ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-9489
DATE: 2012/MAR/20

B E T W E E N:

Her Majesty the Queen

Paul Attia, for Her Majesty the Queen

Applicant

• and -

Susan Baluch

Jason H. Gilbert, for the Respondent

Respondent

HEARD: January 31, 2012

RULING ON APPLICATION

Quigley, J.

[ 1 ] The Respondent is charged with theft over $5,000, contrary to Section 334 of the Criminal Code of Canada .

[ 2 ] The Respondent has pleaded not guilty and a trial by judge and jury is to commence on April 30 th , 2012.

[ 3 ] The Respondent made three inculpatory statements to three people in which she admitted to the theft. The three people to whom the statements were made were Melody Mageau, operations manager at the Walkley Road McDonald’s restaurant, in Ottawa; John Coleman, security officer for Canada for McDonald’s restaurants, and Constable Daniel Deschamps of the Ottawa Police Service.

[ 4 ] At the outset of the voir dire , counsel agreed that the statements made to John Coleman and to Constable Deschamps were made to persons in authority.

[ 5 ] Counsel for the Crown submitted that the statement made to Melody Mageau was not to a person in authority. The defence disagreed.

[ 6 ] At the conclusion of the evidence, Crown counsel stated that although he still felt that the statement made to Melody Mageau was not made to a person in authority, he was satisfied that submissions would be made as if she had been a person in authority.

[ 7 ] On this motion, the Crown is seeking to have the statements made by the Respondent ruled voluntary so that they may be tendered in evidence at the Respondent’s trial.

Background

[ 8 ] Melody Mageau testified that she is a 26-year employee with McDonald’s as an operations consultant. Her job is to supervise all restaurants in the Ottawa area to confirm that they are up to the standards of cleanliness, etc. set by the employer.

[ 9 ] She further testified that in December of 2009, she was advised that there were deposit shortages at the Walkley Road restaurant while the Respondent was working as a swing-manager. The Respondent had at that point been employed by McDonald’s for five or six years.

[ 10 ] There was a shortage of approximately $8,000 when the deposits were taken to the bank.

[ 11 ] After viewing a security videotape of the Walkley Road premises showing the Respondent bending down to the office safe and bringing out a brown envelope from the safe, Ms. Mageau testified that no swing-manager should have access to anything from the safe.

[ 12 ] Ms. Mageau then called John Coleman, the security manager for McDonald’s in Toronto. He testified that there was a meeting organized with the Respondent on January 21 st , 2010, at McDonald’s regional office at 1795 St. Laurent Blvd. in Ottawa.

[ 13 ] The Respondent was met at the front door of the regional office by Ms. Mageau who introduced the Respondent to John Coleman. All three went into the boardroom at the regional office.

[ 14 ] Ms. Mageau testified that the Respondent was confronted with the fact that she had stolen the deposits. The Respondent denied the allegations.

[ 15 ] The Respondent was left alone with John Coleman. After a period of time, he came out of the boardroom and said to Ms. Mageau that “she is still denying everything. Maybe you can come in. You know her better than I.”

[ 16 ] Ms. Mageau testified that when she returned to the boardroom alone, the Respondent was very upset and crying and admitted to the theft of one deposit. The Respondent said, “Mel, I did take that deposit,” and then explained her family and financial problems. Mageau replied, “I wish you had come and talked to me.”

[ 17 ] In examination in-chief, Ms. Mageau denied any threats or promises that she or Coleman made to the Respondent and said that she had “felt bad for her.”

[ 18 ] Ms. Mageau further testified that she did not have the authority to make a decision on the Respondent’s future. Her only duty was to report it to her boss, Jodi Rubino, and to John Coleman.

[ 19 ] Ms. Mageau further testified that there were no audio or video capabilities in the boardroom.

[ 20 ] In cross-examination, she denied any threats or promises or words to the effect that if you admit to this, don’t worry about it and/or the police would not be involved, or that the Respondent's job would be preserved.

[ 21 ] She admitted that she made no notes of the conversation at that time. The court was advised that very shortly after the meeting on January 21, 2010, the witness prepared an R7 statement outlining her involvement in this case. That statement was delivered to the defence as part of the disclosure.

[ 22 ] No questions were posed to the witness, Mageau, from the defence directing her to the R7 statement.

[ 23 ] In re-examination, Ms. Mageau stated that the theft to which the Respondent admitted was from the Walkley Road restaurant.

[ 24 ] John Coleman testified that he met the Respondent at the McDonald’s regional office in Ottawa on January 21 st , 2010. He testified that he advised the Respondent that he was investigating the stolen deposits and that he gave the Respondent her constitutional rights to which she replied that she understood.

[ 25 ] Mr. Coleman further testified that after a couple of minutes he asked Ms. Mageau to leave the room. He testified further that he advised the Respondent that he knew that she had taken the deposits, which she denied. In that context, he said she further stated that, “I don’t have any money to pay the bank.”

[ 26 ] The evidence is clear that after Ms. Mageau had been asked to leave the room, that Mr. Coleman showed a security videotape on his computer to the Respondent. This videotape allegedly showed her putting a thin envelope in the safe and removing a thicker envelope from the safe. The security video was supposedly recorded on a day that the Respondent was not working. (The Respondent testified on this issue in this application and I will refer to her testimony later in this decision.)

[ 27 ] Mr. Coleman then asked Ms. Mageau to speak to the Respondent, thinking she would have more success since he was the “suit from Toronto.”

[ 28 ] When Mr. Coleman returned to the boardroom, Ms. Mageau stated to him that the Respondent had admitted to the theft of the December 17 th deposit.

[ 29 ] Mr. Coleman testified that after he returned to the boardroom, the Respondent admitted to the theft of November 5 th deposit of $3,909.21. He then called the police.

[ 30 ] Constable Daniel Deschamps, a member of the Ottawa Police Service, testified that he responded to a radio call at 11:23 a.m. on January 21, 2010.

[ 31 ] Constable Deschamps said that after speaking with Mr. Coleman, he met the Respondent and issued a caution to her and a rights to counsel to which the Respondent, “I have no money to call a lawyer.” He then told her that she was entitled to Legal Aid, to which she responded, “Not now.”

[ 32 ] Constable Deschamps testified further that he told the Respondent that she was not obliged to speak to him, to which she responded that she was prepared to.

[ 33 ] Constable Deschamps then asked her directly if she had stolen the money to which she replied, “Yes.” She then went on to offer an explanation as to why she had stolen the money. Her explanation included the fact that she had a sick husband, five children and the City of Ottawa denied any help to her. In her own testimony, the Respondent testified that she had lied to Constable Deschamps about seeking help from the City of Ottawa.

[ 34 ] Constable Deschamps then asked the Respondent if she had anything else to say, to which she replied, “I’m sorry.”

[ 35 ] At 12:45 p.m. that day, Constable Deschamps issued an appearance notice and released the Respondent on a promise to appear in court.

[ 36 ] In examination in-chief, Constable Deschamps said there were no threats, promises or inducements made to the Respondent prior to her confession. He said the atmosphere in the room was relaxed and she was seated beside him. He said she was apologetic and crying. He also confirmed there were no video or audio recording facilities in that room.

[ 37 ] Constable Deschamps further stated that if the Respondent had said she did not want to speak with him, he would not have continued the interview.

[ 38 ] Susan Baluch, the Respondent, testified on this voir dire and confirmed that she had attended the St. Laurent regional office, where Melody Mageau told her that senior officer John Coleman had wanted to speak with her in the boardroom. She said that he introduced himself and told her to sit down and relax.

[ 39 ] The Respondent testified that she was questioned first by John Coleman and then by Ms. Mageau. She said that Ms. Mageau was her boss but it felt like the questioning was from a police officer. She confirmed the Crown witness’ testimony that Mr. Coleman then asked Ms. Mageau to leave the room. She testified that Mr. Coleman then said to her that he was a hundred percent sure that she had taken the money and he then showed her his laptop including the security video.

[ 40 ] She then stated that Mr. Coleman told her that, “If you tell us that you did it, we will not call the police.” She also testified that he said that, “If you do not tell us, then we will call the police.” She stated that she replied that she did not take the money and Mr. Coleman then gave her ten minutes to think about it.

[ 41 ] The Respondent then stated that she was scared for two reasons, firstly, being handcuffed by the police and, secondly, having the news spread in the Afghan community that she did such a thing.

[ 42 ] The Respondent testified that Ms. Mageau then re-entered the room. She further testified that she felt like a prisoner. She testified that both Mr. Coleman and Ms. Mageau were questioning her, one like a jail guard and the other like a police officer. She testified that Mr. Coleman had told her if she admitted to the theft, they would let her go.

[ 43 ] In examination in-chief, she testified that she felt like she was kidnapped.

[ 44 ] She testified that after her admission to Ms. Mageau of theft of one envelope, she only admitted to theft of the second envelope after Coleman had banged the envelopes on the table. She testified that she had not taken the third envelope.

[ 45 ] The Respondent testified that she said to Mr. Coleman, “You lied to me,” when she discovered that the police were going to be involved. She also testified that Mr. Coleman told her she was obliged to tell the police the same thing she had told them and that she had lost herself.

[ 46 ] She testified further that the police officer who interviewed her treated her very well and that she admitted to the thefts of the two envelopes to him only because she thought she had to tell the police the same thing she told Mr. Coleman.

[ 47 ] In cross-examination, she accused both Mr. Coleman and Ms. Mageau of absolute lies, not only in their testimony in this application, but also that they had lied to her on January 21 st , 2010. She admitted that the door to the boardroom from time to time was closed when people left but she did not see anyone ever lock the door.

[ 48 ] Also, in cross-examination, the Respondent admitted that Mr. Coleman told her on January 21 st , 2010, that she did not have to be there. In cross-examination, the Respondent also accused Crown counsel of treating her in the same manner she was treated by Mr. Coleman and Ms. Mageau.

[ 49 ] In cross-examination, the Respondent explained her attendance at the restaurant on a day that she was not scheduled to be working by saying that she had worked for a co-worker who had to take the day off. She testified that she did not have to clear that schedule change with upper management.

[ 50 ] The Respondent also testified in cross-examination that Mr. Coleman’s response to her admission of theft was, “This is good proof and you will be taken to jail.” Again, in this regard, John Coleman specifically denied any discussion of threats of jail or anything else.

[ 51 ] When asked by the Crown counsel as to why she had not raised that statement by Mr. Coleman in examination in-chief, she deflected the criticism to the interpreter for misconstruing her words.

[ 52 ] In examination in-chief, Mr. Coleman testified that he offered no threats or inducements and made no promises that the Respondent could keep her job. He said that she was fairly quiet and cooperative throughout.

The Law

[ 53 ] The obligation is on the Crown on this voir dire to prove each statement of Ms. Baluch is voluntary, beyond a reasonable doubt.

[ 54 ] The common law rule with respect to confessions is well-suited to protect against false confessions. While its overriding concern is with voluntariness, this concept overlaps with reliability. A confession that is not voluntary will often, though not always, be unreliable. The application of the rule will by necessity be contextual. Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over- and under-inclusive. A trial judge should therefore consider all the relevant factors when reviewing a confession. (See R. v. Oickle , 2000 SCC 38 () , [2000] S.C.J. No. 38 (S.C.C.) at para. 47 .)

[ 55 ] In order to assess whether a statement was made voluntarily, the court must consider whether any threats, promises, or inducements were made, the existence of oppression at the time of the statements, whether the accused had an operating mind, and whether the police used trickery to elicit the statements. (See R. v. Griecken , [2009] O.J. No. 5035 (Ont. S.C.J.) at para. 48 .)

[ 56 ] Justice Fuerst, of the Superior Court of Justice for Ontario, succinctly outlined the common law confessions rule in the case of R. v. Wills [2006] 35632 (ON SC). At paragraph 40, she states as follows:

[40] Under the common law confession’s rule, a statement made to a person in authority is not admissible if it is made under circumstances that raise a reasonable doubt about its voluntariness. This rule is intended to protect the rights of accused persons without unduly limiting society’s need to investigate and solve crimes. The voluntariness analysis is contextual. The judge should consider all of the circumstances surrounding the statement and ask if it gives rise to a reasonable doubt about the statement’s voluntariness. Relevant factors include the existence of threats, promises or inducements, the lack of an operating mind, oppressive conditions, or police trickery that denies the accused’s right to silence or shocks the community: R. v. Oickle , 2000 SCC 38 , [2000] 2 S.C.R. 3; R. v. Moore-McFarlane (2001), 2001 6363 (ON CA) , 160 C.C.C. (3d) 493 (Ont.C.A.).

[ 57 ] Justice Fuerst continues at paragraphs 41 and 42:

[41] Whether a caution was given may be a factor and sometimes an important factor in determining whether a statement was voluntary, but it is not decisive. The giving of a caution is not a prerequisite to the admissibility of a statement made to the police, even if its maker was in custody: R. v. Esposito (1985), 1985 118 (ON CA) , 24 C.C.C. (3d) 88 (Ont. C.A.).

[42] The authenticity of an accused’s statement is a matter for the trier of fact. In R. v. Moore-McFarlane , supra , the Ontario Court of Appeal held, however, that on a voir dire to determine the voluntariness of a statement, the Crown bears the onus of establishing a sufficient record of the interaction between the accused and the police. There is no absolute rule requiring the audio or video recording of statements, but where the accused is in custody, recording facilities are available, and the police deliberately set out to interrogate him or her without giving any thought to the making of a reliable record, the context makes the statement suspect. That is because the completeness, accuracy and reliability of the record have to do with the court’s inquiry into the circumstances surrounding the taking of the statement.

Position of Crown

[ 58 ] The Crown submits that all statements provided by the Respondent to the police or other persons in authority were voluntarily provided.

[ 59 ] The Crown further submits these statements were not the product of any threats, promises, or inducements by a person in authority. They were not provided in oppressive circumstances. The Respondent possessed an operating mind at the time she provided the statements. There was no trickery employed by the police which would shock the community.

[ 60 ] The Crown further submits that the lack of audio or video equipment at the regional office at the time of the statements do not affect the voluntariness and reliability of statements in this case.

[ 61 ] Therefore, the Crown submits that all the statements provided by the Respondent to the police and/or other persons in authority were voluntarily provided.

Position of Defence

[ 62 ] The position of the defence is that there was an atmosphere of oppression in the conference room at the McDonald’s headquarters which , coupled with Mr. Coleman’s statement that the police would not be called if the Respondent admitted guilt , renders the statements inadmissible.

[ 63 ] The defence also submits that notwithstanding that the Respondent’s later confession to the police officer may not have been induced by anything the police officer said or did, it was tainted by the earlier promises by Mageau and Coleman. Therefore, the Respondent’s confession to Constable Deschamps should be ruled involuntary by virtue of the derived confession rule.

Analysis and Decision

[ 64 ] The Respondent testified on this voir dire . I have referred to her evidence with respect to the atmosphere in the McDonald’s regional office and certain statements that she attributed to Ms. Mageau and to Mr. Coleman.

[ 65 ] I am conscious of the fact that if I believe the evidence of the Respondent, I must find that the Crown has not satisfied me of the voluntariness of the statements beyond a reasonable doubt. Even if I do not believe the evidence of the Respondent but I am left in a reasonable doubt by it, I must also find that the Crown has not satisfied me beyond a reasonable doubt of the voluntariness of the statements. Even if I am not left in doubt by the evidence of the Respondent, I must ask myself whether I am convinced beyond a reasonable doubt of the voluntariness of the statements on the balance of the evidence which I do accept.

[ 66 ] I find that there is no credible evidence in this case that would suggest that Ms. Mageau, Mr. Coleman, or Constable Deschamps offered any threats, promises or inducements to the Respondent, which would affect the voluntariness of her confession. I reject the Respondent’s testimony in this voir dire that suggested otherwise. Her evidence on these issues was not credible.

[ 67 ] I find that at no time was there an air of oppression which would give rise to a false confession. The Respondent had attended the meeting on January 21 st at the McDonald’s regional office as a result of a telephone call between the Respondent and her supervisor, Melanie Mageau.

[ 68 ] I specifically reject the Respondent’s evidence that Mr. Coleman had told her that if she admitted taking the money, she would be let go.

[ 69 ] I further reject her testimony that she felt that she was kidnapped or in any other way was pressured by Ms. Mageau or Mr. Coleman.

[ 70 ] I find that the Respondent maintained her denial of the theft up to the point where she was presented by Mr. Coleman with a video, which appeared to show that she was in the McDonald’s restaurant at the time of the theft and also to show her bending over and taking an envelope from the safe.

[ 71 ] Any suggestion by the Respondent that she was told by Mr. Coleman that she needed to tell the police the same thing that she told him is, I find, an after-the-fact fabrication.

[ 72 ] Therefore, I find that the Crown has proven beyond a reasonable doubt that the statements made by the Respondent to Ms. Mageau, Mr. Coleman, and Constable Deschamps were voluntary and, therefore, are admissible as evidence in the trial.

Mr. Justice Michael J. Quigley

Released: March 20, 2012

COURT FILE NO.: 10-9489

DATE: March 20, 2012

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Her Majesty the Queen Applicant - and – Susan Baluch Respondent RULING ON APPLICATION Quigley, J.

Released: March 20, 2012