Her Majesty the Queen v. Wilson, 2015 ONSC 5831
CITATION: Her Majesty the Queen v. Wilson, 2015 ONSC 5831
COURT FILE NO.: 14-4489
DATE: 2015-10-02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RICHARD WILSON
COUNSEL:
Janet Booy, for the Crown
Scott Reid, for the Defendant, Richard Wilson
HEARD: September 15 and 17, 2015
Judgment
Overview
[1] Richard Wilson (the accused) was an employee of the Bank of Nova Scotia (the bank) at a branch in the City of Hamilton. He had access to identifying information of bank customers. The crown alleges that he provided that information to non-bank employees. They used the information to defraud the banks’ customers of over $500,000 for which the bank is liable. He is charged with fraud over $5,000 and distributing identity information of bank customers, being reckless whether the information would be used to commit the offence of fraud over $5,000. The crown brings an application in a voir dire that the statement of the accused on May 24, 2012 to three bank employees be admitted into evidence at his trial. On September 17, 2015 after hearing evidence I made an oral ruling that the statement be admitted at the trial and reserved my right to provide written reasons. These are my reasons.
The Facts
[2] The accused had been employed by the bank for five years as a mortgage underwriting clerk. His function was to verify that conditions imposed by the bank for the granting of mortgages to customers had been met. He had access to identifying information of customers through bank computers. When he accessed the identifying information of a customer, a program on the bank computer recorded this.
[3] The police arrested three persons in Calgary for fraud. In their possession were documents with identifying information of bank customers which the bank was able to determine that the accused had accessed using bank computers. These individuals had defrauded the individuals whose identifying information they possessed.
[4] The accused had been absent from his employment for about two months by reason of illness. On May 24, 2012 Helen Baptista, Director of employee relations at the bank asked him to come into the branch where he worked. Present there to interview him were Helen Baptista and David Russell and Kenneth Davidson from the Security and Investigation department (the interviewers) of the bank. Kenneth Davidson was a former RCMP officer with 21 years’ experience. He had worked for the bank in Security and Investigation for seven years. Because the activity of which the accused was suspected was criminal in nature it was agreed that Mr. Davidson would take the lead in interviewing him. They audiotaped the interview. A transcript was made of the interview. The audio tape was played at the voir dire in the presence of the three interviewers. Each of them testified. The accused also testified.
[5] Mr. Davidson was certain that the accused had accessed identifying information of customers which he provided to non-bank persons who were not entitled to have it. He told the accused this. The accused at first denied doing it. When Mr. Davidson told him that the police found documents identifying bank customers that he had accessed in the possession of three men whom they had arrested in Calgary he had no explanation as to how this could have happened. Ms. Baptista advised him that the “Guidelines For Business Conduct” of the bank required that he be honest and forthcoming.
[6] Mr. Davidson told him that in his experience bank employees sometimes engaged in this kind of conduct because of personal problems. The accused said that he was suffering from depression. He later said that he had cancer. The interview lasted about one hour. At p. 30 of a 75 page transcript, which would be slightly less than half way through the interview, the accused conceded that he had given identifying information of bank customers to his girlfriend. He did this because his girlfriend said that she was being threatened. The people who were threatening her knew of her relationship with a bank employee who would have access to this kind of information. Giving her the documents would assist her in dealing with the people who were threatening her. He had broken up with his girlfriend about three weeks before the interview although he still cared for her. He at first refused to disclose her name. The interview ended and the audio recorder was shut off. The accused then asked that it be turned back on. While it was off Mr. Davidson likely suggested to the accused that he gave the documents to Nigerians who were involved in a fraudulent scheme. When the tape was turned back on the accused disclosed the name of his girlfriend to whom he had given the documents. He claimed to be unable to give any information by which she could be located.
[7] The accused’s father had been employed by the bank and had done the same kind of work as Mr. Davidson. At p. 58 of the interview a dialogue took place as follows:
Ken Davidson: Okay. Um, did you ever tell anybody outside of work that you did or could do this?
Richard Wilson: No, no. This is not something … I knew what it meant.
[8] At p. 63 of the transcript the accused confirms with Ms. Baptista that he was intending to come back to work. He then says “That’s obviously not happening”. Ms. Baptista then informs him that he is suspended with pay. At the end of the interview the bank manager escorted him out of the bank. About 3 weeks later the bank terminated his employment.
[9] At p. 68 of the transcript he apologizes for not being forthcoming at the start of the interview. He says that this was because of “self-preservation”. On the same page he says that “I’m sorry, its pathetic.”
[10] Mr. Davidson made a recommendation to the Business Lines Department that they report the investigation of the accused by the bank to the Hamilton police including the statement that the interviewers obtained from him and ask that criminal charges be laid against him. They did this and the Hamilton police laid the charges before the court.
Discussion
[11] Statements made by an accused against interest that are probative of his guilt are admissible against him. If the statement is made to a person as a result of threats or violence it will still be admissible but little weight may be attached to it. If the statement is made to persons in authority the Crown must prove in a voir dire that the accused made the statement voluntarily. Where the Crown seeks to have a statement of an accused introduced into evidence against him the first question is whether the statement was made to persons in authority. The onus is on the accused to satisfy the court that there is an evidential basis from which the court could determine that the persons to whom he gave the statement are persons in authority. Anyone who an accused believes on reasonable grounds could influence the conduct of criminal proceedings against him will be found by the courts to be a person in authority. Once the accused has done this, the court must hold a voir dire to determine if the persons to whom the accused gave the statement are persons in authority and if they are whether the accused gave the statement voluntarily. The onus is on the Crown to establish these two factors beyond a reasonable doubt. (R. v. Hodgson, 1998 SCC, [1998] SCJ No. 66, paras. 30-39)
[12] The accused had worked for the bank for five years as a mortgage underwriting clerk. His father had a position at the bank similar to Mr. Davidson. He would know the procedure – the investigators refer the matter to business lines with a recommendation that they refer the matter to the police. Business lines then refer the matter to the police and asks that criminal charges be laid. Clearly the accused knew that his interviewers and in particular Mr. Davidson could influence the proceedings against him. The interviewers were persons in authority. The Crown concedes this. The issue then becomes whether the Crown has proved that the accused gave the statement voluntarily.
[13] In R. v. White, 1999 SCC, [1999] SCJ No. 66 the accused was involved in a single car accident. There were no witnesses to the accident. The day after the accident she gave a statement to the police reporting the accident as she was required to do by the BC Motor Vehicle Act. The issue was whether the Crown could use this statement to prove that she was the driver of the car in a charge of failing to stop at the scene of an accident under the Criminal Code. The Supreme Court of Canada in the judgment of Justice Iacobucci held that the statement was inadmissible against her because it was given by reason of statutory compulsion and hence violated her right against self-incrimination guaranteed by s. 7 of the Charter. It must be excluded from the trial pursuant to s. 24(1) of the Charter as the “appropriate and just” remedy.
[14] The accused submits that he gave a statement to his interviewers because he was required to do so by the Guidelines for Business Conduct (the Guidelines) issued by the bank which governed his conduct in the workplace. He did so because if he was not honest and forthcoming he could lose his job. He argues that the situation is analogous to White.
[15] In this case the accused did not bring a motion pursuant to the Charter as the accused did in White. He would have no grounds to do so. Even if he did speak with the interviewers because of the requirements of the Guidelines he would not have been making a statement under statutory compulsion which would violate his right against self-incrimination. At most it could be a factor in consideration of whether the statement was made voluntarily.
[16] His continued employment with the bank after the bank realized what he had done was impossible. The disclosure by an employee of the identifying information of customers to non-bank employees to be used by them to defraud the customers for whom the bank was responsible obviously required the termination of that employee’s employment. Such conduct is inimical to the duty of the bank to its customers and is totally destructive of the bank’s reputation. The accused realized this. A dialogue took place in his cross examination by Ms. Buoy as follows:
Q. ...you are being asked questions and these MIMS documents are put right in front of your face and saying look you printed these, they were found in a Calgary scheme?
A. Yes.
Q. Right?
A. Yes.
Q. Okay. You knew at that point you knew you were caught?
A. Yes.
Q. Okay. So you knew whether you answered any questions or not you were pretty much done for cause - they had the evidence, right?
A. I knew my job was done for, yes.
[17] The evidence is that the accused cooperated ultimately with the interviewers because he wanted to mitigate his guilt. He says so in his own words. He said that he did not tell anyone on the outside because he “knew what it meant” i.e. the seriousness of what he had done. Immediately before Ms. Baptista suspended him without pay he said regarding his returning to work “That’s obviously not happening”. He later said that he initially denied what he had done out of “self-preservation” and he apologizes for doing so. He then states that his situation was “pathetic”.
[18] The accused knew that he had a choice as to whether to give a statement as required by R. v. Hebert, 1990 SCC, [1990] 2 S.C.R. 151 and R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405. He gave a statement to the interviewers to mitigate his obvious guilt.
[19] Mr. Davidson made no promise or threats to the accused. He did not engage in trickery. The accused clearly had an operating mind. The approach of Mr. Davidson in questioning the accused is that the bank had overwhelming evidence of his guilt. He wanted to know how and why he did it. It was in his interest to tell him. This was all true. Mr. Davidson was persistent, determined and firm. However he did not overbear the will of the accused. In R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 the Supreme Court of Canada said in the judgment of Justice Iacobucci the following:
57 In summary, courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession. Few suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interests to confess. This becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne. On this point I found the following passage from R. v. Rennie (1981), 74 Cr. App. R. 207 (C.A.), at p. 212, particularly apt:
Very few confessions are inspired solely by remorse. Often the motives of an accused are mixed and include a hope that an early admission may lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such a motive, even if promoted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible. This is not the law. In some cases the hope may be self-generated. If so, it is irrelevant, even if it provides the dominant motive for making the confession. In such a case the [page38] confession will not have been obtained by anything said or done by a person in authority. More commonly the presence of such a hope will, in part at least, owe its origin to something said or done by such a person. There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur that they might be able to bring both their interrogation and their detention to an earlier end by confession.
The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise.
There was no quid pro quo offered by the interviewers to Mr. Wilson in return for his confession.
Result
[20] The statement will be admitted into evidence.
“Justice P. B. Hambly”
Hambly, J.
Released: October 2, 2015
CITATION: Her Majesty the Queen v. Wilson, 2015 ONSC 5831
COURT FILE NO.: 14-4489
DATE: 2015-10-02
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
RICHARD WILSON
REASONS FOR JUDGMENT
PBH
Released: October 2, 2015