Law Times

Page 4 February 2, 2015 • Law Times www.lawtimesnews.com of the time. "It's not too difficult, using manipula- tive tactics that we often see in police in- vestigations, for people to be convinced and to come to recall that they commit- ted a pretty major offence," says Porter. "It's pretty common for police in interviews with suspects to introduce evidence that implicates the guilt of the suspect and sometimes that evi- dence isn't true. Sometimes it is true and sometimes it isn't true. Police are permitted in Canada to use deception when interviewing criminal suspects to a certain extent, but it's a very common tactic," he adds. One of the interviewing methods used by police, known as the Reid tech- nique, has been subject to criticism for its draining impact on suspects who sometimes tell the officers what they want to hear in order to get out of long and gruelling interviews. According to Porter, the research is another reason to doubt the reliability of the technique and the legitimacy of confessions. "It really suggests that we have to have strict guidelines on what happens in police interviews in terms of the kind of tactics that are being used and we sort of mimicked in our study," he says. In fact, 30 per cent of wrongful con- victions looked at by the Innocence Project in the United States resulted di- rectly from false confessions, according to Porter. "It's not a minor issue but it could be much more problematic than we had any idea about," he says, adding people induced into creating false memories may continue to believe them and never appeal their conviction. That's especial- ly true when the suspect had some type of amnesia due to factors like substance use, he says. James Lockyer, a founding director of the Association in Defence of the Wrongly Convicted, says he's surprised by the percentage of participants who recalled false memories but not by the phenomenon itself. "It certainly happens, particularly in cases where the suspect feels guilty about the situation he or she is being questioned about," he says. "It particularly happens in cases like child deaths." Lockyer agrees false memories are another aspect of what he calls a danger- ous interviewing technique by law en- forcement. "It's another facet of it where if you push someone hard enough — especially if you appeal to their sense of justice, which is a classic example of how police approach these kinds of cas- es — . . . there is no question that people fall into acknowledging they did things they didn't do." When the students in the study even- tually learned one of the two events had never taken place, they were dumb- founded and some even argued with the researchers about the legitimacy of the story, says Porter. Alan Young, who runs Osgoode Hall Law School's Innocence Project, says he's aware of cases in which peo- ple deluded themselves into believing they had committed a crime. "We've been very aware of this phenomenon at the Innocence Project and somewhat shocked by how cavalier law enforce- ment is in terms of addressing whether or not they are inducing false or accu- rate confessions," he says. "You have false confessions that are not just people saying something to get out of the room to get a glass of water. You have false confessions in which the person can incorporate the guilt into their very memory and delude them- selves into believing they're guilty," he adds. "That's the rarest one. Most peo- ple have awareness that they're not ac- curately recounting a story." The issue of false memories has im- plications for the law beyond police interviews. The legitimacy of memo- ries can be an issue in cases of histori- cal sexual abuse as well with defendants linking false recollections to therapy sessions. In a way, that scenario isn't so differ- ent from police interviews, says Porter, who serves as an expert witness in his- torical sexual abuse cases. "It's kind of analogous to the police interview where the police investigator has a guilt-pre- sumptive assumption," he says. "In many cases where historical abuse memories have been brought into question, the therapist had an as- sumption that the person must have been abused given their current symp- toms even when the client didn't report and remember any abuse." The field of psychology has identi- fied the features of interviews where false memories are likely, he says. They include guided imagery in which in- terviewer s ask their subjects to close their eyes and picture their childhood bedroom where something foul may have happened. Porter says a potential area of re- search in the future would look at whether some people are more vul- nerable than others when it comes to interviewers inducing them to create false memories. LT NEWS False confessions a big factor in wrongful convictions Continued from page 1 Access to justice not only criteria for measuring ABS already available and she didn't conduct her own research on the efficacy of alternative busi- ness structures in addressing ac- cess to justice. One of the main gaps she found was the fact that the ma- jor areas of unmet legal needs in Canada are in family and crimi- nal law, fields the research sug- gests law firms owned by non- lawyers have been slow to enter. Her report cited other re- search showing 70 per cent of family law litigants go without counsel because they can't af- ford a lawyer but it noted that when it comes to the alternative business structures in Britain and Australia, law firms have largely focused on personal in- jury matters rather than family law. "According to [publicly trad- ed law firm] Slater & Gordon's 2014 Annual Report, over 80 per cent of its total revenue (in both the U.K. and Australia) is derived from personal injury work," wrote Kalajdzic, with the remaining areas covering fam- ily, conveyancing, and wills and estates matters. Kalajdzic also found that while there's evidence of tech- nological advances at firms like Slater and Gordon, there was no causal link between those improvements and non-lawyer ownership. "The evidence of a con- nection between technologi- cal innovation and acquisition and [non-lawyer ownership] is there," she says. "I don't know if it's a causal connection, [meaning] they have more access to capital and they can spend money, or whether it's just a different cul- ture, a more corporate-oriented culture." Kalajdzic also cautions against heavy reliance on tech- nology as it can "at best be de- scribed as providing limited im- provements to access to justice." Some proponents of alterna- tive business structures were quick to discredit the study, call- ing it biased fodder for the asso- ciation's position. "It appears very much to be typical of paid reports where the client has already decided that ABS is bad and requires some reasons to support that already- entrenched position," says To- ronto lawyer Mitch Kowalski, who has been an ardent voice in favour of alternative business structures. He adds: "It's hard to take a report seriously when it notes Slaters' technological advances — then dismisses those advanc- es by saying that the same can arise in Ontario — but without providing any reason they have not yet occurred on the same scale. She [Kalajdzic] ignores the fact that technology is not inexpensive and requires capi- tal, which is not available in the current model. The noting of a cultural difference between the Australian and the U.K. legal professions vis-a-vis ours as a rationale for not allowing ABS in Ontario is also grossly over- stated." Lawyers such as Furlong, meanwhile, are calling for a broader debate around alterna- tive business structures as the dialogue to date has narrowly focused on non-lawyers own- ing law firms. When Ontario adopted the term alternative business structures, it also im- ported some assumptions, says Furlong. "That's not the only ques- tion," he says, noting the conver- sation so far has missed issues such as exploring other ways of doing things by, for example, making room for other profes- sionals in the delivery of legal services. If other professionals are to participate in the industry, the profession should talk about how to regulate them, he sug- gests. "I don't love the importation of the ABS terms because we're narrowing the whole discus- sion to the very, very narrow question of can non-lawyers be allowed to own law firms," says Furlong. "Then everybody starts to talk about Walmart . . . and the whole conversation goes off the rails." Furlong also says that while there isn't a whole lot of evidence to suggest alternative business structures increase access to jus- tice, it's hard to say that link will never emerge. "It's not enough to say let's shut the experiment down," he says. According to Furlong, the le- gal profession also needs to de- cide whether access to justice is the only result it's seeking from the implementation of alterna- tive business structures. If law- yers are able to bring other pro- fessionals such as accountants or architects into their partner- ships or take investment capital from a hedge fund, that's not something with obvious bene- fits for access to justice, he notes. "But what it's really about is it's helping me become a more competitive, powerful law firm." Last week, a report to Convo- cation by the Law Society of Up- per Canada's alternative busi- ness structures working group included some information that adds to the debate over areas such as the potential impact of alternative business structures on family law and access to jus- tice. The report noted, for exam- ple, that from 2011-14, there was a significant increase in the per- centage of family law services offered at a fixed fee in England and Wales. The percentage increased to 45 per cent last year from 12 per cent in 2011, according to the re- port. LT Continued from page 1 RE: ESTATE OF THOMAS STANLEY ELLIS, Deceased Anyone having knowledge of a Will of the late omas Stanley Ellis of the City of Hamilton who died on November 11, 2014, is requested to contact Sean Sullivan at 519-575-7515 or sean.sullivan@gowlings.com Gowling_LT_Feb2_15.indd 1 2015-01-23 12:44 PM

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