R v Stephan, 2016 ABQB 239

Court of Queen’s Bench of Alberta Citation: R v Stephan, 2016 ABQB 239 Date: 20160428 Docket: 130163405Q1 Registry: Lethbridge Between: Her Majesty the Queen Crown - and - David Robert Stephan and Collet Dawn Stephan Accused _______________________________________________________ Reasons for Judgment Voir Dire on Voluntariness of the Honourable Mr. Justice R.A. Jerke _______________________________________________________

[1] Mr. and Ms. Stephan were interviewed together and provided information to two social workers, Leiane Smith and Sheila Thomson, on March 14th, 2012. They were separately interviewed and each provided audio taped statements to Constable Bulford on March 15th, 2012. Later that day Dr. D’Mello met with Ms. Stephan. Ms. Stephan provided Dr.

D’Mello information to which Mr.Stephan may have made some contribution. [2] Although the Stephans conceded voluntariness during the pre-trial conference process, they now withdraw that concession.A ½ day voir dire to formally establish the voluntariness of the statements to Constable Bulford was planned at the pre-trial conferences,but now the voluntariness of that statement has been challenged and the voir dire has further blossomed to include analysis of thestatements made to Ms. Smith and Ms. Thomson, and the statements to Dr. D’Mello.

The jury was selected but commencement of thehearing of evidence by the jury had to be adjourned. [3] The defence now contends that Ms. Smith, Ms. Thomson and Dr. D’Mello were persons in authority and therefore thestatements made to them must be subject to a voluntariness voir dire. Constable Bulford is a person in authority and voluntariness is nowin issue so the statements made to him must be subject to a voluntariness voir dire. [4] Because Ms. Smith, Ms. Thomson and Dr.

D’Mello are not conventional persons in authority the Stephans face an evidentialburden to establish that there is a valid issue for consideration. If this evidential burden is met, the onus will shift to the Crown to eitherdemonstrate beyond a reasonable doubt that the recipient was not a person in authority, or alternatively, to demonstrate beyond areasonable doubt that the statement in question was voluntary. [5] For purposes of the confessions rule, “persons in authority” usually refers to persons who are formally engaged in the arrest,detention, examination, or prosecution of the accused.

However, it also encompasses those persons whom the accused reasonablybelieves are acting on behalf of the police or prosecuting authorities (whether they are or not). “... [A] person in authority is a personconcerned with the prosecution who, in the opinion of the accused, can influence the course of the prosecution”: R v Hodgson, (SCC), [1998] 2 SCR 449 at para 33. The issue of whether an individual is a person in authority is to be resolved byconsidering the subjective viewpoint of the accused.

However, there must be a reasonable basis for the accused’s perception that theperson hearing the statement was a “person in authority”: R v Wells, (SCC), [1998] 2 SCR 517, and R v Hodgson. [6] As Constable Bulford is a person in authority the onus clearly falls upon the Crown to demonstrate beyond a reasonabledoubt that the statement was voluntary. [7] Resolution of the issues in this voir dire requires consideration of five questions.

I provided my decision on the questionsbefore the Crown started to call its evidence in the trial proper, and indicated these reasons would be provided later. [8] My findings with respect to the questions are as follows:

a) Was Dr. D’Mello a person in authority? No, Dr. D’Mello was not a person in authority. A determination of the voluntariness ofstatements made to her is not necessary.

b) Should statements made to Dr. D’Mello be excluded because of police trickery? No, there is not police trickery of such a naturethat the statements made to her should be excluded.

c) Were Ms. Smith and Ms. Thomson persons in authority? The Crown has not shown beyond a reasonable doubt that Ms. Smith andMs. Thomson were not persons in authority. A determination of the voluntariness of the statements made to them is necessary.

d) Were the statements made to Ms. Smith, Ms. Thomson, and Constable Bulford voluntary? Yes, the Crown has proven beyond areasonable doubt that statements made to them were voluntary.

a) Was Dr. D’Mello a person in authority? [9] Dr. D’Mello is a physician who practices in pediatrics and pediatric emergency, and is part of the Alberta Children’sHospital (ACH) child abuse service as a physician. She introduced herself to Ms. Stephan as a pediatrician, who had been consulted by anintensive care unit physician to examine Ezekiel and obtain information to determine how he became so sick. Dr.

D’Mello was awarethat Child and Family Services (CFS) and the police were involved in this case, and that her report would be provided to a caseconference involving police, CFS, and the ACH child abuse service a few days later. She did not inform Ms. Stephan of that. [10] Dr. D’Mello’s role was the preparation and provision of her report. She did not have any contact with CFS or the policeconcerning this matter prior to the interview, nor did they provide any directions to her concerning her report. There is no evidence of anyconnection between Dr. D’Mello and CFS, the police, or the prosecution.

Her report confirms a conference will be held between thepolice, CFS, and the ACH child abuse service. Apart from her need to attend as a witness in these proceedings there is no evidence thatshe had any role in this matter after provision of her report. [11] Mr. Stephan was in and out of the interview with Dr. D’Mello. He was advised she was a pediatrician and understood she wasa hospital doctor obtaining information about what happened with Ezekiel to bring him to the condition he was in. He was not aware thatthe information she obtained might be shared with others, or that Dr.

D’Mello was part of ACH child abuse services. Ms. Stephan did nottestify on the voir dire. [12] I find that the perception of Mr. Stephan was that Dr. D’Mello was an ACH pediatrician. He did not subjectively perceive Dr.D’Mello to be a person in authority of the nature such that the confessions rule is engaged. There is no evidence of Ms. Stephan’ssubjective perception. The only evidence on that point is what Dr. D’Mello told Ms. Stephan from which an inference can be drawn that

Ms. Stephan perceived her to be what she said she was. The defence agrees that the Stephans did not subjectively perceive Dr. D’Melloto be a person in authority. [13] The Stephans contend that objectively, Dr. D’Mello is a person in authority. Whether she was or was not is not sufficient toengage the question of voluntariness. [14] The test for who is a person in authority has both a subjective and objective element, both of which must be considered, andthe analysis begins with an obligation on the accused to meet a threshold requirement.

To paraphrase R v Grandinetti, 2005 SCC 5, atparas 35 to 39, the test of who is a “person in authority” is largely subjective, focusing on the accused’s belief that he or she is speakingto a person in authority. In fact, first, there is an evidentiary burden on the accused to show that there is a valid issue for considerationabout whether, when the accused made the confession, he or she believed that the person to whom it was made was a person inauthority. But there is also an objective element, namely, the reasonableness of the accused’s belief that he or she is speaking to a personin authority.

The question of voluntariness is not relevant unless the threshold determination has been made that the confession was madeto a “person in authority.” [15] I find that there is not sufficient evidence to establish that there is an issue for consideration that Dr. D’Mello was a person inauthority. The Stephans have not met the evidentiary burden on them.

b) Should Statements made to Dr. D’Mello be excludedbecause of police trickery? [16] The Stephans contend that the statement to Dr. D’Mello, “should be excluded as crossing the acceptable trickery line”. TheSupreme Court confirmed in R v Oickle, [2000] 2 SCR 3, 2000 SCC 38, that police trickery which shocks the community remains animportant part of the confessions rule. The Court explained at para 65: A final consideration in determining whether a confession is voluntary or not is the police use of trickery to obtain a confession. Unlikethe previous three headings, this doctrine is a distinct inquiry.

While it is still related to voluntariness, its more specific objective ismaintaining the integrity of the criminal justice system. ... [17] The Court in R v Oickle affirmed the correct approach from R v Rothman, (SCC), [1981] 1 SCR 640.Continuing at paras 65 and 66 of Oickle, Iacobucci J quoted the following: [A] statement before being left to the trier of fact for consideration of its probative value should be the object of a voir dire in order todetermine, not whether the statement is or is not reliable, but whether the authorities have done or said anything that could have inducedthe accused to make a statement which was or might be untrue.

It is of the utmost importance to keep in mind that the inquiry is notconcerned with reliability but with the authorities’ conduct as regards reliability. ... The investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules. Theauthorities, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceitand should not through the rule be hampered in their work.

What should be repressed vigorously is conduct on their part that shocks thecommunity. [18] I do not find that the authorities have said anything that could have induced the accused to make a statement which was ormight be untrue. Dr. D’Mello did not tell the Stephans anything that was untrue. [19] Dr. D’Mello is pediatrician at ACH. There was no direction at all by the police or child services to Dr. D’Mello. Dr. D’Mellowas aware that the Stephans had another child, Ezra; and that police and CFS had been involved and interviewed the Stephans. But shehad no details of their assessment.

The case was referred to her as part of the ACH child abuse services because physicians involved inEzekiel’s care were concerned that the family had neglected to seek appropriate medical care. Her child abuse service physician report,prepared for the referring physician, was to be available for a conference between the police, CFS, and the ACH child abuse service to,“discuss Ezekiel’s case and whether further action is needed to protect the other children in the family”. Dr.

D’Mello did not tell theStephans why the case was referred to her, that she was part of child abuse services, or what use might be made of the information andreport. Medical records about children are accessible by police regardless of whether their parents agree. Investigation by the child abuseservice of a hospital when a physician has raised a concern about neglect is appropriate and expected by the community. Reportingneglect is expected and required. [20] Dr.

D’Mello’s decision not to advise the Stephans about the specific reason for the referral to her, and the possible use of herreport, is understandable to ensure that the relationship between parents and the doctors is not compromised. That decision was notinfluenced by the police or child services. Even assuming, without deciding, that Dr. D’Mello was actually a person in authority, herconduct in failing to advise the Stephans of these matters is not conduct that shocks the community.

c) Were Ms. Smith and Ms. Thomson persons in authority? [21] Ms. Smith and Ms. Thomson are both social workers and work for CFS in the social services response team: the after-hoursteam which investigates emergent child protection cases. When they receive a call they attend to investigate whether a child is safe or inneed of protection, by interviewing parents and children. Typically they share at least some of the information they obtain with police if

police are involved, which they were here. Here they met with police at the hospital and it was agreed that they would interview the parents before the police did, and would advise the police of relevant information they obtained, which they did at a subsequent briefing meeting. [ 22 ] When Ms. Smith and Ms. Thomson met the Stephans they introduced themselves.

Neither remembered the exact words but they both confirmed, as per their usual practice, that they told the Stephans they were social workers from CFS, they had received information about a concern related to child safety, and they would like to speak to the parents for help to understand what happened.

They explained to the Stephans that there was an investigation by CFS to see if their older son Ezra was safe in their care. [ 23 ] Despite the co-operation between CFS and the police on matters of this nature, CFS has a very distinct role: to investigate and take action concerning protection and safety of children. Prosecution of criminal offences is not part of that role, although information concerning, for example, neglect, may be used in police and prosecutorial functions. [ 24 ] Mr. Stephan did not want to meet with these social workers because they were from child protection services.

He felt he had to because he feared for removal of Ezra, inability of Ezekiel being returned home if he recovered, and possible arrest and removal from the hospital. [ 25 ] Ms. Rhodes is a social worker at the ACH. She received information from a physician at ACH, Dr. Ross. Dr. Ross told her she had concerns that Ezekiel was critically ill, had received delayed medical treatment, and there was possible neglect. Ms. Rhodes contacted CFS and advised them of the information. She met with Mr. and Ms.

Stephan in the presence of other family members and told them there were concerns raised about the significant delay in seeking medical care and neglect, that the ACH had a duty to report concerns to CFS, that CFS was coming and there would be an investigation, and what process to expect when the CFS social workers arrived to interview them and ask them questions. She told them to co-operate, tell their story, be honest, and, “then they will dissipate when the time comes”.

She does not recall that she told them they had to speak to the social workers, but she often tells people that it is in their best interest to do so. [ 26 ] Mr. Stephan testified that he could not recall that Ms. Rhodes told them they had to meet with CFS, but because of her assertiveness, tone, language, and accusatory nature he felt they must do so. He recalls he was told by Ms. Rhodes that there was an allegation that they were negligent as parents, and that they must be truthful. Mr.

Stephan was concerned about CFS because he felt he would be putting his fate of whether they could keep their children in their care into the hands of CFS. He testified that he had heard horror stories about that. [ 27 ] Mr. Stephan testified that he raised concerns about the child protection investigation to Dr. Gamble who told him that anytime there was a child fatality outside the hospital an investigation was necessary. Mr. Stephan became aware that there were police officers present in the pediatric intensive care unit area. Dr. Gamble told him that it was “out of the norm” for police officers to be present.

Mr. Stephan was introduced, perhaps by Ms. Rhodes, to a police officer. He understood the police may want to interview him in relation to the child protection matter. The prospect of criminal charges was never raised, but Mr. Stephan had his own fear that he might be arrested or removed from the hospital by the police. [ 28 ] When Ms. Smith and Ms. Thomson arrived at ACH they first met with the police where it was agreed that they would speak to the Stephans first.

The police did not direct or instruct them what to do or what to ask, but it was agreed that the social workers would meet with them after they met with Stephans to share information they obtained from the Stephans. [ 29 ] Mr. Stephan understood that Ms. Smith and Ms. Thomson were social workers with child protection services and were investigating whether the Stephans were negligent and appropriate as parents: in other words whether they were fit as parents.

He was not made aware that information provided to them might be shared with the police but he concluded the police were involved in the child protection investigation. He agreed that Ms. Smith and Ms. Thomson never said he had to speak with them. While he had a general fear or distrust of child protection workers, neither Ms. Smith nor Ms. Thomson threatened him. The only thing they said which caused him concern was that they were going to look further into the investigation concerning Ezra. [ 30 ] I find that Mr.

Stephan’s perception was that the social workers were with child protection services and were investigating an allegation of neglect and whether the children, particularly Ezra, were safe or in need of protection. He was fearful that the consequences of their investigation might involve the apprehension of the children. He did not subjectively perceive Ms. Smith and Ms. Thomson to be connected with a criminal investigation by the police, but he perceived that the police were somehow connected with the child protection investigation and felt that he faced the possibility of being arrested or removed. [ 31 ] Mr.

Stephan’s belief was reasonable: Ms. Rhodes told him concerns had been raised about delay in medical treatment and neglect; that the ACH had a duty to report; and that social workers were investigating and would attend to interview them. He was aware that police were present and he was introduced to a police officer. He understood he would be interviewed by police. Dr.

Gamble told him it was out of the norm for police to be present, and the social workers confirmed that concerns about safety and neglect of their children had been raised so they wanted to speak with the parents. [ 32 ] A person in authority is a person who the accused perceives to be, “an agent of the police or prosecuting authorities”, “allied with the state authorities”, “acting on behalf of the police or prosecuting authorities”, or “acting in concert with the police or prosecutorial authorities or as their agent”: R v Hodgson . [ 33 ] While Mr.

Stephan did not have in mind criminal charges, these circumstances, namely, the investigation about neglect by the social workers; the presence of police; the concern that was expressed about negligence and protection of children; and the collaboration of the social workers and the police, are supportive of Mr. Stephan’s perception. Taken as a whole, they raise at least a reasonable doubt that Mr. and Ms. Stephan subjectively perceived that Ms. Smith and Ms. Thomson were persons in authority of the nature contemplated in the inquiry. I find that the Stephans have met the evidentiary burden on them.

The Crown has not proven beyond a reason doubt that these social workers were not persons in authority. The confessions rule is engaged.

d) Were the statements made to Ms. Smith, Ms. Thomson andConstable Bulford voluntary? [34] A two-stage principled approach to assess voluntariness is used. The first stage examines a number of factors in assessingvoluntariness. They include the use of inducements such as promises or threats, the existence of an operating mind, and whether theconduct of the police created an atmosphere of oppression. At this stage a totality of the circumstances or contextual approach is used.The legal test is whether the will of the accused has been overborne by the conduct of the police.

The second stage of analysis is adistinct one and examines any “police trickery” used in obtaining a confession. The legal test is whether the trick used shocks theconscience. [35] The Stephans have not raised any issue with respect to oppression or coercion, or police trickery, as concerns statements madeto Ms. Smith, Ms. Thomson, or Constable Bulford. Determination of voluntariness therefore requires consideration of the followingquestions: • Did Mr. Stephan and Ms. Stephan each have an operating mind at the time he or she made the statements? • Was Mr. Stephan or Ms.

Stephan subject to any promises, threats, or inducements prior to, or during the making of the statements? • If so, did any of the promises, threats, or inducements affect the voluntariness of the utterances? Did Mr. Stephan and Ms. Stephan each have an operating mind at the time he or she made the statements? [36] Without doubt, both Mr. and Ms. Stephan were under serious stress when the interview with the social workers took place.They had been awake for much of the time since the morning of the day before.

The events leading up to their attendance at ACH,particularly the events of the day before where Ezekiel stopped breathing were very difficult. Ezekiel’s condition at the time of theinterview with the social workers was very serious. These two parents were upset, sad, grieving, fearful, and worried. [37] The Stephans were never told that they must speak to the social workers or the police, or that Ezra would be apprehended. Mr.Stephan testified that he felt he had to meet with the child protection service because of Ms. Rhodes’ assertiveness, tone, language, andaccusatory nature.

He was fearful of CFS and believed they might remove Ezra and Ezekiel from their care or that the police might arresthim or remove him from the hospital. [38] None of Ms. Smith, Ms. Thomson, or Constable Bulford told the Stephans they had to speak with them. Nor did they say theydid not have to do so. They were not detained, arrested, or charged that night. They were not given any police caution. [39] During their time with the social workers they were honest, open and shared a lot of detailed information in the form of arunning narrative with little prompting or interruption.

They exhibited normal emotional responses, and never appeared angry, confusedor aggressive. They became upset when they were told that there would be an investigation to see if Ezra was safe in their care, anentirely appropriate response. [40] Shortly after meeting with the social workers Ms. Stephan met with Constable Bulford. Mr. Stephan met with him once theinterview with Ms. Stephan was over. There is no evidence of any change in the mental state of either Mr. or Ms. Stephan when they metwith Constable Bulford. [41] Before the interview with Ms. Stephan Constable Bulford had first been introduced to Mr.

Stephan and told him he hadinformation reporting gross negligence and he was there to find out what happened. After the social workers met with the Stephans hetold Mr. Stephan that he would interview other people that night, and then “catch up with the Stephans another time”. Mr. Stephan toldhim he and Ms. Stephan preferred to speak with him then. [42] Constable Bulford then met with Ms. Stephan and told her that he wanted to speak with her about Ezekiel and why he wantedto speak with her. She proceeded to provide a detailed and appropriate narrative with little or no interruption or prompting.

He then metwith Mr. Stephan who confirmed his understanding of why Constable Bulford wanted to speak with him. He proceeded to provide adetailed and appropriate narrative with little or no interruption or prompting. Neither Mr. nor Ms.

Stephan exhibited nor expressedconfusion, a lack of understanding, impairment or disability. [43] The test for determining whether the accused had an operating mind at the time of the utterance is not particularly onerous.This requirement “does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it topolice officers who can use it to his detriment”: R v Whittle, (SCC), [1994] 2 SCR 914, and Horvath v the Queen, (SCC), [1979] 2 SCR 376. [44] The Stephans point to their emotional state, lack of sleep, fear of losing their children, lack of experience with criminalproceedings and Mr.

Stephan’s conclusion that he had to speak. They urge me to find that they lacked an operating mind because withoutdisclosure of a criminal investigation, advice about their Charter rights, and an indication that information they provided could be usedin criminal proceedings, they were incapable of weighing their options. The flaw in the argument is that it imposes too strict a standard.As stated by Macklin, J in R v Lam, 2003 ABQB 948, [2003] AJ No 1420, “The accused must understand that the statement she isgiving may be used against her and she must be capable of considering the options and making a choice”. Ms.

Stephan did not testify butMr. Stephan was certainly aware of a number of options: he knew there was an option not to speak with Constable Bulford at all thatnight, and he articulated in his interview with Constable Bulford an understanding of his choice of whether to consent to the release ofmedical records. He was well aware that the social workers were interviewing him as part of an investigation to determine whether Ezrawas safe, and that there was an allegation of neglect: he must have known that the statements he provided would be used to assess

whether Ezra might be apprehended, which was clearly to his detriment. [ 45 ] I have no reasonable doubt that both Mr. and Ms. Stephan were aware of what they were saying, and that they were making statements to persons in authority who might use that information to their detriment. The fact that they may not have known the extent of that detriment does not mean that they lacked an operating mind. Was Mr. Stephan or Ms.

Stephan subject to any promises, threats, or inducements prior to, or during the making of the statements? [ 46 ] There is no evidence of any promise, threat, or inducement by Constable Bulford, Ms. Smith, or Ms. Thomson. The Stephans contend that because of what was said by Ms. Rhodes in the manner and circumstances of that night, they felt threatened that they could lose both Ezra and Ezekiel to the child protection investigation. They argue that threat is sufficient to raise a reasonable doubt as to the voluntariness of their statements. [ 47 ] Whatever the manner of Ms.

Rhodes’ indications to the Stephans, and without deciding if she too is a person in authority, it cannot be said on this evidence that she made a direct promise, threat, or inducement. She never said the Stephans must speak to the child welfare workers, she never said Ezra would be apprehended, and she certainly never said he would be apprehended if they did not speak to them. She never said he would not be apprehended or even that the investigation would be ended if they did speak to the workers. She did say that it was in their best interests to do so, and that they should be honest.

In short, there was no “quid pro quo” associated with her statements. It was, at worst, an implied threat or inducement. Did any of the promises, threats, or inducements affect the voluntariness of the utterances? [ 48 ] A threat, promise, or inducement made by a person in authority may be explicit or implicit. The question really comes down to whether the inducements, in all the circumstances, are strong enough to produce an unreliable confession. If so, the statement should be excluded. [ 49 ] The threat of potentially losing their children is a strong negative consequence.

However, in this case I find there is simply not enough of a link between the implied alleged threat of the failure to make a statement and the taking of the children. I also find there is not enough of a link between the, at best, implied suggestion that the Stephans ought to make a statement and the possibility that the investigation would be discontinued. I find it is far more plausible that the Stephans made their statement because of an internal desire rather than to avoid a negative consequence or to obtain a benefit.

Most telling is that within the context of these circumstances they were told and knew full well that the investigation concerning the safety of Ezra would continue, and yet they still provided a statement to Constable Bulford. [ 50 ] After considering all of the circumstances, I conclude that the, at best, implied threats or inducements are not sufficient to produce an unreliable confession. Conclusion [ 51 ] For these reasons I have determined beyond a reasonable doubt that statements made to Ms. Smith and Ms. Thomson by both Mr. Stephan and Ms. Stephan were voluntary.

Likewise, I have determined beyond a reasonable doubt that statements made to Constable Bulford were voluntary. [ 52 ] There may be other objections if the statements are offered in the trial which will be determined there. In any event, the ultimate reliability and weight to be attached to the statements will be determined by the jury. Heard on the 26 th day of February, and on the 1 st , 2 nd , 3 rd , and 4 th day of March, 2016. Dated at the City of Lethbridge, Alberta this 14 th day of March, 2016.

R.A. Jerke J.C.Q.B.A. Appearances: For the Crown Lisa Weich and Clayton Giles For the Accused, David Robert Stephan and Collet Dawn Stephan Shawn Buckley, Buckley & Company