R. v. Choy, 2011 ABQB 348

Court of Queen ’ s Bench of Alberta Citation: R. v. Choy, 2011 ABQB 348 Date: 20110526 Docket: 070121058Q1, 070121058Q2 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Lily Choy Accused _______________________________________________________ Reasons for Decision on Voir Dire #3 of the Honourable Madam Justice D.C. Read _______________________________________________________ Issue: [ 1 ] Lily Choy stands accused of second degree murder in the death of her foster child A.B. who collapsed on the floor of the bathroom in the Accused’s home and was rushed to hospital.

The Crown sought to adduce evidence of what the Accused said to Sheila Yuzyk, a child welfare worker, who answered a telephone call from the Accused who was at the hospital, after it was determined that the child needed surgery. Ms. Yuzyk’s evidence was the subject of a voir dire held to determine its admissibility. Positions of the Parties:

[ 2 ] The Crown argued that Ms. Yuzyk was not in a position of authority over the Accused and that the Accused’s statement was voluntary. Further, they argued that the Accused’s rights under s. 7 of the Canadian Charter of Rights and Freedoms were not violated. Alternatively, they argued that even if her s. 7 rights were violated, the Accused’s statement should not be excluded since it was not being tendered for its truth but rather for use in cross examination of the Accused if she gives evidence. [ 3 ] The Defence argued that Ms.

Yuzyk was in a position of authority and that the Accused’s rights under s. 7 of the Charter were violated and that the evidence should be excluded under s. 24(2) of the Charter . [ 4 ] What follows is my decision respecting the admissibility of this evidence. Evidence of Sheila Yuzyk: [ 5 ] The Crisis Unit is an office of the Department of Children’s Services (the “Department”), open 24 hours a day to provide service for any child in need in Alberta. Ms. Yuzyk was a social worker in the Crisis Unit on January 26, 2007 when she took a telephone call about 4:30 am from the accused Lily Choy. Ms. Choy told Ms.

Yuzyk that her foster child, A.B., was at the Stollery Children’s Hospital and was to undergo surgery. Ms. Yuzyk told Ms. Choy that the Director of Children’s Services was required to give consent for any child in care undergoing surgery and asked her to give this information to any of the medical personnel in the area so that consent could be faxed to the hospital. When Ms. Choy told her that there were no medical personnel in the vicinity, Ms. Yuzyk asked Ms. Choy to send someone to get one of the medical personnel. Ms.

Choy suggested that one of the police officers, whom she said were there supporting her, could go and fetch one of the medical personnel. [ 6 ] During the telephone call, Ms. Yuzyk wrote a note to one of her colleagues to ask them to contact the triage desk at the hospital. It was only after she hung up from the telephone call that Ms. Yuzyk learned from her colleague that the child had suffered a subdural hematoma and was in imminent risk. [ 7 ] After passing the note to her colleague, Ms. Yuzyk said she asked Ms. Choy three or four questions, beginning with “can you tell me what happened?” Ms.

Choy told her that the child had been on a visit with his birth family the previous week and since returning had begun to act out, having tantrums, throwing himself on the floor and picking at his arms and lips until they bled. She said that Ms. Choy had used the term self mutilation. Ms. Choy told her the child had awoken earlier that evening and was crying. Ms. Choy took him downstairs to a toilet and he began to have a tantrum and throw himself around before she could get him on the toilet. The next thing Ms. Choy knew, he was “in distress”. Ms.

Yuzyk put this term in quotation marks in her notes and said that it stood out for her that Ms. Choy had used this term to refer to a seriously injured child. Before hanging up, Ms. Yuzyk told Ms. Choy that someone from Children’s Services would attend at the hospital. [ 8 ] Asked to describe her impression of Ms. Choy’s emotional state during the telephone call, Ms. Yuzyk said Ms. Choy spoke clearly and did not appear distressed or hesitant. [ 9 ] Ms. Yuzyk’s understanding from Ms. Choy was that she made the call to provide information that the child was injured. She denied saying anything to Ms.

Choy that could be construed as an inducement to talk, such as saying that things might go better for her if she explained what had happened. She denied that Ms. Choy had said she was calling because it was her duty to do so. [ 10 ] Calls of this nature to the Crisis Unit are not recorded. Ms. Yuzyk made handwritten notes during the conversation on a form called a duty report. Her evidence was that within 15 minutes of the telephone call, she transcribed her notes into a computer. The handwritten notes were then destroyed in accordance with normal procedure. In cross examination, Ms.

Yuzyk agreed that she could not write down a verbatim account of the conversation. She agreed as well that few of her notes contained quotation marks but said that she believed they were accurate. [ 11 ] Ms. Yuzyk did not speak to the police until after her telephone discussion with the Accused. She overheard a part of a conversation that one of her colleagues had, from which she knew it concerned a child at the Stollery Children’s Hospital with a head injury. She did not know if this call came from the police.

[ 12 ] Ms. Yuzyk acknowledged that foster parents have an obligation to report injury to children in care and that the Department cooperates with police authorities in cases of suspected child abuse. Evidence of Lily Choy: [ 13 ] Ms. Choy read from a document called “ Child, Youth and Family Enhancement Act , Licensing Requirements for Residential Facilities” which she received during her foster parent training. Her evidence was that she understood her duty as a foster parent was to contact the Department of Children’s Services immediately to inform them if a child in her care was injured or ill.

She testified that she thought that if she did not comply with this policy, she risked losing her license as a foster parent. [ 14 ] Ms. Choy said that she was very tired when she arrived at the Stollery on the early morning of January 26. She had been up since 8 or 8:30 the morning before and had worked from 3 pm to 11 pm. She did not recall napping that day and, although she had lain down that night before the child was injured, she did not think she had slept.

She described herself as crying and distraught when she made the phone call. [ 15 ] She recalled telephoning the Crisis Unit shortly after 4 am and said she did so because she had been told by the neurosurgeon who was preparing to operate on A.B., that she needed to give consent for the child to submit to surgery. Ms. Choy told them she could not give that consent. She testified that she called the Crisis Unit in order to obtain the necessary consent, because it was her moral duty and because she understood it was her obligation as a foster parent to inform the Department of the child’s situation.

Her testimony was that were it not for her legal obligation to do so, she would probably not have called the Crisis Unit. [ 16 ] Ms. Choy called from the ‘quiet room’ at the Stollery Children’s Hospital, a waiting room set aside for parents and other family members of seriously ill and injured children. This room is separated from the main emergency waiting area. When Ms. Choy made the call, Constable Lukasz Komar of the Edmonton City Police was with her in the quiet room. She said she asked his permission before making the call because she considered him to be in charge.

She agreed in cross examination that she did not ask Constable Komar to leave while she made this telephone call and the other calls she made while in the quiet room. She said she thought that he would have understood that privacy was necessary. [ 17 ] She recalled speaking to someone at the Crisis Unit and recalled being questioned. She agreed that Ms. Yuzyk made no threats to her nor offered any inducements. She recalled that Ms. Yuzyk said they needed to know what had happened so that they could help the child but did not specifically recall the words used. Ms. Choy’s impression was that Ms.

Yuzyk was displeased that she had taken so long to contact them. She said that Ms. Yuzyk asked her to find one of the medical staff so that the necessary consent for surgery could be given but said she did not do so because Constable Komar would not permit it. Nor would he agree to go himself. Ms. Choy thought she told Ms. Yuzyk that she was with a police officer who would not permit her to leave to summons the medical personnel. Ms. Choy said she did not think that the police officer was there to support her.

Legislative and Regulatory Framework: [ 18 ] Section 10(2) of the Residential Facilities Licensing Regulation, A.R. 161/2004 (the “ Licensing Regulation ”) reads as follows:

(2) A licence holder shall report each incident to the director in the manner required by the director. [ 19 ] “Incident” is defined in s. 10(1) “in respect of a foster child residing in a foster home” and includes in subparagraph (a) “ a serious illness of or injury to the child”. [ 20 ] As a foster parent, Ms. Choy is a license holder for the purpose of s. 10 of the Licensing Regulation .

[21] The document referenced by Ms. Choy, “Child, Youth and Family Enhancement Act, Licensing Requirements for ResidentialFacilities” (the “Licensing Requirements”) was made an exhibit.

Section 10 of the Licensing Regulation is reproduced in the LicensingRequirements. The document also says this: When a critical incident occurs, foster parents are required to contact the child’s caseworker immediately. In the case of an extremeincident such as a death, serious injury or abuse, the foster parents are required to contact the CFSA/DFNA immediately. If the extremeincident occurs outside business hours, the foster parents are required to contact the on-call or crisis worker immediately. [22]

Section 105.7(

c) of the Child, Youth and Family Enhancement Act, R.S.A. 2000, c. C-12 (the “Act”) provides that a residentialfacility license may be suspended or cancelled by the director if: (

c) a residential facility licence holder has not complied with (

i) this Act, the regulations or a condition of the residential facility licence, (ii) ... (iii) any other enactment that applies to a residential facility. Discussion and Decision: [23] A statement made by an accused to a person in authority is only admissible if it is voluntary in that it was not obtained byhope of advantage or fear of prejudice held out by the person in authority: Ibrahim v. The Queen, [1914] A.C. 599 at 609. It is notseriously argued that the statement Ms. Choy gave to Ms. Yuzyk was not voluntary. Ms. Choy does not allege that any inducements orthreats were made to her by Ms. Yuzyk.

Nor does she give any evidence that she felt pressured in any fashion to tell Ms. Yuzyk whathappened. Thus, I do not need to determine whether Ms. Yuzyk was a person in authority: R. v. Beaulieu, (MB KB),114 Man. R. (2d) 269 at para. 36. The statement Ms. Choy made to Ms. Yuzyk was voluntary. [24] The real issue respecting admissibility is whether Ms. Choy’s s. 7 Charter rights were breached. [25]

Section 7 of the Charter is as follows: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. [26] The issue arises because Ms. Choy says she felt compelled to telephone the Crisis Unit to report the incident. The Crownargues that she did not make the call out of any compulsion but instead, to obtain the necessary consent for surgery and out of a moralobligation to do so. They point to the fact that Ms.

Choy waited some time to telephone after the incident and only telephoned after beingprompted to do so by the request from the neurosurgeon for her consent. [27] The matter before me was a retrial. I am aware of and have reviewed the decision made respecting admissibility of thisevidence by the previous trial judge, reported at 2008 ABQB 737. [28] The onus is on the Defence to prove on a balance of probabilities that the statement was compelled: R. v. White (SCC), [1999] 2 S.C.R. 417 at para. 81:

[29] In White, Iacobucci, J., speaking for the majority of the Supreme Court, beginning at para. 75 set out the legal definition for acompelled statement. The statement will be compelled if the person providing the statement gives it on the basis of an honest andreasonably held belief that he or she was required by law to do so. [30] In White, the compelled statement was one made under the provisions of the British Columbia Motor Vehicles Act, R.S.B.C.1979, c. 288, s. 61. However, the definition of compelled statement established in White is applicable here.

Using this definition, Ms.Choy’s statement was compelled. Her evidence was that she made the statement under the subjective understanding that she wasrequired by law to do so. A review of s. 10 of the Licensing Regulation and s. 105.7(

c) of the Act makes it clear that she was correct inher subjective view. Thus, the belief was reasonably held. [31]

Section 7 can protect an individual from fundamental unfairness arising out of self-incriminatory statements. Here it is arguedthat Ms. Choy was compelled statutorily by the Licensing Regulation and the Licensing Policy to provide Ms. Yuzyk with theinformation that she did. An Accused’s liberty interest under s. 7 may be engaged by the introduction of statutorily compelledinformation at a trial: R. v. Jarvis 2002 SCC 73 at para. 67. [32] The principle against self-incrimination is a part of the principle of fundamental justice: R. v. S.(R.J) (SCC),[1995] 1 SCR 451.

However, it is not a free standing right against self-incrimination and does not, in all cases, preclude the use ofstatutorily compelled information.

Section 7 does not create an absolute rule which would prevent the use of statutorily compelledevidence in all circumstances. Competing with the principle against self incrimination is the opposing principle of fundamental justicewhich suggests that all relevant evidence should be available to the trier of fact. [33] When considering the admissibility of a statutorily compelled statement, a court must determine whether the principle againstself incrimination is actually engaged: R. v. Fitzpatrick, at para. 25 ; R. v. White, at para. 46.

The task is to determine in the context ofthe facts raised, what the principles of fundamental justice require. [34] In Fitzpatrick the Court set out four factors for a judge to consider in determining whether the admission of a compelledstatement would violate the principle against self-incrimination.

These were summarized in White at para. 51: ..La Forest J. [in Fitzpatrick] focussed upon four main factors: (1) the lack of real coercion by the state in obtaining the statements; (2)the lack of an adversarial relationship between the accused and the state at the time the statements were obtained; (3) the absence of anincreased risk of unreliable confessions as a result of the statutory compulsion; and (4) the absence of an increased risk of abuses ofpower by the state as a result of the statutory compulsion. [35] I will consider, first, whether the statement made by Ms. Choy was coerced.

Although it was compelled, in my view, it wasnot coerced. Ms. Choy was not obliged to become a foster parent. Instead, she decided by free choice to do so and, in doing so, agreed tobe bound by the reporting requirements in the Licensing Regulation and the penalty provision of the Act.

Her situation was thusanalogous to the situation in Fitzpatrick, where the accused had a free choice whether or not to engage in the commercial fishery and notto that in White, where the Court found that driving is not freely undertaken and is often a necessity of life to enable a person to functionmeaningfully in society, particularly in a rural area such as the one Ms. White inhabited. [36] Properly analysed, s. 10 of the Licensing Regulation establishes a self reporting regime for foster parents who are licensed tooperate foster homes in which foster children, wards of the Province, are cared for.

The provision is fundamentally directed towardsprotection of the safety and well being of the children in care and the regulation of the responsibility delegated by the Province to fosterparents to safeguard the children in its care. The penalty for breach is not criminal. Instead, the most serious penalty that may be imposedunder the Act is the suspension or cancellation of the license to operate a foster home. [37] The second factor to be considered is whether the relationship between the accused and the state at the time the statement ismade, is adversarial. The relationship between Ms. Choy and Ms.

Yuzyk, as a representative of the Department, was not adversarialwhen Ms. Choy answered Ms. Yuzyk’s questions. Ms. Yuzyk had the authority to investigate the incident and to use the information sheobtained from Ms. Choy to do so. However, her investigation was to determine what course of action would be in the best interests of thechild and any other children in Ms. Choy’s care as a foster parent. Ms. Yuzyk’s role was unlike that of the police officer in White, whohad the dual obligation to investigate possible criminal offences connected with the accident and to obtain the information about the

accident Ms. White was obliged to provide under the Motor Vehicle Act . Ms. Yuzyk had no such dual authority. She was not responsible to investigate any possible criminal offence connected with the events reported to her. If she was concerned about criminal behaviour, obviously, she had a duty to refer the matter to the police but at the time she asked the questions, Ms. Yuzyk had no information that could have caused her such concern. Nor was Ms. Yuzyk acting as a de facto agent for the police. Indeed, at the time of the telephone conversation, Ms. Yuzyk had no knowledge of any criminal investigation.

She had not spoken to the police before she received Ms. Choy’s call and had no reasonable grounds to believe and, indeed, no real suspicion that any offence had occurred. In any event, as the Court made clear in Jarvis at para. 89 , even “the mere existence of reasonable grounds that an offence may have occurred is by itself insufficient to support the conclusion that the predominant purpose of an inquiry is the determination of penal liability”. While Ms. Yuzyk was aware from the comments made by Ms. Choy that a police officer was with her, I find that Ms. Choy did tell Ms.

Yuzyk that the police were there supporting her. There is no reason to conclude that Ms. Yuzyk’s knowledge of the presence of the police officer made the relationship between the Accused and the Department adversarial at the time of the telephone call. Ms. Yuzyk remonstrated Ms.

Choy for not calling earlier but this had nothing to do with any criminal investigation and was directed only towards ensuring that the Department could fulfill its own responsibilities to the child. [ 38 ] The third factor I must consider is whether there is an increased risk of unreliable confessions as a result of the statutory compulsion.

The Defence asserts that there is a good policy reason for determining that statements made to the Crisis Unit attract s. 7 protection, stemming from the possibility that a foster parent calling the unit may be concerned that any information she gives could be used against her.

The foster parent could tailor the information given to protect themselves rather than considering the best interests of the child. [ 39 ] Again, however, in my view, this situation is distinguishable from the situation in White , where the Court found a real risk that a driver might provide a false statement given the serious criminal consequences that could flow if the facts supported a finding that a criminal offence was committed.

Section 10 of the Licensing Regulation requires reporting of many different types of occurrences, some of which would be highly unlikely to result in any ‘fault’ finding against the foster parent. The information required to be provided is, in general, geared towards the protection of the health and safety of the foster child and not ‘fault’ of the foster parent, as is evidenced by the basket clause contained in subparagraph 10(

h) which follows seven specific examples of reportable incidents and requires a foster parent to report “any other occurrence that may seriously affect the health or safety of the child”. The specific reportable incidents include those such as a foster child’s adverse medication reactions and commission of criminal offences by foster children. As was the case in Fitzpatrick , reporting of incidents under s. 10 cannot properly be characterized as a “confession” for the purpose of the confessions rule.

Nor, even if it could be so characterized, do I think that the use of these reports in investigations and decisions under the Licensing Regulation would increase the risk of false reporting. It is important to note that the sanction for failure to comply with these reporting requirements is not criminal but only suspension or cancellation of the foster home license. It is not a penal sanction. [ 40 ] The fourth factor I am directed to consider is the risk of abuse of power by the state as a result of the statutory compulsion. Again, in my view, the situation in Fitzpatrick is analogous to the one found here.

In Fitzpatrick the Court concluded that the alternative to the self reporting requirement in the legislation there at issue would be far more intrusive since it would involve the state having to investigate over-fishing by increasing patrols and vessel searches. The situation is similar here. Were it not for the self-reporting requirement for foster parents, the state would have to step up inspections of foster homes and conduct unannounced visits to homes and schools to check on the welfare of foster children.

Such inspections would be far more intrusive to the privacy interests of the foster families and the foster children than is the self-reporting requirement. In White , the Court found significant, the possibility of a perhaps unconscious inclination in police to over-emphasize the extent of the statutory duty to report an accident in order to obtain information to aid a criminal investigation. There is no possibility of such an inclination here. Social workers such as Ms. Yuzyk have no responsibility to conduct criminal investigations. [ 41 ] In

summary, the Crown seeks to draw an analogy between the facts in this case and those in Fitzpatrick and Jarvis . The Defence analysis is that the factors in White are more closely analogous to those here. However, the analogy which the Defence has attempted to draw is inapt.

The principle against self incrimination is not strongly brought into play by the context surrounding the compulsion to report injury or illness of a foster child to the Department set out in s. 10 of the Licensing Regulation . [ 42 ] As a consequence, I conclude that the principles of fundamental justice and in particular the principle against self- incrimination do not prevent the Crown from relying on the statement made by Ms. Choy to the social worker. The Accused is not entitled to immunity against the use of the statutorily compelled information. Heard on the 4 th through 29 th days of April, 2011.

Dated at the City of Edmonton, Alberta this 26 th day of May, 2011. D.C. Read J.C.Q.B.A. Appearances: Allison M. Downey-Damato for the Crown Mona T. Duckett QC for the Accused