CITATION: R. v. Kotchetova, 2016 ONSC 7356

COURT FILE NO.: CR-14-90000301-0000

DATE: 20161128

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Mindy Caterina, for the Crown

Respondent

• and -

EVGUENIA KOTCHETOVA

Ernst Ashurov, for the Defendant/Applicant

Defendant/Applicant

HEARD: October 24-28, 2014, at Toronto, Ontario

Michael G. Quigley J.

Reasons for Ruling

Re: “Person in Authority” and Voluntariness of Statement

[1]

Introduction

On March 20, 2013, Evguenia Kotchetova was charged with two counts of fraud over $5,000 and three counts of uttering forged documents, contrary to ss. 380(1)(a) and 368(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46, respectively, and also of refusing or neglecting to answer fully and truthfully questions that were asked of her, contrary to s. 198(1)(b) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (the “BIA”).

2Ms. Kotchetova challenges proceedings in this case, alleging abuse of process, contrary to s. 7 of the Canadian Charter of Rights and Freedoms. Alternatively, she seeks an order quashing the production orders that were granted by Justice of the Peace Douglas W. Clark on August 9, 2012, and excluding any evidence obtained in execution of those orders as well as the exclusion of testimony that she gave in the course of her bankruptcy proceedings, and any evidence derived therefrom. She seeks the exclusion of that evidence based on an alleged infringement of ss. 7, 8, 11(c), 11(d), and 13 of the Charter.

3These charges arose out of a personal Assignment into Bankruptcy made by Ms. Kotchetova in September 2011, and an RCMP investigation that was commenced into that bankruptcy later in April 2012. The police investigation was commenced on the recommendation of the Superintendent of Bankruptcy. The Superintendent recommended that investigation into Ms. Kotchetova’s bankruptcy, based upon the Report of the Official Receiver who had been assigned to Ms. Kotchetova’s assignment in bankruptcy. That Official Receiver was Ms. Terry Maue. She made her report following the examination of Ms. Kotchetova on January 19, 2012, under s. 161 of the BIA.

4The Official Receiver’s report referred to the responses Ms. Kotchetova gave at her examination, leading the Official Receiver to conclude, based on the available information, that the bankrupt may have committed offences under ss. 198(1)(e) and 198(1)(g) of the BIA. Based on that report, the Assistant Superintendent, Debtor Compliance, in the Office of the Superintendent of Bankruptcy,decided on April 23, 2012, to refer Ms. Kotchetova’s bankruptcy and the conduct that led to her assignment into bankruptcy for investigation by the RCMP. That investigation gave rise to these charges.

5On her trial, Ms. Kotchetova elected to be tried by Judge alone. I agreed at the outset that a voir dire was required to look into the voluntariness and consequential admissibility of the statement she provided at that examination. The evidence relating to that question and other alleged Charter violations was heard on a blended basis along with the trial evidence. At the conclusion of the voir dire, I heard arguments and then gave my ruling on voluntariness the next morning.

6After giving that ruling from the bench, counsel asked for a recess and at the end of that recess, after consulting with McMahon J. in a mid-trial JPT, a resolution was reached. Ms. Kotchetova entered pleas of guilty to certain charges, others were withdrawn, and she was sentenced in accordance with the joint submission made by counsel. That result might have relieved me of the need to write this ruling, but I have prepared it nevertheless for two reasons. First, Ms. Kotchetova has a right to know the reasons I reached the decision I did, namely, that her statement was voluntary. But as well, since neither counsel were able to find any case law across Canada that had considered a claim that an Official Receiver in a Bankruptcy proceeding might be a “person in authority” within the meaning of the confessions rule, I thought it appropriate to record the reasons for my ruling should the question arise again in the future.

Analytical Framework

7The BIA is the main legislative framework within which this analysis takes place relative to the voluntariness of the statements provided by Ms. Kotchetova to the Official Receiver in the course of her examination under s. 161 of the BIA.

8As the Supreme Court concluded in Husky Oil Operations Ltd. v. Minister of National Revenue¹, the BIA has two purposes: first, to ensure the equitable distribution of a bankrupt debtor’s assets and secondly, to allow the financial rehabilitation of insolvent individuals. The legislation contemplates two alternative routes whereby a debtor may become bankrupt. A debtor may either voluntarily declare bankruptcy, or alternatively, a creditor may petition the debtor into bankruptcy proceedings. In either event, the BIA provides a comprehensive scheme for the discovery, assessment, and disbursement of the debtor’s assets, including the power to compel the attendance of the debtor and other persons to provide evidence under oath.

9In this case, Ms. Kotchetova voluntarily declared bankruptcy. She claimed in her evidence on the voir dire that her bankruptcy was not voluntary, but the evidence plainly shows that she made a voluntary assignment into bankruptcy, even if there may be some element of truth to the assertion that she, like other debtors who find themselves in a position of insolvency, may have little choice but to make a voluntary assignment to avoid being petitioned into bankruptcy or simply being sued and subjected to forfeiture or collection proceedings by unsatisfied creditors. As part of the bankruptcy protection regime, the bankrupt is required to disclose under oath all of their assets, liabilities and income sources, may be required under s. 161 of the BIA to attend an examination before the Official Receiver to answer questions relative to their financial affairs, and may be charged if they are believed to have misrepresented their affairs or provided false information or otherwise conducted themselves in a manner that engages the offence provisions set out in s. 168 of the BIA. Nevertheless, in the case of a voluntary declaration of bankruptcy, such as occurred in this case, the information subsequently obtained in accordance with the legislation is not required or obtained in a void, without any action being taken by the individual, but rather it flows, as required by the BIA, directly from the individual’s decision to enter into the regulatory ambit of the legislation in question.²

10Within the context of this regulatory framework, the focus of this voir dire is the admissibility at this trial of Ms. Kotchetova’s testimony given at the Official Receiver examination following her bankruptcy. It is accepted by Crown counsel that the statement was statutorily compelled by the provisions of the BIA. That itself might have had consequences to the outcome of this case, but the effect of that characterization was not the subject of this particular inquiry, notwithstanding defence counsel’s vigorous efforts to blur the distinction between the threshold question of admissibility and the more complex consequential question of the use that may be made of compelled statements.³

11Relative to voluntariness alone, counsel for the defence claims in Ms. Kotchetova’s application to exclude this evidence that the statements she gave were not voluntary and are not admissible. The defence argues that the Official Receiver who examined Ms. Kotchetova on that examination was a “person in authority” within the meaning of the confessions rule: see R. v. Hodgson⁴ and the numerous subsequent cases that have followed it. The burden of proof on that issue lies on the defence. The defence must prove first that Ms. Kotchetova had a subjective belief that Ms. Maue, the Official Receiver assigned to Ms. Kotchetova’s application for bankruptcy protection, was a “person in authority”, and secondly, that her belief was objectively reasonable in all the circumstances.

12While the Supreme Court in R. v. Grandinetti⁵ explained that there is no “catalogue of persons, beyond a peace officer or prison guard, who are automatically [persons in authority] solely by virtue of their status”⁶, referring to its earlier decision in Hodgson, it summarized the test and the process as follows⁷:

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)

43 This, it seems to me, is further elaborated in Hodgson by Cory J.’s description of a person in authority as someone whom the confessor perceives to be “an agent of the police or prosecuting authorities”, “allied with the state authorities”, “acting on behalf of the police or prosecuting authorities”, and “acting in concert with the police or prosecutorial authorities, or as their agent” (paras. 34-36 and 47).

13McIntyre J.A. of the British Columbia Court of Appeal, as he then was, summarized the test succinctly in R. v. Berger⁸, as follows:

The law is settled that a person in authority is a person concerned with the prosecution who, in the opinion of the accused, can influence the [course] of the prosecution. The test to be applied in deciding whether statements made to persons connected in such a way with the prosecution are voluntary is subjective. In other words what did the accused think? Whom did he think he was talking to?⁹

14If defence counsel satisfies me that Ms. Maue was a “person in authority”, then the burden of proof shifts, and it is the Crown who must prove beyond a reasonable doubt that the statement was obtained voluntarily before it can be admissible. That requires compliance with the tests established by the Supreme Court in R. v. Oickle¹⁰.

15Those tests require the Crown to prove and for me to conclude that the person who gave the confession had an operating mind, that is, that they were aware of what they were saying and to whom they were saying it. Critically important, as well, is whether the police made any threats or promises. A promise of a good result to the person giving the statement, a so-called quid pro quo for the confession, will usually determine whether it was voluntary.¹¹ Moreover, the court must be on guard to protect against oppression, that is, where there is distasteful or inhumane conduct that would amount to an involuntary confession.¹²The court can consider the degree of police trickery. Trickery in general is allowed, but it cannot go so far as to “shock the community”.¹³

Was the Official Receiver a “Person in Authority”?

[16]

Was the Official Receiver a "Person in Authority"?

The applicant here claims that she had a subjective belief that Ms. Maue was a “person in authority”. In her evidence, she testified relative to an earlier RCMP investigation against her in a totally unconnected matter and that this affected her thinking relative to the examination that Ms. Maue conducted under s. 161 of the BIA. She testified that her trustee in bankruptcy, Mr. Richard Quinney, did not explain to her anything relating to questions that would be asked of her in that examination and that she felt under compulsion, in light of the Notice of Examination that was served upon her, which indicated that she was required to attend and answer questions relative to her voluntary assignment in bankruptcy, in accordance with the regulatory requirements of the BIA. That said, it should in fairness be noted that Ms. Kotchetova’s request to have the initially scheduled examination for November 2011 rescheduled to another date early in 2012 was happily acceded to by Ms. Maue.

17Ms. Kotchetova also claimed to specifically have asked for a Russian interpreter but that the Official Receiver denied that request, that she asked to have a lawyer present and that that request was also denied, and that she did not understand many of the questions that were asked of her and only answered because of a concern that she could be criminally charged if she refused to do so.

18However, as explained in the paragraphs that follow, I have rejected much of Ms. Kotchetova’s evidence and what she claimed to be the subjective foundation for her belief that Ms. Maue was a “person in authority”. I have rejected it because it was not only largely incredible, but also contradicted by other evidence that I do accept, heard during the voir dire from her trustee in bankruptcy, Mr. Quinney, and Ms. Maue.

19Contrary to her claim that she “was being singled out”, the evidence was that many individuals who make voluntary assignments in bankruptcy are required to answer questions in connection with their claim, under s. 168 of the BIA. While it was acknowledged that not all bankrupts may be required to attend and answer questions, to be served with a Notice of Examination was certainly not an uncommon aspect of the process. The evidence showed that many other bankrupts were required to comply with such requests from time to time, just as Ms. Kotchetova was. The number of s. 161 examinations varies over time, largely dependent on the economic conditions of the nation and periods of economic downturn, when the number of assignments in bankruptcy would increase.

20The claim that she was denied the presence of an interpreter or to be accompanied by a lawyer was not initially put to Ms. Maue in her cross-examination. That violation of the Rule in Browne v. Dunn¹⁴ ultimately required her to re-attend at the end of the voir dire, prior to argument, in order to specifically answer those allegations made against her by the accused. Her evidence in response was clear and direct.

21She noted that the Notice of Examination itself specifically refers to the possible need for an interpreter to be present and indicates on the face of that document that if the bankrupt requests the presence and assistance of an interpreter, it will be provided. Moreover, Ms. Maue was adamant that no request for an interpreter was made and, indeed, that she would have stopped the examination immediately and adjourned it to be rescheduled, in order to provide an interpreter had that request been made, or even if not made, if she herself had had any concern at all about the inability of the bankrupt to understand the questions that were being asked of her in the course of that examination.

22More importantly, she testified that there was no indication to her in the course of their communications in English throughout the examination that Ms. Kotchetova had any difficulty understanding the English language at all. I note as well that each of the pages of the notes of the examination that were prepared by the Official Receiver, containing the questions asked and the answers provided by the bankrupt, were initialed by both of them. That was a process, as explained by Ms. Maue, designed to ensure at the conclusion of the examination that the bankrupt agreed that all of the notes that had been created of what had been said were accurate and fairly reflected the answers that the bankrupt had provided to the questions that had been asked. Ms. Kotchetova initialed all of those pages.

23Finally, Ms. Maue was clear that she had an established practice and procedure of questioning bankrupts at the beginning of the examination, before substantive questions were asked, to see if they had any difficulties with understanding or if they wished to have the presence of a lawyer. As such, the absence of any reference to either of these points in Ms. Maue’s notes, in the face of her established practice, undermines Ms. Kotchetova’s allegation that she was denied either an interpreter or the presence of legal counsel. It would have been much more likely that there would have been notes made by Ms. Maue, in light of that practice, had either of those two requests been made.

24Mr. Quinney indicated in his testimony that while the first mandatory bankruptcy counseling session of Ms. Kotchetova in his office was conducted by a woman who spoke Russian, that was not a matter of requirement or need due to an inability to understand. Rather, it was a result of that person, “Maria”, having been in the office that day and both she and Ms. Kotchetova having been members of the same linguistic community in the Woodbridge area. It was done to permit Ms. Kotchetova to be more comfortable during that counseling session. However, Mr. Quinney himself conducted the second mandatory counseling session and he does not speak Russian. He saw no indication whatsoever that Ms. Kotchetova did not understand all of the matters that they discussed at that session or in all of his dealings with her as her trustee in bankruptcy.

25Indeed, in further corroboration of that point, while I acknowledge that Ms. Kotchetova did testify on the voir dire in Russian with the assistance of a Russian interpreter and had two fully -qualified state-paid Russian interpreters present to assist her throughout the voir dire, I did not observe one occasion in the course of the four days of testimony or during argument when Ms. Kotchetova requested the assistance of an interpreter to understand all of the rest of the proceedings which were being carried on in English. While I accept that Russian is Ms. Kotchetova’s mother tongue and that she may be more comfortable speaking in Russian, several communications in the courtroom showed me that she does indeed understand and speak English quite well, albeit with an accent.

26Learning to the issue of allegedly being denied legal counsel, it should be remembered that an examination under s. 161 of the BIA is not an adversarial proceeding. It is not a proceeding where a constitutional right to counsel is engaged. It is a questioning that takes place as a consequence of a voluntary assignment in bankruptcy by a bankrupt person who seeks the protection of the BIA in order to obtain a discharge from her debts, having found herself in circumstances of insolvency.

27Proceedings under the BIA are governed by a statutory framework that must be complied with by persons who seek bankruptcy protection, but certainly at the time that Ms. Kotchetova was examined by the Official Receiver, there was no proposed or pending prosecution of her in connection with this matter. Indeed, it was Ms. Kotchetova who specifically told the Official Receiver about the earlier investigation by the RCMP, but she made light of it, explaining it had come to an end and relating that the charges were expected to be withdrawn at a court appearance expected to follow within a month’s time.

28As well, before attending at the examination, Ms. Kotchetova went to consult with a solicitor about the examination. While solicitor-client privilege was not waived and thus we have no knowledge of what questions were asked or answered, it can be assumed that Ms. Kotchetova had obtained information from the solicitor relative to the nature of the examination that would be conducted as part of the process of her claiming the benefits of creditor protection under the BIA regulatory regime.

29Mr. Quinney, a bankruptcy trustee having over 30 years’ experience, testified that he had a note in his file of the earlier RCMP investigation, but importantly, he only had that note because the information was provided to him by her, not by either the Official Receiver or the RCMP. Moreover, his file note was dated from February 13, 2012, a date after the s. 161 examination had taken place. He only had a suspicion that an investigation might result arising out of her examination after she had provided the responses that she did to Ms. Maue during the course of that examination. Neither Ms. Maue nor Mr. Quinney ever mentioned anything about criminal charges, and yet Ms. Kotchetova claimed that she thought during the course of the examination that she could be criminally charged.

30Against this evidential background, the question is whether Ms. Kotchetova had a subjective belief that Ms. Maue was a “person in authority” within the meaning of the confessions rule and whether that was an objectively reasonable belief. Ms. Kotchetova testified that she “was worried that [she] would have big problems with the Official Receiver” if she did not attend to answer questions, and it is true that Ms. Maue, as an Official Receiver, was a public servant and employee of the Government of Canada. Ms. Kotchetova claimed that Ms. Maue told her, having taken the step of seeking bankruptcy protection under the BIA, that she had to answer the questions that would be asked or else she could be charged.

31However, the case law makes clear that there must be a connection between the person who hears the “confession” and an actual prosecution before the person can be considered to be a “person in authority”, as Trotter J. of this court, now J.A., stated in R. v. Belle¹⁵:

30 The central factor in determining who is a person in authority is the extent to which an accused person believes that the person he/she was speaking to could influence or control the proceedings against the accused person. Previous authority had approached this question solely from the subjective point of view of the accused person: see Regina v. Roadhouse (1933), 1933 CanLII 393 (BC CA), 61 C.C.C. 191 (B.C.C.A.), Regina v. Berger (1975), 1975 CanLII 1250 (BC CA), 27 C.C.C. (2d) 357 (B.C.C.A.) and Rothman v. The Queen (1981), 1981 CanLII 23 (SCC), 59 C.C.C. (2d) 30 (S.C.C.). However, in Hodgson the Court opted for a modified subjective approach, as described in the following passage at p. 469:

…the evidence must disclose not only that the accused subjectively believed the receiver of the statement to be in a position to control the proceedings against the accused, but must also establish an objectively reasonable basis for that belief. For example, if the evidence discloses a relationship of agency or close collaboration between the receiver of the statement and the police or prosecution, and that relationship was known to the accused, the receiver of the statement may be considered a person in authority. In those circumstances the Crown must prove beyond a reasonable doubt that the statement was made voluntarily.

Beyond peace officers and prison guards, the Court declined to catalogue others [who] would be automatically considered to be persons in authority based on their status. Thus, while persons such as a parent, doctor, teacher or employer are capable of being considered to be persons in authority, whether a person is found to be a person in authority will depend on the circumstances of the case. In terms of how this requirement must be established, the accused person must meet an evidential burden, but not a persuasive one: see Hodgson, supra, at pp. 470-471. It is important to note that this does not create an obligation on the part of the accused to prove this proposition on a balance of probabilities; all an accused person need do is adduce or point to some evidence in the record that the accused reasonably believed that the person in question was a person in authority: see David M. Paciocco and Lee Stuesser, The Law of Evidence, 5th ed. (Toronto: Irwin Law, 2008), at p. 324. If this evidential burden is satisfied, the Crown must establish that any statements made to this person are voluntary beyond a reasonable doubt: see Regina v. Grandinetti (2005), 2005 SCC 5, 191 C.C.C. (3d) 449 (S.C.C.), at pp. 459-462. [Emphasis in original.]

32There is no evidence here that the Official Receiver had anything to do with the investigation or laying of charges against Ms. Kotchetova. The evidence is to the contrary. The Official Receiver can refer the matter for investigation, but it is the RCMP that determines the direction any investigation will take. As an official receiver, Ms. Maue conducted a s. 161 examination of Ms. Kotchetova, nothing more, nothing less. She did not lay any charges. She simply prepared a report for her supervisor, dated January 30, 2012, which could result in a referral for investigation. In her report itself, she makes no determination of whether any illegal or inappropriate conduct has occurred, but she simply stated at the conclusion of her report, based upon the facts provided to her by Ms. Kotchetova, that offences under the BIA “may have been committed.” It was the Superintendent of Bankruptcy who made a determination as to how the matter should proceed. Correspondence addressed to the RCMP from the Superintendent contains a “recommendation for investigation into possible offences under the BIA.”

33As such, in the context of this evidence, in my view, the claim by defence counsel that Ms. Kotchetova had a subjective belief that Ms. Maue was a “person in authority” fails at the subjective level. There is no evidence that Ms. Kotchetova thought that Ms. Maue could influence “the prosecution.” There is no question that Ms. Kotchetova was required to attend and provide answers at the examination conducted under s. 161 of the BIA, and plainly the BIA makes it an offence if a bankrupt provides untruthful responses or fails to attend the examination. However, there was never any mention of criminal charges by Ms. Maue. Ms. Kotchetova was concerned, as were her advisors, with BIA issues, but the trustee never mentioned criminal charges. He explained the BIA regime to her, as did Ms. Maue.

34Given that the BIA is designed to provide an opportunity for bankrupt persons to escape from the weight of their insolvency by way of a discharge of their debts in the bankruptcy process, the legislation is remedial, not punitive. There was no evidence before the court of any regular or common efforts by bankrupts to either defeat the purpose of the legislation or to misrepresent their circumstances in an effort to obtain a discharge to which they might not have been legally entitled. Presumably it happens, but it is not the expectation or the norm.

35Not surprisingly, however, given its power to relieve debtors of their debts, the legislation does contain provisions that create offences that may potentially be laid against bankrupt individuals who abuse the process, who are less than full and frank in the disclosure of their financial affairs, or who refuse in some respect to comply with the legislative regime. The legislation ensures that only bankrupt persons who fully, truly, and fairly report on their economic circumstances and who otherwise comply with its requirements, can potentially be relieved from the circumstances of their insolvency and permitted to commence their economic life anew, unburdened by the debt they had previously accumulated.

36The question of whether Ms. Maue could have subjectively been regarded as a “person in authority” by Ms. Kotchetova must be examined in context and by taking account of the entire constellation of circumstances: see D’Amour.¹⁶ In that case, the appellant had been convicted on a charge of fraud after she received $14,000 in welfare benefits after failing to advise the Community Services Department that she was working. As in this case, where bankrupts are required to provide truthful information to their trustee and their official receiver in order to benefit from the bankruptcy legislation, so too in that case, the appellant was required to make disclosure of her financial circumstances, including income and her employment status. This was required since her eligibility and the quantum of assistance that she might receive depended upon her income and her providing honest disclosure to the Community Services Department. While the case focuses more directly on the use that can be made of compelled statements, which is not the issue here, Doherty J.A. emphasized the importance of context when assessing Charter rights within a regulatory ambit¹⁷:

33 The context in which the appellant’s s. 7 claim arises embraces both an alleged state compelled production of material and a subsequent use of that material against the appellant in a criminal proceeding. The appellant contends that she was effectively forced to produce the T4 slips to the Department and that the subsequent use of those documents to prosecute her amounted to a violation of the principle against self-incrimination.

34 It is well established that the protection afforded by the principle against self-incrimination can extend to the use in a subsequent proceeding of material previously obtained from an accused by state compulsion: R. v. S.(R.J.), supra. However, not every subsequent use of anything and everything obtained through state compulsion will run afoul of s. 7. The “demands” of the principle against self-incrimination in any given situation must take into account not only the extent to which the rationale underlying the principle is engaged, but also the extent to which other competing fundamentally important societal interests deserve recognition: R. v. White, supra, at p. 276.

37While there is no reported case law that counsel or I was able to find dealing with whether an Official Receiver is a “person in authority” and in what circumstances, two cases advanced by Crown counsel deserve mention as being apropos of the circumstances of this case and engaging similar principles of analysis.

38In R. v. Brown¹⁸, Glass J. of this court considered whether a social assistance caseworker for the Durham Region of Ontario was a “person in authority” relative to the accused, who was in receipt of social assistance payments. The Region had received an anonymous call that the accused had an interest in real estate while collecting social assistance payments, so the accused was called in and asked to swear a statutory declaration as to whether she owned real property. She was told that if she did not provide the declaration she would not receive her assistance. The accused completed an exculpatory declaration, later proven to be false, that she did not own any real property that would have disqualified her from continuing to receive her social assistance.

39Glass J. observed that the subjective belief of the maker of the statement that she thought she had to give the statement must be tempered with a reasonableness feature with respect to determining if the person to whom it was given was a “person in authority”. In light of the allegation that she was not qualified, the defendant was told she would not receive social assistance benefits if she did not provide a written declaration regarding ownership of real property. That declaration also included a statement that the defendant understood that a person misrepresenting him/herself in order to receive benefits was guilty of an indictable offence. The testimony of the defendant showed that she wanted to continue to receive her social assistance cheque and that she knew that if she did not complete the declaration she would not get her cheque. Against that background, Glass J. concluded as follows¹⁹:

13 I conclude that Ms. Blake was not a person in authority. The Crown has met the test beyond a reasonable doubt that she was not a person in authority. I accept that Ms. Brown subjectively believed she had to make the declaration, but that was so that she could get her welfare cheque. She did not suggest that she was making the statement with respect to her thinking of any criminal charge. It was the responsibility of Ms. Blake to administer the payment of social assistance to many clients and to make sure that they were properly qualified to receive benefits. Fulfilling that responsibility did not make her an agent of the state. There was no suggestion of any proceeding against her so that she could not reasonably have believed that Ms. Blake could influence such proceedings. See R. v. Hodgson (1998), 1998 CanLII 798 (SCC), 127 C.C.C. (3d) 449 (S.C.C.).

14 It is reasonable to conclude that the administrator of welfare benefits must have sufficient information to be satisfied that a recipient is eligible to receive assistance. To do that task, the administrator must ask questions. Should it come to the attention of that administrator that a recipient might not be eligible, the administrator must be expected to check out the circumstances. Doing that task does not make the administrator an agent of the state. See R. v. D’Amour [citation omitted] … Further, as in D’Amour at paragraph 51, there was no criminal investigation being undertaken at the time of Ms. Brown giving her written declaration to Ms. Blake. I do not find that the conduct of the social assistance administrator here amounted to abusive state conduct. [Emphasis added.]

40To similar effect is the decision of Henderson J. of this court in R. v. Sharples²⁰ where the accused had been charged with first degree murder of his common law spouse, and as a result was removed from his home. Alternate arrangements had to be made for his young child’s accommodation. He was interviewed by two representatives of Family and Children’s Services (“FACS”), and, in the course of those interviews, made statements to the child protection workers that the Crown sought to introduce on his trial. The defence objected, claiming the statements were not voluntary and that the FACS workers were persons in authority.

41Henderson J. noted that if the accused believed that the person to whom he was speaking “‘could influence or control the proceedings against him’”, and the accused’s belief was reasonable in the circumstances, then the recipient of the statement may be deemed to be a “person in authority”.²¹ Nevertheless, he found that the accused had not met the evidentiary burden of proving that there was a valid issue for consideration because the FACS workers interviewed the accused as part of their child protection duties and their concern was with the welfare of the accused’s son, not the accused’s guilt or innocence. They had no influence or control over the criminal proceeding. It was not a joint investigation by the Police Department and the FACS office into Sharples’ possible criminal conduct. The local police service had already conducted the criminal investigation and arrested the accused. Although there had been some contact between the police and FACS, it was focused on the circumstances of the child. On that basis, Henderson J. concluded that the FACS officers were not persons in authority and thus, the voluntariness rule was not engaged.²²

42Looked at contextually, as the analysis requires, I find that there could have been no subjective belief on the part of Ms. Kotchetova that the official receiver who questioned her under s. 161 of the BIA was a “person in authority” within the meaning of the confessions rule, who could have influenced Ms. Kotchetova’s prosecution, given that there was no prosecution of her at that time, and given that Ms. Kotchetova provided no evidence in her testimony that connected any potential prosecution to the obligation she felt under the bankruptcy regime to attend and answer questions of the Official Receiver. The only scintilla of connection with any investigation is that the Official Receiver was aware prior to Ms. Kotchetova answering questions on the examination that the RCMP had conducted a prior investigation into unrelated matters relating to her, but she was plain in her evidence that her awareness of that fact had no impact at all on her questioning of Ms. Kotchetova or the report that she later prepared for her supervisor.

43The mere presence of that knowledge being held by Ms. Maue does not translate into turning her into a prosecutor or a person capable of influencing any prosecution, for the simple reason that there was no prosecution at that time. There was simply an examination of the bankrupt, the preparation of a report by the Official Receiver who took the bankruptcy information, and her subsequent report and posing of the question for her superiors as to whether Ms. Kotchetova may have committed offences under the BIA, leaving it for determination by the Official Receiver’s supervisors. There were no criminal parameters here and no evidence of Ms. Maue being connected to any investigation. It was Ms. Kotchetova who told Ms. Maue, during the s. 161 examination about the prior investigation by the RCMP, that charges had been laid and that she expected that the charges would be withdrawn very soon. It was not Ms. Maue who referred the matter to the RCMP, but her superior, three months later.

44Recognizing that the analysis is a contextual one, I have found that the Official Receiver, Ms. Maue, was not a “person in authority” in the context and circumstances of this case within the legal meaning of that term as established by Hodgson and the cases that follow it. This is not to say that an Official Receiver could never be so regarded, but simply that on the whole of the evidence on this voir dire, and bearing in particular mind that the inquiry will always be contextual and particular to the circumstances, I am satisfied that she was not in this case. As such, the burden of proof did not shift to the Crown to establish beyond a reasonable doubt that the statement was given voluntarily.

Voluntariness

[45]

Voluntariness

In light of my ruling that the Official Receiver was not a “person in authority” in these circumstances, the confessions rule is not engaged and there is no need for the Crown to prove voluntariness. However, if I erred in reaching the conclusion that the Official Receiver was not a “person in authority” as that concept is legally understood under our law, and in the particular context of these facts and circumstances, I nevertheless conclude that the statement given by Ms. Kotchetova to Ms. Maue was voluntary within the meaning of the Supreme Court of Canada decision in Oickle. I do so based on my assessment of the credibility and reliability of the testimony of the witnesses on the voir dire and having regard to the evidence as a whole, which shows that Ms. Kotchetova’s statement was the product of an operating mind, and not induced by threats or promises.

46There was no evidence here of any threats or promises made to Ms. Kotchetova to cause her to answer the Official Receiver’s questions on the examination. There were no promises of leniency of any kind or benefits that Ms. Kotchetova would receive provided she gave those answers, and it is plain that no “quid pro quo” was provided. Moreover, the question of voluntariness must be looked at in the context of the proceedings in which the statements were made.²³ This was simply a matter of Ms. Kotchetova being required to answer the questions that were asked of her as part of the bankruptcy proceedings in which she voluntarily sought creditor protection. Moreover, there were no charges that had even been contemplated here at the time Ms. Kotchetova gave her statement: see R. v. Spencer.²⁴ In my view, none of the cases claimed by defence counsel to be relevant are applicable in the particular circumstances of this case. It follows that even if Ms. Kotchetova’s statement was made to a “person in authority”, which I have specifically ruled was not the case, I would have been satisfied that it was voluntarily made under the tests established in Oickle.

Conclusion

[47]

Conclusion

In light of the conclusions I have reached on the two issues raised by this voir dire, I find that Ms. Kotchetova’s testimony at the examination in front of the Official Receiver on January 19, 2012, was entirely voluntary and properly admissible on this trial.

Michael G. Quigley J.

Released: November 28, 2016

CITATION: R. v. Kotchetova, 2016 ONSC 7356

COURT FILE NO.: CR-14-90000301-0000

DATE: 20161128

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and –

EVGUENIA KOTCHETOVA

Defendant/Applicant

REASONS FOR RULING

Re: “Person in Authority” and Voluntariness of Statement

Michael G. Quigley J.

Footnotes

1. 1Husky Oil Operations Ltd. v. Minister of National Revenue, 1995 CanLII 69 (SCC), [1995] 3 S.C.R. 453, at pp. 470-471.
2. 2See R. v. Morris, 2012 ONSC 1185, 255 C.R.R. (2d) 1, at paras. 29-33. In that case, the issue was whether or not a person petitioned into bankruptcy is protected from subsequent use of statements under oath by s. 13 of the Charter. See also R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609; and R. v. Nedelcu, 2012 SCC 59, [2012] 3 S.C.R. 311. That issue was not before this Court on this voir dire.
3. 3Ibid. See also R. v. D’Amour (2002), 2002 CanLII 45015 (ON CA), 166 C.C.C. (3d) 477 (Ont. C.A.).
4. 4See R. v. Hodgson, 1998 CanLII 798 (SCC), [1998] 2 S.C.R. 449.
5. 5R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27.
6. 6Ibid, at para. 43, citing Hodgson, at para. 36.
7. 7Grandinetti, at paras. 37-39, 43.
8. 8R. v. Berger (1975), 1975 CanLII 1250 (BC CA), 27 C.C.C. (2d) 357 (B.C.C.A.), leave to appeal refused, [1975] S.C.R. vii, at p. 385.
9. 9As Durno J. of this court observed in R. v. Harrison (2007), 2007 CanLII 38395 (ON SC), 52 C.R. (6th) 333 (Ont. S.C.), at paras. 66, 82, a parent, a doctor, a teacher, or an employer, or any other number of possible persons could be found to be a “person in authority” if the circumstances in the case warrant it. The determination has to be done on a case-by-case basis.
10. 10R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3.
11. 11Ibid, at paras. 56-57.
12. 12Ibid, at paras. 58-60.
13. 13Ibid, at paras. 65-67.
14. 14Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L. (Eng.)).
15. 15R. v. Belle, 2010 ONSC 1618, 253 C.C.C. (3d) 222, at para. 30.
16. 16See D’Amour.
17. 17Ibid, at paras. 33-34.
18. 18R. v. Brown, 2003 CarswellOnt 3028 (S.C.).
19. 19Ibid, at paras. 13-14.
20. 20R. v. Sharples, 2015 ONSC 4907.
21. 21Ibid, at para. 14.
22. 22Ibid, at paras. 17-25.
23. 23See D’Amour.
24. 24See R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500.