Court of Appeal for Ontario

Date: 2017-09-27

Docket: C63252

Judges: Pardu, Huscroft and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

John Kevin Foster Appellant

Counsel

Stephen Whitzman, for the appellant

Katherine Beaudoin, for the respondent

Heard: September 21, 2017

On appeal from the conviction entered by Justice Dale Parayeski of the Superior Court of Justice on July 15, 2015.

Reasons for Decision

(A) Overview

[1] The appellant was convicted of possession of a firearm knowing it to be obtained by crime pursuant to s. 96(1) of the Criminal Code. The firearm belonged to his employer, Brinks.

[2] The appellant raises two grounds of appeal that are said to constitute reversible errors: (1) the trial judge erred by finding the appellant's police statement voluntary; and (2) the admission of evidence derived from an involuntary statement the appellant gave to non-police actors rendered the trial unfair.

[3] We do not agree with either of these submissions.

(B) General Background

[4] A Brinks regional security director met with the appellant following an investigation into missing money and a firearm. The security director first asked the appellant about the missing money. The appellant was told that if he returned the money, Brinks would not pursue the matter with the police. The appellant returned most of the money, after which the security director turned his attention to the missing gun.

[5] The appellant admitted that he disposed of the gun in a lake. He showed the security director where he had thrown it into the water. While the appellant was assured that if he returned the gun, the security director would be prepared to tell the court that he had cooperated, he was not promised immunity from prosecution, nor could he have been. To the contrary, implicit in the security director's promise to tell the court that the appellant had cooperated in the return of the gun was the fact that the police would be informed of the appellant's conduct and criminal charges could result.

[6] While Brinks had earlier informed the police about the missing gun, they later reported to the police what they had learned from the appellant. Brinks also provided the police with a video copy of the appellant's two statements: one relating to the stolen money, and the other relating to the gun. The police conducted a search of the lake where the gun had been thrown, but only recovered the gun's slide.

[7] Ten days following his discussion with the security director, the appellant was arrested by the police and then interviewed. He confessed to having disposed of the gun in pieces.

(C) Voluntariness

[8] The Crown sought only to lead the police statement, and not the appellant's videotaped statements to the security director. The appellant argues that the trial judge erred in finding the police statement voluntary, maintaining that it was tainted by what he argues was an earlier involuntary statement to the security director. While the appellant accepts that the trial judge correctly stated the law relating to the derived confessions rule, he submits that trial judge erred in applying the rule. We disagree.

[9] The derived confessions rule in this case rests on the understanding that the statement given to the security director about the gun was an involuntary one, thereby tainting the subsequent police statement: see R. v. I.(L.R.) and T.(E.), [1993] 4 S.C.R. 504, at pp. 526-527. We first observe that it is not at all clear that there was any voluntariness issue relating to the first statement, such that the derived confessions rule was even operative. It appears that the parties and trial judge simply proceeded on the assumption that the statement given to the security director about the gun was involuntary, thereby triggering the need to consider the derived confessions rule. No one appears to have directly turned their minds to whether the security director was a person in authority (an issue upon which the appellant bears the onus): R. v. Hodgson, [1998] 2 S.C.R. 449, at paras. 34-37. Moreover, even if the security director stood in a position of authority, there is a real question about whether the inducement was "strong enough to raise a reasonable doubt about whether the will of the subject" had been overborne: R. v. Oickle, 2000 SCC 38, at para. 57.

[10] Despite our reservations about the basis for the assumption that the statement to the security director about the gun was involuntary, an assumption that clearly inured to the appellant's benefit, we see no error in the application of the derived confessions rule. The trial judge cited the correct law on this point; an involuntary statement may render a later statement involuntary where, "the tainting features which disqualified the first confession continued to be present or if the fact that the first statement was made was a substantial factor contributing to the making of the second statement": I.(L.R.) and T.(E.), at p. 526.

[11] The trial judge accepted the concession of both counsel that the tainting features of the first statement were no longer present during the second statement. He also concluded that while the earlier statement was a factor in the appellant's later statement, it fell short of being a substantial factor. He noted various factors in support of this conclusion, including:

1. the distance in time between the statements;

2. the fact that different people took the statements;

3. the fact that the police statement commenced with a clear comment by the officer that the appellant should not be influenced "in any way in making a statement" by anything that someone in authority may have already said to him;

4. the fact that the appellant had spoken to duty counsel prior to the police interview; and

5. the fact that although the earlier statement was frequently referenced by the police officer, it was largely met with assertions of silence.

[12] It was open to the trial judge to conclude that the earlier statement was not a substantial factor contributing to the making of the police statement. This was largely a question of fact. As this court noted in R. v. M.D., 2012 ONCA 841, at para. 59, appellate review in these circumstances is limited to "deciding whether the judge erred in her assessment of the evidence, failed to consider relevant circumstances, or failed to apply the correct principles." We see no such error in the trial judge's approach. This ground of appeal fails.

(D) Exclusion of Evidence for Reasons of Trial Fairness

[13] The appellant changed counsel after he was found guilty. He then sought permission to reopen the trial so that he could argue that some evidence should have been excluded because it adversely impacted the fairness of the trial. The trial judge dismissed the request to re-open, finding that it was really a disguised attempt to challenge the competence of previous counsel, a matter the trial judge concluded was best left for appeal.

[14] The appellant does not raise an issue of counsel competence on appeal. Instead, he maintains that the trial judge was wrong to dismiss the application to re-open the trial so that he could argue for the exclusion of evidence. He does not press the issue respecting the failure to re-open, as long as this court is prepared to consider the substantive arguments respecting the exclusion of evidence. We do not see any error in the trial judge's dismissal of the application to re-open. In any event, we would not give effect to the appellant's arguments regarding why the admission of certain evidence resulted in unfairness.

[15] The appellant maintains that his trial was rendered unfair because the trial judge considered evidence that was derived from his involuntary statement to the security director. In particular, he argues that all of the evidence arising from his comments to the security director about the gun, its whereabouts, and what he did with it, should have been excluded.

[16] For the reasons already given, we have strong reservations about whether the statement to the security director was involuntary. The appellant seems to suggest that because the Crown proceeded as if it was, it was a Crown concession to which this court is bound. We do not agree. The appellant calls upon this court to assess whether the fairness of the trial was adversely impacted by the admission of certain evidence. That analysis necessarily requires this court to consider the circumstances in which that evidence was taken.

[17] Even if the statement was involuntary, there is nothing about the way the statement was taken that would trigger any concerns about trial fairness. The record establishes that the appellant was treated respectfully by the security director, that he was not coerced into speaking with him, and that the security director acted in good faith.

[18] Leaving aside the fact that we see nothing wrong with how the appellant was treated that would raise any trial fairness concerns, he admitted to possession of the gun in his admissible police statement. While the impugned evidence may have also factored into the trial judge's reasons for conviction, it was entirely unnecessary to the analysis. The appellant told the police that he possessed the gun.

(E) Conclusion

[19] The appeal is dismissed.

G. Pardu J.A.

Grant Huscroft J.A.

Fairburn J.A.