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Law Times • may 29, 2017 Page 7 www.lawtimesnews.com Lie detection and truth discernment BY MATTHEW GOURLAY T he existence of Donald Trump has contributed to the impres- sion that it's relatively easy to tell truth from falsehood. Trump lies all the time. His lies are anything but subtle. In this environment, it's easy to get complacent about the human facility for lie detection and truth discernment. Trump makes it look too easy. But dis- tinguishing truth from falsehood is what preoccupies courts every day, and the task is rarely as straightforward as debunking the U.S. president's latest tweet. Courts and lawyers do the best they can with the tools at their disposal, but we're realizing those tools may be much more error-prone than we've always as- sumed. Different kinds of untruths raise different challenges. Some untruths are straightforward lies: propositions of fact that the speaker knows to be false. Take Trump's claim about his inauguration crowd size or Obama's "wiretapping" that no doubt fall into this category. In police lore, lies like this are sup- posed to be detectable by the trained in- vestigator. Interrogation methods like the Reid Technique, which purports to teach police interrogators to identify deception by observing the suspect's body language and eye movements, have long given po- lice officers confidence in their ability to determine when a suspect is lying. Once that determination is made, the truth can be cajoled out of them. But the literature on false confessions has shown that this approach too often leads to misguided interro- gations of innocent suspects, which can in turn produce coerced confessions and wrongful convictions. The courts have their own mythology about lie detec- tion. Cross-examination, said the great legal scholar John Henry Wigmore, is the "greatest le- gal engine ever invented for the discovery of truth." This may be true to a point. But suc- cessful cross-examination most often depends on exposing inconsistencies in the witness' account. Good liars — and Trump is not one — are good at sticking to their story and evincing total comfort in recounting it. Even a skilled lawyer may come up short. The Supreme Court has mandated that a special jury caution, known as a Vetro- vec warning, be given in respect of certain witnesses with a demonstrated track re- cord of lying. On the other hand, a polished liar can be more difficult to pin down and expose than a neophyte. They may appear char- ismatic to a trier of fact and may exhibit none of the tells often (albeit tenuously) associated with lying. The most challenging kind of untruth for the courts is probably the honest but mis- taken witness. Think of the churchgoing lady of impec- cable character who swears on her life that she can pick the culprit out of a lineup. Trump can rarely be said to fit this profile, which is why his untruths are usually so easy to unmask. He appears to entertain no honest beliefs whatsoever. But in the normal world, mistakes of this kind are common. So, for instance, we now warn juries about the dangers of honest but mistaken eye- witness identification. We have also become critical of phe- nomena such as "repressed" or "recov- ered" memories in which people honestly believe they have unearthed some trau- matic experience from childhood, often through therapy. Yet beyond such well-documented danger zones, we in the justice system have little real working knowledge of the processes of memory and their impact on the ability and inclination of a witness to reliably communicate the facts. Psychological science has produced a lot of insight into these questions. But courts pay little attention, holding that ex- pert evidence on memory and recall is the sole domain of the untutored trier of fact and in inappropriate subject of evidence. In R. v. Gagnon, 2006 SCC 17, the Su- preme Court of Canada emphasized the "complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events." Appeal courts are not supposed to second-guess the results of this semi-mystical process. As an appellate lawyer, however, it's these cases that cause me the most anxi- ety because they're the most difficult to challenge on appeal. The trial judge found the Crown's wit- ness to be believable and the accused to be a liar. The accused maintains his in- nocence and his story isn't crazy. The Crown's evidence had holes, but not enough to trouble the trial judge. Mis- takes are all too easy to make and very difficult to correct. I think I can confidently predict that no "complex intermingling of impres- sions" will be necessary to decide the looming credibility contest between Don- ald Trump and James Comey. But in the real world, our instincts and impressions are wrong more often than we like to be- lieve. An important corrective, for judges and lawyers alike, is a quality foreign to the current president. That's humility. LT uMatthew Gourlay handles criminal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litigation. He's available at mgourlay@hhllp.ca. Time for LSUC to change name BY DAVID MCROBERT F or decades, those of us who have come from away to live in Ontario have puzzled over a strange conundrum. Why isn't the Law So- ciety serving the residents of Ontario called the Law Society of Ontario? Why does Ontario's Law Society cling to an arcane tradition of insisting its name must remain as the Law Society of Upper Canada? It's 2017. As a lawyer, I am required to pay membership fees to an organization whose title includes the name "Up- per Canada." However, the fact it is the regulatory body for lawyers who live in northern areas of the province that never were part of the territory of Upper Canada is truly bizarre. I am not the only one who feels this way. In 2012, there was a motion to the LSUC's May 2012 annual general meeting drafted by lawyer Tom Vincent and supported by 10 other signatories to update the law so- ciety's name to the "Ontario Law Society." Sadly, this effort failed. This is a shame because a new name would include those northern areas of the province that weren't in- cluded when the borders of Upper Canada were estab- lished in the 18th century. Back in 2012, as I understand it, the main two- pronged argument supporting a reference to Upper Canada was that the LSUC was the oldest law society in the Commonwealth and the name represented an important tradition. Ultimately, the motion to change the name was shot down. There are profound reasons for divesting the LSUC of its colonial vestiges. Irrespective of the geograph- ic confusion that the 220-year-old name garners, the name risks becoming increasingly contentious due to its negative colonial connotations. Upper Canada was formed in 1797 and ceased to exist as a political entity in 1841, a time period that oversaw mass appropriation of indigenous land, largely through bloodshed. The Province of Upper Canada was created by the United Kingdom to govern the central third of British North America (as it then was called) and to accom- modate Loyalist refugees of the United States after the American Revolution. It included all of modern-day Southern Ontario and all those areas of Northern Ontario that had formed part of New France, essentially the watersheds of the Ottawa River and Lakes Huron and Superior. The "Up- per" prefix in Upper Canada ref lected the territory's geographic position being closer to the headwaters of the Saint Lawrence River than that of Lower Canada (or present-day Quebec) to the northeast, but Upper Canada excluded any lands within the watershed of Hudson Bay. As a lawyer who has worked with and advocated on behalf of indigenous peoples in Ontario, I am ashamed that the regulatory body governing lawyers remains strongly associated by virtue of its title with a very dark period in Ontario's history. The 50-year period of Upper Canada's existence, from 1791 to 1841, was characterized by the negotiat- ing and signing of many unfair and unbalanced treat- ies between First Nations communities and successive Crown agents on behalf of the United Kingdom, with the silent endorsement of Upper Canadian governors, governments and the primarily European male land owner-voters who kept them in power. This was a period when many indigenous peoples were treated in unjust ways, increasingly herded on to smaller land tracts called reserves and denied access to lands and waters their ancestors had used for millenia. In an effort to address many of these concerns as well as to create a formal response to the abuse inf licted on indigenous peoples through the Indian residential schools system, the Truth and Reconciliation Com- mission of Canada was established in June 2008. In June 2015, the commission released a report with 94 calls to action that are addressed primarily to the federal, provincial and territorial governments but also to municipal governments, the corporate sector and the broader Canadian society. Thus, all organizations and institutions with powers that have oppressed indigenous peoples have a duty to respond to the TRC report in a meaningful way. This is especially true in regards to law societies — organizations that vow to uphold access to justice and have a crucial role in preventing the oppression of in- digenous peoples by the state. To emphasize this point, the TRC devoted a call to action specifically to law societies, calling on the Federation of Law Societies of Canada "to ensure that lawyers receive appropriate cultural competency train- ing." Given the TRC's recommendations, it seems bi- zarre that the LSUC continues to cling to its traditional name. Recently, the Law Society of British Columbia has taken a progressive approach toward First Nations rec- onciliation. In April 2017, the LSBC announced that it would remove a statue of Justice Matthew Begbie, who had sentenced six Tsilhqot'in chiefs to death before confederation. The Truth and Reconciliation Com- mission's report was a catalyst for this change and, re- cently, LSBC president Ken Walker stated that the so- ciety wants all of its members to read over the 94 calls to action. In 2015, the LSUC released two separate public statements addressing the TRC report and emphasiz- ing its commitment to act upon the commission's calls to actions. It is time for the Ontario government and the LSUC to revisit this issue and view its name using a contem- porary lens. As the legal profession evolves, so should the organization that governs it. With the incorpora- tion of paralegals into the LSUC and the growing eth- nic and social diversity of the profession, it seems abso- lutely inappropriate to defend its original name on the basis of tradition. LT uDavid McRobert is a lawyer practising environmental, energy and indigenous law based in Peterborough, Ont. and public affairs co-ordinator for the Aboriginal Law section of the Ontario Bar Association. This piece was produced with research and writing contributions from Jordan Shay, student-at-law. u SPEAKER'S CORNER COMMENT A Criminal Mind Matthew Gourlay

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