SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 11-82
DATE: 2012/09/25

RE: R. v. G.J.

BEFORE: Justice Rick Leroy

COUNSEL: Isabel Blanchard, Counsel for the Respondent
Ian Paul, Counsel for the Applicant

HEARD: September 13 th , 2012

IMPORTANT: CONTENTS CANNOT BE PUBLISHED OR BROADCASTED PURSUANT TO AN ORDER UNDER SECTION 486. INFORMATION REGARDING THE IDENTITY OF THE ACCUSED, WITNESS OR COMPLAINANT CANNOT BE PUBLISHED OR BROADCASTED

ENDORSEMENT on APPLICATION TO EXCLUDE AUDIO RECORDING

[ 1 ] The complainant, JLB secretly recorded a conversation she had with the accused, GJ on June 13, 2010. JV applies for Charter relief under subsection 24(2) excluding the recording he argues was obtained in breach of his rights under sections 7 and 8. In the alternative, he argues that the statement manifested in the recording ought to be ruled inadmissible on the common law grounds that its prejudicial effect exceeds its probative value in the proceeding. This is my ruling.

Overview

[ 2 ] The accused GJ (herein GJ) is charged with eight counts involving sexual abuse of sisters, JLB and LF dating back to the period 1970 – 1975. The sisters were placed in the care of GJ and his spouse, BJ after the parents of the sisters separated, and were unable to provide for them in either home.

[ 3 ] The allegations advanced by JLB are of a different magnitude than those advanced by LF. She testified to relentless sexual abuse over four years beginning when she was ten years which involved multiple discrete locations, times of day, vaginal and anal digital penetration, anal penile penetration, cunnilingus and fellatio.

[ 4 ] LF alleges two discrete incidents, one involving breast fondling during the summer of the second year of residence in the J home and an incident of cunnilingus when she was eighteen. LF disclosed this to JLB when she was under the influence of prescribed medication following an overdose driven suicide attempt in September 2009.

[ 5 ] JLB testified to past ineffectual disclosure initiatives. JLB says that she disclosed to her father who died from a heart attack shortly following. She says that she disclosed to a deceased doctor when she was age 13/14, who instead of alerting the police or CAS contacted her aunt, BJ who attended and took JLB home without acknowledgement. She said that she placed her diary narrating the abuse in BJ’s clothing drawer and did not observe a reaction from her. She testified to an incident when BJ caught GJ in the act of assaulting her and observed that, in the end, she let it pass without apparent ramifications. She said that she narrated the abuse to her cousin DJ in a long letter delivered by hand in 1990 to which there was no response.

[ 6 ] JLB states that by December 2009, the culmination of the breakdown of her marriage and the conclusion that GJ assaulted her sister too, galvanized her resolve to take her complaint to the police.

[ 7 ] JLB contacted GJ in June 2010 and asked to visit him in his home, ostensibly to review family photographs and mementos. JLB carried an audio recording device in her purse for this visit which she activated surreptitiously. The recording is short, running two minutes and nine seconds.

[ 8 ] The content of the first half of the recording is innocuous. GJ explains why he doesn’t have pictures of JLB or other family mementos. The impugned passages begin at eighty-one seconds and are as follows:

[ 9 ] JLB asks if they can talk about something else. She then asks why did you molest me as a little girl. GJ responds with” I don’t know, I don’t know. You didn’t push me away. We can’t go back. I don’t know.”

[ 10 ] JLB goes on to advise him that she has been in therapy all these years and has nightmares. He responds with “Is that right?” She asks him again “Why did you do that to me?” to which GJ replies with “I don’t know. Just one of those things. It just happened. I don’t know.”

[ 11 ] JLB asked him if he ever touched LF and GJ states “No I never touched LF.”

[ 12 ] The Crown relies on the content of the audio recording as an out of court admission of guilt. JLB disclosed her complaint to the police approximately two months later in August 2010.

Defence application

[ 13 ] The accused challenges the admissibility of the recording on the following grounds:

[ 14 ] Firstly, under the Charter, s. 7, 8 and 24(2) citing completeness issues, unreasonable warrantless search in the home and breach of the accused’s security of person, and

[ 15 ] Secondly, he argues that the balance of probative value and prejudicial effect favours exclusion of the audio recording.

Analysis – Charter relief

[ 16 ] The preliminary issue for the Charter submission is whether JLB was performing in the role of agent of the state when she recorded the discussion. The following legal principles apply.

[ 17 ] Before an accused can seek to have evidence excluded under subsection 24(2), he first must establish on a balance of probabilities that his Charter rights have been infringed or denied by a state agent. Conduct of private individuals which would have been contrary to the Charter had they been acting on behalf of the state, will not amount to a Charter breach and cannot support a subsection 24(2) application.

[ 18 ] A surreptitious state agent participant recording in a person’s home without surveillance authority breaches s. 8 – R. v. Duarte, 1990 150 (SCC) , [1990] 1 S.C.R. 30.

[ 19 ] A private citizen will be acting as a state agent if their primary purpose in acting is to discover evidence with a view to criminal charges – R. v. Chang (2003), 2003 ABCA 293 () , 180 C.C.C. (3d) 330 (Alta. CA). In that case, the privately retained mall officer apprehended the accused and conducted a search that revealed a quantity of ecstasy. The court of appeal concluded that the trial judge erred in concluding that the mall security guard was acting as state agent. They concluded that the security guard’s responsibility for protecting mall property and well-being is analogous to that of a principal’s responsibility for enforcing school discipline – see R. v. M.(M.R.) (1998), 1998 770 (SCC) , 129 C.C.C. (3d) 361. Given that responsibility and the finding of no prior police contact specific to the case, the Alberta Court of Appeal determined that the security guard was not acting as an agent of the state when she inquired about the item in the respondent’s hands.

[ 20 ] In R. v. Broyles , 1991 15 (SCC) , [1991] 3 S.C.R. 595 at para. 24 Iacobucci J. set out the following test for determining whether a private person is acting as a state agent:

“... Only if the relationship between the informer and the state is such that the exchange between the informer and the accused is materially different from what it would have been had there been no such relationship should the informer be considered a state agent for the purposes of the exchange...Would the exchange between the accused and the informer have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents?”

Application of law to our circumstances

[ 21 ] JLB did not contact the police for two months after the recording. It cannot be said that she was taking overt instruction or direction from a state agent.

[ 22 ] Her purpose in the episode involved an amalgam of emotions and needs. Her marriage had recently ended and she described her mental health at the time as “destroyed”. She had recently learned that LF may have been victimized by GJ. From her perspective, there were legitimate issues for discussion in a face-to-face confrontation. She asked him why he molested her. She alerted him to the immutable harm that she attributes to the abuse. She needed to know if he had assaulted LF. She needed to know if he would take responsibility for what she says he did. She sought validation denied by BJ, DJ and the doctor.

[ 23 ] JLB acknowledged that she expected to go to the police with her complaint as early as Christmas 2009 and I don’t doubt that an admission of guilt was part of her thinking. I cannot conclude that her primary purpose was to discover evidence. The exchange between GJ and JLB was inevitable at some point in time and would have taken place as it did with or without a secondary evidentiary motivation.

Conclusion

[ 24 ] This was a private conversation between private citizens and the recording escapes Charter scrutiny under s. 7 and 8.

Common Law considerations of Probative value and Prejudicial effect

[ 25 ] I begin this segment of the reasons by narrowing the scope of my focus.

[ 26 ] Firstly, JLB was not a person in authority in the context of the confessions rule. GJ did not advance any evidence on the voir dire to suggest that he felt that JLB had control over proceedings. There is no evidence that JLB actually had control over the proceedings. The rule is generally not concerned with conversations between private citizens that might indicate guilt, as these conversations would not be influenced or affected by the coercive power of the state.

[ 27 ] Secondly, the balancing of value and prejudice articulated in Mathews v. Mathews 2007 BCSC 1825 explains the court’s sense of repugnance for surreptitious recordings in family court matters. Probative value is identified in context and what may bring significant probative value and minimal prejudice in one context may be turned on their heads in another.

[ 28 ] The following legal principles apply.

[ 29 ] The general rule is that relevant evidence is admissible. That rule is subject to limited discretion to exclude where the balance of probative value and prejudicial effect weighs too heavily on the side of prejudice. It does not involve application of the Charter per se. The court in Mathews identifies four areas of prejudice that are involved in the determination of the admissibility of surreptitious participant recordings as follows:

i. Prejudice to the party opposing the admission of the evidence. This mirrors the probative value enquiry. To the extent that the evidence is of uncertain provenance, is incomplete or capable of manipulation it will operate prejudicially;

ii. Prejudice to the trial process. In Seddon v. Seddon [1994] B.C.J. No. 1729 , the proponent asked the court to listen to twenty hours of recordings. In Rawleck v. Rawlek [2003] B.C.J. No. 2231 , the proponent asked the court to listen to recordings amassed over a period of three years comprising hundreds of hours of tape and the written transcript was heavily annotated;

iii. Prejudice to the reputation of the administration of justice that would arise by admission. This highlights the inherent unfairness when one party is unaware of the recording. It is particularly odious in family law disputes where conduct is statutorily discouraged as a basis for deciding property, support and child care disputes – these recordings are notorious for having little or no probative value. Experience suggests that once the raw emotion of the failed relationship passes it is in everyone’s best interests to maintain core trust. A child who learns of a parent’s recorded manipulation may never trust again. The prejudice is significant;

iv. Prejudice to the reputation of the administration of justice that would arise by exclusion. The court in Mathews posits that when highly reliable evidence showing active physical abuse of a young child is excluded it adversely affects the reputation of the administration of justice.

Discussion

[ 30 ] In this case, JLB testified and was cross examined on the provenance and context of the audio recording. She said that she has not edited, deleted or changed any section of the exhibit. She said that she and GJ talked about family members, deceased family and photographs. It is clear that GJ was actively engaged in the conversation and, after listening to it several times, it flows. The recording seems to be complete. JLB asks GJ if they can talk about something else and that is fine. JLB asks simple direct questions and GJ gives simple direct responses. The probative value is high. Manipulation prejudice is absent.

[ 31 ] The recording is short. It did not extend the trial process.

[ 32 ] The concern for the adverse effect on the reputation for the administration of justice that exclusion would bring outweighs the adverse effect that resort to surreptitious recording brings. In this context, I note that Mr. Justice Code in R. v. G.S . 2112 ONSC 203 considered the surreptitious recording of a conversation between the accused and complainant in similar circumstances to ours, to be the most important piece of evidence in the case – para. 231.

[ 33 ] The recording is admitted into evidence for the truth of its contents.

Justice Rick Leroy

Date: September 25 th , 2012