ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-02059G

DATE: 20131028

BETWEEN:

HER MAJESTY THE QUEEN

– and –

GREGORY CHARLES and CARL RENOUS

Defendants

Jeffery Pearson, Counsel for the Crown

James Miglin, Counsel for Gregory Charles

Douglas Usher, Counsel for Carl Renous

HEARD: October 24, 2013

RULING ON ADMISSIBILITY OF UTTERANCE

TO PROBATION OFFICER

Boswell J.

OVERVIEW:

[1] The trial of Gregory Charles and Carl Renous is to begin before a jury within minutes. The Crown alleges that the accused attempted to murder James Pierre in Vaughan on November 10, 2010 by beating him with a baseball bat and stabbing him. Identity is a central issue. Mr. Pierre was rushed to the hospital after the attack and for some time it appeared he may succumb to his injuries. He survived and identified the accused as his attackers.

[2] At the time of the alleged offence, Mr. Charles was on probation. On February 5, 2010 he was convicted of assault, assault causing bodily harm, threatening death and possession of a prohibited weapon. A suspended sentence was imposed and he was placed on two years’ probation. In the course of his interactions with his probation officer, he provided several different contact telephone numbers. One number was for a cell phone. York Region Police obtained the number from the probation officer. They then obtained a warrant that enabled them to track the usage of the cell phone on the night of the attack on Mr. Pierre. They allege that Mr. Charles’ cell phone records place him in the area of the attack at the relevant time and thereby furnish circumstantial evidence in support of identity.

[3] Mr. Charles seeks to exclude the evidence of his phone number. He is not seeking to exclude the phone records, but merely the evidence that the phone number is his. The phone was on a “pay as you go” plan and registered to a name other than Mr. Charles’. The Crown needs the evidence that Mr. Charles provided the phone number to his probation officer in order to connect him to the phone.

[4] Mr. Charles asserts that he was compelled to provide the phone number to his probation officer. Permitting its admission into trial evidence would, he says, infringe his right against self-incrimination. Moreover, he argues that his probation officer was a person in authority and that the provision of his phone number was not voluntary and its admission would offend the common law confessions rule.

ISSUES:

[5] The application raises the following issues for determination:

(a) Was Mr. Charles’ probation officer a “person in authority”?

(b) Was the cell phone number provided voluntarily by Mr. Charles to his probation officer or was it compelled?

(c) Would the admission into evidence of the phone number infringe Mr. Charles’ right not to incriminate himself?

[6] A brief review of the factual background is all that is necessary to put the issues into context.

FACTUAL BACKGROUND:

[7] Mr. Charles was convicted of a series of offences on February 5, 2010. He was in custody at the time of his conviction. A probation order was imposed which had the effect of releasing Mr. Charles from custody and placing him on two years’ probation. The probation order was signed and acknowledged by Mr. Charles. It contained a number of conditions, as these orders normally do, including the following:

(a) To notify the court or probation officer in advance of any change of name or address;

(b) To report forthwith in person to a probation officer as directed and, thereafter, be under the supervision of a probation officer…

[8] Mr. Charles attended immediately at the probation office located in the court house. He was asked a series of questions by a probation officer, who wrote his answers on a one page intake form. The form includes basic information including his name, his date of birth, his address, phone number, and emergency contact. He answered all questions asked of him because, he said, he understood it to be part of his probation obligations. He provided a home address of 35 Viking Lane, Toronto, and a home phone number of 647-343-1270. He said he had no cell phone at the time.

[9] Mr Charles was assigned to John Damba as his probation officer and he was directed to attend at Mr. Damba’s office on February 23, 2010.

[10] When he arrived at Mr. Damba’s office for the first time, Mr. Charles was instructed by a receptionist to complete an intake form. The intake form at Mr. Damba’s office was much more extensive, at six pages in length, than the one at the probation office in the court house. It sought information including Mr. Charles’ date of birth, his language, citizenship, country of birth, address, telephone number, employment, physical identifying features, his education, family details, leisure activities, substance abuse issues, health, and future plans.

[11] Mr. Charles completed only page one of six. He provided an additional contact address, being 6820 Tisserand, Brossard, Quebec and another phone number, 405-672-4918. He also noted that he lived with his girlfriend, Javeria Ghous, at the Viking Lane address in Toronto and he provided a phone number for her, 416-296-1620. Mr. Damba filled in additional parts of the form during his initial meeting with Mr. Charles.

[12] Mr. Damba testified, during an admissibility voir dire, that he seeks telephone contact information from probationers under his supervision for two reasons: (1) for ease of communication between his office and the probationer; and (2) for the use of the agencies they deal with, such as counselling for domestic violence, and for the police.

[13] Mr. Charles testified that he provided the contact information because, in his words, he felt like he was in a position where he had to. It had been explained to him that he had to comply with his probation conditions, including that he had to provide any changes in address. He said that in his mind all personal information, including his address and phone number, go together, and that he was compelled by his probation order to provide that information to his probation officer. He feared that if he did not do so, he would be in breach of his probation and at risk to return to jail.

[14] Mr. Damba could not recall what specifically he discussed with Mr. Charles about the limits on confidentiality of any information provided to him. He said his normal practice was to advise the probationer that he only shares information with agencies outlined in the regulations. In other words, information can only be provided to authorized agencies, or to parties the probationer has otherwise authorized. Mr. Charles’ recollection was that Mr. Damba told him everything said between them was confidential, but if Mr. Damba became aware that Mr. Charles had committed a further offence, he would have to report it to the police. He denied that Mr. Damba told him that any information provided by Mr. Charles could be shared with the police.

[15] Mr. Damba indicated, having refreshed his memory with his case notes, that on October 27, 2010, Mr. Charles left a voicemail message for him, leaving him a new contact number – a cell phone number, 647-980-0738. It is this cell phone number that is the subject matter of this application.

[16] Mr. Charles said he could not remember leaving that number in a voicemail message for Mr. Damba. He allowed that it was possible that he did so, but stated that if indeed he did, it was only because he had to, as he said, “follow the rules”.

[17] Mr. Damba’s evidence on the point of whether it was mandatory for a probationer to provide and update his phone number was not entirely consistent. He denied that he told Mr. Charles that he had to provide a phone number and confirmed that the probation order required only an up-to-date address. But he went on to say that if the probationer was attending counselling or other programs, the provision of a phone number was mandatory. Mr. Charles was attending a domestic violence program. He agreed with counsel’s suggestion that it was more than just a convenience – it was necessary.

[18] Under re-examination, Mr. Damba said that if a probationer changes his phone number, it’s not mandatory that the change be reported, but it is in the probationer’s interest that he report the change. He repeated his denial that he told Mr. Charles that he had to provide an up-to-date phone number.

[19] With that brief factual background in place, I turn to the issues raised on the application.

ANALYSIS:

Voluntariness

(a) Was Mr. Damba a “Person in Authority”?

[20] Statements made to persons in authority engage a unique feature of the law of evidence in Canada: the common law confessions rule compels the Crown to establish the voluntariness of such statements, beyond a reasonable doubt, as a prerequisite to admission.

[21] Concerns about false confessions, and the risk of convicting the innocent, are the justifications for the confessions rule. As Justice Iacobucci put it in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 32,

One of the predominant reasons for this concern is that involuntary confessions are more likely to be unreliable. The confessions rule should recognize which interrogation techniques commonly produce false confessions so as to avoid miscarriages of justice. (para. 32).

[22] Concerns about voluntariness are inextricably intertwined with concerns about reliability. Indeed, as Cory J. held in R. v. Hodgson, 1998 798 (SCC), [1998] 2 S.C.R. 449, the confessions rule is rooted in concerns about reliability. It also serves, however, as a deterrent on the use of coercive tactics.

[23] The common law confessions rule applies only to statements made to persons in authority: R. v. Hodgson, as above, R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27. Justice Abella observed in R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, at para. 35, that “the underlying rationale of the ‘person in authority’ analysis is to avoid the unfairness and unreliability of admitting statements made when the accused believes himself or herself to be under pressure from the uniquely coercive power of the state.”

[24] At issue in this case is whether Mr. Damba, as a probation officer, was a “person in authority”, such that the common law confession rule is engaged. Police officers and prison guards are automatically considered persons in authority by virtue of their status. Others, like parents, doctors, teachers, employers and, for that matter, probation officers, may be considered “persons in authority” depending on the circumstances of the case. The test to determine whether someone is a “person in authority” in the circumstances of the case includes both a subjective and objective element. As Abella J. held in Grandinetti, at paras. 37‑39,

37 In Hodgson, the Court delineated the process for assessing whether a confession should be admitted. First, there is an evidentiary burden on the accused to show that there is a valid issue for consideration about whether, when the accused made the confession, he or she believed that the person to whom it was made was a person in authority. A "person in authority" is generally someone engaged in the arrest, detention, interrogation or prosecution of the accused. The burden then shifts to the Crown to prove, beyond a reasonable doubt, either that the accused did not reasonably believe that the person to whom the confession was made was a person in authority, or, if he or she did so believe, that the statement was made voluntarily. The question of voluntariness is not relevant unless the threshold determination has been made that the confession was made to a "person in authority".

38 The test of who is a "person in authority" is largely subjective, focusing on the accused's perception of the person to whom he or she is making the statement. The operative question is whether the accused, based on his or her perception of the recipient's ability to influence the prosecution, believed either that refusing to make a statement to the person would result in prejudice, or that making one would result in favourable treatment.

39 There is also an objective element, namely, the reasonableness of the accused's belief that he or she is speaking to a person in authority. It is not enough, however, that an accused reasonably believe that a person can influence the course of the investigation or prosecution. As the trial judge correctly concluded:

[R]eason and common sense dictates that when the cases speak of a person in authority as one who is capable of controlling or influencing the course of the proceedings, it is from the perspective of someone who is involved in the investigation, the apprehension and prosecution of a criminal offence resulting in a conviction, an agent of the police or someone working in collaboration with the police. It does not include someone who seeks to sabotage the investigation or steer the investigation away from a suspect that the state is investigating.

(Alta. Q.B., No. 98032644C5, April 30 1999, at para. 56)

[25] In this instance, Mr. Charles testified that his subjective view was that Mr. Damba was a “person in authority”. He used that particular phrase a number of times in his testimony during the voir dire. But the phrase “person in authority” is a term of art for the purposes of the confessions rule. It is engaged when a person makes a statement to another in circumstances where he or she perceives that the recipient of the statement has an ability to influence a prosecution against him or her. I would interpret the concept of “prosecution” to include a wide variety of proceedings and investigations.

[26] While Mr. Charles used conclusory language in referring to Mr. Damba as a person in authority, he did not explain what particular characteristics about Mr. Damba led him to that conclusion. Here, there was no proceeding or investigation extant against Mr. Charles at the time that he provided his cell phone number to Mr. Damba. In my view, the absence of any such proceeding is determinative of the “person in authority” issue. Mr. Charles may have considered Mr. Damba to be an authority figure, as one might consider one’s teacher, employer or parent an authority figure. In the absence of a prosecution, investigation, or any other proceeding of any nature, however, Mr. Charles simply could not have considered Mr. Damba to be in a position to influence an investigation or proceeding against him. As such, I find that Mr. Damba was not a “person in authority” within the context of the confessions rule. The confessions rule is not engaged and the Crown is not required to establish the voluntariness of the statement beyond a reasonable doubt.

(b) Was the Cell Number Provided Voluntarily or Was it Compelled?

[27] I appreciate that reasonable people may differ about whether Mr. Damba had an ability to influence a proceeding against Mr. Charles. One might conclude, for instance, that because Mr. Damba had the ability to initiate a prosecution by informing the police of any breach of probation on Mr. Charles’ part, that he was a “person in authority” for purposes of the confessions rule. In the event I am wrong in my conclusion about the “person in authority” issue, I will consider whether the provision by Mr. Charles of his cell phone number was voluntary. I find that it was.

[28] The leading case on voluntariness remains the Supreme Court’s decision in R. v. Oickle, as above. Oikle directs that when assessing the voluntariness of a statement the court must examine and evaluate all of the circumstances surrounding the making of the statement including, but not limited to, the following factors: (1) threats; (2) promises; (3) oppression; (4) the requirement of an operating mind; and, (5) police trickery.

[29] None of the traditional voluntariness concerns, as identified in Oikle, apply in this case. The assertion, however, is that the provision of Mr. Charles’ cell phone number was compelled. A compelled statement could not be provided voluntarily, because it is not a true exercise of free will.

[30] Mr. Charles says he was compelled to provide his cell phone number. I disagree.

[31] The test for compulsion, like the “person in authority” test, involves both subjective and objective elements. First, it must be determined if the person asserting a compulsion honestly held the belief that he or she was required by law to make the statement. Secondly, it must be determined if that honestly held belief was reasonable.

[32] I accept that Mr. Charles likely did feel compelled to provide a contact phone number when he was in the probation office at the court house. He had been held in custody for some time. He was being released on probation and was told to comply with the supervision of the probation officer. He was asked a series of questions and answered them. I accept his evidence that he believed he had to answer the questions. I further accept that he believed he had to provide further contact information, including phone numbers, to Mr. Damba as part of the intake form that Mr. Damba’s office provided to him. I also find that his belief was reasonably held in all the circumstances.

[33] My findings in terms of the cell phone number in issue, however, are different.

[34] I find that the cell phone number was provided as part of a phone message from Mr. Charles to Mr. Damba on October 27, 2010. Mr. Charles could not recall leaving the message, but he said it was possible that he did. Mr. Damba’s case notes, which I find to be reliable, reflect that the number was provided by voicemail message.

[35] Though Mr. Charles could not recall providing the cell phone number at all, he said that if he did provided it, it would only have been because he believed he had to do so to comply with the rules of his probation. I do not accept that this was his honestly held belief and, if it was, I find that it was not reasonably held.

[36] Mr. Charles had already provided a home phone number for himself in Toronto, a further home/business number in Montreal, and a contact number for his girlfriend. The probation order was clear: he had to provide an up-to-date address only. Even if Mr. Charles honestly believed, as he suggested in his evidence, that he interpreted the word “address” to include a phone number, he had more than complied with his obligations. I am not satisfied that Mr. Damba told Mr. Charles that he was required to provide each and every contact phone number he had. In fact, there is no evidence to suggest that was the case. I have no evidence that the contact information otherwise provided had changed. The cell phone was simply an additional contact number.

[37] When Mr. Charles left his cell number as part of a voicemail message, he did so of his own volition, without compulsion, and in the absence of any physical, psychological, or emotional pressure.

[38] I am supported in my view by the principles underlying concerns about voluntariness: avoiding unreliable statements and deterring the use by the state of coercive tactics. Neither of these principles is engaged on the facts of this case.

[39] In my view, there is no basis to believe that even if a probationer were compelled to provide a contact phone number, that such compulsion is likely to lead to the provision of false or unreliable contact numbers. It is necessary, for the proper functioning of the supervisory relationship, that the probation officer and the probationer be able to contact one another. It is in both parties’ interests to have accurate contact information for each other.

[40] Moreover, there is nothing unfair or coercive about asking a probationer to provide contact information. The notion of curtailing potential state abuse is a non-factor in this situation.

[41] Defence counsel conceded that voluntariness was not the main thrust of his position. Mr. Charles’ principal argument is that admission of the phone number into evidence will offend his right against self-incrimination. I turn now to that issue.

(c) Self-Incrimination

[42] An overarching, fundamental principle in Canadian criminal law is the principle against self-incrimination. Other rules, such as the confessions rule and the right to silence emanate from it. And like the confessions rule, it has two key purposes, which are to protect against unreliable confessions and to protect against abuses of power by the state: R. v. White, 1999 689 (SCC), [1999] 2 S.C.R. 417, [1999] S.C. J. No. 28, 174 D.L.R. (4th) 111, 135 C.C.C. (3d) 257.

[43] The principle recognizes the sovereignty of the individual and embodies the idea that sovereign individuals should be left alone, absent justification, and not coerced or conscripted by the state to furnish self-defeating evidence. It does not, however, provide absolute protection for an accused against all uses of information compelled by the state: R. v. White, paras. 42‑45.

[44] As Iocabucci J. held in White, at para. 45, “[t]he principle against self-incrimination demands different things at different times, with the task in every case being to determine exactly what the principle demands, if anything, within the particular context in issue.”

[45] The principle against self-incrimination is part of the Constitution and is reflected in s. 7 of the Charter of Rights and Freedoms, which reads as follows:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[46] There is no question that there exists a real or imminent risk of deprivation of liberty for Mr. Charles in view of the allegations against him. Mr. Charles has the right not to be deprived of his liberty except in accordance with the principles of fundamental justice. It is necessary, of course, to identify the principles of fundamental justice in play. The right against self-incrimination is one, but there are others. One obvious one is the principle that, in the search for truth, all relevant evidence should be available to the trier of fact. The section 7 analysis is, in the result, a balancing of individual and societal interests. Sometimes, depending on the circumstances of the case, the principle against self-incrimination will weigh out over the legitimate interests of the state, as was the case in White, as above. Other times, the opposite is true: the factors supporting the search for truth outweigh those that support the individual’s right against self-incrimination, as was the case in R. v. Fitzpatrick, 1995 44 (SCC), [1995] 4 S.C.R. 154.

[47] In Fitzpatrick, La Forest J., identified four factors that a Court should consider in assessing whether admission of a compelled statement would violate the principles against self-incrimination. Those factors were endorsed and followed by Iocabucci J. in White. They are:

1. The existence of coercion;

2. An adversarial relationship creating a context of psychological and emotional pressure;

3. The real possibility of an unreliable confession; and

4. Abuse of power.

[48] It could not be said that the foregoing four factors are exhaustive, of course, because the overarching principle is that the Court must determine, in each specific case, what the principle against self-incrimination demands. Such a contextual approach can never be limited to any specific number of factors. That said, the four factors identified by Justice La Forest do provide a useful framework in which to assess whether the admission of evidence that Mr. Charles’ provided a particular cell phone number to Mr. Damba violates Mr. Charles’ right against self-incrimination. I will review them in turn.

1. Coercion by the State

[49] I have addressed this matter above in the context of the voluntariness issue. It is my view that Mr. Charles was not compelled to provide his cell phone number to Mr. Damba. I find that he did so freely, of his own volition. The numbers he provided on the intake forms one might reasonably conclude were compelled, in the circumstances as I have described them. But I reach a different conclusion with respect to the cell phone number, for the reasons I expressed.

[50] In my view, this is at most, a neutral factor in the analysis. It may indeed favour the admission of the evidence, given the lack of compulsion. The lack of compulsion distinguishes the case from White, or even Fitzpatrick, where information was provided to agents of the state by reason of statutory compulsion. Defence counsel drew an analogy to those cases by suggesting that the phone number was provided by compulsion of the probation order. That’s not factually accurate. The probation order requires Mr. Charles to provide up-to-date information about his residential address, not his phone number. It could not be argued that a successful prosecution could be brought for breach of the probation order by virtue of the failure to provide an up-to-date phone number. In any event, several up-to-date numbers had already been provided.

[51] I appreciate that the issue of compulsion involves both a subjective and objective assessment. In other words, did the accused have a reasonably held belief that he was compelled to provide his cell phone number? I have already found that he did not.

2. Adversarial Relationship

[52] On balance I conclude that the relationship between Mr. Charles and Mr. Damba is an adversarial one. It’s certainly not a partnership as was the case in Fitzpatrick, where the accused and the state were engaged in a collective effort aimed at maintaining fish stocks. It is not adversarial in the same way that an accused and investigating police officer are in an adversarial relationship, particularly where an accused is detained. Still, the probation officer is an agent of the state who supervises the somewhat restricted freedom of the offender. One could never reasonably describe the relationship as a “consensual” one.

[53] At the same time, I would not describe the adversarial nature of the relationship as creating a context where there is psychological or emotional pressure on the accused. At the time the cell phone number was provided, Mr. Charles was under no psychological or emotional pressure.

[54] Ultimately, though I would describe the relationship as adversarial, it remains a relatively neutral factor in the analysis.

3. Unreliable Confessions

[55] The provision of a contact phone number to a probation officer cannot properly be characterized as a “confession” for the purposes of the common law confessions rule. I have already found that the principles underlying the confessions rule are not reasonably engaged in this case.

[56] Even if probationers know that their phone numbers may be shared with the police or used in evidence at court, there is an extremely minimal prospect that false numbers will be generated.

4. Abuse of Power

[57] In my view, permitting the use of a contact phone number provided to a probation officer, as evidence in a criminal proceeding against that probationer, would not in any way increase the likelihood of abuse by state agents.

[58] Mr. Charles testified that he viewed Mr. Damba as a person in authority. He connected Mr. Damba to the courts and police; to the administration of justice generally. In the circumstances, he would have had a minimal expectation of privacy in his phone number. The phone number itself does not go to the core of information that reveals personal details about an individual. Mr. Charles’ counsel submitted that cell phones are akin to computers and contain a great deal of personal information. His observation is accurate, but this case does not involve a warrantless search of a cell phone. It involves merely identifying a cell phone number as belonging to a phone used by the accused.

[59] This is not a case like R. v. Morgan, [1997] O. J. No. 5475, where a parole officer used his position to question a suspect about a missing person. There, the trial judge found that the parole officer was acting hand in hand with police. The accused there was bound to answer the questions of his parole officer, but not of the police. To allow the statements made to the parole officer into evidence would be to allow that which was done indirectly which could not be done directly.

[60] The exchange of contact information is necessary for the proper functioning of the probation system. It appears to be standard practice to obtain basic contact information from probationers. One would expect no less. There is nothing improper about that practice. Admitting into evidence that contact information will not encourage probation officers to act in an abusive fashion in the future. It will not open the floodgates to more intrusive and/or inappropriate questioning by probation officers.

[61] Based on the contextual factors I have referenced, it is my view that the principle against self-incrimination is not strongly brought into play in this instance. It must still be balanced against other principles of fundament jus