ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 10-A13908
DATE: 20140320
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
MARIA OCSKO
Applicant
Walter Devenz, for the Crown
Mitchell Rowe, for the Applicant
HEARD: By written submissions
DECISION ON VOIR DIRE ON ADMISSIBILITY OF
THE STATEMENT GIVEN TO AN ELIGIBILITY REVIEW OFFICER
R. SMITH J.
Voluntariness
[1] The issues to be decided on this voir dire are firstly whether a statement made by the applicant Ms. Ocsko, a.k.a. Ms. Bieber to Ms. Hargreaves, an Eligibility Review Officer under the Disability Support Program Act (“DSPA”), were voluntary, and secondly whether the statement was compelled and therefore constituted a breach of the accused’s section 7 rights under the Charter of Rights and Freedoms (“the Charter”).
[2] Voluntariness has several components. To be voluntary, a statement made to a person in authority must be made with an operating mind and be made without fear of prejudice or hope of advantage.
Person in Authority
[3] The defence has the evidentiary burden of showing that whether Ms. Hargreaves was a person in authority is a valid issue for consideration, and I am satisfied this burden has been met. The Crown then has the burden of demonstrating beyond a reasonable doubt that the receiver of the statement, Ms. Hargreaves, was not a person in authority (R. v. Hodgson, 1998 798 (SCC), [1998] 2 S.C.R. 449, [1998] S.C.J. No. 66). The rule is based on two important concepts: a) firstly, the need to ensure reliability of the statement and to guard against improper coercion by the state, and b) secondly, that the admission not be obtained by threats or inducements.
[4] At para. 48 of Hodgson, the Supreme Court stated that the term ‘person in authority’ “… typically refers to those formally engaged in the arrest, detention, examination or prosecution of the accused. Thus it would apply to persons such as police officers and prison officials or guards.”
[5] In this case, Ms. Hargreaves was not a police officer or a prison guard but rather an Eligibility Review Officer (“ERO”) under the Disability Support Program Act. Under section 46 of the DSPA, an ERO may investigate a person’s past or present eligibility for benefits and has the authority to apply for a search warrant.
[6] Section 45(3) of the DSPA states that persons engaged in investigations such as Ms. Hargreaves shall be deemed to be engaged in law enforcement for the purpose of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, and the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56.
[7] Sections 45 and 46 of the DSPA authorize an ERO such as Ms. Hargreaves to investigate a person’s past or present eligibility for payments under the Act, and for purposes of freedom of information and privacy issues she is deemed to be engaged in law enforcement and she may apply for a search warrant.
[8] However, Ms. Hargreaves did not have power to arrest a recipient of benefits under the DSPA, and was not acting on behalf of the police and did not have control over any criminal proceedings against the applicant, as no criminal proceedings were contemplated at this time. At the end of her investigation, Ms. Hargreaves could make a recommendation that the file be referred for review by the police authorities.
[9] Ms. Hargreaves testified that her objective at the outset was to see if there was something that would affect the applicant’s eligibility to receive the benefits she had received. Ms. Hargreaves had received two complaints stating that Ms. Bieber owned a commercial condominium unit on Bank Street. As part of her investigation Ms. Hargreaves testified that she would have accessed Ms. Bieber’s prior income tax returns, T‑4’s and T‑5’s, checked the address and land registry office, and conducted a credit check. She then wrote a letter to the recipient asking her to come in for an interview related to her eligibility to receive ongoing income support, because she had received information that the applicant owned a condominium at 2019 Bank Street. This letter was dated May 15, 2007.
[10] Ms. Bieber arranged an appointment and met with Ms. Hargreaves on May 28, 2007. Ms. Hargreaves made detailed notes of the meeting including recording a number of exact quotes where salient statements were made. These notes were made immediately after the meeting.
[11] Ms. Hargreaves testified that she had no notion of police involvement when she started her inquiry, as she was only seeking information related to Ms. Bieber’s eligibility to receive benefits under the Act. The condominium on Bank Street was registered in the name of Maria Hodi and not in the name of Marie Bieber.
[12] Ms. Hargreaves testified that if a recipient refused to co‑operate, then her benefits would be suspended but she would not involve the police.
[13] Ms. Hargreaves testified that the meeting took place at their offices either on Rideau Street or on Preston Street. She testified that Ms. Bieber had no language problems and this was confirmed by Ms. Bieber’s own evidence where she agreed she spoke good English and had no obvious mental health disability.
[14] Ms. Hargreaves testified that her “antennae were up,” indicating that she was suspicious of whether Ms. Bieber owned the condominium because different names had been used. She testified that she had suspicions about Ms. Bieber’s eligibility. I find that Ms. Hargreaves’ evidence does not indicate that she believed Ms. Bieber was a suspect in a criminal investigation. Rather, I find that she was suspicious that Ms. Bieber may not have been eligible to receive ODSP benefits, if she owned the condominium on Bank Street, which she had not declared on her application for benefits.
[15] Ms. Hargreaves did not give Ms. Bieber any caution before conducting the interview but she had advised her by letter that she was looking into her past and ongoing eligibility for benefits because she had received information that Ms. Bieber owned the condominium at 2019 Bank Street.
[16] Ms. Bieber testified that she did not recall much about the interview and believed it was just one of the regular interviews that she had each year at the ODSP office. The only difference that she observed was that Ms. Hargreaves left the interview on several occasions and she testified she believed that they might lock the doors and she would not be able to get out. Ms. Bieber testified she always thought Ms. Hargreaves would return with the police when she re‑entered the room. Ms. Bieber testified that the questions were the same as in previous interviews, and that she was asked about her income and if there had been any change in her financial situation.
[17] Ms. Bieber testified that the interview lasted for over one hour and that the interview room was small and dark.
[18] Ms. Bieber agreed that she spoke good English but in cross‑examination testified that she was worried about being arrested because she was left in the small room by herself during the interview. She said she had this belief because she had not been left alone in previous interviews.
[19] Ms. Bieber testified that she understood she had to co‑operate with ODSP in order to continue to receive payments. However, she testified she believed that ODSP was connected to the police. She testified she feels the police are around and above and always watching her movements.
Did the Applicant Reasonably Believe that Ms. Hargreaves was a Person in Authority?
[20] I am satisfied that the applicant has met her onus of demonstrating that there is a valid issue for consideration. The onus then shifts to the Crown to demonstrate beyond a reasonable doubt that the receiver of the statement was not a person in authority, and if he or she was a person in authority, that the statement was made voluntarily.
[21] At para. 48(4) of Hodgson the Supreme Court stated as follows: “Those persons whom the accused reasonably believes are acting on behalf of the police or prosecuting authorities and could therefore influence or control the proceedings against him or her may also be persons in authority.”
[22] When Ms. Hargreaves wrote her letter to Ms. Bieber requesting an interview, and when Ms. Bieber made statements to Ms. Hargreaves during the interview, there was no police involvement and no criminal investigation had been commenced. Ms. Hargreaves was not conducting the interview on behalf of the police or prosecuting authorities. At the time of the interview on May 28, 2007, Ms. Hargreaves was investigating whether Ms. Bieber was eligible to receive benefits in the past and on an ongoing basis due to information she had received that she owned a condominium on Bank Street.
[23] Ms. Bieber’s evidence was that the interview was similar to the previous annual interviews to inquire into her continued eligibility for ODSP benefits.
[24] Ms. Bieber did not testify that she believed Ms. Hargreaves was acting on behalf of the police but testified that she thought the police might come in and arrest her because Ms. Hargreaves left the interview on several occasions. She also testified that she believed the police were all around and above her and were always watching her.
[25] Ms. Bieber did not offer any reasons for her belief that Ms. Hargreaves might return with the police, other than the fact that she left the room several times during the interview. She did not specifically state that she believed Ms. Hargreaves was conducting the interview on behalf of the police but I infer from her evidence that she believed Ms. Hargreaves would return with the police to arrest her.
[26] Ms. Hargreaves has no power to arrest or detain anyone and did not wear a uniform or badge. The interview was at the ODSP offices either on Rideau or Preston Street. She testified that, at the end of her investigation into Ms. Bieber’s eligibility, she would make a recommendation on whether to refer the file to the police to her manager, who would decide whether they would refer the matter for a criminal investigation.
[27] While Ms. Bieber testified that she believed that Ms. Hargreaves might return with the police to arrest her because she left the interview room, I find that this does not constitute a reasonable basis for that belief or for a belief that Ms. Hargreaves was acting on behalf of the police. There is an absence of any evidence on which Ms. Bieber could reasonably believe that Ms. Hargreaves could influence or control the criminal proceedings against her. At the point of the interview there were no criminal proceedings being taken against Ms. Bieber and no reasonable basis for Ms. Bieber believing that any criminal proceedings had been commenced against her.
[28] For the above reasons I find that the Crown has met its onus of showing beyond a reasonable doubt that Ms. Bieber did not reasonably believe that Ms. Hargreaves was acting on behalf of the police or that she could influence or control the criminal proceedings against her at the time of the interview.
If Ms. Hargreaves Was a Person in Authority, Were Ms. Bieber’s Statements Made Voluntarily?
[29] I accept Ms. Hargreaves’ evidence that she did not make any promises or threats to Ms. Bieber. As a result, I find the statements made by Ms. Bieber during her interview with Ms. Hargreaves were made without “fear of prejudice or hope of advantage.”
[30] I find that there was no coercion or inducement offered. In fact at this point in her investigation Ms. Hargreaves was still conducting an administrative inquiry. As a result I find that the statement given by Ms. Bieber was given voluntarily.
Were Ms. Bieber’s Section 7 Charter Rights against Self‑Incrimination Breached in the Case?
[31] The case of R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757, [2002] S.C.J. No. 76, involved an investigation under the provisions of the Income Tax Act. In Jarvis the Supreme Court stated that when the predominant purpose of an inquiry or question is the determination of penal liability, then all Charter protections that are relevant, as in the criminal context, apply. Whether an inquiry is in furtherance of an audit or a penal investigation is a question of mixed fact and law.
[32] In this case, Ms. Hargreaves was not involved in a penal investigation and only conducted the interview in order to investigate Ms. Bieber’s continued eligibility for benefits under the DSPA. Her investigation at that time was part of an administrative function as opposed to a penal function.
[33] In fact, Ms. Hargreaves sent the applicant a second letter dated August 24, 2007 with additional requests for information after she had conducted further investigations. She did not complete her report until sometime in September of 2007 and the file was referred to the police in November of 2007 by her manager. The police only commenced a criminal investigation some three years later in 2010.
[34] Under the Income Tax Act taxpayers are obliged to estimate their annual income and to disclose this estimate to CCRA. At para. 64 of Jarvis the taxpayer argued that “the admission into evidence in tax evasion proceedings of statements and documents that were compelled by Revenue Canada officials … was a violation of his rights under sections 7 and 8 of the Charter.”
[35] At para. 68 in Jarvis the Supreme Court stated: “…however, section 7 does not envelop an abstract and absolute rule that would prevent the use of information in all contexts in which it is statutorily compelled...”
[36] In Jarvis, the Supreme Court discussed the bounds between the ITA audit and penal investigation, and discussed the legal consequences. At para. 88 of Jarvis Iacobucci and Major JJ. stated as follows:
In our view, where the predominant purpose of a particular inquiry is the determination of penal liability, CCRA officials must relinquish the authority to use the inspection and requirement powers under ss. 231.1(1) and 231.2(1). In essence, officials “cross the Rubicon” when the inquiry in question engages the adversarial relationship between the taxpayer and the state.
[37] At para. 90 in Jarvis the Supreme Court stated: “All the more, the test cannot be set at the level of mere suspicion that an offence has occurred.”
[38] In this case, considering the relevant factors in context, I find as follows:
(a) While Ms. Hargreaves had a suspicion that Ms. Bieber might not continue to be entitled to benefits or may not have been entitled to receive benefits in the past, she was not conducting a penal investigation but rather an administrative function to determine her eligibility to receive ODSP benefits.
(b) Ms. Hargreaves’ conduct was not consistent with the pursuit of a criminal investigation as she had not yet determined whether Ms. Bieber was eligible to receive benefits. Her manager only recommended that the file be forwarded to the police to conduct a criminal investigation in November of 2007, some six months after the interview was held.
(c) Ms. Hargreaves had no authority and did not have reasonable and probable grounds to lay a criminal charge. She could only make a recommendation to her manager, after completing her eligibility investigation, that the file be sent to the police to conduct a criminal investigation.
(d) Ms. Hargreaves had not completed her report, had not recommended that a criminal investigation be conducted, or transferred the file to the police when the interview was conducted.
(e) There was no evidence that Ms. Hargreaves was effectively acting as an agent for the police investigation which was commenced three years later.
(f) There was no evidence that the police had any knowledge of the facts of this case and they could not have intended to use Ms. Hargreaves as their agent to collect evidence. A criminal investigation was not started until three years later.
(g) The evidence sought by Ms. Hargreaves related to Ms. Bieber’s eligibility to receive benefits both in the past and in the future due to her alleged ownership of a condominium unit. Ms. Hargreaves was inquiring to determine if Ms. Bieber in fact owned the condominium which was registered in the name of Miriam Hodi and not in the name of the applicant.
(h) There are no facts to indicate that a criminal investigation had been commenced by Ms. Hargreaves.
Disposition of the Person in Authority Issue
[39] I find that the Crown has met its onus of showing beyond a reasonable doubt that Ms. Bieber did not have a reasonable basis for her belief that Ms. Hargreaves was acting on behalf of the police or that she could influence or control the criminal proceedings against her, and therefore that Ms. Hargreaves was not a person in authority.
[40] If I am mistaken in concluding that Ms. Hargreaves was not a person in authority, I find that the statements made to Ms. Hargreaves in the interview on May 28, 2007 were made voluntarily as they were made without any coercion or inducement and were made without “fear of prejudice” or hope of advancement.
Disposition Regarding Breach of section 7 Charter Rights
[41] I conclude that when Ms. Hargreaves conducted the interview with Ms. Bieber she had not “crossed the Rubicon” and was not engaged in a determination of penal liability of Ms. Bieber, and as a result in a subsequent criminal investigation the police can avail themselves of the information obtained by Ms. Hargreaves before the criminal investigation commenced. I further find that Ms. Bieber’s section 7 Charter rights were not breached by Ms. Hargreaves’ administrative investigation when she conducted the interview on May 28, 2007 into the applicant’s eligibility to receive benefits under the DSPA.
The Honourable Mr. Justice Robert J. Smith
Released: March 20, 2014
COURT FILE NO.: 10-A13908
DATE: 20140320
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
MARIA OCSKO
Applicant
decision on voir dire oN ADMISSIBILITY OF THE statement GIVEN TO AN ELIGIBILITY REVIEW OFFICER
R. Smith J.
Released: March 20, 2014