SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-20-9

DATE: 2021-03-18

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

J.D.

Accused

Ms. Reid, for the Crown

Mr. Cojocaru, for the Accused

HEARD: February 8, 2021 and March 15, 2021

REASONS FOR DECISION

VOLUNTARINESS VOIR DIRE – PRELIMINARY ISSUE

PUBLICATION RESTRICTION NOTICE

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

Conlan j.

I. Introduction

The Charge

1J.D. is charged with one count – that he sexually assaulted A.B. (not the complainant’s actual initials), contrary to section 271 of the Criminal Code (“CCC”). To respect the publication bans that have been issued, I will not set out the date or the place of the alleged offence.

2Henceforth, J.D. is referred to as the “accused”, and A.B. as the “complainant”. It should be noted that the complainant is an adult, and was at the time of the alleged offence, and she is the niece of the accused. The two are not blood relatives, however, as the accused is married to the sister (“K”) of the complainant’s father (“T”).

The Application and the Issue to be Decided

3The Crown, pursuant to direction given by another Justice at the Pretrial Conference, applies for a ruling that statements made by the accused to civilians were made voluntarily and, thus, are admissible at trial. The Crown has brought the Application reluctantly and only because it was ordered to do so by the Justice presiding at the Pretrial Conference.

4The statements in question, all oral ones and not recorded, were made by the accused to (i) his wife/the complainant’s aunt, K, and (ii) his friends, M and W.

5When I took carriage of this proceeding, I directed that we deal first with a preliminary issue, that is whether any of K, M, and W is a “person in authority”, as otherwise there is no obligation on the prosecution to prove beyond a reasonable doubt the voluntariness of any such statements made by the accused. This decision, therefore, deals only with that preliminary issue.

The Hearing of the Application

6The hearing of the Application, confined to the preliminary issue described above, took place on February 8, 2021. The defence proceeded first, at my direction. The accused testified and was cross-examined by the Crown. No further viva voce evidence was tendered by either side. Four exhibits were filed – (i) copies of screen shots of an electronic group chat on January 5, 2019 between the accused and others including T, M, and W, (ii) a transcript of M’s audio statement to the police, (iii) a transcript of W’s audio statement to the police, and (iv) a transcript of K’s audio statement to the police.

7Counsel delivered their oral submissions at Court on March 15, 2021. A transcript of the testimony of the accused on the voir dire was available to counsel when their submissions were delivered and has been reviewed by this Court.

The Positions of the Parties

8Mr. Cojocaru, counsel for the accused, submits that there is certainly an air of reality to the suggestion that all three statement takers, K, M, and W, are “persons in authority”. They were all aware of the accused’s precarious immigration status in Canada. They were all highly trusted by the accused. The accused believed that they were all “in his corner”, and in fact M and W told him that directly. K, the accused’s wife, was influencing and/or directing the police investigation, as illustrated by the police telling her when M was scheduled to provide his statement to the police. We know that M and W spoke to T (the complainant’s father) after M and W met with the accused at the pub, where the accused made the impugned remarks to his friends. We also know that K talked to the complainant and tried to influence her. In fact, not only did the accused subjectively believe that these three individuals were controlling or influencing the police investigation and/or prosecution, and not only was that subjective belief a reasonable one, but this was “an organized entrapment” of the accused by his wife and his two friends, the defence argues. Why else would the accused say these things to K, M, and W if he did not think that they could and would help him, asked defence counsel, rhetorically, in his submissions.

9Mr. Cojocaru acknowledged in his submissions that he could find no case like this one, where a friend or a spouse of the accused was found to be a person in authority such that the confessions rule was invoked. But the law is a “living tree” and evolves, submitted defence counsel. Thus, that this is a novel argument does not necessarily defeat it. I agree with both of those submissions.

10Ms. Reid, for the Crown, argues that this is nonsense (my word). The accused is the one who invited his two friends to hear his side of the story. The accused has admitted in his voir dire evidence that it was the complainant who ultimately controlled the process. A person in authority is more than someone who has some moral sway in the matter or some personal interest in it. “Authority” is not the same as “influence”. The whole defence argument is too remote and too vague; for example, “maybe” M and/or W will speak with T, and then “maybe” T will speak with the complainant, and then “maybe” that will influence the complainant as to whether she goes to the police. These three individuals were not acting in concert with the police, or as their agents, or as part of their team. The confessions rule is aimed at preventing coercive state conduct and not at protecting those who are foolish enough to confess to their spouses and friends. Even if the accused had the requisite subjective belief, which is not conceded by the Crown, then that belief was not objectively reasonable, submits Ms. Reid.

The Burden and the Standard of Proof

11On the preliminary issue described above, the accused bears the burden of demonstrating that there is an air of reality to the suggestion that K, M, and W were “persons in authority”. Both sides agree on that. The air of reality test is not a stringent or an onerous one; it is not as high as proof on a balance of probabilities. Both sides agree on that as well.

II. Analysis

The Jurisprudence Relied Upon by the Parties

12The defence relies on the decision of Pomerance J. in R. v. Carter and Dodd, 2011 ONSC 5633. I set out below paragraphs 1 through 8 of that decision.

1Timothy Carter and Donald Dodd are charged with two counts of first degree murder. The Crown alleges that the victims - Peter Kambas and Vaios Koukousoulas - were murdered in Carter’s garage and that the bodies were transported in his vehicle. It is alleged that the garage and vehicle were subsequently burned in order to conceal or dispose of evidence. The garage fire took place at the end of June 2008. The fire came to the attention of the police, as did the fact that the victims were missing. An investigation was commenced, though the bodies were not found until December 2008.

2On July 7, 2008, Carter was arrested for a drug offence and for possession of stolen property. Police had found cocaine in his home during execution of a search warrant and had discovered that the van he was driving when he left Windsor was stolen. While he was in custody on those charges, detectives in the major crime division interviewed him twice – once on July 7 and once on July 8, 2008 - telling him that he was a suspect in a missing persons investigation. The admissibility of those statements is challenged by the defence and will be the subject of a later ruling.

3On July 8, 2008, after his second interview, Carter was placed in a cell with an undercover officer and an individual named Adelino Moreira. The Crown alleges that Moreira burned Carter’s garage in order to help him “clean up” the murder scene. By the time Carter was arrested, a drug officer had already conducted a videotaped interview of Moreira. Moreira had told the officer, among other things, that Carter was a drug dealer, that he was “evil” and that one of the victims, “Pete”, had been in Carter’s garage the night of his disappearance. When police interviewed Carter, they played portions of Moreira’s videotaped statement for him. They advised Carter that they would be speaking with Moreira to obtain further information about the missing persons.

4The issue to be determined is whether Moreira was a person in authority for purposes of the common law confessions rule. Various statements were made by Carter to Moreira while the two were in the cells. If Moreira is a person in authority, the Crown must prove the voluntariness of those utterances. If Moreira is not a person in authority, the utterances are presumptively admissible as having been made to a private individual.

5At this juncture, I must rule on whether the defence has satisfied the preliminary evidential burden cast upon it to put Moreira’s status in issue. Is there an air of reality to the defence assertion that Moreira is a person in authority, sufficient to trigger a full inquiry into his status and/or the voluntariness of Carter’s statements?

6The voluntariness inquiry is triggered whenever a statement is made to a person in authority. While admissions made by an accused to a private citizen are presumptively admissible, a statement made to a person in authority must be proved voluntary as a pre-condition to admission. A person in authority may be generally described as a person formally engaged in the arrest, detention, examination or prosecution of the accused. See R. v. Hodgson, 1998 CanLII 798 (SCC), [1998] 2 S.C.R. 449 (S.C.C.) at para. 16; R. v. S.G.T., 2010 SCC 20, [2010] S.C.J. No.20. A person in authority is someone that is in a position to influence or control the prosecution – to offer the accused either a promise of benefit or a threat of prejudice.

7When a statement is received by a conventional state actor - such as a police officer or a prison guard - his or her status as a person in authority will usually be quite obvious. When the receiver of a statement is a private citizen, that person will not be treated as a person in authority unless there is evidence of a real or a reasonably perceived connection between that person and the prosecution. The defence will bear the evidential onus of making that person’s status a live issue. If that evidential burden is discharged, it will fall to the prosecution to prove beyond a reasonable doubt that the receiver is not a person in authority or, if this burden cannot be discharged, that the statement was made voluntarily.

8The person in authority test has both a subjective and objective component. There must be evidence to indicate that the accused subjectively perceived the receiver of the statement to be in a position to influence or control the prosecution. That belief must, in turn, be objectively reasonable. Where there is evidence to indicate that the accused reasonably believed that he or she was speaking to a person in authority, the evidential onus is made out, whether or not the individual was actually a person in authority. It is the accused’s subjective belief and the reasonableness of that belief that drives the inquiry.

13In the Carter, supra case, the Justice determined that the defence had failed to meet its preliminary evidential burden, and thus, a full voluntariness voir dire was not required.

14The defence also relies upon the decision of the Provincial Court of New Brunswick in R. v. C.S., 2006 NBPC 7. I set out below paragraphs 1 through 5 and 34 through 59 of that decision.

1The defendant young person stands charged that she did:

“on or about the 22nd day of October A.D. 2004 at or near the City of Miramichi in the County of Northumberland and Province of New Brunswick did unlawfully, for the purpose of trafficking, have in her possession substances included in Schedule II of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, to wit: Canabis (Marihuana),(sic) Contrary to Subsection 5(2) of the said Act, committing thereby an indictable offence under paragraph 5(3)(a) of the Controlled Drugs and Substances Act.

2The issue in this voir dire is the admissibility of seven cigarettes found in the immediate possession of the defendant at her school, M.[…] School, by teachers acting on their own initiative. They took that initiative after the defendant’s perceived suspicious noon hour behaviour aroused the interest of her home room teacher and resulted in a report by that teacher to the school principal a short time later.

3Although the voir dire that was commenced to deal with the subject of this decision began as a Charter voir dire, it evolved during closing argument into a blended hearing that was broadened through submissions by Mr. Gaffney, counsel for the defendant, to include the common law and statutory admissibility of statements made to the teachers who were part of the events.

4Several issues must be determined at this stage of the trial. Among them are: whether statements made by the defendant to the teachers who responded to the complaint by the home room teacher were statements to persons in authority requiring compliance with the common law as well as Section 146 of the Youth Criminal Justice Act (the Act); whether those responding teachers were obliged to apprise the defendant of rights flowing from Section 10 of the Charter of Rights and Freedoms, specifically any right to know the nature of the suspicion held by the teachers involved and to be told of the right to speak to counsel without delay; and, finally, whether the teachers involved had the proper grounds and right to conduct the search/seizure that led to the charge or whether they may have infringed Section 8 of the Canadian Charter of Rights and Freedoms.

5There has been conflicting testimony on some of these issues and thus credibility determinations must be made before any analysis of the substantive issues can be undertaken. Those credibility issues are somewhat complex since the analytic framework for credibility assessment is different for Charter issues than it is for statements that may have been made to persons in authority. The former, of course, is guided by the burden of proof on a balance of probabilities while the latter is subject to the usual criminal burden of proof and credibility assessment set out by the Supreme Court in R. v. W. (D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) With respect to the credibility assessment witnesses on a Charter voir dire see: R. v. Kicovic (2005), 25 C.R. (6th) 264 (Prov. Ct.) (See, also, the annotation following the judgment by Professor Steve Coughlan) and R. v. Sargent (2005) 2005 NBPC 27, N.B.J. No. 362 (Prov. Ct.) at paragraph 37.

34This case presents another example of the importance of counsel both preparing and executing a voir dire that may have both Charter and other legal issues entwined within it. At its outset, the primary focus of this voir dire has been the admissibility of statements made to a school principal and a seizure of contraband that followed the statements made to the teacher. While that portion of the evidence in the trial concerned only the possible engaging of ss. 10, and 8 of the Charter, the summation of the issues by counsel for the defendant raised for the first time the issue of whether, absent any Charter violations, the statements made by the defendant were inadmissible as infringing the provisions of s. 146 of the Act and, implicitly, the common law rules relating to statements made to persons in authority.

35A failure to appreciate some of the potential issues of a Charter voir dire can have significant impact on the outcome of the admissibility hearing. In this regard, see: R. v. Haas 2005 CanLII 26440 (ON CA), [2005] O.J. No. 3160 (O.C.A.); R. v. Sargent 2005 NBPC 27, [2005] N.B.J. No. 362 (P. Ct.) at paragraphs 33-4.

36In light of the issues raised, the framework of analysis in this particular case must, of necessity, begin with a determination of whether Ms. P.G. was a person in authority. That is so because, as previously stated, the onus and standard of proof as well as the rules relating to credibility assessment are different depending upon whether the statement relied upon by the Crown to justify the seizure of the contraband is a statement to a person in authority, possibly engaging the common law and statutory rules under the Act that apply to such statements, or whether this is simply a case of a Charter voir dire concerned with whether there has been a Charter violation or violations sufficient to warrant the exclusion of some or all of the impugned evidence. Thus, no credibility assessment of the witnesses can be undertaken until the fundamental nature of the voir dire has been determined.

37The defence has posited that the principal, Ms. P.G., was a person in authority when she withdrew the defendant from her classroom and confronted her in the hallway about whether she was selling drugs in the school as a result of the observations of Ms. A.B. that had been communicated to her. Virtually none of the questioning during the voir dire has focussed on what the defendant perceived about whether she considered the school principal a person in authority.

38The only direct question posed to the seventeen year old defendant was asked by the prosecutor on cross-examination when at the close of his cross-examination he said: “You didn’t believe they were state agents?” She responded: “Yes I did.” Apart from that comment the only evidence from the defendant that remotely informed the issue came when she testified about being in the hall and empty classroom with Ms. P.G. and her vice-principals she said felt as though she had to tell them everything and felt she may end up going to jail. Who would be responsible for her going to jail was never a question put to her. No other evidence informs the issue except the administrative managerial positions that Ms. P.G. and the vice-principals occupied at the time.

39In its decision in R. v. Hodson 1998 CanLII 798 (SCC), [1998] 2 S.C.R. 449 (S.C.C.) the Supreme Court set out the principles to be applied in assessing whether, in a given circumstance, someone is a “person in authority” such that the rules relating to statements made to persons in authority must be applied. If the recipient is determined to be a person in authority at the time a statement is made a defendant, then the Crown must of course prove that the statement is voluntary beyond a reasonable doubt.

40The starting point for the determination of whether someone is a person in authority was set out in R. v. A.B. (1986), 1986 CanLII 4624 (ON CA), 26 C.C.C. (3d) 17 (O.C.A.) at p. 26 in the summary of principles provided by Cory J.A. (as he then was):

“As a general rule, a person in authority is someone engaged in the arrest, detention, examination or prosecution of the accused. When the word "examination" is used, I believe it refers to interrogation by police officers, detention or security guards and members of the Crown Attorney's office.”

However, Justice Cory also recognized that there was a subjective aspect to the test in A.B.

41In Hodson, Cory J. reaffirmed that the subjective belief of a defendant that a person was a person in authority is important to a proper determination of the recipient’s status. He added, however, that the subjective belief must have a reasonable basis to it that the receiver of the statement can somehow influence the course of the prosecution. At paragraphs 33-4 he said:

“The subjective approach to the person in authority requirement has been adopted in this Court. See Rothman, supra, at p. 663. The approach adopted by McIntyre J.A. (as he then was) in R. v. Berger (1975), 1975 CanLII 1250 (BC CA), 27 C.C.C. (2d) 357 (B.C.C.A.), at pp. 385-86 is, in my view, a clear statement of the law:

‘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? Was he under the impression that the failure to speak to this person, because of his power to influence the prosecution, would result in prejudice or did he think that a statement would draw some benefit or reward? If his mind was free of such impressions the person receiving this statement would not be considered a person in authority and the statement would be admissible.’

However, to this statement I would add that the accused's belief that he is speaking to a person in authority must also be reasonable, in the context of the circumstances surrounding the making of the statement.”

42He then went on to provide a number of examples of persons in authority at paragraph 35:

“Over the years, the courts have determined when and in what circumstances a person will be deemed a person in authority for the purposes of the confessions rule. See, e.g., R. v. Trenholme (1920), 1920 CanLII 461 (QC CA), 35 C.C.C. 341 (Que. K.B.) (complainant's father was held to be a person in authority where he has control over the prosecution of the accused); R. v. Wilband, 1966 CanLII 3 (SCC), [1967] S.C.R. 14 (psychiatrist is not a person in authority where he cannot control or influence the course of the proceedings); R. v. Downey (1976), 1976 CanLII 1450 (NS SC), 32 C.C.C. (2d) 511 (N.S.S.C.A.D.) (victim is a person in authority if the accused believed that the victim had control over the proceedings); A.B., supra (a parent is not, in law, a person in authority if there is no close connection between the decision to call the authorities and the inducement to a child to make a statement); R. v. Sweryda (1987), 1987 ABCA 75, 34 C.C.C. (3d) 325 (Alta. C.A.)(a social worker is a person in authority if the accused knew the social worker was investigating allegations of child abuse and believed it could lead to his arrest). These cases have not departed from the governing rule that defines a person in authority in relation to the accused's perception of the receiver's involvement with the investigation or prosecution of the crime nor have these decisions defined a person in authority solely in terms of the personal authority that a person might wield in relation to the accused. Moreover, in concluding that the receiver of the statement was a person in authority, the courts have consistently found the accused believed the receiver was allied with the state authorities and could influence the investigation or prosecution against the accused.”

43Of significance to the determination to be made in this instance are further comments he made at paragraph 36:

“The important factor to note in all of these cases is that there is no catalogue of persons, beyond a peace officer or prison guard, who are automatically considered a person in authority solely by virtue of their status. A parent, doctor, teacher or employer all may be found to be a person 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.” (emphasis added)

44In order to engage the issue at trial the evidence presented must meet a minimum threshold set out in Hodgson at paragraph 37-8:

“…However, in relation to the person in authority requirement, the evidence required to establish whether or not a person should be deemed a person in authority will often lie primarily with the accused. The accused therefore must bear some burden in relation to this aspect of the confessions rule. The burden should be an evidential and not a persuasive one. See, e.g., R. v. Scott (1984), 1 O.A.C. 397, at p. 399. John Sopinka, Sidney N. Lederman and Alan W. Bryant, in The Law of Evidence in Canada (1992), at pp. 56-57, explain the difference between the two burdens:

‘The term evidential burden means that a party has the responsibility to insure that there is sufficient evidence of the existence or non-existence of a fact or of an issue on the record to pass the threshold test for that particular fact or issue. In contrast, the term legal burden of proof means that a party has an obligation to prove or disprove a fact or issue to the criminal or civil standard. The failure to convince the trier of fact to the appropriate standard means that party will lose on that issue.’

The evidential burden on an accused in a criminal case is described as follows (at p. 138):

‘Where an evidential burden for an issue rests on the defendant in a criminal case, for example self-defence, the accused has the obligation to ensure that there is some evidence on the record to make it a live issue. The evidence necessary to satisfy an evidential burden may arise in the case for the Crown or the defence.’

In the vast majority of cases, the accused will meet this evidential burden by showing the accused's knowledge of the relationship between the receiver of the statement and the police or prosecuting authorities. For example, the fact that the statement was made to a police officer who was in uniform or identified himself or herself as a peace officer will satisfy the accused's evidential burden in relation to the person in authority requirement. See, e.g., Morris v. The Queen, 1979 CanLII 243 (SCC), [1979] 2 S.C.R. 1041, at p. 1066. Once the accused satisfies this evidential burden, the ultimate burden of proof rests with the Crown. See R. v. McKenzie, 1965 CanLII 673 (AB CA), [1965] 3 C.C.C. 6 (Alta. S.C.A.D.), at p. 28. In R. v. Postman (1977), 1977 ALTASCAD 92, 3 A.R. 524, at p. 542, the Alberta Supreme Court, Appellate Division held, correctly in my view, that where a witness is not prima facie a person in authority (in that case, a doctor), "it is open to defence counsel to challenge the prima facie case and require evidence to be given to determine the facts of the matter". Thus, once the defence discharges its burden and establishes that there is an evidential basis to the claim that the receiver of a statement made by the accused is a person in authority, the burden shifts to the Crown to establish beyond a reasonable doubt either that the receiver is not a person in authority, or, if this burden cannot be discharged, that the statement was made voluntarily.”

45That test is the same as it would be in order for a defendant to engage an affirmative defence in a criminal trial. Thus, the issue will have met the threshold, or have an air of reality to it if there is evidence from the Crown or defence, or emerging from the record itself upon which, if it were an affirmative defence case, a properly instructed jury acting reasonably could acquit. R. v. Cinuos 2002 SCC 29, [2002] 2 S.C.R. 3 (S.C.C.); R. v. Fontaine 2004 SCC 27, [2004] 1 S.C.R. 702 (S.C.C.) at paragraphs 64-74; R. v. Cornejo (2004), 2003 CanLII 26893 (ON CA), 18 C.R. (6th) 124 (O.C.A.); R. v. O’Brien (R.S.) (2003), 2003 NBCA 28, 257 N.B.R. (2d) 243 (N.B.C.A.) at paragraphs 113-114, 116 and 120; R. v. T.K.E. 2005 NBCA 27, [2005] N.B.J. No. 91 (N.B.C.A.) at paragraph 34.

46In concluding on this issue Cory J. provided a helpful summary of the applicable principles to both assessing whether a statement was made to a person in authority and also whether it is voluntary. Of particular interest to the issue of person in authority are points 3,4 and 5 of the summary set out at paragraph 48 of Hodgson:

“3. The rule is applicable when the accused makes a statement to a person in authority. Though no absolute definition of "person in authority" is necessary or desirable, it typically refers to those formally engaged in the arrest, detention, examination or prosecution of the accused. Thus, it would apply to person such as police officers and prison officials or guards. When the statement of the accused is made to a police officer or prison guard a voir dire should be held to determine its admissibility as a voluntary statement, unless the voir dire is waived by counsel for the accused.

4. Those persons whom the accused reasonably believes are acting on behalf of the police or prosecuting authorities and could therefore influence or control the proceedings against him or her may also be persons in authority. That question will have to be determined on a case-by-case basis.

5. The issue as to who is a person in authority must be resolved by considering it subjectively from the viewpoint of the accused. There must, however, be a reasonable basis for the accused's belief that the person hearing the statement was a person in authority.”

47The test for determining if the recipient is a person in authority that has clearly been held to be subjective in nature as a result of Hodgson, in many respects mirrors Justice Cory’s earlier decision in A.B. Although Cory J. did not qualify his fifth principle on subjective belief in either A.B. or Hodgson, the authors of McWilliam’s, Canadian Criminal Evidence 4th ed. (Canada Law Book Aurora ON) at Ch. 8-50 make the following observations regarding the principles set out in A.B. (and by implication in Hodgson):

“Although Cory J.A. had already stated as his first principle that ‘as a general rule, a person in authority is someone engaged in the arrest, detention, examination or prosecution of the accused’, he did not expressly so qualify the fifth proposition. None the less, it is submitted that the weight of authority is an overriding requirement and, indeed, in R. v. A.B. it was held that the accused child’s subjective belief that his mother was a person in authority did not render her to be one.”

48The particular issue in Hodgson was whether the complainant and her parents were persons in authority when they confronted the accused at work. At that time, the defendant allegedly confessed to a sexual assault upon the complainant. As a result of the confession the mother struck the accused. Shortly thereafter the father held a knife to the defendant’s throat to prevent him from leaving before police arrived. In the face of this evidence Cory J. noted:

“…It is true the complainant and her family members are capable of being persons in authority. Indeed, anyone is capable of being a person in authority where a person becomes sufficiently involved with the arrest, detention, examination or prosecution of an accused, and the accused believes that the person may influence the process against him or her. It does not follow that simply because it has been held, in the circumstances presented in other cases, that a family member was a person in authority, that the trial judge should have been alerted to the need for a voir dire. Virtually any category of person -- parents of the accused, parents of the complainant, teachers, psychiatrists, physicians -- may, in light of the particular evidence adduced, be considered to be a person in authority. …”

49The principles set out in Hodgson were recently reaffirmed in R. v. Grandinetti 2005 SCC 5, [2005] 1 S.C.R. 27 (S.C.C.). At paragraph 37-8 Abella J. summed them up this way:

“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".

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.

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.’”

50In theory the threshold for engaging the principle that a teacher or administrator in a school is a person in authority, and in this case possibly perceived state agent, may appear rather low. However, in reality it may be a significant burden.

51In R. v. M.R.M. 1998 CanLII 770 (SCC), [1998] 3 S.C.R. 393 (S.C.C.) the vice-principal of a junior high school obtained reliable information that M.R.M. would be carrying drugs at a school dance and had been selling in the past at the school. When M.R.M. arrived at the dance the vice-principal called in the R.C.M.P. and then proceeded to find M.R.M. and ask him to come to his office. The R.C.M.P. officer was in attendance at the school office when the vice-principal and M.R.M. returned. A search by the vice-principal took place in the presence of the police officer that disclosed that M.R.M. was carrying drugs on his person. The accused contended that the vice-principal was a state agent in the circumstances. At paragraph 28 Cory J. for the Court found:

“The mere fact that there was cooperation between the vice-principal and the police and that an officer was present during the search is not sufficient to indicate that the vice-principal was acting as an agent of the police. The trial judge stated that there was an "agreed strategy" between Mr. Cadue and Constable Siepierski that resulted in Mr. Cadue's acting as a police agent. With respect, there is no evidence to support this conclusion. There is no evidence of an agreement or of police instructions to Mr. Cadue that could create an agency relationship.”

There is not, of course, symmetry between the legal concepts of a state agent and a person in authority. However, given the statements of Cory J. in M.R.M. it is of no legal significance to the determination of whether the defendant perceived Ms. P.G. to be a person in authority that she may have believed she was a state agent. If she did, it was an unreasonable error on her part to do so.

In addition, if the vice-principal in M.R.M., despite his prior cooperation with police in anticipation of a search of M.R.M. once he arrived at the school dance, did not attain the status of a state agent by conducting a search of the accused in the presence of the police, Ms. P.G. could never have, given the fact that the police did not become involved until after the “joints” had been turned over to the teachers by the defendant.

52The only other aspect of the voir dire that might engage the issue of a person in authority must emerge from the rest of the evidence and the record itself. The implicitly compulsive nature and authority of teachers over their students in the school environment is a factor that must be addressed. The defendant testified that she felt she had no choice but to tell the teachers everything she knew. She said that she felt she would be going to jail when she was in the hall with the teachers even though no contraband was found until much later.

53In M.R.M. the compulsive nature of the school environment was discussed by Cory J. at paragraphs 66-7 where he noted:

“The appellant testified that he felt he had no choice but to follow the vice-principal to his office and remain there. There is no doubt that he felt that he was under some measure of compulsion. Within the school students must often feel compelled to obey school rules and the instructions of their teachers and principals. Students may often be told by teachers to go to a certain location and to wait there for further instructions. Yet the school environment requires that this be done. It does not mean that the students were detained within the meaning of s. 10(b).

Detention has been defined to include a "deprivation of liberty by physical constraint" or "when a police officer or other agent of the state assumes control over the movement of a person by a demand or direction which may have significant legal consequence and which prevents or impedes access to counsel" (R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613, at p. 642). Even if the compelled attendance of a student at a principal's office or some other form of restraint by a school authority could be understood as falling within the strict terms of the definition of "detention" set out in Therens, it should not be considered as "detention" for the purposes of s. 10(b). In my view that section was not meant to apply to relations between students and teachers, but rather to relations between individuals and the state, usually focused upon the investigation of a criminal offence. The right to counsel provided in s. 10(b) was designed to address the vulnerable position of an individual who has been detained by the coercive power of the state in the course of a criminal investigation, and is thus deprived of his or her liberty and placed at risk of making self-incriminating statements (R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at p. 191). Its application in the school context is inappropriate and would lead to absurd results. As a result, there was no detention for Charter purposes in this case, and thus no violation of s. 10(b) can be found.” (emphasis added)

54If a student is not detained for the purposes of s. 10 of the Charter in circumstances such as occurred in M.R.M. it is difficult to conclude that the defendant in this case could reasonably believe that merely being asked to attend in a hallway outside a classroom to speak to the principal, a person who was well known to her and who considered her a good student, could subjectively reasonably trigger in the mind of the defendant the kind of authority and compulsive atmosphere required to transpose the principal from a school administrator into “a person in authority” in law.

55Of course, there is no requirement that a person be detained by another in order for the latter to achieve the status of a person in authority in law. Nonetheless, the usual power imbalance between the teaching staff of a school and its students that is by nature so steeply tipped in favour of the teachers is not a sufficient reason to engage the principles associated with persons are persons in authority in law. The defendant has testified that she considered the teachers were state agents; “They were sure acting like that” she said.

56Given her age and apparent maturity while testifying, such a bald statement, taken together with her own internal speculations, without further explanation or expansion on re-examination could not provide the necessary subjective foundation in the mind of the defendant upon which a reasonable conclusion could be drawn that she considered them either state agents as the law defines it or in law persons in authority.

57Further, there is no evidence, nor does anything emerge from the record of these proceedings, that the principal or the two vice-principals were at that time engaged in the “arrest, detention, examination or prosecution” of the defendant or that the defendant perceived them to be so connected to either the police or the prosecution to warrant such a finding. The evidence as presented has cast them as they are invariably cast in a criminal trial, as witnesses, albeit important witnesses for the prosecution. There is no evidence that they had any control over the proceedings or that the defendant perceived that they had any such measure of control.

58Assuming for a moment that there is sufficient evidence to at least meet the threshold necessary to engage the legal principles related to “a person in authority”, it is clear from the record that there is no reasonable doubt emerging from the evidence, or apparent from the record, that would allow for a finding that Ms. P.G. was objectively or subjectively seen as a person in authority at the time the defendant made the admission that is in issue.

59While the proper legal test at this point is the subjective belief of the defendant, the general principle set out in Hodgson that frames the reasonableness determination of that belief speaks about “persons in authority” being those who are involved in the arrest, detention, examination or prosecution of the defendant. No evidence emerges that could reasonably lead to a conclusion that Ms. P.G. could be so perceived. In light of this finding that she was not at the time a person in authority the provisions of s. 146 of the Act are not engaged.

15In the C.S., supra case, the Justice determined that the defence had failed to meet its preliminary evidential burden on the issue of whether the alleged persons in authority (teachers at the school where the accused was attending) were in fact persons in authority, and thus, section 10 of the Charter was not engaged in terms of assessing the admissibility of statements made by the accused to school officials upon the discovery of alleged contraband in the accused’s possession.

16Finally, the defence relies upon the decision of Justice Trotter, as His Honour then was, in R. v. Belle, 2010 ONSC 1618. I set out below paragraphs 1 through 4 and 28 through 37 of that decision.

1Michael Belle is charged with a number of fraud-related offences at the Oakville Mitsubishi Dealership, in the City of Oakville, Ontario. It is alleged that in January of 2006, Mr. Belle along with another, Michele Dennis, attended the dealership and obtained a number of vehicles by providing false banking and credit information.

2As part of its case, the Crown seeks to rely on a number of utterances allegedly made by Mr. Belle to Martin Bolstad and Jeremy Kuyvenhoven, two bailiffs who were involved in the recovery of the vehicles that are the subject of these charges. Counsel for Mr. Belle contests the admissibility of these statements on the basis that: (a) the bailiffs were persons in authority; and (b) the statements were not given voluntarily.

3When this application commenced, I was advised by counsel that the trial would not start until much later, and that it was unlikely that I would be the trial judge. Nevertheless, both counsel agreed to be bound by my Ruling on this issue.

4For the reasons set out below, I find that the bailiffs were persons in authority for the purposes of the common law confessions rule. Moreover, I find that the Crown has not been able to establish beyond a reasonable doubt that the statements were voluntary. Accordingly, I rule that all of Mr. Belle’s utterances to the bailiffs are inadmissible.

28For the purposes of the common law confessions rule, it is only statements that are made to persons in authority that require examination. If an accused person is alleged to have made a statement to a person in authority, the Crown bears the onus of proving beyond a reasonable doubt that the statement was made freely and voluntarily: see Erven v. The Queen (1979), 1978 CanLII 19 (SCC), 44 C.C.C. (2d) 76 (S.C.C.) and Regina v. Oickle (2000), 2000 SCC 38, 147 C.C.C. (3d) 321 (S.C.C.).

29The ambit of the person in authority requirement was explored in the leading case of Regina v. Hodgson (1998), 127 C.C.C. (3d) 447 (S.C.C.). Writing for the majority of the Court, Cory J. accepted the traditional description of the concept found in Regina v. A.B. (1986), 1986 CanLII 4624 (ON CA), 26 C.C.C. (3d) 17 (Ont. C.A.), at p. 26, that a person in authority is anyone formally engaged in the “arrest, detention, examination or prosecution of the accused.” However, Cory J. allowed, at p. 460, that “this definition may be enlarged to encompass persons who are deemed to be persons in authority as a result of the circumstances surrounding the making of the statement.”

30The 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 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.

31Surprisingly, perhaps, the issue of whether a bailiff is capable of being considered a person in authority has not been addressed in previous cases, nor has it been discussed in the legal literature. Therefore, the general principles established in Hodgson must be applied to the entirety of the evidence adduced in this case.

32In all of the circumstances, I find that Mr. Belle has discharged his evidential burden by pointing to evidence that suggests he reasonably believed that the two bailiffs were persons in authority. I take into account a number of factors. Initially, I look to the statutory context. In Ontario, bailiffs are appointed and regulated by the Bailiffs Act, R.S.O. 1990, c. B.2. Moreover, bailiffs are included within the definition of a “peace officer” in s. 2 of the Criminal Code, which includes (in part) “a police officer, police constable, bailiff, constable, or other person employed for the preservation and maintenance of the public peace or for the service or execution of civil process.”

33When the bailiffs visited Mr. Belle’s home for their initial meeting, they were not dressed in any type of uniform. However, Mr. Belle saw Mr. Bolstad’s identification affixed to his belt. Mr. Kuyvenhoven said that he showed Mr. Belle his official identification. As noted above, the badge and identification have features similar to that used by other law enforcement officers. Mr. Kuyvenhoven admitted that, when initially dealing with Mr. Belle, he mentioned Michele Dennis and he expressed his view that Mr. Belle was involved in a “fraud” with her.

34Mr. Belle testified that the bailiffs mentioned the involvement of the police and that Mr. Kuyvenhoven in particular mentioned Sgt. Bennett of the TPS. Mr. Kuyvenhoven said that he mentioned the police later in the course of dealing with Mr. Belle. I am sure that the note-taking practices of both bailiffs in this case are suitable for discharging their primary responsibilities under the Bailiffs Act. However, they are problematic in the context of a criminal case. There are no verbatim accounts of what occurred at the Belle residence. Indeed, neither bailiff could say with certainty what day they were at Mr. Belle’s residence. Consequently, I discount their evidence as to what they said to Mr. Belle in terms of their involvement, and the timing of their involvement, with the TPS. Moreover, Sgt. Bennett’s notes are also problematic and cause me concern on this point. Given the general approach and tone of both bailiffs in dealing with Mr. Belle, particularly Mr. Kuyvenhoven, it makes complete sense to me that they would have made mention of the involvement of Sgt. Bennett and the prospect of Mr. Belle being in big trouble down the road. This could only assist them in the recovery of the vehicles.

35Moreover, Mr. Belle’s suspicion that the bailiffs were somehow involved with the TPS in this matter was confirmed by what occurred on June 29, 2006. When P.C. McCord was detailed to keep the peace during the seizure of the vehicles, she was immediately directed to contact Sgt. Bennett. I received no satisfactory explanation, from Sgt. Bennett or any other witness, as to why this occurred. P.C. McCord was told by Sgt. Bennett to make notes of what occurred and to forward them to him. Accordingly, P.C. McCord listened in on the conversation between Mr. Belle and Mr. Kuyvenhoven over the speaker phone and made notes of what she heard.

36Mr. Belle’s evidence was problematic in some ways. I take into account his record for crimes of dishonesty in assessing his credibility. I find that he exaggerated his evidence on certain issues. For instance, I do not believe him when he spoke of being chased at high speeds by Mr. Kuyvenhoven. Moreover, some of the language he used in his testimony (i.e., “person of authority”) was a clumsy attempt to tailor his evidence to the legal issues before me. Nevertheless, on the entirety of the evidentiary record before me, I conclude that Mr. Belle has discharged his evidential burden under Regina v. Hodgson, supra.

37It may well be that the two bailiffs in fact had nothing to do whatsoever with the criminal investigation of the charges before me. As they both said, they were not deliberately assisting the police in this case. It was not their role. However, the point is how their role was perceived by Mr. Belle in this case, and whether his perception was reasonable. I find that Mr. Belle has pointed to evidence that establishes that he subjectively believed that the bailiffs were somehow connected to, and could have had some influence over, a criminal investigation concerning him. As noted above, there are features of the evidence that, in my view, make this belief subjectively reasonable.

17In the Belle, supra case, the Justice determined that the accused had met his initial burden on whether the persons to whom he spoke (two bailiffs) were persons in authority.

18The Crown relies upon the decision of the Supreme Court of Canada in R. v. Wells, 1998 CanLII 799. I set out below paragraphs 4 through 8 and 13 through 18 of that decision.

4. The respondent was an acquaintance of G.D., the father of the complainant A.D. When G.D. invited the respondent to stay at his home, G.D. noticed that A.D.’s behaviour began to change, and he began wetting his bed. This prompted G.D. to ask A.D. if the respondent had been touching him improperly but A.D. denied it.

5. G.D. moved with his family to another town and refused to let the respondent accompany them. Shortly after the D. family moved, the respondent showed up at their door. G.D. allowed the respondent to stay with the family for a couple of days. During that time, T.T., a playmate of A.D., told his father, S.T., that the respondent had touched his penis. S.T. and G.D., who were friends, discussed the matter the following day at work. After work, they stopped at the local RCMP detachment and discussed the situation with a police officer. The evidence does not disclose the content of their discussions with the police on either that occasion or on the visit of the following day. Both G.D. and S.T. testified that after the visits to the RCMP, they decided to try to trick the respondent into confessing. This plan elicited a response from the respondent that he had accidentally touched T.T. while playing and that he (the respondent) would explain it all to S.T. The respondent told G.D. that he was not the kind of man who touched young boys.

6. G.D. then asked A.D. and C.M., G.D.’s nephew, if the respondent had touched them. The children admitted that he had. G.D. confronted the respondent with the allegations, and he denied them. G.D. then grabbed the respondent by the hair and held a bread knife to his throat. He said he could kill the respondent for what he had done to his children. The respondent replied, “I wish you would. I don’t know what’s wrong with me.” G.D. then dropped the knife and punched the respondent once, cutting him above the eye. G.D. also forced the respondent to apologize to the children. The respondent told the children, “I never meant to hurt you and I was wrong for touching you. I’m sorry.” G.D. took the children to see the RCMP the next day and the day after that, the respondent was arrested.

7. Throughout his statement to the police, the respondent kept expressing surprise that it had taken G.D. three days to have him arrested. He expressed it in these words:

That was on a Tuesday, Tuesday of around what? Around two‑thirty no, around two or two‑thirty, this happened when he came outta the bush and why it took him so long to put out a warrant for me or have me arrested right on the spot, why? It took ’em three days?

It was conceded before the Court of Appeal that the word “him” referred to G.D.

8. At trial, the statements made by the respondent to G.D. and the children were admitted into evidence. Defence counsel raised no objection to the admission of this evidence, but argued to the jury that the statements were patently unreliable in light of the circumstances under which they were made. The respondent was convicted.

9. The basic issue in this appeal, as in Hodgson, is whether the trial judge erred in failing to hold a voir dire of his own motion to test the voluntariness of certain out‑of‑court statements made by the accused before admitting them. In order to resolve this issue, it is appropriate to consider whether the confessions rule should continue to apply only to statements made to persons in authority, or whether it should be expanded so as to capture the out‑of‑court statements made by the accused in this case.

10. The applicable principles and factors to be considered are set out in the reasons given in Hodgson. It will suffice to repeat the summary set out in Hodgson, at para. 48.

11. The rule which is still applicable in determining the admissibility of a statement made by an accused to a person in authority is that it must have been made voluntarily and must be the product of an operating mind.

12. The rule is based upon two fundamentally important concepts: the need to ensure the reliability of the statement and the need to ensure fairness by guarding against improper coercion by the state. This results in the requirement that the admission must not be obtained by either threats or inducements.

13. The rule is applicable when the accused makes a statement to a person in authority. Though no absolute definition of “person in authority” is necessary or desirable, it typically refers to those formally engaged in the arrest, detention, examination or prosecution of the accused. Thus, it would apply to person such as police officers and prison officials or guards. When the statement of the accused is made to a police officer or prison guard a voir dire should be held to determine its admissibility as a voluntary statement, unless the voir dire is waived by counsel for the accused.

14. Those persons whom the accused reasonably believes are acting on behalf of the police or prosecuting authorities and could therefore influence or control the proceedings against him or her may also be persons in authority. That question will have to be determined on a case-by-case basis.

15. The issue as to who is a person in authority must be resolved by considering it subjectively from the viewpoint of the accused. There must, however, be a reasonable basis for the accused’s belief that the person hearing the statement was a person in authority.

16. The issue will not normally arise in relation to undercover police officers. This is because the issue must be approached from the viewpoint of the accused. On that basis, undercover police officers will not usually be viewed by the accused as persons in authority.

17. If it is contended that the recipient of the statement was a person in authority in the eyes of the accused then the defence must raise the issue with the trial judge. This is appropriate for it is only the accused who can know that the statement was made to someone regarded by the accused as a person in authority.

18. On the ensuing voir dire the accused will have the evidential burden of demonstrating that there is a valid issue for consideration. If the accused meets the burden, the Crown will then have the persuasive burden of demonstrating beyond a reasonable doubt that the receiver of the statement was not a person in authority or if it is found that he or she was a person in authority, that the statement of the accused was made voluntarily.

19. In extremely rare cases the evidence adduced during a trial may be such that it should alert the trial 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 his or her own motion direct a voir dire, subject, of course, to waiver of the voir dire by counsel for the accused.

20. 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.

21. If the trial judge is satisfied that the receiver of the statement was not a person in authority but that the statement of the accused was obtained by reprehensible coercive tactics such as violence or credible threats of violence, then a direction should be given to the jury. The jury should be instructed that if they conclude that the statement was obtained by coercion, they should be cautious about accepting it, and that little if any weight should be attached to it. [Emphasis in original.]

22. Although this case is not easy to resolve, the evidence adduced was, in my view, sufficient to have alerted the trial judge to the need for a voir dire. To demonstrate this it is necessary to refer to the evidence. When G.D. testified during the Crown’s case in chief, he made the following statements:

Q You [and S.T.] had a conversation, did you, about [T.T.]?

A Yes, we did.

Q And as a result then of that conversation did you and he do something later that day?

A Yes, we did. We went in to the RCMP station.

Q Okay. And did you see a police officer there?

A Yes, we did.

Q Okay. Now I presume you had some conversations there and did [S.T.] also in your presence tell the police officer what he told you?

A Yes, he did.

Q Okay. And after your visit to the police station, what did you and [S.T.] do?

A Well, we went back to the house ‑‑ headed back towards Hixon and we decided that we were going to play a little trick on Mr. Wells, not so much a trick as it was just to see if we thought that he could do such a thing.

A ...The plan was we were going to see how Mr. Wells would react to [S.T.] knowing about what had happened to [T.T.].

Q Okay. And whose idea was it to carry out this plan?

A It was both of our ideas. It wasn’t really either one. It was both of our ideas.

Q And you planned this on the way back from the police station on the way to Hixon?

A Yes, it was. [Emphasis added.]

16. Thus G.D. testified that he had contacted the police and informed them of the situation, and that he and S.T. were planning, by means of a trick, to obtain an admission from the respondent. The content of the conversation with the RCMP was not revealed. It is significant that the complainants’ parents visited and spoke to the police and, after that visit, planned to obtain an admission from the respondent by a trick. In light of the evidence, it is reasonable to conclude that the trial judge should have inquired of defence counsel whether or not he was willing to waive a voir dire in relation to statements against interest made by the respondent to G.D. It does appear that there was sufficient evidence before the judge to constitute this one of those “rare cases”. The testimony was such that it required the trial judge make an inquiry as to whether there should be a voir dire to determine if the parents were persons in authority for the purposes of the confessions rule.

17. A new trial should be directed for the respondent. If, on retrial, the respondent’s statements to G.D. are again admitted into evidence, fairness requires a direction to be given regarding these statements. It would be along the lines suggested in Hodgson, at para. 30, and might be put in this way:

A statement obtained as a result of inhuman or degrading treatment or the use of violence or threats of violence may not be the manifestation of the exercise of a free will to confess. Rather, it may result solely from the oppressive treatment or fear of such treatment. If it does, the statement may very well be either unreliable or untrue. Therefore, if you conclude that the statement was obtained by such oppression very little if any weight should be attached to it.

18. In the result, the appeal is dismissed and the order of the British Columbia Court of Appeal directing a new trial is confirmed.

19In the Wells, supra case, the majority of the Supreme Court of Canada held that there was enough evidence before the trial judge to require the judge to enquire as to whether a voir dire should be held to determine whether the statement taker (the father of the complainant) was indeed a person in authority.

20The Crown also relies upon the seminal decision of the Supreme Court of Canada in R. v. Hodgson, 1998 CanLII 798. I set out below paragraphs 31 through 47 of that decision.

31 It has been seen that the person in authority requirement is grounded in the underlying rationales for the confessions rule, and as a result it should remain part of the rule. Consideration must now be given as to who should come within the designation “person in authority”.

32 “Person in authority” typically refers to those persons formally engaged in the arrest, detention, examination or prosecution of the accused: see A.B., supra, at p. 26. However, it may take on a broader meaning. Canadian courts first considered the meaning of “person in authority” in R. v. Todd (1901), 1901 CanLII 92 (MB CA), 4 C.C.C. 514 (Man. K.B.). In that case, the accused made a statement to two men he believed to be fellow prisoners, but who were in fact acting as agents of the police. It was held, at pp. 526‑27, that:

A person in authority means, generally speaking, anyone who has authority or control over the accused or over the proceedings or the prosecution against him. [T]he authority that the accused knows such persons to possess may well be supposed in the majority of instances both to animate his hopes of favour on the one hand and on the other to inspire him with awe, and so in some degree to overcome the powers of his mind. . . . [Emphasis added.]

Thus, from its earliest inception in Canadian law, the question as to who should be considered as a person in authority depended on the extent to which the accused believed the person could influence or control the proceedings against him or her. The question is therefore approached from the viewpoint of the accused. See also R. v. Roadhouse (1933), 1933 CanLII 393 (BC CA), 61 C.C.C. 191 (B.C.C.A.), at p. 192.

33. The subjective approach to the person in authority requirement has been adopted in this Court. See Rothman, supra, at p. 663. The approach adopted by McIntyre J.A. (as he then was) in R. v. Berger (1975), 1975 CanLII 1250 (BC CA), 27 C.C.C. (2d) 357 (B.C.C.A.), at pp. 385‑86 is, in my view, a clear statement of the law:

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? . . . Was he under the impression that the failure to speak to this person, because of his power to influence the prosecution, would result in prejudice or did he think that a statement would draw some benefit or reward? If his mind was free of such impressions the person receiving this statement would not be considered a person in authority and the statement would be admissible.

34. However, to this statement I would add that the accused’s belief that he is speaking to a person in authority must also be reasonable, in the context of the circumstances surrounding the making of the statement. If the accused were delusional or had no reasonable basis for the belief that the receiver of the statement could affect the course of the prosecution against him, the receiver should not be considered a person in authority. Since the person in authority requirement is aimed at controlling coercive state conduct, the test for a person in authority should not include those whom the accused unreasonably believes to be acting on behalf of the state. Thus, where the accused speaks out of fear of reprisal or hope of advantage because he reasonably believes the person receiving the statement is acting as an agent of the police or prosecuting authorities and could therefore influence or control the proceedings against him or her, then the receiver of the statement is properly considered a person in authority. In other words, 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.

35. Over the years, the courts have determined when and in what circumstances a person will be deemed a person in authority for the purposes of the confessions rule. See, e.g., R. v. Trenholme (1920), 1920 CanLII 461 (QC CA), 35 C.C.C. 341 (Que. K.B.) (complainant’s father was held to be a person in authority where he has control over the prosecution of the accused); R. v. Wilband, 1966 CanLII 3 (SCC), [1967] S.C.R. 14 (psychiatrist is not a person in authority where he cannot control or influence the course of the proceedings); R. v. Downey (1976), 1976 CanLII 1450 (NS SC), 32 C.C.C. (2d) 511 (N.S.S.C.A.D.) (victim is a person in authority if the accused believed that the victim had control over the proceedings); A.B., supra (a parent is not, in law, a person in authority if there is no close connection between the decision to call the authorities and the inducement to a child to make a statement); R. v. Sweryda (1987), 1987 ABCA 75, 34 C.C.C. (3d) 325 (Alta. C.A.)(a social worker is a person in authority if the accused knew the social worker was investigating allegations of child abuse and believed it could lead to his arrest). These cases have not departed from the governing rule that defines a person in authority in relation to the accused’s perception of the receiver’s involvement with the investigation or prosecution of the crime nor have these decisions defined a person in authority solely in terms of the personal authority that a person might wield in relation to the accused. Moreover, in concluding that the receiver of the statement was a person in authority, the courts have consistently found the accused believed the receiver was allied with the state authorities and could influence the investigation or prosecution against the accused.

36. The important factor to note in all of these cases is that there is no catalogue of persons, beyond a peace officer or prison guard, who are automatically considered a person in authority solely by virtue of their status. A parent, doctor, teacher or employer all may be found to be a person 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. As the intervener the Attorney General of Canada observed, the person in authority requirement has evolved in a manner that avoids a formalistic or legalistic approach to the interactions between ordinary citizens. Instead, it requires a case‑by‑case consideration of the accused’s belief as to the ability of the receiver of the statement to influence the prosecution or investigation of the crime. That is to say, the trial judge must determine whether the accused reasonably believed the receiver of the statement was acting on behalf of the police or prosecuting authorities. This view of the person in authority requirement remains unchanged.

37. Finally, something must be said about the respective burdens which must be borne by the accused and the Crown on a voir dire to determine whether a statement of the accused to a person in authority should be admitted. The Crown, of course, bears the burden of proving beyond a reasonable doubt that the statement was made voluntarily. However, in relation to the person in authority requirement, the evidence required to establish whether or not a person should be deemed a person in authority will often lie primarily with the accused. The accused therefore must bear some burden in relation to this aspect of the confessions rule. The burden should be an evidential and not a persuasive one. See, e.g., R. v. Scott (1984), 1 O.A.C. 397, at p. 399. John Sopinka, Sidney N. Lederman and Alan W. Bryant, in The Law of Evidence in Canada (1992), at pp. 56‑57, explain the difference between the two burdens:

The term evidential burden means that a party has the responsibility to insure that there is sufficient evidence of the existence or non‑existence of a fact or of an issue on the record to pass the threshold test for that particular fact or issue. In contrast, the term legal burden of proof means that a party has an obligation to prove or disprove a fact or issue to the criminal or civil standard. The failure to convince the trier of fact to the appropriate standard means that party will lose on that issue.

The evidential burden on an accused in a criminal case is described as follows (at p. 138):

Where an evidential burden for an issue rests on the defendant in a criminal case, for example self‑defence, the accused has the obligation to ensure that there is some evidence on the record to make it a live issue. The evidence necessary to satisfy an evidential burden may arise in the case for the Crown or the defence.

38. In the vast majority of cases, the accused will meet this evidential burden by showing the accused’s knowledge of the relationship between the receiver of the statement and the police or prosecuting authorities. For example, the fact that the statement was made to a police officer who was in uniform or identified himself or herself as a peace officer will satisfy the accused's evidential burden in relation to the person in authority requirement. See, e.g., Morris v. The Queen, 1979 CanLII 243 (SCC), [1979] 2 S.C.R. 1041, at p. 1066. Once the accused satisfies this evidential burden, the ultimate burden of proof rests with the Crown. See R. v. McKenzie, 1965 CanLII 673 (AB CA), [1965] 3 C.C.C. 6 (Alta. S.C.A.D.), at p. 28. In R. v. Postman (1977), 1977 ALTASCAD 92, 3 A.R. 524, at p. 542, the Alberta Supreme Court, Appellate Division held, correctly in my view, that where a witness is not prima facie a person in authority (in that case, a doctor), “it is open to defence counsel to challenge the prima facie case and require evidence to be given to determine the facts of the matter”. Thus, once the defence discharges its burden and establishes that there is an evidential basis to the claim that the receiver of a statement made by the accused is a person in authority, the burden shifts to the Crown to establish beyond a reasonable doubt either that the receiver is not a person in authority, or, if this burden cannot be discharged, that the statement was made voluntarily.

39. The receiver’s status as a person in authority arises only if the accused had knowledge of that status. If the accused cannot show that he or she had knowledge of the receiver’s status (as, for example, in the case of an undercover police officer) or close relationship to the authorities (as in the case of persons acting on behalf of the state), the inquiry pertaining to the receiver as a person in authority must end. It is therefore appropriate to consider at the outset the reasonable belief of the accused. It may not be useful to have the trial judge undertake a full analysis of the objective relationship between the receiver of the statement and the authorities, as Justice L’Heureux-Dubé suggests (para. 83), only to have those findings vitiated if the accused is later found to have no knowledge of this relationship. In addition, it is important to recognize that focusing the trial judge’s inquiry on the reasonable belief of the accused accords with the allocation of the burden of proof on the voir dire.

40. The issue as to whether the trial judge in this case erred in failing to hold a voir dire before admitting the confession into evidence can now be considered.

41. The trial judge has a duty “to conduct the trial judicially quite apart from lapses of counsel”: see R. v. Sweezey (1974), 1974 CanLII 1427 (ON CA), 20 C.C.C. (2d) 400 (Ont. C.A.), at p. 417. This includes the duty to hold a voir dire whenever the prosecution seeks to adduce a statement of the accused made to a person in authority: see pp. 417‑18. However, where the defence has not requested a voir dire and a statement of the accused is admitted into evidence, the trial judge will only have committed reversible error if clear evidence existed in the record which objectively should have alerted him or her to the need for a voir dire notwithstanding counsel’s silence. Thus, the test for holding a voir dire is assessed by an appellate court’s objective review of the evidence in the record to determine whether something should have triggered the trial judge’s obligation to conduct an inquiry. This test is different from the test applicable on the voir dire, which requires the trial judge to undertake an examination of the reasonable belief of the accused and the circumstances surrounding the making of the statement to determine both whether the receiver is a person in authority and whether the statement was made voluntarily.

42. These tests are easily confused, as it is possible to assert that the evidence which alerts the trial judge to the need for a voir dire must relate to the accused’s state of mind, since only this type of evidence could demonstrate that the accused believed the receiver of the statement to be a person in authority. This approach is too narrow. The subjective view of the accused might never be ascertained unless there is a voir dire. To hold that the trial judge has no obligation to hold a voir dire unless evidence of the accused’s mental state is already in the record would render the obligation meaningless. Certainly evidence relating to the accused’s state of mind may well trigger the need for a voir dire, but the standard should be set lower.

43. This is demonstrated by the Court’s decision in Erven, supra. In that case, the Court had to decide whether a voir dire is always needed in respect of a statement made by the accused to a person in authority, or whether it is unnecessary in circumstances where the statement was “obviously volunteered” (p. 929). Dickson J., writing for a plurality of the Court, held at p. 940, “a rule requiring a voir dire only after there is some evidence suggesting involuntariness is neither clear nor easily applied”. He stated, at p. 937:

It is a most important right of the accused to call witnesses and present argument separately on the issue of the admissibility of a statement directly after the Crown’s evidence on this matter has been adduced. This right would be totally lost if a statement of the accused could be admitted without a voir dire as part of the Crown’s evidence because nothing in that evidence cast doubt on its voluntariness. The testimony of the accused may be the only evidence which indicates involuntariness.

Although this statement of principle pertains to a voir dire held to determine voluntariness, it is also applicable to one held to determine whether the receiver of a statement made by the accused is a person in authority.

44. Specifically, the reasoning in Erven, with which I agree, has two implications for the present case. First, the requirement that a voir dire be held cannot be founded upon the presence of evidence which is conclusive of the very issue to be examined on the voir dire. Second, a voir dire is required in respect of any statement made by an accused person to a “person in authority”. See Erven, supra, at p. 931. Thus, given the highly prejudicial nature of confession evidence, the trial judge has an obligation to hold a voir dire of his or her own motion, notwithstanding the absence of any request by counsel, wherever the Crown seeks to adduce a statement made by an accused to a person in authority. Clearly, counsel for the accused may waive the voir dire. Once the waiver is given, it is unnecessary to hold the voir dire.

45. However, the trial judge’s obligation is triggered only where the evidence makes the need for a voir dire clear. Evidence which clearly demonstrates that the receiver of the statement made by the accused was closely connected to the authorities should alert the trial judge to hold a voir dire. This evidence progresses along a spectrum. That is, where the receiver of the statement is a “conventional” person in authority, such as a police officer or prison guard, the trial judge clearly has an obligation to proceed to a voir dire. In such a case, the connection to the authorities is readily apparent. Similarly, where the evidence clearly discloses a close connection between the receiver of the statement and the authorities which indicates that the receiver was, in the circumstances, acting as a person in authority, this may be sufficient to trigger the trial judge’s obligation to hold a voir dire.

46. Specifically, the trial judge must be satisfied that if the accused had been aware of the connection between the receiver of the statement and the authorities, the accused could reasonably believe the receiver was acting as an agent of the police or prosecuting authorities or as part of the prosecution team and was therefore capable of influencing the prosecution against him or her. If the evidence establishes this sort of connection, the trial judge should inquire whether the defence is prepared to discharge its evidential burden on the person in authority issue or whether it waives a voir dire on this issue. Thus, evidence of close association with the authorities might provide an entry to the voir dire procedure but the inquiry on the voir dire will still focus on an analysis to determine whether the receiver of the statement, assessed from the point of view of the accused, is a person in authority and ultimately whether the statement was made voluntarily. However, the further away the receiver of the statement is from the “conventional” case, the less likely it will be that the evidence will alert the trial judge to the need to hold a voir dire, and the greater the obligation of the accused to raise the issue.

47. It should be emphasized that only rarely will a trial judge have heard sufficient evidence to trigger the need for a voir dire on the person in authority issue where the receiver of the statement is not a conventional person in authority. This follows because the evidence must establish more than the mere status of the receiver of the statement. Status or personal authority alone will not as a general rule provide evidence from which it can be inferred that the receiver of a confession is, in the eyes of the accused, a person in authority. Rather, in order to demonstrate the need for a voir dire, the evidence must show that the receiver of the statement was closely associated with the authorities prior to obtaining the statement, and that there was as well a close connection in time between the contact with the authorities and its receipt. The evidence must suggest that the receiver was acting in concert with the police or prosecutorial authorities, or as their agent, or as part of their team. Only in these circumstances will the trial judge be obliged to hold a voir dire of his or her own motion on the person in authority issue, subject to waiver of the voir dire by counsel for the accused.

The Law as Applied to Our Case

21In my opinion, there is no air of reality to the suggestion that any of these three individuals, K, M, and W, is a person in authority.

22First, the chronology is important. The complainant first went to the police on January 12, 2019. At that time, she was unsure if she wanted to proceed with a criminal charge against the accused. On February 13, 2019, she contacted the police again, this time to say that she wanted to proceed with a criminal charge against the accused. The group chat (Exhibit 1) occurred on January 5th. The pub meeting between the accused and his two friends, M and W, occurred “a few days” after January 5th, according to the accused in his direct evidence on the voir dire, and thus presumably before January 12th. All of the accused’s impugned discussions with his wife, K, took place before the pub meeting, according to the accused in his direct evidence on the voir dire.

23Consequently, we know that the police had not even been contacted by the complainant or anyone on her behalf, nor did the accused have any reason to believe that the police had been contacted, when the accused spoke with his wife and his two friends. In fact, on January 6th, K told the accused that the police had not been contacted (the accused acknowledged that during cross-examination by the Crown on the voir dire).

24The above chronology is not necessarily fatal to the accused’s argument on the preliminary issue at hand, but it is a very significant hurdle to overcome. That is because when one examines the Hodgson, supra decision, which is undoubtedly the most important authority submitted by either counsel, particularly paragraph 48 therein, it is inescapable that the confessions rule will most often apply in cases where the impugned statement was made after the police became involved in some way. Look carefully, for example, at items 3 and 4 in paragraph 48, set out below.

3. The rule is applicable when the accused makes a statement to a person in authority. Though no absolute definition of “person in authority” is necessary or desirable, it typically refers to those formally engaged in the arrest, detention, examination or prosecution of the accused. Thus, it would apply to person such as police officers and prison officials or guards. When the statement of the accused is made to a police officer or prison guard a voir dire should be held to determine its admissibility as a voluntary statement, unless the voir dire is waived by counsel for the accused.

4. Those persons whom the accused reasonably believes are acting on behalf of the police or prosecuting authorities and could therefore influence or control the proceedings against him or her may also be persons in authority. That question will have to be determined on a case-by-case basis.

25Second, the evidence on the voir dire does not support any degree of objective reasonableness to the accused’s belief that any of these three individuals could and would influence the criminal process.

26At its highest, the accused’s evidence is that he told his wife on January 6th that he had a consensual sexual encounter with the complainant because he thought that she would speak to her brother, T, and the complainant in an effort to influence them to not go to the police. He had two motivations – to reunite his family and to avoid any jeopardy to his application for Canadian citizenship. Although there were instances known to him where the complainant did things against the wishes of K, like smoking, it was his “hope” that K would talk to both T and the complainant and “put in a good word” for the accused. “I’m sure she [the complainant] would have been easily influenced by her dad and her aunt”, he stated in cross-examination on the voir dire.

27With respect, that makes absolutely no common sense. He told his wife that he fooled around with their niece because he thought that his wife and her brother would be okay with that, and thus they would put in a good word for the accused when speaking with their niece/daughter? I don’t think so. I fail to see how it is objectively reasonable for the accused to have believed that his confession to having had a sexual encounter with his wife’s niece and his close friend T’s daughter, as opposed to his earlier outright denials of any such encounter having ever occurred, would influence the criminal process in any way that would help him.

28Besides, K never said that she would speak with T or the complainant. In fact, the accused never asked her to do so.

29In my view, this is nothing more than an attempt by the accused to turn back the clock because he misjudged the reaction of his wife. He first told his wife that nothing happened. K gave him the impression that she thought that something did not add-up (that was the accused’s evidence on the voir dire). With his family in jeopardy, he then told his wife something different. I accept the accused’s evidence that he wanted to reunite his family, although I do not understand how the confession would have accomplished that. Now, having been charged, he argues through his counsel that his own wife is a person in authority in that she was, at the time that he spoke with her, controlling/directing/influencing the police investigation, which investigation had not started. With respect, I don’t think so.

30As for M and W, they also never told the accused that they would speak with T or the complainant, nor did the accused ask them to do so. According to the accused’s own evidence on the voir dire, M and W really had no relationship to the complainant, and they had less of a friendship with T than the accused himself had. Yet, solely on the basis of W (not M) having told the accused “we’re in your corner”, he confessed to his two buddies at a pub because he was “confident” and “convinced” that they would go to T for him, and then T would speak with his daughter, and then that would increase the chances of the accused not being charged criminally; that was, in essence, the accused’s evidence on the voir dire.

31With respect, I fail to see how it is objectively reasonable for the accused to have thought that his two friends would speak with T at all, never mind that his remarks to M and W would influence the criminal process in any way.

32The defence places much reliance on the Belle, supra decision. It is counter-productive to do so, however. The decision is telling in that an experienced criminal jurist had to seriously contemplate whether a bailiff could be considered a person in authority. A wife and two friends are far removed from a bailiff. And I would invite the defence to read carefully paragraph 30 of Justice Trotter’s decision. It is most instructive. A person who “could influence or control the proceedings against the accused person”. There were no “proceedings” against the accused when he spoke to his wife and his two friends, nor had the police even been contacted. A “relationship of agency or close collaboration between the receiver of the statement and the police or the prosecution”, known to the accused. The evidence adduced on the voir dire does not approach anything of the sort. There is no closed catalogue of those who are capable of being persons in authority, but notice the examples given of those outside of the obvious ones – a parent, doctor, teacher, or employer. Again, a wife and two friends (one an electrician and the other who works for a book store company) are far removed from those types of persons.

Conclusion

33This Court appreciates the novel position advanced by Mr. Cojocaru. His submissions were ably made, and he is a staunch advocate for his client’s interests. There might be another case down the line where statements to a spouse and friends, pre-police involvement, could be the subject of a full-blown voluntariness voir dire, but not in this case.

34The preliminary issue described above is resolved in favour of the Crown. Hence, the Crown does not have to prove beyond a reasonable doubt the voluntariness of the accused’s statements to K, M, and W. That is the ruling of the Court.

(“Original signed by”)

Conlan J.

Released: March 18, 2021

COURT FILE NO.: CR-20-9

DATE: 2021-03-18

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

J.D.

REASONS FOR Decision

voluntariness voir dire – preliminary issue

Conlan J.