Her Majesty the Queen - v. -, 2014 SKPC 067

IN THE PROVINCIAL COURT OF SASKATCHEWAN Date of Oral Decision: September 26, 2013 Citation: 2014 SKPC 067 Date of Written Decision: March 31, 2014 Information: 46420472 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Alicia Ermine Appearing: Barrie Miller For the Crown Michael Owens For the Accused DECISION ON VOIR DIRE D.E. LABACH , J [ 1 ] The accused, Alicia Ermine, is charged that on April 15, 2011 she had possession of cannabis marijuana for the purpose of

trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act and further, that she had possession of hydromorphone contrary to s. 4(1) of the Controlled Drugs and Substances Act . During the accused’s trial on these charges, the Crown wished to introduce into evidence some statements made by the accused to the Vice-Principal of the school where the alleged offences occurred.

The Defence resisted the Crown’s application and a voir dire was held to determine the admissibility of these statements. [ 2 ] On the voir dire , the Crown heard evidence from Shane Bradley, the Vice-Principal at Nutana Collegiate where the accused attended school, Mr. Isabelle and Ms. Beattie, two other teachers at Nutana as well as from the accused. While there are some differences in the testimony of the individual witnesses, looking at their evidence as a whole, I am satisfied that the following occurred. [ 3 ] On April 15, 2011, Mr.

Jared Isabelle, was teaching a physical education class in the gymnasium at Nutana Collegiate Institute. The accused was part of this class. The previous date, he had warned students about bringing contraband to school and he advised them that he could search their lockers for contraband or on the grounds of cleanliness. The accused was present when he raised this with the class. [ 4 ] Either before or while he was teaching physical education on April 15th, a female student spoke to him about an odour in the girls locker room.

As a result of this discussion, he locked the gymnasium doors so nobody could leave and went and got the Vice- Principal, Mr. Bradley. The two of them returned to the gymnasium and upon entering the girls locker room, immediately smelled the odour of fresh marijuana. The smell appeared to be most prevalent from one particular locker. [ 5 ] Although a locker is considered a student’s own personal space, Nutana Collegiate had a policy that they could search any locker if there was anything in the locker that they felt would jeopardize the security or safety of students or would be a violation of the law.

The basis for this policy was the school’s view that the lockers, despite being a student’s personal space, were owned by the school. This policy was clearly set forth in the students handbook. [ 6 ] Suspecting that this locker contained drugs, Mr. Bradley opened the locker using a master key. At this point he did not know whose locker this was but he was able to confirm that the odour of marijuana was definitely coming from this particular locker. Since the locker was being used by a female student, he shut the locker and went to get Ms. Beattie, a female teacher, to assist. While he did this, Mr.

Isabelle went to the gymnasium office and determined that the locker in question was being shared by the accused and another female student named Bayley Brown. [ 7 ] Mr. Bradley, Ms. Beattie, and Mr. Isabelle all returned to the girls locker room, at which time Mr. Bradley asked Ms. Beattie if she smelled anything out of the ordinary in the room. She said she could smell marijuana and indicated that the smell was emanating from the locker that Mr. Bradley and Mr. Isobel had earlier identified. [ 8 ] As a result, Mr. Isabelle went and got the accused and Ms.

Brown from the gymnasium and brought them into the locker room. While he was doing this, Mr. Bradley again unlocked and opened the locker. Both girls acknowledged that they were sharing the locker so he had them remove everything and take it to the phys ed office. In the office, he and Ms. Beattie had the girls identify what belonged to each of them. [ 9 ] The accused picked up a purse and some clothing. Mr. Bradley took the purse from her, opened it up and started looking inside. In the purse he found a bag of marijuana, a scale, a roach, some baggies, a lighter, a pill bottle and a cigarette package. [ 10 ] Ms.

Brown was asked a few questions and then allowed to return to class. Mr. Bradley took these items and told the accused to come with him and Ms. Beattie to the Vice-Principal’s office. Once they were there, the door was shut and Ms. Beattie sat in a chair by the door. Mr. Bradley sat behind his desk and the accused sat in a chair on the other side of the desk. He then began asking the accused questions. It is at this point that the witnesses begin to give some divergent testimony as to what occurred. [ 11 ] Vice-Principal Bradley said that he questioned the accused in his office for about an hour.

She was upset and crying. He asked her if she was selling the drugs at school. She acknowledged that she was but that this was the first time that she had done this. He asked her where she got the drugs and she said from a family friend in the British Columbia interior. He was not yelling at the accused and he denied threatening the accused, making any promises to her or saying anything by way of an inducement to get her to talk.

[ 12 ] He said that his normal practice is to interview the student and then decide if the police should be called. In this case, he said that after the accused admitted selling at school he told her he was going to call the police. This interview occurred on a Friday and it was his recollection that he called the police on the following Monday. After the interview was completed, he let the accused go but kept her purse and the contraband he had located and put them in the school safe until Constable Maloney could come and get them. [ 13 ] Mr.

Bradley testified that the accused was free to leave at anytime although he never told her this. He did not recall the accused getting up to leave and him telling her to sit down. He also said that she did not have to answer his questions but he did not tell her this either. Finally he said that he did not tell the accused she could call her grandparents or anyone else before the questioning began. [ 14 ] This discussion in the Vice-Principal’s office was not videotaped or audiotaped and no written statement or verbatim accounting of the questions asked and the answers given was created.

At the end of the questioning, Mr. Bradley made some notes of what he recalled was said but by his own admission, there were a lot of questions and answers that he did not make note of. He admitted that the length of time that had passed from the meeting in his office until his testimony at trial had affected his memory. [ 15 ] The accused gave a somewhat different version of what took place in the Vice-Principal’s office. She testified that once Mr. Bradley found the drugs in her purse, he told her to come to his office. She went to the Vice-Principal’s office with him and Ms.

Beattie because she did not feel that she had a choice. In the office, Mr. Bradley sat behind his desk, she sat in front of his desk and Ms. Beattie sat in a chair by the door. Mr. Bradley did not tell her she could call her grandparents or anyone else, that she did not have to say anything or that she could leave at any time. Instead, he just started questioning her. [ 16 ] The accused said that she was questioned by Mr. Bradley in his office for over an hour. He kept asking her if she was selling drugs at school. She kept denying that she was selling.

He asked her where she got her drugs from but she refused to answer. She got up to leave a couple of times and Mr. Bradley told her to sit down. Ms. Beattie was sitting by the office door so she sat down as she did not think she could leave. Mr. Bradley threatened to call the police a number of times if she did not answer his questions. He said that she would spend the weekend in Pinegrove meaning the Correctional Centre for Women. [ 17 ] The accused was getting tired, she was scared that she would end up going to Pinegrove and she wanted to go home. She thought that the only way that she would get out of Mr.

Bradley’s office and not end up in jail would be to tell him what he wanted to hear. She did not feel that she had any other options. As a result, she told Mr. Bradley that she was selling and where the drugs had come from. It was only then that he let her leave but told her she was suspended from school for three days. He also kept her purse and its contents. The only thing he gave back to her before she left was her cell phone. [ 18 ] I accept the accused’s testimony that this is what occurred in Mr. Bradley’s office and this is how the accused felt. Ms. Beattie corroborated much of what the accused said.

She confirmed that Mr. Bradley told the accused to sit down a couple of times and that she was not free to leave until they were done. She testified that while Mr. Bradley did not threaten the accused or yell at her, he was upset with her. The accused was crying, upset and agitated. She said he asked the accused a few times if she was selling and she denied it. She testified that Mr. Bradley told the accused that “We are going to get to the bottom of this” and that “We need to know who you are getting your marijuana from or we will call the police right now”.

She said that he made this latter comment a few times and he told her that it would look better to cooperate when the police were called. [ 19 ] Mr. Bradley’s testimony as to what occurred in his office was considerably less detailed than the accused’s testimony. At the end of his cross-examination, he said that he was mainly relying on the one page of handwritten notes that he made after the questioning took place. I have seen those notes; there is not much to them and they are in point form. Given Ms. Beattie’s corroboration of the accused’s explanation and the fact that Mr.

Bradley admitted that his memory of what took place was affected by the effluxion of time, I prefer the accused’s version of what took place in the Vice-Principal’s office where it conflicts with what Mr. Bradley said occurred. [ 20 ] The question on this voir dire is whether the statements the accused made to Vice-Principal Bradley in his office, in effect a confession, are admissible as evidence in the trial proper. These statements are governed by the confessions rule.

This rule states that: No statement made out of court by an accused to a person in authority can be admitted into evidence against him or her unless the prosecution shows to the satisfaction of the trial judge that this statement was made freely and voluntarily.

See Erven v. The Queen, (SCC), [1979] 1 S.C.R. 926 (S.C.C.) at page 931; R. v. Hodgson, (SCC),[1998] 2 S.C.R. 449 (S.C.C.) at paragraph 12; R. v. Grandinetti, 2005 SCC 5 , [2005] 1 S.C.R. 27 (S.C.C.) at paragraph 34. [21] Applying this rule to the facts on this voir dire, the issues are: (

a) Was Vice-Principal Bradley a person in authority? (

b) If yes, were the statements made by the accused to Vice-Principal Bradley voluntarily made? (

a) Was Vice-Principal Bradley a person in authority? [22] There is an evidentiary burden on the accused to show that there is a valid issue for consideration in that when the accusedmade the confession, she believed that the person to whom it was made was a person in authority. A person in authority is generallysomeone engaged in the arrest, detention, interrogation or prosecution of the accused. When one thinks of a person in authority, whatimmediately comes to mind is a police officer or Crown prosecutor.

However, there is no catalogue of persons who are automaticallyconsidered “persons in authority” solely by virtue of their status. While these traditional examples will usually be considered persons inauthority, so too will persons whom the confessor perceives to be an agent of the police or prosecuting authorities, allied with the stateauthorities or acting on behalf or in concert with the police or prosecuting authorities. The test as to whether someone is a person inauthority is both subjective and objective.

The subjective portion of the test focuses on the accused’s perception of the person to whomhe or she is making the statement. The operative question is whether the accused, based on his or her perception of the recipient’s abilityto influence the prosecution, believed either that refusing to make a statement to the person would result in prejudice, or that making onewould result in favourable treatment.

If the accused can show that there is some evidence on the record to make this a live issue, thenthe onus shifts to the Crown to prove beyond a reasonable doubt that the accused did not reasonably believe that the person to whom theconfession was made was a person in authority. The objective element is the reasonableness of the accused’s belief that he or she isspeaking to a person in authority. It is only if both of these elements are satisfied in the affirmative that the Crown must then show thatthe statement was made voluntarily.

See Hodgson, supra, at paragraphs 32 to 38; Grandinetti, supra, at paragaphs 37 to 43. [23] In this case, the accused has met the evidentiary burden. She testified that despite the fact that Mr. Bradley had already foundthe marijuana in her purse, she still had to go to his office where he questioned her behind closed doors for over an hour. Throughout thequestioning he was adamant that they were going to get to the bottom of this and that he needed to know if she was selling at school andwho she got her drugs from. She tried to leave and he told her to sit down.

She denied selling drugs at school more than once but hewould not accept that answer. He made it clear to her that if she did not admit that she was selling and who she got her drugs from, hewould call the police and she would spend the weekend in jail. He suggested it would go better for her with the police if she cooperatedwith him and later he made it clear to her that given the quantity of drugs she had he was going to call the police and pass thatinformation on to them. She was scared about going to jail for the weekend and felt that her only option to get out of Mr.

Bradley’soffice was to tell him what he wanted to hear. This is some evidence that the accused believed Mr. Bradley was acting as an agent of thepolice or in concert with them sufficient to shift the burden to the Crown. [24] I am also satisfied that her belief in this regard was reasonable. In this case, Vice-Principal Bradley had found drugs and drugparaphernalia in the accused’s purse before he ordered her to his office for questioning. He had a basis to suspend her from school and toreport the contraband to the police. He kept the purse, the drugs and the drug paraphenalia.

He did not have to do anything more thangive the police the items he seized, provide a statement to them and let the police investigate and lay the appropriate charges. Instead, he chose to question the accused further. There was no reason for him to do this. I was not presented with any evidence that it made anydifference to the school if she was in possession of drugs on school property or if she was selling drugs on school property. The onlyinference I can draw is that Mr.

Bradley was attempting to get information to give to the police to justify a more serious traffickingcharge. [25] The questioning occurred in the confines of his office with Ms. Beattie seated in a chair by the door. The door was closed. Ms. Beattie described the discussion as a little like an interrogation and said that while Mr. Bradley was not yelling at the accused, he

was upset and stern with her. The questioning lasted for over an hour and at some point during the Vice-Principal’s questioning, Ms.Beattie, for some reason, weighed the drugs. On a couple of occasions the accused got up to leave only to have the Vice-Principal tellher to sit down. This questioning was obviously intimidating to the accused who was only 18 years old at the time. I recognize thatinterrogations are often intimidating but this was bordering on oppressive. [26] Mr.

Bradley asked her repeatedly whether she was selling drugs at school as well as telling her on more than one occasionthat he needed to know who she was getting her drugs from. When he did not get the answers he wanted, he threatened that she wouldbe spending the weekend at Pine Grove, the women’s Provincial Correctional Centre. He also made it clear that he was going to reportthis matter to Constable Maloney, the school liaison officer. [27] Considering all of the evidence, I conclude that Vice-Principal Bradley was acting as a person in authority vis-a-vis theaccused.

The accused believed that she had to confess to him that she was selling drugs and who she was getting her drugs from to getout of his office and not end up in jail. Her belief was objectively sustainable on the facts. Mr. Bradley had detained the accused andwas interrogating her like a police officer would detain and interrogate a suspect. He would not accept the accused’s denials andthreatened her with jail if she did not tell him she was selling drugs. He said he would get to the bottom of this. He told her that it wouldlook better to cooperate.

He would not let her leave until she told him she was selling drugs. All of this information was going to bepassed on to the police as there was no reason the school would need anymore information than they already had. An ordinary personfaced with these circumstances would have no hesitation concluding that Mr. Bradley was acting as an agent of the police or was actingin concert with them. (

b) If yes, were the statements made by the accused to Vice-Principal Bradley voluntarily made? [28] Voluntariness is the touchstone of the confessions rule. A confession that is not voluntary will often be unreliable. Aconfession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness. For example, if anythreats or promises were made, if there was a lack of operating mind, if police trickery was employed or oppression used to induce aconfession it may very well be involuntary and therefore inadmissible.

In assessing voluntariness, a trial judge must look at all thecircumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession’s voluntariness. See R. v.Oickle, 2000 SCC 38 , [2000] 2 S.C.R. 3 (S.C.C.) at paragraphs 47, 68, 69 and 71; R. v. Hodgson, supra, at paragraph 15. [29] In the present case, the accused was not given a choice as to whether she wanted to go to the Vice-Principal’s office and makea statement or not. She was only 18 years old and she was told to go there by the Vice-Principal.

Once they were in the office, the doorwas shut and another teacher positioned herself in a seat beside the door as if to indicate that she could not leave. The Vice-Principal,Mr. Bradley, started interrogating her. She was not given an opportunity to call her grandparents or a lawyer, she was not told she couldcall anyone, she was not told that she did not have to answer any questions and she was not told that she could leave if she wanted. Acouple of times she got up to leave but was told to sit back down by Mr. Bradley. She was not free to go until Mr.

Bradley was donewith her and he was not going to be done with her until he got the answers he wanted. [30] Mr. Bradley was persistent in his questioning of the accused. He told her that they were going to get to the bottom of things. He kept asking her if she was selling drugs at school and she kept denying it. However he did not believe her and would not give up. He threatened to call the police and told her that she would spend the weekend in jail if she did not answer his questions. She becameemotional and upset.

While the accused was only in the Vice-Principal’s office for a little over an hour, she eventually became tired ofhis questioning and thought that if she told him that she was selling at school he would finally let her leave the office and she would notgo to jail. This is what precipitated her confession. He told her that it would look better for her if she cooperated. Finally she acquiescedthinking that was the only way she would be able to leave. [31] The accused felt that she had no options. She was of the view that unless she told Mr.

Bradley she was selling drugs and whoshe got her drugs from, he was going to call the police and she was going to Pinegrove Correctional Centre. The only way she was goingto get out of his office was to tell him what he wanted to hear. The atmosphere in Mr. Bradley’s office was oppressive, she wasthreatened that the police would be called and she would go to jail if she did not say that she was selling drugs at school and she wasadvised that it would look better if she cooperated.

Taking all these circumstances into account, the accused’s statement could hardly besaid to be voluntary. [32] I am also concerned that Mr. Bradley did not record the questions he asked the accused and the answers she gave him eitheron videotape, audiotape or in verbatim handwriting. He admitted that he questioned the accused for over an hour and that he made notes

of their conversation after he told the accused to leave. However, he admitted that a lot of time had gone by from the date this occurreduntil the date he was testifying and that his memory was affected by this effluxion of time. He said that there were a lot of questionsasked that he did not make note of. [33] A Court must be satisfied not only that a statement was voluntarily made but also that it was an accurate reflection of whatwas said. Voluntariness is an integral aspect of reliability but so is completeness of the statement. A

summary of what took placebetween a person in authority and an accused in an interview room does not represent the actual words used by an accused and theirmeaning can be easily distorted. To allow a truncated version of an interview would be prejudicial to an accused. See R. v. Henderson,[1999] S.J. No. 152 (Sask.Q.B.) at paragraphs 17 to 19; R. v. Lovelace, (SK KB), [1998] S.J. No. 364 at parapraphs13 to 16; R.v. White, (ON CA), [2003] O.J. No. 2458 (Ont.C.A.) at paragraphs 21 to 24; R. v. Faulder, [2000] B.C.J.No. 2631 (BC Prov. Ct.) at paragraphs 64 and 65; R.v. Piotrovich, [2004] S.J. No. 268 (Sask.

Prov.Ct.) at paragraphs 26 to 28. [34] I have reviewed the notes Mr. Bradley made after he interrogated the accused and there is very little to them despite this beingan hour long interrogation. They consist of one page, over half of which is information about the accused gleaned from her student fileand a brief

summary of what occurred in the gymnasium locker room. Mr. Bradley’s notes as to what happened in his office entail aboutsix lines and are in point form. They are just a

summary. They do not contain the specific questions asked of the accused nor thespecific answers she gave. It would have been useful to know how many times the accused denied she was selling drugs and what shespecifically said. It would have been helpful to know what the accused said when she finally admitted to selling drugs and the nature ofthe questioning that lead up to that admission. The notes and testimony of Mr.

Bradley are not the words used by the accused, I havenext to no context surrounding her confession and as a result, I cannot be satisfied of the reliability of his account. [35] For all these reasons, I am not satisfied that the confession made by the accused to Mr. Bradley, the Vice-Principal, wasvoluntarily made by her and I am concerned that it is not reliable. As a result, the accused’s statements made to Mr. Bradley in his officewill not be admitted as evidence on the Charter voir dire or the trial proper. _____________________________ D.E. Labach, J