Law and its Administration from 1750, 4.
3. Ibid. , at 15.
4. Ibid. , from a sermon by John Shower in 1704.
5. Ibid., at 33.
7. Ibid., at 40.
8. Ibid. , at 43.
9. Ibid. , at 53.
10. Ibid. , at 55.
11. Harney and Cross, supra, note 1, at 78.
12. Trial before Macfarlane. J. (B.C. Supreme Court) January through February 1976; conviction confirmed by B.C. Court of Appeal, June 23, 1977.
13. The tenth person, George Turner, had fled the country prior to the preliminary hearing.
14. During the second preliminary hearing in 1975, the entire court travelled to Milwaukee to hear his evidence.
15. This was Justice Macfarlane’s own classification of the story.
16. The accused chose trial before a judge without a jury.
17. R. v. Palmer et al, Reasons for Judgment of Mr. Justice Macfarlane, Vancouver Supreme Court Registry #1250/75, at 56.
18. The R.C.M.P. preferred to call it a relocation payment. However, Ford has never left Vancouver and in fact the receipt for the $25,000 had “Payment for services” written across it.
19. Somehow Gary Bannerman, a radio talk-show host, got copies of the affidavits and read them on his program.
20. R. v. Palmer et. al, Reasons for judgement of the Honourable Mr. Justice Macfarlane, 2.
21. R. v. Palmer et al, Unreported decision of B.C. Court of Appeal, June 23, 1977.
22. Frank Peroff was offered $100,000 and a land grant after giving a sworn statement implicating Conrad Bouchard in a counterfeiting case; Staff Study of the Frank Peroff Case by the Permanent Subcommittee on investigations of the Committee on Government Operations of the United States Senate, 183.
23. R. v. Jones (1809), 2 Camp. 131; R. v. Mullins (1848) 3 Cox C.C. 526; R. v. Stubbs (1855) 1 Cox C.C. 48.
24. R. v. Baskerville 1916 2 K.B. 658 at 663.
25. Horsburg v. R. 1967 S.C.R. 746 at 754.
26. Rex. v. Podluzny (1950) 98 C.C.C. 354.
27. Ibid., at 362.
28. Ibid., at 363 (My emphasis).
29. (1977) 34 C.C.C. (2d) 73.
30. Ibid., at 87.
31. 1975 3 O.R. 412.
32. Ibid., from the headnote.
33. (1975) 31 C.R.N.S. 293.
34. (1975) 19 C.C.C. (2d) 35.
35. Ibid. , at 40.
36. It is an interesting coincidence that the testimony Hugessen was concerned about was that of Herrman, the same individual who testified against the Palmers.
37. (1963) 1.R. 33.
38. Ibid., at p. 38.
39. (1970) 11 DLR (3d) 673.
40. Ibid., at 689 (My emphasis).
41. M.S. Weinberg, The Judicial discretion to exclude relevant evidence, (1975) 21 McGill L.J. 1, at 11, and the case cited in the footnotes therein.
42. Ibid., at 25-26.
43. Ontario Law Reform Commission, Report on The Law of Evidence (1970), 57.
44. Weinherg, supra, note 42, at 26.
45. Cross on Evidence, Australian ed. (1970), 32; Taylor, A Treatise on the Law of Evidence (1887), 748.
46. Even if all derivative evidence was subject to exclusion it would still be problematic as to what was or was not “derivative”.
47. Weinberg, supra, note 42, at 38.
48. (1976) 54 C.K. (N.S.) 26-116.
49. See for example: (1976) 34 C.R. (N.S.) 1-25; (1976) 18 Crim. L.Q. 155-161.
50. According to a statement given by K. Chase, of the Commission, at an evidence seminar held at the University of British Columbia, March 1, 1978.
51. Proposed Evidence Code, s.7(1).
52. Ibid., s.7(4).
53. Ibid., s.7(4)(a) and s.7(4)(d).
54. (1976) 34 C.R. (N.S.) 26—116, at 112.