COURT FILE NO.: CRIMJ(P) 21/626 DATE: 20220310
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Mr. M. Thomaidis, for the Crown
- and -
G.D. Mr. A. Gold and Ms. E. Williams, for the Accused
HEARD: February 1, 3 and 4, 2022, via video conference
REASONS FOR DECISION
The court issued an order, under section 486.4(1) of the Criminal Code, prohibiting any information that could identify the complainant in this case from being published in any document or broadcast or transmitted in any way. This version of the court’s decision has been edited to comply with that order and is not subject to it.
Stribopoulos J:
Introduction
[1] Can someone be “a person in authority” under the confessions rule because the accused believes they are? That is the question I must decide in my role as case management judge.
[2] The accused, Mr. D, faces historical charges of sexually abusing the complainant, his niece, over a period spanning several years of her childhood. The complainant, who is now in her thirties, reported her allegations to the police on August 1, 2019.
[3] At trial, the Crown intends to adduce evidence from the complainant concerning two telephone conversations she had with Mr. D in 2018, the year before she ultimately reported the alleged abuse to the police. The complainant audio recorded the second telephone call. Mr. Thomaidis submits that the Crown may adduce evidence of these conversations, including the recording, without proving that the accused’s statements were voluntary under the confessions rule. That rule has no application, argues Mr. Thomaidis, because the complainant was not a state agent at the time of their conversations: see R. v. Broyles, [1991] 3 S.C.R. 595, at p. 608. Instead, Mr. Thomaidis maintains their admissibility only depends on the rules that apply to statements made by an accused to an ordinary person. The Crown may elicit such statements for their truth under the admissions exception to the hearsay rule.
[4] Mr. D objects to the introduction into evidence of any statements he made during his telephone conversations with the complainant. Defence counsel, Mr. Gold, submits that when Mr. D spoke to the complainant, she was a person in authority under the confessions rule because he reasonably believed that she was for two reasons. First, he thought she was a parole officer. And second, he believed that as a woman, she had the power to go to the police and make a criminal complaint against him, thereby setting the criminal process in motion. Defence counsel argues that Mr. D’s reasonably held beliefs are sufficient to make the complainant a person in authority under the confessions rule. It follows, Mr. Gold submits, that the Crown must prove the voluntariness of Mr. D’s statements to the complainant as a precondition to their admissibility.
[5] The parties' positions are informed by their competing interpretations of the Supreme Court of Canada’s leading decision on the person in authority requirement in R. v. Hodgson, [1998] 2 S.C.R. 449. These reasons will carefully consider Hodgson and subsequent decisions by the Supreme Court that have considered who qualifies as a person in authority. Before doing so, however, it is necessary to provide some context to help explain why the issue arises for consideration in this case.
The Evidence
[6] On June 18, 2018, the complainant sent an email to Mr. D, in which she summarized her abuse allegations against him and the toll the abuse had taken on her life. At one point, she wrote: “Let me make you aware that this is a crime in Canada, and the more I work with the Government of Canada and hear what people like you do to family, the more I want to get revenge and justice.” To “compensate me for the 24 years of damage I am enduring”, she demanded that he transfer $100,000 into her bank account by July 1, 2018 and provided him with her banking details. Further, she wrote: “This is the only way I will stay quiet and learn to live with what you have done to me as a child and during my teenage years.”
[7] At the preliminary inquiry, the complainant testified that Mr. D called her on the telephone and agreed to pay her the money the day after she sent the email. The very next day, however, the complainant testified that she called him back and told him she did not want the money. She explained that decision by noting that she realized asking him for money was “not okay” and thinking because he agreed to pay it so readily that it would not provide her with “the justice that I deserve.” During that conversation, the complainant testified that she told Mr. D that she wanted him “to suffer” and that giving her money would not make him “realize what he’s done to me.” She testified that she told him, during that conversation, that she would be going to the police.
[8] In December 2018, the complainant called Mr. D again, and she recorded their seven-minute telephone conversation. During her testimony at the preliminary inquiry, when asked why she recorded the conversation, she explained that “in my heart, I knew one day I would seek justice, and I was protecting myself.” When she made the call, the complainant was about to move back to Ontario after spending a couple of years in Alberta. The discussion mainly involved the complainant setting down various ground rules, and what she expected of Mr. D once she and her family were back in Ontario. That included insisting he cancel an upcoming family get-together that he had been planning on hosting at his home because she did not want to attend, and her parents were questioning her about the reasons why. The complainant also told Mr. D, two separate times, not to “come in front of” her husband, as he would kill him.
[9] During that call, the complainant told Mr. D: “I have decided I am going to go to the cops” and said, “everything I wrote to you in that email is true.” When the complainant asked Mr. D if he wanted to say anything, he responded: “The only thing I can say is sorry. … I apologize to you, and whatever you said, we will do that.” Near the end of their conversation, when she warned him that “it will come out,” he responded by saying, “Please don’t do this.”
[10] The complainant did not go to the police until the following year. On August 1, 2019, she made a formal complainant to the police and finally reported her allegations. The next day, the police arrested and charged Mr. D with the offences currently before this court.
[11] In his effort to establish that the confessions rule governs the admissibility of his statements to the complainant during their telephone conversations, Mr. D testified on this application. When he read the email from June 2018, he testified that he understood the complainant’s reference to working for the Government of Canada as referring to her working “in law enforcement and as a parole officer.” Asked if he believed that the complainant could influence any prosecution or proceeding against him, he responded:
In my thoughts, any woman can go to the police and file a complaint against a man and – and doing that; then the police will come and arrest that man, no question asked. I know that she’s in law enforcement and working as a parole officer, and her husband is a jail guard. They can do anything, and I was so scared.
[12] In part, Mr. D explained that belief by referencing an earlier experience in the 1990s involving his ex-wife. He testified that his ex-wife had gone to the police and made false allegations against him, which led to his arrest. As a result, he spent time in jail. He testified that the Crown eventually withdrew the charges against him about a year after his arrest when the complainant failed to attend the preliminary inquiry.
[13] Mr. D testified that he only said what he did during the recorded telephone conversation out of fear. He testified that he was scared for two reasons. First, because the complainant “openly threatened me that her husband would kill me.” And second, because he worried the complainant would “go to the police station and file a complaint against me and get me arrested and ruin my life.” Mr. D denied that he was sorry about anything, given that “there was nothing to be sorry about.”
[14] During cross-examination, the Crown questioned Mr. D concerning the basis for his belief that the complainant was a parole officer. Mr. D initially had difficulty recalling who told him that, explaining that it was something he had “heard from the family” at a “family get together” in 2014 or 2015. However, he eventually testified that the complainant’s mother had told him she was a parole officer and worked in law enforcement.
[15] The complainant testified at the preliminary inquiry that she was employed by Correctional Service Canada (“CSC”). At the CSC, the complainant testified she had worked as a case management assistant, then as an employment coordinator, and, most recently, as a district manager. According to the complainant, she has never worked with offenders and has never been a parole officer or correctional officer.
The Governing Principles
[16] Hodgson remains the leading decision from the Supreme Court of Canada on who will qualify as “a person in authority.” Only an accused's statements to persons in authority engage the confessions rule; the Crown’s obligation to prove such statements voluntary beyond a reasonable doubt as a precondition to their admissibility. In Hodgson, the trial judge admitted utterances allegedly made by the accused to the complainant and her parents without first conducting a voir dire to determine if the statements were voluntary.
[17] In deciding whether the trial judge had erred in failing to conduct a voluntariness voir dire, the Supreme Court in Hodgson explained who qualifies as a person in authority. The parties’ conflicting characterizations of the Supreme Court’s holding in Hodgson fuels much of their disagreement concerning whether the complainant, in this case, was a person in authority when she spoke to the accused during their telephone conversations. Therefore, it makes good sense to carefully consider what Cory J. wrote on behalf of the majority in Hodgson, especially concerning the person in authority requirement.
[18] Justice Cory began by canvassing the origins of the confessions rule. After doing so, he recognized that the rule had two underlying and closely connected rationales. First, reliability, to exclude evidence that might be unreliable. And second, fairness, to protect suspects from abuses of state power by discouraging coercive interrogation techniques: at pp. 462-467.
[19] After identifying the rationales for the confessions rule, Cory J. emphasized the link between them and the person in authority requirement, explaining, at p. 467:
The emphasis on voluntariness has two main effects: it both avoids the unfairness of a conviction based on a confession that might be unreliable and has a deterrent effect on the use of coercive tactics. This deterrent effect is properly focused upon the prosecutorial authority of the state, not the personal authority of private individuals. It cannot be forgotten that it is the nature of the authority exerted by the state that might prompt an involuntary statement.
… it is the fear of reprisal or hope of leniency that persons in authority may hold out and which is associated with their official status that may render a statement involuntary. The rule is generally not concerned with conversations between private citizens that might indicate guilt, as these conversations would not be influenced or affected by the coercive power of the state. This limitation is appropriate since most criminal investigations are undertaken by the state, and it is then that an accused is most vulnerable to state coercion.
[Emphasis added]
[20] In explaining the need to retain the person in authority requirement, Cory J. emphasized practical considerations. Eliminating it, which would require the Crown to prove the voluntariness of all statements by accused persons, would be unworkable, he explained at pp. 467-468, because it:
… would have serious consequences for undercover police work and for the admissibility of wiretap evidence, where the identity of the receiver of the accused’s statement is often unknown. For example, if the Crown were to intercept a phone call between an accused and a confederate who is senior to him in a criminal hierarchy, the Crown would obviously have difficulty tendering the requisite evidence if it were forced to prove beyond a reasonable doubt that the statements were made without “fear of prejudice or hope of advantage”. Moreover, all statements to undercover police officers would become subject to the confessions rule, even though the accused was completely unaware of their status and, at the time he made the statement, would never have considered the undercover officers to be persons in authority.
In his view, abandoning the person in authority requirement was the sort of major change to the common law “which should be studied by Parliament and remedied by enactment.”: at p. 470.
[21] In Hodgson, Cory J. explained who will ordinarily qualify as a person in authority, observing that it: “typically refers to those persons formally engaged in the arrest, detention, examination or prosecution of the accused:” at p. 471; see also at p. 462. However, in elaborating on who else might qualify, he made several observations, drawing on decided cases, that fuel much of the disagreement between the parties in this case. Accordingly, it is worth reproducing the key passages from his reasons in their entirety, from pp. 471-475:
Canadian courts first considered the meaning of “person in authority” in R. v. Todd (1901), 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), 61 C.C.C. 191 (B.C.C.A.), at p. 192.
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), 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. 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.
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), 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, [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), 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.
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.
[Underlining in original, italics added]
[22] It is noteworthy that in each of the cases cited by Cory J., where courts had held that individuals who were not conventional persons in authority qualified, the recipients of the statements had assumed roles that had closely aligned them with the investigation and prosecution of the accused. In Trenholme, for example, the young complainant’s father was a person in authority because, as the law stood at that time, he “had authority and control over the prosecution.”: Trenholme, at para. 38. Similarly, the victim in Downey was a person in authority because she met with the accused at the suggestion of the police. As a result, she became an “agent of the police to extract a confession”: Downey, at p. 521. Finally, in Sweryda, under provincial legislation, the social worker was vested with the powers of a “peace officer” and had the authority to apprehend a child in need of protection: Sweryda, at para. 20.
[23] In explaining who will bear the burden of establishing that the recipient of a statement from an accused was a person in authority, Cory J. made some additional observations that provide further insight into who might qualify, including, at p. 477:
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.
[Emphasis added]
[24] Finally, in explaining when a trial judge will be obligated to conduct a voir dire before permitting a confession to be admitted into evidence, Cory J. said the following, at pp. 480-481:
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.
[Emphasis added]
[25] Justice Cory then turned to apply the principles he identified to the facts in Hodgson to address the appellant’s claim that the trial judge had erred in failing to conduct a voluntariness voir dire before receiving evidence concerning his statements to the complainant and her parents. In explaining that the trial judge had not erred, Cory J. once again provided insight into who will qualify as a person in authority, writing at pp. 483-485:
The appellant contends that the fact that the confession was made to the complainant and her immediate family should have alerted the trial judge to the need for a voir dire since they are capable of being persons in authority for the purpose of the confessions rule. 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. As the respondent observed, to hold that the trial judge committed an error on the basis that the receiver of the confession is merely capable of being a person in authority is to require a voir dire (or waiver) for every statement against interest made by every accused person to anyone. It cannot be forgotten that it is the accused who is in the best position to demonstrate that the receiver of the statement was in his or her eyes a person in authority.
…. when the statements were admitted into evidence, there was nothing to suggest that the complainant or her family members had spoken to the police or anyone else in authority or were even considering making a complaint. Similarly, there was nothing to suggest that the appellant subjectively believed the complainant’s family to have control over criminal proceedings. In those circumstances, the trial judge cannot be said to have committed an error by failing to hold a voir dire on his own motion.
[26] To be sure, there are aspects to Cory J.’s explanation of who may qualify as a person in authority, when read in isolation, that support Mr. D’s submission concerning the governing test. At various points in his reasons, Cory J. emphasized the importance of the accused’s subjective belief that they were speaking with a person in authority and the need for that belief to be reasonable in the circumstances. Some courts have read these passages to mean that the accused’s reasonably held belief controls whether the recipient of a statement qualifies as a person in authority: see e.g. R. v. Harrison (2007), 52 C.R. (6th) 333 (Ont. S.C.), at para. 89. With respect, although I can appreciate how one could read the Supreme Court’s decision in Hodgson in that way, there are several reasons why I read it differently.
[27] First, at various points throughout his reasons, Cory J. emphasizes and quotes cases with approval which recognize that, for the recipient of a statement to be “a person in authority,” they must, in fact, be someone who “was acting in concert with the police or prosecutorial authorities, or as their agent, or as part of their team.”: at p. 481. At the same time, Hodgson makes clear that the recipient of the statement assuming such a role is not alone enough.
[28] Additionally, for the recipient of the statement to qualify, the accused must believe them to be a person in authority: Hodgson, at pp. 472-473. Requiring consideration of the accused’s subjective belief is meant to eliminate any doubt that undercover police officers or civilians acting as covert police agents are not persons in authority under the confessions rule. They only become persons in authority if the accused believes that they are before speaking with them.
[29] Second, reading Hodgson in this way ensures that the confessions rule is only engaged when the interests it is supposed to protect are truly at risk. An essential part of the rationale for the confessions rule is to discourage abuses of state power. Its deterrent effect, Cory J. observed, “is properly focused upon the prosecutorial authority of the state, not the personal authority of private individuals.”: Hodgson, at p. 467 (emphasis added); see also R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, at para. 35. In that regard, he reminded, the confessions rule “is generally not concerned with conversations between private citizens that might indicate guilt” because they are not “influenced or affected by the coercive power of the state.”: Hodgson, at p. 467 (emphasis added).
[30] Third, reading Hodgson in this way is in keeping with how the Supreme Court of Canada has explained the decision on the two occasions it has considered the “person in authority” requirement over the intervening years: see Grandinetti, at paras. 35-44; R. v. S.G.T., 2010 SCC 20, [2010] 1 S.C.R. 688, at paras. 23-24.
[31] For example, in S.G.T., the accused was charged with sexually assaulting his stepdaughter. The trial judge admitted an email that the accused sent to his estranged wife, the complainant’s mother, in which he apologized to the complainant. The trial judge did not conduct a voluntariness voir dire before admitting the email into evidence, which the accused raised as a ground of appeal. In explaining that the trial judge had not erred in failing to conduct a voluntariness voir dire, Charron J., for the majority, reasoned, as follows, at para. 26:
S.G.T. did not testify that he believed that A’s mother could influence or control the proceedings. Even if he had testified to that effect, any subjective belief has to be reasonably based in fact. There is no evidence that A’s mother had any control over the prosecution of S.G.T., or that she was operating on behalf of the investigating authorities. Rather, the record suggests quite the contrary. While A’s mother called the police after A disclosed the incidents to her in 2003, she was told to call back later, as the relevant department was not open at that time. She never called back, as she was concerned about the effect that any complaint might have on her son, B. The police only began investigating S.G.T. in 2004 after A disclosed the matter to authorities at her school (Appellant’s Record, at p. 80). In these circumstances, there was nothing on the record to indicate to the trial judge that A’s mother may have been anything other than an ordinary witness in the proceedings. I therefore conclude that the trial judge did not err by failing to hold a voir dire on the question whether A’s mother was a person in authority.
The Supreme Court’s analysis in S.G.T. demonstrates that for someone to qualify as “a person in authority,” the accused must not only believe that they enjoy that status. Additionally, from an objective standpoint, the recipient of the statement must be someone operating on behalf of the investigating authorities or capable of exercising control over the prosecution.
[32] Finally, given the importance of judicial comity, it is also significant that judges of this court who have considered the issue have nearly uniformly concluded that to be a person in authority, the recipient must, in fact, be such a person: see R. v. J.D., 2021 ONSC 2042, at paras. 21-25; R. v. Browne, 2017 ONSC 5046, at paras. 48-52, aff’d on other grounds 2021 ONCA 836; R. v. R. (H.), 2014 ONSC 5601, at paras. 69-75; but see Harrison.
[33] For these reasons, in my view, when Hodgson refers to a “reasonable belief,” the objective part of the test only concerns the actual relationship between the recipient and the authorities. The accused’s mistaken belief, even if reasonably held, is not sufficient to engage the confessions rule.
[34] Accordingly, for the recipient of a statement to qualify as “a person in authority,” (1) the accused must believe they were speaking with an agent of the state, that is, someone operating on behalf of the investigating authorities or someone who is capable of exercising control over the prosecution; and (2) the recipient must actually be such a person. It follows that an accused’s mistaken belief, even if reasonably held, that the recipient of their statement is a person in authority is not sufficient to engage the confessions rule.
The Principles Applied
[35] The uncontradicted evidence is that when she spoke with Mr. D in 2018, the complainant was employed by the CSC, a branch of the federal government. However, she was neither a parole officer nor a correctional officer. Her employment with the Government of Canada, even within a ministry responsible for convicted offenders, does not make her a conventional person in authority. The investigating police agency was the Peel Regional Police. Given the charges, the Ministry of the Attorney General for Ontario has carriage of the prosecution. By no measure can it be said that the complainant was formally engaged in the arrest, detention, examination, or prosecution of the accused because of her employment with the CSC.
[36] Additionally, when she spoke with Mr. D in 2018, the complainant had not yet spoken to the police, or anyone in authority, concerning her allegations. The evidence does not suggest that she was acting at the behest of the police or prosecutorial authorities, serving as their agent or part of their team, when she placed the telephone calls at issue. Instead, on the evidence, she was nothing more than a private citizen who claimed to be a victim of a crime, calling the person she alleged was responsible for victimizing her.
[37] Without a doubt, when he spoke with the complainant in 2018, Mr. D was hoping that she would not reveal her allegations within the family or go to the police and make a formal complaint against him. In that sense, I accept that he understandably believed that she had some power over him. His apparent willingness to pay her $100,000 to keep her quiet, according to the complainant, amply demonstrates this.
[38] However, the fact that the complainant could go to the police and make a complaint against Mr. D is not enough, on its own, to make her “a person in authority” under the confessions rule. Critically, when she placed the telephone calls, the complainant was not acting for or with the police or prosecutorial officials, nor did the accused even believe that she was. In other words, there is absolutely no basis to suggest that the conversations unfolded as they did because of anything police or prosecutors said or did: see S.G.T., at para. 26; R. v. Glessman, 2013 ABCA 86, 296 C.C.C. (3d) 131, at para. 11; R. v. Randall, 2020 ABCA 52, 389 C.C.C. (3d) 200, at paras. 38, 41.
[39] If the possibility that the complainant might make a formal complaint to the police were enough, then every victim, or anyone who witnessed a crime, would qualify as a person in authority. After all, such persons could invariably go to the police and report what they know, triggering an investigation that could culminate in an accused’s arrest and prosecution. That would have the effect of requiring the Crown to prove the voluntariness of any statements made by an accused to virtually anyone before they could be admissible. Extending the person in authority requirement that far would effectively eliminate it, something the Supreme Court deliberately chose not to do in Hodgson, concluding that sort of significant change to the common law was for Parliament to make.
[40] Ultimately, the accused’s belief that the complainant could influence a prosecution against him is not enough to make her into a person in authority under the confessions rule.
Conclusion
[41] For all these reasons, I am satisfied that when she spoke to Mr. D on the telephone in 2018, the complainant was not “a person in authority.” Accordingly, the Crown is not required to prove the voluntariness of Mr. D’s statements to her during those calls as a precondition to their admissibility.
[42] I want to thank counsel for their very able submissions, which were of considerable assistance to the court.
“J. Stribopoulos J.”
Released: March 10, 2022