R. v. Badrudin, 2019 NLSC 187

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Badrudin , 2019 NLSC 187 Date : October 24, 2019 Docket : 201801G7763 Her Majesty The Queen v. David Badrudin Before: Justice Carl R. Thompson Edited Transcript of Oral Reasons for Judgment Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: October 22, 2019 Date of Oral Judgment: October 22, 2019

Summary: A statement taken by an insurance investigator was found to be done pursuant to initial compulsion under the statutory conditions of the Fire Insurance Act and ultimately was not admissible at the trial for arson.

Appearances: Christopher E. McCarthy Appearing on behalf of the Crown Kenneth J. Mahoney Randolph J. Piercey, Q.C. Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. White, (SCC), 1999 2 S.C.R. 417; R. v. Fitzpatrick, (SCC), [1995] 4S.C.R. 154; R. v. Harrer, (SCC), [1995] 3 S.C.R. 562 STATUTES CONSIDERED: Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to theCanada Act 1982 (U.K.), 1982, c. 11; Criminal Code, R.S.C. 1985, c. C-46; Fire Insurance Act, R.S.N.L. 1990 c. F-10 REASONS FOR JUDGMENT Thompson, J.: INTRODUCTION nature of the application [1] This is an application by the accused, David Badrudin for exclusion of a statement. The application is pursuant to sections 7,11(

d) and 24 of the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act1982 (U.K.), 1982, c. 11 for exclusion of a statement made to a fire insurance investigator. The Applicant stands charged with a singlecount of arson under

section 434.1 of the Criminal Code, R.S.C. 1985, c. C-46 in relation to a fire which occurred at the WaterfordManor on Waterfordbridge Road, St. John’s, NL on July 7, 2016. [2] On July 14, 2016 Mr. Neil Ralston, an insurance investigator with Aviva obtained a lengthy audio recorded statement from theaccused in relation to the Waterford Manor fire. [3] Constable Steve Walsh of the Royal Newfoundland Constabulary led a police investigation on the case and has confirmed thatMr. Ralston obtained the statement with Constable Walsh’s knowledge and consent. There was no standard police caution nor anysection 10(

b) rights in place at the time of the taking of this interview. [4] The Crown has indicated that it is not seeking to introduce the statement as part of the Crown’s case on the trial proper andthat the Crown would only seek to rely on the statement if necessary during cross-examination should the accused testify. [5] The Applicant states that the statement in question was statutorily compelled pursuant to the statutory conditions contained inthe Fire Insurance Act, R.S.N.L. 1990 c. F-10. [6] Paragraph 6 of the statutory conditions states: 6. Requirements After Loss -

(1) Upon the occurrence of a loss of or damage to the insured property, the insured shall, where that loss ordamage is covered by the contract, in addition to observing the requirements of conditions 9, 10 and 11, (

a) immediately give notice of the loss or damage in writing to the insurer; (

b) deliver as soon as practicable to the insurer a proof of loss verified by a statutory declaration, (

i) giving a complete inventory of the destroyed and damaged property and showing in detail quantities, costs, actual cash value andparticulars of amount of loss claimed, (ii) stating when and how the loss occurred, and where caused by fire or explosion due to ignition, how the fire or explosion originated,

so far as the insured knows or believes, (iii) stating that the loss did not occur through a wilful act or neglect or the procurement, means or connivance of the insured, (iv) showing the amount of other insurances and the names of other insurers, (

v) showing the interest of the insured and of all others in the property with particulars of all liens, encumbrances and other charges uponthe property, (vi) showing changes in title, use, occupation, location, possession or exposures of the property since the issue of the contract, (vii) showing the place where the property insured was at the time of loss; (

c) where required give a complete inventory of undamaged property and showing in detail quantities, cost, actual cash value; (

d) where required, and where practicable, produce books of account, warehouse receipts and stock lists, and furnish invoices and othervouchers verified by statutory declaration, and furnish a copy of the written portion of another contract. applicant’s position [7] The Applicant’s position is that the statutorily compelled statements create ‘use immunity’ in relation to subsequent criminalproceedings as established in the case of R. v.

White, (SCC), 1999 2 S.C.R. 417. [8] The Crown’s position in response is that the Fire Insurance Act contains no provision including the statutory conditions whichwould compel any party to make or provide a statement to anyone in a position of authority. The Crown notes the requiredcommunication as detailed in the

section is between the insured and the insurer and that there was nothing compelling the provision ofany of the required information to any state actor or authority and that at no time was Mr. Ralston acting as an agent of the police or anyother government authority. The Crown argues that absent any action, express or implied, by a government actor, the Charter and theprotections provided are not engaged. The Crown maintains that no portion of any statement made to Mr.

Ralston will be submitted tothe court, save and except as evidence of prior inconsistent statements by the accused and only if the accused testifies. [9] In addition, the Crown takes the position that there is no jeopardy in the accused voluntarily requesting money from theinsurer and giving information required after making that voluntary choice to make the claim. charter and admissibilty issue [10] The principle issue in this application is whether the statements to the insurance adjustor are made under compulsion, and if so,whether their admission into evidence in the criminal trial would violate the principle of self-incrimination.

The Charter 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance withthe principles of fundamental justice. 11. Any person charged with an offence has the right … (

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; 24.

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court ofcompetent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied anyrights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. the law [11] Canadian law clearly recognizes the principle against self-incrimination.

It is that an accused is not required to respond to anallegation of wrongdoing made by the state until the state has succeeded in making out a prime facie case against him or her (White,paragraphs 40 to 41). [12] Context is most important and the application of the principle is case specific, guided by the inquiry as to whether deprivationof life, liberty or security of the person has occurred in accordance with the principle of fundamental justice (White, paragraphs 45 – 47). [13] The principle does not provide absolute protection against all uses of information compelled by statute. [14] In this regard, a comparison of the circumstances in White with those in R. v.

Fitzpatrick, (SCC), [1995] 4S.C.R. 154 is necessary. In Fitzpatrick, the accused participated in the commercial fishery in British Columbia. The accused had madeoral hail reports of his daily catch by radio, and had recorded daily fishing logs of his estimated catch as required by the applicablefishery regulations. He was charged with the provincial offence of overfishing and the hail reports and fishing logs were sought to beintroduced as evidence at trial. [15] In White the accused was charged under section 252(1)(

a) of the Criminal Code with failing to stop at the scene of an accident. At trial, the Crown sought to adduce evidence of the accused’s three statement to police. The accused knew she had a duty to report theaccident immediately and that she felt obligated to speak to the officer, even after the Charter warning and speaking with a lawyerbecause the officer had attended at her home to take an accident report. The statements were made under compulsion of

section 61 of theMotor Vehicle Act, R.S.B.C. 1996, c. 318. [16] Both cases focused upon four 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 an increased risk of unreliable confessions as a result of the statutory compulsion; and 4) The absence of an increased risk of abuses of power by the state as a result of the statutory compulsion. existEnce of coercion [17] In Fitzpatrick the Supreme Court of Canada concluded that the provincial fisheries regulations at issue in that case wereimposed upon the accused with his free and informed consent; the accused having a free choice whether or not to participate in thecommercial fishery.

When he chose to participate in the fishery he knew of his reporting obligations, the penalties for non-complianceand the possibility of any reports he might make being used against him. [18] In White, the requirement to be subject to regulation for driving carried a sense of obligation to comply given that driving was anecessity of life rather than the freedom to choose to engage in the fishery.

The Court concluded in White that the issue of consent was aneutral factor (paragraph 55). [19] The Court later elaborated that the test for presence of compulsion was whether, at the time the driver gave the request, it wasgiven on the basis of an honest and reasonably held belief that he or she was required by law to provide the report.

The belief issubjective (paragraph 75). [20] The Court added that the requirement that the driver’s honest belief be reasonably held does not necessarily mean that the driverhad as a strict matter of law a statutory duty to report (paragraph 78). [21] Further, additional to sections 24(1) and 11(

d) of the Charter, the Court noted the common law power to exclude at commonlaw where the right to a fair trial could be undermined as being enshrined in

section 11(d) (paragraphs 86 - 88). [22] The Court in White noted R. v. Harrer, (SCC), [1995] 3 S.C.R. 562 where McLachlin, J. (as she then was)confirmed the common law power to exclude under section 24(1) evidence obtained other than in breach of the Charter (paragraph 86quoting Harrer, paragraph 42).

Adversarial Relationship [23] In White the Court noted that a key factor in Fitzpatrick was that the accused and the state were not in an adversarial relationshipat the time the fishing reports were made and the accused was free of psychological and emotional pressure at that time (paragraph 56). [24] The Court stated at paragraphs 57 and 58: 57. The situation is very different under the Motor Vehicle Act. It is true, as the Crown suggests, that drivers and the state doparticipate in a form of partnership aimed at securing safe roads for the benefit of all citizens.

The reporting requirement in s. 61 of theAct has the valid purpose of permitting the compilation of road safety information and accident statistics: see, e.g., R. v. Walker, (SCC), [1939] S.C.R. 214 (S.C.C.) at p. 220. Yet the driver who provides an accident report under s. 61 is not in the samesituation as the commercial fisher who radios in or documents the quantity of the day's catch.

58. The provincial decision to vest the responsibility for taking accident reports in the police has the effect of transforming what might otherwise be a partnership relationship into one that is potentially adversarial. Very often, the police officer who is receiving the accident report is simultaneously investigating a possible crime, in relation to which the driver is a suspect.

At the same time that the officer is required by s. 61(4) of the Motor Vehicle Act to obtain information about the accident from the driver, the officer may equally be required or inclined to inform the driver of possible criminal charges and of the driver's legal rights under the Charter , including the right to remain silent. The result is seemingly contradictory instructions from police. Importantly, also, the driver is generally in the officer's immediate physical presence. The result is, quite unlike the situation in Fitzpatrick , a context of pronounced psychological and emotional pressure.

Unreliable Confessions [ 25 ] In White the Court note the fishing reports could not be characterized as confessions and if they could be, their use in regulatory proceedings for overfishing did not increase the likelihood of their being falsified (paragraph 61). [ 26 ] In White however, the Court saw the use of required statements under the Motor Vehicle Act carried a very real prospect of unreliability noting that a driver who reasonably believes he or she has a statutory duty to provide an accident report will likely experience a significant “fear of prejudice” and so be inclined to lie given serious consequences flowing from telling the truth (paragraph 62).

Abuse of Power [ 27 ] In White the Court noted that in Fitzpatrick it found that it was not abusive for the state to prosecute overfishing on the basis of the requirement to provide true reports as a condition of voluntary participation in the fishery. [ 28 ] On the other hand, in White the Court saw as real and serious the possibility that permitting the use of compelled accident reports within criminal proceedings as increasing the likelihood of abusive conduct by the police. Overemphasis of the obligation to comply with the report by the authorities could circumvent the

section 7 right to remain silent. conclusionS [ 29 ] I will now review the four factors as applicable to the application before me and my conclusions. Coercion [ 30 ] In the case before me the evidence establishes a statutory condition of compliance under a contract of property insurance as mandating specific information being given by the claimant in order to engage the obligation of the insurer to consider a claim. Notably, conditions 1(b)(ii) and (iii) engage the obligations of the accused’s swearing to the knowledge of the cause of the fire and his involvement.

Additionally, the compelled statutory provision appears to apply even if the owner does not claim compensation. [ 31 ] In the circumstances of this case, the accused’s evidence is that he felt under compulsion to attend to give the statement. The details required by the investigation were more than the statutory conditions required. The circumstances surrounding this statement included the accused being required to remain in a room at the request of the investigator for some three hours and the statement being recorded. The preliminary inquiry confirmed the police to be aware of the statement taking place.

The investigator was aware of the need to allow the accused breaks due to a pre-existing anxiety condition. This was only done after repeated requests and then only to go to the bathroom briefly. [ 32 ] In order to secure the insurer’s obligation to pay under the contract it was reasonable for the accused to believe that he had to provide information relevant to the insurer’s assessment of its obligation to pay under the contract. Once engaged in that process it has to be difficult for the accused to show reluctance to fully cooperate as the payment of funds to cover the property loss could be in question.

Once engaged, as was initially mandated by the Fire Insurance Act , it would be unreasonable to expect that the accused distinguished between confirmation strictly statutorily required and other related information requested of the insurance investigator. [ 33 ] Notably, the party questioning presents as an investigator which has to take with it the expectation that a professional inquiry is engaged going to the ability of the accused to receive payment. Adversarial Relationship [ 34 ] In this case the accused and the police were in an adversarial relationship.

The police had been in contact with the investigator seeking the meeting with the accused and were aware that the accused would be questioned. [ 35 ] There has been a significant fire. The police have an interest in any information. The accused was a suspect. The investigator and the police had a common interest concurrently. Unreliable Confessions [ 36 ] Once engaged by the investigator the accused’s personal interest in payment of money has to be taken as significant. To the extent he may view himself in jeopardy, he will have to engage his human responses immediately.

Inaccuracy, avoidance and error are all potential features attendant on his response choices. [ 37 ] As earlier noted, the party inquiring presents as an investigator and the information sought has to be taken by the accused as impacting favourably or not on the receipt of payment under the policy. Abuse of Power

[ 38 ] The state is not making this inquiry. The state has to be taken as aware of the inquiry on the evidence. [ 39 ] What is significant is that the state now wishes to have the ability to use the statements in evidence at the accused’s trial without the accused having had the benefit of his rights explained in the normal course of the Crown seeking use of potential inculpatory statements. In my view, the Crown will be taking the benefit of evidence otherwise not compellable and obtained without Charter compliance by a private investigator.

I have noted that the accused was compelled by statute to present himself and respond to the investigator. This is a state requirement of the accused as a property owner following damage and, in this case, going to the ability of the accused to secure insurance payment. final conclusion [ 40 ] In my view on the assessment just engaged by me as mandated in White , I conclude that the accused’s

section 7 and 11(

d) rights entitle him to the immunity of use of his statement. Compulsion is engaged by the state under the statutory conditions of the Fire Insurance Act . I cannot accept that once engaged with the investigator the accused can reasonably differentiate between the lines to be drawn by him. An adversarial relationship with police was concurrent at the time of the statement. Reliability is very much in question.

The state ought not to be encouraged to obtain by this means evidence prejudicial or inculpatory so as to circumvent the Charter prerequisites and protection. [ 41 ] In the end, a fair trial for this accused in any event warrants its exclusion. The Crown here advises that the statement will be introduced only as it sees necessary as evidence of any prior inconsistent statement of the accused. At this stage then it is not proposed in support of the Crown’s proof of its case.

Its probative value then is somewhat vague and uncertain and on the whole cannot be taken as outweighing the prejudicial effect of the jury having this evidence with its attendant risks as noted. [ 42 ] For these reasons, the statement is excluded. _____________________________ Carl R. Thompson Justice