The SCC has ruled inadmissible testimony from witnesses who have been subjected to hypnosis. So holds the recently released R. v. Trochym. The ruling is somewhat unusual; it's not often that the Court issues a blanket condemnation of evidence that has been used in Canadian courts for many years. On the other hand, the outcome is generally a sensible one, given the dangers that hypnotically "aided" testimony can present. What research has has been done suggests that hypnosis can result in a fuller memory of events, but that the fuller memory may include false ones. And it's often impossible to tell the true from the false parts of the "enhanced" memory. Another danger is that the witness who has undergone hypnosis may come to view her post-hypnosis memories as completely accurate, regardless of whether such is the case. Cross-examining a witness who firmly (but mistakenly) believes that she is telling the truth presents great difficulties for the Defence, and these types of witnesses can carry great wieght with the jury.

Criminalreview has nicely explained Trochym and some of its implications for hypnosis as a forensic tool. I want to touch on another area where we may feel welcome fallout from the judgement - the admissibility of eyewitness testimony.

Mr. Big police undercover operations involve the police posing as criminals in order to obtain a confession from a suspect. The suspect is usually enticed to confess by inducements ("if you own up to some crimes we'll let you into our lucrative gang") and/or threats ("you better come clean with us because the our boss doesn't take kindly to liars"). Invariably these operations are run in murder cases where the police otherwise lack sufficient evidence to lay a charge. The stakes in terms of convicting the guilty or framing up the innocent are extraordinarily high.

We've discussed Mr. Big cases in past postings. Defence counsel have taken many apporaches in trying to exclude Mr. Big confessions. None have succeeded. The latest failed attempt comes in the case of R. v. Osmar, a judgment of the Ontario Court of Appeal.

The Supreme Court of Canada recently granted leave to appeal in a BC case that raises important right to silence issues. It's worth watching closely.

In R. v. Kim the Court of Appeal found that defence counsel was in an impossible conflict in representing two co-accused. It thus struck out the Appellant's guilty plea and ordered a new trial. The case is an exemplar for defence lawyers of how not to represent co-accused. Conflicts are extremely common when co-accused are represented by a single lawyer (or by members of the same firm or lawyers sharing office space). Sometimes even a waiver of conflict after independent legal advice cannot remove the taint. In Kim, there was no ILA and no waiver, so the possibility that the problem could be so solved was not considered.

Michel Proulx, one of Canada's great criminal defence advocates and appeal court judges, passed away yesterday after a long illness. He impressed and touched all who met him with his intelligence, curiosity, enthusiasm and warmth of heart. I first met Michel over 10 years ago, and he became a good friend and mentor. I will miss him dearly but can certainly say that his influence in the legal community will be felt for years to come.

For a description of Michel's life and work, and particularly his impact in the legal community, see the obituary written by Yves Boisvert that appeared this morning in La Press.