CITATION: R. v. H.F., 2017 ONSC 2897
COURT FILE NO.: CR-16-40000399-0000
DATE: 20170511
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
H.F.
Accused
Geleta McLoughlin, for the Crown
Margaret Osadet & David D’Intino, for the Accused/Applicant
HEARD: April 7, 2017
B.A. ALLEN J.
REASONS FOR DECISION
(Ruling on Determination of Person in Authority and an Application for Mistrial and Stay)
BACKGROUND
[1] The Defence brings this application on a number of grounds. The defence seeks a finding on:
- (a) whether the Children’s Aid Society (“the CAS”) worker for whom the accused prepared a statement is a person in authority;
(b) if the answer to issue a) is positive, should a voir dire on the voluntariness of the statement be conducted;
In the alternative,
- whether this is an appropriate case for a mistrial;
In the further alternative,
- whether this is an appropriate case for a stay of proceedings.
The Charges
[2] On June 16, 2015, the accused, HF, was charged under the Criminal Code on three counts of sexual assault, three counts of sexual interference and on one count of invitation to sexual touching in relation to the complainant, LFR, HF’s stepdaughter. LFR alleges that HF sexually abused her on three occasions between 2010, when she was age 11, and 2013 when she was age 13.
[3] The first incident is alleged to have occurred at the home where LFR’s family lived in Toronto sometime around June or July 31, 2010 when LFR was about 11 years of age. She alleges the second incident occurred a few months later after the family moved at the end of July 2010 to Pickering. It is LFR’s evidence that the third incident took place in 2012 or 2013 when she was age 14.
VOIR DIRE ON PERSON IN AUTHORITY
Background to the Emergence of the Issue
[4] The Crown had closed its case. The defence was nearing the completion of its re-examination of HF when the issue arose as to the Crown’s use of a statement HF made to a worker with the Durham CAS. The Crown used the statement to cross-examine HF. Unexpectedly, on the ninth day of trial, the defence brought an application seeking a ruling on the admissibility of the statement in relation to its voluntariness.
[5] This requires a finding first be made on whether the Durham CAS worker, Ms. Tugwell is a person in a position of authority when she received HF’s statement. The defence requested a finding on that issue and in the alternative an order for a mistrial and in the further alternative a judicial stay of proceedings.
[6] If a determination is required to be made on the person in authority question it must be decided on a voir dire. Typically, such a voir dire would be held at the request of the defence in such cases as this, where the receiver of the statement is not a person who occupies an obvious position of authority, such as a police or a corrections officer.
[7] In some cases a trial judge may be required on their own motion to hold a voir dire on the issue of whether a statement was given to a person in authority. In light of the defence’s obligation in atypical cases to raise the question it is in rare and exceptional cases that a trial judge will be required to hold a voir dire on this question on their own motion. R. v. Hodgson held:
In extremely rare cases the evidence adduced during a trial may be such that it should alert the judge that the issue as to whether the receiver of a statement made by an accused was a person in authority should be explored by way of voir dire. In those cases, which must be extremely rare in light of the obligation of the accused to raise the issue, the trial judge must of its own motion direct a voir dire …
The duty of the trial judge to hold a voir dire of his or her own motion will only arise in those rare cases where the evidence, viewed objectively, is sufficient to alert the trial judge of the need to hold a voir dire to determine if the receiver of the statement of the accused was, in the circumstances, a person in authority.
[R. v. Hodgson, 1998 CanLII 798 (SCC), [1998] 2 S.C.R. 449, at para. 48, (S.C.C.)]
[8] At the request of the defence, I held a voir dire on the question of whether the worker from the Durham CAS was a person in authority when HF provided her a statement.
HF’s Encounter with the Durham CAS
[9] Sometime around the end of March 2015 HF came home with the children to find a Durham CAS worker, Marie Tugwell, at his home speaking to his wife. When he entered, Ms. Tugwell asked his wife, “Is this the father?” HF testified Ms. Tugwell had a curled nose and a snarl on her face when he entered. She then introduced herself to HF. HF described that Ms. Tugwell was sitting at the dining table on a chair at a computer with one leg crossed on the chair under her other leg.
[10] By way of HF’s background, he is a 39 year old man who emigrated from the Philippines to Canada. In spite of being in Canada for a number of years his skills in oral and written English are not sophisticated. The court and counsel frequently had difficulty understanding parts of his testimony. He had to rely on a Tagalog interpreter for assistance with certain parts of his testimony. He relied extensively on the interpreter when trying to explain his encounter with Ms. Tugwell.
[11] HF testified that Ms. Tugwell got on the phone and asked the person on the other end of the call which office would handle the case, Durham or Toronto. HF testified that his belief was that the person Ms. Tugwell spoke to was a police officer.
[12] The background to that phone call may have been the family’s previous involvement with the CAS. HF’s family had a previous contact with the Durham CAS in June 2012. At that time HF received a message from his wife to call a Dave Musgrave at the Durham CAS. HF gave evidence about speaking over the phone with Mr. Musgrave on June 21, 2012. Mr. Musgrave asked him among other things about his relationship with the children. Mr. Musgrave provided HF a business card which he has kept posted on his refrigerator with other postings of 911 and emergency numbers.
[13] Back to HF’s encounter with Ms. Tugwell, she began directing questions at HF and his wife. Ms. Tugwell was typing on her computer as she asked HF questions about his relationship with the children and particularly, LFR. He did not recall all of her questions but remembered her asking him whether he gave alcohol to LFR.
[14] Ms. Tugwell asked HF to prepare a written statement. When defence counsel asked him why he wrote the statement HF testified that he did so because Ms. Tugwell instructed him to do so.
[15] HF prepared a 19-page typewritten statement that he emailed to the Durham CAS on April 24, 2015. On April 27th, the Durham CAS transferred the email to Ms. Tugwell. On May 8th, Ms. Tugwell forwarded the email to the Toronto Police Service (“the TPS”) to the attention of the officer in charge, D.C. Heather Heidgress. D.C. Heidgress testified that the TPS first got involved in investigating the case on April 23, 2015.
Legal Framework for Determining a Person in Authority
[16] As part of its evidential burden, the defence has the onus to prove that a person to whom an accused makes a statement is “a person in authority”. If the defence succeeds, the burden is then on the Crown to prove the voluntariness of the statement: [R. v. S.G.T, [2010] 1 S.C.R. 588, at para. 20, (S.C.C.)].
[17] Adopting the conclusions of other judicial authorities, the Supreme Court of Canada in an early case defined “a person in authority” as a person who has authority or control over the accused or over the proceedings or the prosecution against an accused. A finding that a person is a person in authority depends on the extent to which the accused believed the person could influence or control the proceedings against him. The accused’s belief that he is speaking to a person in authority must be reasonable: [R. v. Hodgson, at para. 32, (S.C.C.)]. The accused must therefore satisfy both subjective and objective tests.
[18] The burden on the accused to show the person is a person in authority is an evidential burden. The Crown bears the persuasive or legal burden to show the person is not a person in authority and that the statement was voluntary.
[19] The party with the evidential burden must show some evidence that a fact exists or does not exist on the record in order to pass the threshold test for the particular fact or issue. The party with the persuasive burden in a criminal matter has the obligation to prove or disprove a fact or issue beyond a reasonable doubt. “In the vast majority of cases, the accused will meet the evidential burden by showing knowledge of the relationship between the receiver of the statement and the police or prosecuting authorities”: [R. v. Hodgson, at paras. 37 and 38].
[20] In the Supreme Court of Canada’s more recent case it held that when the receiver of the statement is an obvious state actor, such as a police officer, the fact that the person’s status was known to the person will be sufficient to meet the evidential burden: [R. v. S.G.T. at para 23].
[21] There is no settled list of persons, apart from a police officer or a prison guard, who are automatically regarded as a person in authority by mere reason of their status. “A parent, doctor, teacher or employer all may be found to be persons in authority if the circumstances warrant, but their status, or the mere fact that they may wield some personal authority over the accused, is not sufficient to establish them as persons in authority for the purposes of the confessions rule”. A victim’s father who had control of the prosecution of the accused and a social worker have been found to be a person in authority. In the case of the social worker, the accused knew the social worker was investigating allegations of child abuse: [R. v. Hodgson, at paras. 35 and 36].
[22] A previous decision of this court determined that a worker with the Peel CAS was a person in authority. The court found the accused believed that the CAS worker was acting on behalf of the state and was as such a person in authority: [R. v. L.W.F., [2006] O.J. No. 1199 (Ont. S.C.J.)].
[23] The test for a person in authority should not include persons the accused unreasonably believes to be acting on behalf of the state: [R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, at para. 43. (S.C.C.)]. Persons the accused perceives as “an agent of the police or prosecuting authorities” or “acting in concert with the police or prosecuting authorities, or as their agent” may support a subjective belief: [R. v. Grandinetti, at para. 43, quoting R. v. Hodgson].
[24] Determinations on whether the receiver of a statement by the accused is a person in authority must be decided on a case-by-case basis. A contextual analysis must be undertaken: [R. v. S.G.T., at para. 29].
[25] Once a finding is made that the receiver of a statement is a person in authority, a voluntariness voir dire must be held into its admissibility unless the voir dire is waived by counsel for the accused: [R. v. Hodgson, at para. 48]. The Supreme Court of Canada found, where the defence accepted the introduction into evidence of a psychiatrist’s report containing a protected statement and did not object to the use of the evidence by the Crown in cross-examining the accused, did not amount to waiver or consent to the cross-examination: [R. v. G. (B.), 1999 CanLII 690 (SCC), [1999] 2 S.C.R. 475, at para. 51, (S.C.C.)].
[26] If the receiver of the statement is found to be a person in authority, the Crown has the persuasive or legal burden on a voir dire to demonstrate beyond a reasonable doubt: (a) that the receiver of the statement is not a person in authority; and if the burden under (a) is not discharged, (b) that the statement was made voluntarily: [R. v. Hodgson, at para. 38].
ANALYSIS OF EVIDENCE ON PERSON IN AUTHORITY
The Objective Reasonableness of HF’s Belief
[27] Evidence was presented about the relationship between the Toronto CAS and the TPS and the respective powers those agencies exercise in child protection matters.
[28] D.C. Heidgress, who works with the TPS’s Child and Youth Advocacy Centre, testified for the defence about the relationship between the TPS and the Toronto CAS. The investigation by the TPS of the allegations against HF began on April 23, 2015, the day D.C. Heidgress interviewed LFR. On May 8, 2015, the TPS received from the Durham CAS an email attaching the statement HF made to Ms. Tugwell, the worker with the Durham CAS.
[29] D.C. Heidgress testified that the TPS and the Toronto CAS conduct joint investigations of child protection cases. She explained that the police take the lead in interviewing child victims if charges are brought. The CAS shares their notes with the police in relation to that portion which concerns the police investigation.
[30] The powers of the police over arrest, detention, prosecution and their involvement in criminal proceedings are well-known. In Toronto child protection matters, those powers are exercised in combination with the powers of the CAS. The Child and Family Services Act, R.S.O 1990, c. C. 11 extends to the CAS the power, among others, to initiate court proceedings where it believes that a child is in need of protection. It has the power to apprehend a child and take the child to a place of safety pending the completion of an investigation if the agency believes that the child is at imminent risk of harm.
[31] The objective status of the receiver of the statement must be shown and “only where they are identified as someone formally engaged in the arrest, detention, interrogation or prosecution of the accused, is it necessary to then examine the subjective belief of the accused in this regard”: [R. v. Hodgson, at para. 95].
[32] The objective status of Ms. Tugwell clearly meets the requirement of an actual person in authority or an “instrumentality” of the state to whom the statement was made, a person who could influence the course of prosecution or criminal proceedings against HF:
[33] HF was not arrested until June 16, 2015, a few months after he encountered Ms. Tugwell. No direct evidence is before the court that when HF gave his statement to Ms. Tugwell he had specific knowledge of the relationship between the police and the CAS and the powers they exercise independently and jointly. However, as discussed below, the context in which HF found himself when he arrived home to find Ms. Tugwell, I find, shows an exertion of authority by her at the home at the time she requested a statement from HF, a belief on HF’s part that Ms. Tugwell had contact with the police.
[34] The person who gives the statement need not be under arrest or facing prosecution at the time the statement is given. In R. v. Sweryda the court found a social worker to be a person in authority. The social worker was investigating an alleged criminal act and had the power to institute prosecution as well as the power to apprehend the child in question. The accused believed the social worker had the power to arrest and apprehend at the time the accused made the statement: [R. Sweryda 1987 ABCA 75, 1987 (Alta. C. A.)].
HF’s Subjective Belief
The Circumstances
[35] HF was asked by defence counsel why he provided Ms. Tugwell the statement. HF responded because Mr. Tugwell instructed him to do so. The context that gave rise to that testimony from HF is important. A reasonable inference that can be drawn from that statement is that HF believed Ms. Tugwell had the power to compel him to prepare a statement and provide it to the Durham CAS.
[36] HF thought his encounter with Ms. Tugwell was around the end of March 2015. It was not his first contact with the Children’s Aid Society. As noted earlier, in June 2012 he received a message from his wife to call Mr. Musgrave, a Durham CAS worker. Over the phone, Mr. Musgrave asked him, among other inquiries, questions about his relationship with the children. The importance of Mr. Musgrave’s business card to HF and his wife is demonstrated by the fact they posted it in a prominent place on the refrigerator with other important numbers. HF did not see the conversation with Mr. Musgrave as a casual exchange.
[37] Nearly three years later, HF arrived home on a Friday afternoon to see a strange woman in his home asking his wife questions. When HF entered the woman asked, “Is this the father?” Without being prompted with questions as to his impression of Ms. Tugwell, HF gave evidence on his perception of her through his demeanor on the stand. He used the assistance of the interpreter.
[38] HF used a rather snide intonation in his voice imitating the woman’s tone when he repeated her question, “Is this the father?” He demonstrated for the court the snarl Ms. Tugwell had on her face when she asked that question. The woman introduced herself. HF testified he then knew Ms. Tugwell was a social worker from the Durham CAS. HF was descriptive and quite physically demonstrative showing the court while he testified that Ms. Tugwell sat at the dining room table with one leg on the chair crossed under her other leg with a curled up nose and a snarl on her face.
[39] Ms. Tugwell was typing on her computer while asking him and his wife questions. HF’s evidence is that Ms. Tugwell got on the phone in front of him and asked the person on the other end which office would be handling the matter. HF said he believed the person on the line with Ms. Tugwell was a police officer. This might not have been the case but what is important here is what HF believed. That evidence is important to a belief that Ms. Tugwell was a person in authority connected to the police. HF became aware of police involvement with the CAS.
[40] Like Mr. Musgrave from the Toronto CAS, Ms. Tugwell began asking HF questions about his relationship with the children. She specifically asked whether he gave alcohol to LFR. This question was clearly directed at questioning impropriety with LFR. HF gave answers to her questions. He offered Ms. Tugwell the opportunity to speak to LFR and his biological son, Niko, who were home at the time, which Ms. Tugwell declined. She then asked HF to prepare a written statement.
[41] It appears HF’s statement was given before he was arrested in June 2015 and before the TPS got involved in April 2015. There is no direct evidence that when he encountered Ms. Tugwell that he feared an impeding arrest. However, he had the definite impression the police were somehow involved from the phone call Ms. Tugwell made.
[42] I conclude for the following reasons that HF believed Ms. Tugwell was a person in authority when she asked him for a statement.
[43] A determination of an accused’s subjective belief is a fact-driven exercise to be grounded in the particular facts of a case. A contextual approach is required.
[44] The facts of the circumstance at HF’s home on the day he met Ms. Tugwell there reveal a basis for HF’s compliant and unquestioning response to her questions and her instruction to provide a written statement. HF’s evidence demonstrates an exertion of authority by Ms. Tugwell. When HF entered his private abode he found a strange woman in his house asking his wife personal questions. She was taking down the information on her computer. She made a call he thought was to the police.
[45] HF’s testimony reveals his discomfort with Ms. Tugwell’s presence and the behaviour she displayed in his private domain. He did not question her authority to be there. He did not ask her to leave in spite of what he described as rude behaviour. He did not question her entitlement to ask him and his wife personal and private questions about the family. He and his wife dutifully answered Ms. Tugwell’s questions. HF acceded to her request to prepare a written statement. He kept his promise. He did as he was instructed and some weeks later emailed the statement to the Durham CAS.
[46] It is reasonable to conclude that HF felt he had no choice but to prepare a statement. I find it was this sentiment that explains his words that he gave the statement because Ms. Tugwell instructed him to do so. To HF’s mind Ms. Tugwell had the authority to ask him for a statement.
[47] Even without an informed understanding of the functions of the CAS, the very name of the agency combined with the type of questions both CAS workers asked, and the spectre of police involvement would reasonably alert HF to possible jeopardy with the child protection and criminal justice systems. This I find set the context for a reasonable belief that Ms. Tugwell had the authority to effect proceedings against him.
Conclusion
[48] The evidential burden obliges the defence to produce sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue, in the context of this case, that Ms. Tugwell was a person in authority when she requested the statement. This is not a weighty obligation. The defence must show some evidence that a fact exists or does not exist on the record. It does not require, as the balance of probabilities burden requires, proof that the fact more likely than not has been proven. Likewise, the evidential burden is clearly far less onerous than the criminal burden beyond a reasonable doubt.
[49] I find the defence has met the evidential burden by producing sufficient evidence to establish that HF believed Ms. Tugwell, as an agent of the Durham CAS, was a “person in authority” when he provided his statement.
Would Directing a Voir Dire on Admissibility be in the Interests of Justice?
[50] For the statement to be allowed in evidence a voir dire must be held where the Crown must prove beyond a reasonable doubt that Ms. Tugwell is not a person in authority, and if that is not established, that the statement is voluntary.
[51] When a voluntariness voir dire is required it is generally held as part of the Crown’s case. A voir dire is required whether the Crown seeks to use the statement for cross-examination or seeks its admission for the truth of its contents: [R. v. Monette, 1956 CanLII 68 (SCC), [1956] S.C.R. 400, at p. 402, (S.C.C.) and R. v. Calder, 1996 CanLII 232 (SCC), [1996] 1 S.C.R. 660, at para. 26, (S.C.C.)].
[52] The defence raised questions about the absence of a pre-trial notice by the Crown of an application to determine the issue of a person in authority. The defence asserts the Crown was obliged to give notice of the application at the pre-trial.
[53] The purpose of Form 17, formulated pursuant to Rule 28 of the Criminal Proceedings Rules, is to, among other things, give notice to the parties and the trial judge of the mode of trial and notice of any applications or issues sought to be pursued by the parties at trial.
[54] The preamble of the Form contains a number of undertakings, among them one contained at paragraph 5:
- If any party changes the position taken on this form, which will be provided to the trial judge, they must provide written notice to the other party and the Superior Court Trial Office of the change in position, in addition to any notice required by the Rules of Court. If counsel have not indicated an application will be brought, the presumption is that it will not be heard. The failure to notify the other side and the Trial Office of any application not indicated on this form will be a factor considered by the trial judge in determining whether the new position has prejudiced the other party, and whether any application may proceed.
[55] Form 17 at Part 7 entitled “Crown Pre-Trial Applications” requires the Crown to check-mark whether it is seeking to obtain rulings as to the admissibility of Statements to Persons in Authority; and if so, whether the Crown is seeking to introduce the statement or seeking a ruling as to admissibility. The Crown did not give notice of an intention to apply to have a statement to a person in authority introduced for cross-examination or for a ruling on its admissibility.
[56] The defence asserts that its right to full answer and defence and a fair trial have been adversely affected since it had no notice that the Crown sought to use the statement at trial. The defence only became aware of the Crown’s intention to use the statement after the Crown had closed its case, when Crown counsel began cross-examining HF on the statement. The Crown did not seek to have the statement admitted for its truth.
[57] There was a suggestion by the defence that the Crown did not disclose the statement to the defence pursuant to its disclosure obligations. The Crown however was able to establish through reference to its electronic disclosure records that the accused’s first counsel and his current counsel received disclosure on separate occasions over a year ago.
[58] In the defence’s view, it was put in a position of not knowing the Crown’s case in advance for the purpose of formulating a defence strategy. The defence submits the Crown was required pursuant to the Form 17, paragraph 5 undertaking to give notice to the court and the defence if the Crown wished to change its position for trial. The defence alleges prosecutorial misconduct or negligence on the Crown’s part for what the defence referred to as a change in the Crown’s position and for the Crown’s use of a statement to a person in authority against the accused without seeking a voir dire on its admissibility.
[59] The accused, in the defence’s view, has been prejudiced by inculpatory statements in the statement. During the cross-examination the Crown of course centred on those aspects of the statement.
[60] As noted above, the defence did not object during the cross-examination of HF. The defence began re-examining HF which included re-examining him on the statement. The defence was nearing the end of its re-examination when it raised the objection about the Crown’s use of the statement without a voir dire being held.
[61] The Crown responded that it did not indicate on the Form 17 that it intended to bring an application on a statement to a person in authority because the Crown was then, and continues to be, of the view that the CAS worker who took the statement is not a person in authority.
[62] The Crown further submitted that if the court were to find the CAS worker is a person in authority, and that the Crown ought to have given notice at the pre-trial, then its failure to do so would not have been out of negligence or misconduct but rather the result of inadvertence or unintentional error.
[63] The Crown took the position that it was the defence’s obligation to bring an application on the statement to a person in authority. The Crown is of the view that the defence was aware or ought to have been aware of the statement by the accused as it was part of the Crown’s disclosure. The Crown relies on R. v. S.G.T for the proposition that “when the receiver of the statement is not a typical or obvious person in authority, it usually falls on the accused, in keeping with the evidential burden, to raise the issue and request a voir dire”: [R. v. S.G.T., at para. 23].
[64] That proposition makes sense since it is an accused who would know the circumstances surrounding their interaction with the receiver of the statement and who could offer their perception of the person with whom they interacted, contextual evidence that would assist with determining whether the person is a person in authority.
[65] I was presented with only one decision, the earlier cited R. v. LWF, where the question of whether a CAS worker was a person in authority was at issue. In that case this court held the worker who took a statement from the accused was a person in authority. A CAS worker therefore is not typically considered in criminal proceedings to be a person in authority. The Crown could not have foreseen how I would determine that issue.
[66] It goes without saying that it was incumbent on defence counsel to be aware of the statement in their possession and decide whether to have the statement subjected to review on a voir dire. In any event, the statement should not have been a surprise to the defence since it is their client who made the statement and would have knowledge of it.
[67] I do not find the Crown culpable for prosecutorial misconduct or negligence.
[68] I do not find that the defence consented to the cross-examination of HF. I am mindful of the stipulation by the Supreme Court of Canada in R. v. G. (B.) that the absence of an objection by the defence to the use of a protected statement to a psychiatrist on cross-examination of the accused did not amount to a waiver or consent to the use of the statement: [R. v. G. (B.), at para. 51].
[69] The requirements for a voir dire differ for prior out-of-court statements that are not made to a person in authority and those made to a person in authority. The former type of statement requires a voir dire only if the party is seeking a ruling on admissibility and not where it is sought only to be used for cross-examination.
[70] As discussed above, a statement to a person in authority requires a voir dire both if the party seeks to use it for cross-examination and when the party seeks a ruling on admissibility. On the Crown’s position that the statement was not to a person in authority, a voir dire was not required since the Crown sought to use the statement only for cross-examination purposes.
[71] I now revert back to considering the implications of my decision that Ms. Tugwell was a person in authority, whether at this stage in the trial an admissibility voir dire should be held. For the answer to that query I go back to first principles of trial fairness.
[72] Quite apart from the counsel-oriented concerns with disclosure and the nature of the statement, I must consider the position in which the circumstances place HF as a witness and an accused. The fact that the defence was not aware of the disclosure means HF would not have been prepared for trial by his counsel reviewing the statement with him in advance. Moreover, defence counsel could not review the statement with HF during trial, once it realized the existence of the statement, because HF was under cross-examination.
[73] What this meant for HF is that he found himself unprepared and unexpectedly facing cross-examination on a statement he made to a person in authority, a statement that contains both private and personal information about his family, particularly about himself and LRF, and potentially inculpatory and prejudicial statements.
[74] Trial fairness requires that I balance the prejudice to the accused and his entitlement to a proper defence against the disadvantage to the Crown of not having the use of the potentially probative evidence adduced in relation to the statement.
[75] In arriving at my decision I have not overlooked my finding that the Crown did not err, based on its not unreasonable view of the statement, in using the statement to cross-examine HF without a voir dire having been held. However, I conclude, weighing the prejudice and probative value, that to go on to consider the admissibility of the statement at the stage in the trial where the defence was nearing completion of re-examining HF and where HF has not been in a position to effectively answer to the statement would not be in the interests of fairness and justice.
[76] In spite of the defence’s own hand in the predicament this trial faces, the reality is that a full and fair defence has been lost to the accused with its inability to effectively address the prejudice engendered by the statement. I find the errors of HF’s counsel should not be visited on the head of the accused. I find enough prejudice has come to the accused to this point in the trial.
[77] I find the prejudice to HF’s defence by proceeding further outweighs the disadvantage to the Crown of not having the admissibility of the statement assessed. It would not be in the interests of justice in the circumstances to proceed to determine admissibility.
THE REMEDY
[78] The defence seeks the alternative remedies of an order excluding the evidence related to the statement, an order for a mistrial or an order for a stay of proceedings.
[79] The latter two remedies are exceptional and extreme in their consequences.
[80] A stay of proceedings is the most drastic of remedies available to a court. Courts have observed that a stay of proceedings is the most drastic remedy to an abuse of process because charges will never be prosecuted, victims will never get their day in court and society will never have the matter resolved by a trier of fact: [R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 53, (S.C.C)]. I have found no abuse of process. A stay is not an appropriate remedy.
[81] A mistrial is an appropriate remedy where it “is necessary to prevent a miscarriage of justice”: [R. v. Burke 2002 SCC 55 at para. 75, (S.C.C.)]. A mistrial “should only be granted as a last resort, in the ‘clearest of cases’ and where no remedy short of that relief will adequately redress the actual harm occasioned”: [R. v. Vader, 2016 ABQB 625, at para 10, (Alta. C.A.)]. Neither is this the appropriate case for a mistrial. There is another lesser remedy that will serve the interests of justice.
[82] This is not a jury trial so concern about the trier of fact being exposed to the prejudicial evidence in the statement is not so pressing a problem. As a judge I am amply equipped to disabuse my mind of the disputed evidence. I find that excluding the evidence adduced in relation to the statement and proceeding to complete the trial without that evidence is the proper remedy in the circumstances, the remedy that will serve the interests of justice.
DISPOSITION
[83] The Court orders as follows:
[84] I find no prosecutorial misconduct or negligence by the Crown.
[85] A voir dire on the admissibility of the statement will not be held.
[86] The evidence adduced in relation to HF’s statement is excluded.
B.A. ALLEN J.
Released: May 11, 2017
CITATION: R. v. H.F., 2017 ONSC 2897
COURT FILE NO.: CR-40000399-0000
DATE: 20170511
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
H.F.
Accused
REASONS FOR DECISION
(Ruling on Determination of Person in Authority and an Application for Mistrial and Stay)
B.A. ALLEN J.
Released: May 11, 2017