Hypnosis Evidence: Admissibility
| Author | Karim Kocsenda |
| DOI | 10.1350/jcla.2007.71.6.497 |
| Published date | 01 December 2007 |
| Date | 01 December 2007 |
| Subject Matter | Supreme Court of Canada |
Supreme Court of Canada
Hypnosis Evidence: Admissibility
R vTrochym 2007 SCC 6
The case concerned an appeal by T from a decision finding him guilty of
second degree murder. The deceased, H, was a long-time girlfriend of the
appellant who was last seen alive late on Tuesday, 13 October 1992, or
in the early hours of the following day. During this short span of time G,
a neighbour and friend of the deceased, heard a man banging on H’s
door and demanding to be let in. Although the man was not seen, G
eventually heard him being admitted into the deceased’s apartment. It
was likely therefore that this man was the killer. However, in order to
establish that the man entering was the appellant, the Crown was
allowed to advance evidence that following T’s break-up with a previous
girlfriend, O, he had returned to her apartment banging on the door and
demanding to be let in. This was contested by the appellant as similar
fact evidence and inadmissible. G also testified that she saw the appel-
lant leaving the apartment of H at 3 pm on Wednesday afternoon. This
was problematic because it was inconsistent with a prior statement
made by G to the police that she had seen him leaving on Thursday and
not Wednesday. It was only after undergoing hypnosis that G stated that
it was indeed Wednesday afternoon. The appellant argued that the
conviction be set aside and a new trial ordered, and as regards the issue
of hypnosis, that all evidence obtained in such a manner be excluded per
se. He also requested the exclusion of the similar fact evidence adduced
by O.
H
ELD
,
QUASHING THE CONVICTION AND ORDERING A RETRIAL
,witness
testimony obtained by hypnosis does not meet the requirements for
admissibility of novel scientific evidence and the relevant guidelines that
have been followed by lower courts were insufficient. Such evidence is
consequently inadmissible for evidentiary purposes. Whilst the Clark
guidelines (R v Clark(1984) 13 CCC (3d) 117, Alta QB) on the extraction
of post-hypnosis testimony are of use in limiting the possible exertion of
influence during a hypnosis session, they are problematic in that they
are based on the assumption that the underlying science of hypnosis is
reliable in the context of judicial proceedings. When factors from R v J-
LJ [2000] 2 SCR 600 for assessing the reliability of novel scientific
evidence are applied it becomes apparent that the technique and impact
of hypnosis are not sufficiently understood to be reliable in a court of
law. Permitting post-hypnosis evidence is effectively an error of law.
The similar fact evidence was also inadmissible, as it did not meet the
objective test of ‘improbability of coincidence’ for admitting similar fact
evidence. This is because the acts at issue were highly generic. Finally,
the curative proviso of s. 686(1)(b)(iii) of the Criminal Code is inapplic-
able, as once the post-hypnosis and similar, fact evidence have been
497
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