R. v. C.D., 2019 NLSC 200

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. C.D. , 2019 NLSC 200 Date : November 7, 2019 Docket : 201701G7550 Her Majesty The Queen v. C.D. Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice Rosalie McGrath Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: October 8, 2019

Summary: The Court made an order excluding statements made by the Accused to a child protection social worker. The social worker was deemed to be a person in authority and the Crown had not proven that the statements were voluntary. Appearances:

Jennifer M. Colford Appearing on behalf of the Crown Michael S. Ralph Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Hodgson, (SCC), [1998] 2 S.C.R. 449; R. v. Berger (1975), (BCCA), 27 C.C.C. (2d) 357, [1975] B.C.J. No. 1181 (C.A.); R v. Smith, 2015 NLTD(G) 170; Erven v. R., (SCC), [1979] 1S.C.R. 926; R. v. Kimberley (2004), 61 W.C.B. (2d) 10, [2004] N.J. No. 64 (Prov. Ct.); R v. Reid (2000), (NL SC),192 Nfld. & P.E.I.R. 77, 47 W.C.B. (2d) 16 (Nfld. S.C.T.D.); R. v. Matchim, 2011 NLTD(G) 60; R. v. Saunders, 2010 NLTD 86; R. v.Oickle, 2000 SCC 38; R. v.

Critch (2011), 95 W.C.B. (2d) 761, [2011] N.J. No. 256 (Prov. Ct.); R. v. Singh, 2007 SCC 48; R. v. Beaulieu(1996), (MB KB), 114 Man. R. (2d) 269, 33 W.C.B. (2d) 110 (Q.B.) STATUTES CONSIDERED: Children, Youth and Families Act, S.N.L. 2010, c. C-12.2; Canadian Charter of Rights and Freedoms,Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 RULES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT McGrath, J.: INTRODUCTION [1] C.D. has been charged with one count of sexual assault and one count of sexual interference for touching his stepdaughter,O.M., for a sexual purpose. His stepdaughter was under the age of 16. [2] The offences are alleged to have occurred between May 22 and 23, 2016.

The matter was reported to the Royal NewfoundlandConstabulary (the “RNC”) and also to what is now known as the Child and Youth Services (“CYS”) division of the Department ofChildren, Seniors and Social Development (“CSSD”). [3] The RNC began a criminal investigation, while CYS took steps to investigate the referral as a child protection concern underthe former Children, Youth and Families Act, S.N.L. 2010, c. C-12.2. [4] After the Accused retained counsel, the RNC was advised the Accused would not be providing a statement.

This informationwas conveyed by the RNC to social worker, Jessica Hearn, who works for CYS in their Protective Intervention Program. Ms. Hearn’smandate is to investigate child abuse and neglect. [5] CYS had some involvement with this family prior to the allegations of May 2016, including interviewing the parents andchildren (O.M. is not the only child) as a result of allegations about how C.D. treated the children. These allegations were not of a sexualnature.

However, CYS had not initiated any protective intervention applications with the Family Division of this Court. [6] Beginning in May, 2016 and throughout the summer months, Ms. Hearn attempted to contact C.D. by phone as part of herinvestigation. She also attended at his residence but did not get a response at the door. She was eventually successful in speaking withC.D. by phone. C.D. indicated he was anxious to resume access with the children. [7] Ms. Hearn told C.D. that all decisions with respect to his access were being made by R.M., the mother of O.M. Ms.

Hearntestified that R.M. and C.D. had been separated for quite some time but there was no custody order in place. While R.M. was making allaccess decisions, Ms. Hearn advised C.D. that CYS supported the decision of R.M. to withhold access in light of the disclosure of sexualtouching made by O.M. [8] Ms. Hearn also told C.D. that if he wanted to have access to the children, he would have to apply through Court. In such anevent, Ms. Hearn said she would likely be subpoenaed to give testimony on the CYS investigation.

She also recalled a discussion withC.D., when he was asking about access, in which she stated that the first step in the process was for him to meet with her and provide hisside of what happened. [9] A meeting was eventually arranged between C.D. and Ms. Hearn for the evening of September 14, 2016. Ms. Hearn and

another social worker, Samantha Rose, went to the home of C.D. and interviewed him. Ms. Hearn said that she asked C.D. to give herhis perspective on everything he knew about the incident related by O.M. [10] At the start of the interview, Ms. Hearn asked C.D. why he had refused to speak to the RNC. Ms. Hearn was aware that C.D.’slawyer told him not to provide a statement. She explained that part of her work involves collaborating with the RNC when there is anyallegation of child abuse. [11] Ms. Hearn told C.D. that part of her assessment of risk includes a parent’s willingness to cooperate. C.D. told Ms.

Hearn that hewanted to be forthright and provide a statement but his lawyer told him not to. [12] C.D. then proceeded to recount what he recollected of his actions involving O.M. on the night of May 22/23, 2016. At certainpoints, Ms. Hearn interrupted or redirected him, asking her own questions as well. [13] At the end of the interview, Ms. Hearn said that she would be assessing the child protection risk. While she did not say shewould be making a recommendation, she did say she could be providing her perspective and that she may be subpoenaed to testify in theprivate custody dispute at Family Division.

Ultimately, Ms. Hearn said that CYS did make a recommendation and closed its file. Thatrecommendation was not that there be no access, but that any access between C.D. and O.M. be supervised. [14] At no time, either before or during the course of the interview, did Ms. Hearn advise C.D. that she would be reporting back tothe RNC. However, she did acknowledge to this Court that CYS’ policy is to share any information relating to criminal child abuseallegations with the RNC. In fact, they are statutorily mandated to provide such information. [15] Further, at no time did Ms.

Hearn tell C.D. that he was not obligated to speak with her. On the other hand, at no time did she tellC.D. that he was obligated to speak. [16] The morning after the interview with C.D., Ms. Hearn prepared detailed notes of the interview and entered these notes on theinternal CYS CRMS note-taking system. That same day, she contacted the RNC and shared these notes with them. In addition, sheattended at RNC Headquarters and had an interview with an investigating officer. [17] Counsel for C.D. takes the position that the statements C.D. made to Ms. Hearn are not admissible at trial. He says Ms.

Hearnwas a person in authority. As such, before admitting any evidence of statements C.D. made to her, I must be satisfied that suchstatements were made voluntarily. [18] The Crown takes the position that Ms. Hearn is not a person in authority for the purposes of determining whether the statementswere voluntary. Further, even if Ms. Hearn is a person in authority, the Crown says C.D. voluntarily made these statements. [19] In determining the admissibility of these statements on this voir dire, I had the benefit of oral evidence from Ms. Hearn as wellas a transcript of Ms. Hearn’s interview with the RNC.

On November 5, 2019, I ruled that the statements given to Ms. Hearn were notadmissible as Ms. Hearn was a person in authority and the statements were not voluntary. These are the written reasons for thatdecision. issue 1. Should statements made by the Accused to the social worker be admitted into evidence? LAW AND ANALYSIS [20] The law with respect to admissibility of out-of-court statements made by an accused to a person in authority is succinctly set outby the Supreme Court of Canada at paragraph 12 of R. v.

Hodgson, (SCC), [1998] 2 S.C.R. 449, as follows: 12 It "can now be taken to be clearly established in Canada that no statement made out of court by an accused to a person in authoritycan be admitted into evidence against him unless the prosecution shows, to the satisfaction of the trial judge, that the statement wasmade freely and voluntarily." See Erven v. R. (1978), (SCC), [1979] 1 S.C.R. 926 (S.C.C.), at p. 931, per Dickson J., ashe then was.

This, of course, is the confessions rule. [21] At paragraph 14, the Supreme Court of Canada noted that a confession will not be admitted into evidence if the confession hasbeen obtained unfairly or unjustly. The unfairness of admitting a confession involves a consideration of two factors: (

i) the voluntariness of the statement; and (ii) whether the receiver of the statement was a person in authority. [22] There is some burden on the Accused to adduce evidence to satisfy the threshold issue of whether the receiver of the statementshould be deemed a person in authority. At paragraph 37 of Hodgson, the Supreme Court of Canada describes the burden on theAccused as an evidential burden to ensure there is sufficient evidence on the record of the existence of a fact or of an issue to meet thethreshold test for that particular fact or issue.

This threshold test can also be described as requiring an accused to ensure there is someevidence to make it a live issue. [23] If that threshold is met, paragraph 35 of Hodgson instructs that the Crown then bears the burden of establishing beyond areasonable doubt either that the receiver is not a person in authority or, if this burden cannot be discharged, that the statement was madevoluntarily. [24] A review of the transcript of Ms. Hearn’s interview with the RNC, filed by the Accused, satisfies me there is sufficient evidenceto meet the Accused’s threshold burden, thereby placing the onus on the Crown.

person in authority [25] At paragraph 16 of Hodgson, the Supreme Court of Canada notes that a person in authority generally refers to anyone formallyengaged in “the arrest, detention, examination or prosecution of the accused”. However, the definition may be enlarged to include aperson who is deemed to be a person in authority as a result of the circumstances surrounding the making of the statement. [26] At paragraphs 33 and 34 of Hodgson, the Supreme Court of Canada refers with approval to comments of the British ColumbiaCourt of Appeal in R. v. Berger (1975), (BC CA), 27 C.C.C. (2d) 357, [1975] B.C.J.

No. 1181 (C.A.), as follows: 33 The subjective approach to the person in authority requirement has been adopted in this Court. See Rothman, supra, at p. 663. Theapproach adopted by McIntyre J.A. (as he then was) in R. v. Berger (1975), (BC CA), 27 C.C.C. (2d) 357 (B.C.C.A.), at pp. 385-86 is, in my view, a clear statement of the law: The law is settled that a person in authority is a person concerned with the prosecution who, in the opinion of the accused, caninfluence the course of the prosecution.

The test to be applied in deciding whether statements made to persons connected in such away with the prosecution are voluntary is subjective. In other words what did the accused think? Whom did he think he wastalking to? ...Was he under the impression that failure to speak to this person, because of his power to influence the prosecution,would result in prejudice or did he think that a statement would draw some benefit or reward?

If his mind was free of suchimpressions the person receiving this statement would not be considered a person in authority and the statement would beadmissible. 34 However, to this statement I would add that the accused's belief that he is speaking to a person in authority must also bereasonable, in the context of the circumstances surrounding the making of the statement.

If the accused were delusional or had noreasonable basis for the belief that the receiver of the statement could affect the course of the prosecution against him, the receivershould not be considered a person in authority. … [27] As a result, there is both a subjective and objective component to the determination of whether someone is a person in authorityfor the purposes of the confessions rule. [28] Courts in this Province and other Canadian jurisdictions have applied this objective and subjective test in considering whethernon-police actors are persons in authority.

While these cases provide helpful guidance, I must be mindful that each case will turn on itsown particular facts. As a result, I have carefully reviewed the decisions placed before me and the circumstances that led to a findingthat a receiver of a statement was or was not a person in authority. [29] In this jurisdiction, in the case of R v. Smith, 2015 NLTD(G) 170, Justice Handrigan was asked to determine whether agents ofthe accused’s employer were persons in authority.

Two other employees, one of whom was a loss prevention manager, had interviewedthe accused regarding acts of alleged fraud against the retail employer. The notes of that interview were then provided to the police. [30] The accused testified that she believed the statement she gave would be used only for internal employment purposes rather thana criminal investigation. At the time of giving the interview, she was not advised by the employees that the police had been contacted orthat her statement would be provided to them.

She said she gave the statement to two more senior employees as she did not wish to loseher job. [31] Handrigan, J. referred with approval to the Supreme Court of Canada decisions in Erven v. R., (SCC), [1979] 1S.C.R. 926 and Hodgson. Applying the law as set forth in those decisions to the circumstances before him, Handrigan, J. found that thetwo employees were not persons in authority. They were not acting as agents of the state. Thus, the Canadian Charter of Rights andFreedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “Charter”) would notapply to the exchange that took place during the interview. [32] In so concluding, he took the following into account:

i) The police officer who was assigned to attend at the retail store to investigate had no contact with the two employees until afterthey had conducted the interview with the accused. While one of the employees had telephoned police prior to the interview, she merelytold the person who answered the call of possible wrongdoing.

She could not remember if she even mentioned the name of the accused; ii) there was absolutely no evidence that the police had recruited the employees to obtain a statement or otherwise solicit their help;and iii) there was nothing to support a finding that the police influenced what took place between the two employees and the accused. [33] In the decision in R. v. Kimberley (2004), 61 W.C.B. (2d) 10, [2004] N.J. No. 64 (Prov. Ct.), Judge Gorman also found that afraud investigator for the complainant insurance company employer was not a person in authority.

The internal fraud investigatorobtained an audiotaped statement from the accused. This statement, along with a report outlining the results of the internal investigation,were then forwarded on to the police. [34] In Kimberley, the accused knew that the internal fraud investigator had not been in contact with the police when he gave thestatement. As the accused actually knew there was no collaboration between the investigator and the police, there was no basis on whichto find that he reasonably perceived the maker of the statement as acting as an agent of the state.

Nor did he reasonably believe that theinvestigator had any control over the prosecution.

[35] In the 2000 decision in R v. Reid (2000), (NL SC), 192 Nfld. & P.E.I.R. 77, 47 W.C.B. (2d) 16 (Nfld.S.C.T.D.), Barry, J., then sitting as a Justice of this Court, decided that two employees of a forensic auditing and accounting firm hired bythe accused’s employer were persons in authority. Those two individuals had interviewed the accused in respect of financialirregularities. [36] In that case, the employer had previously reported concerns to the police, who advised the employer it would have to obtain itsown forensic audit before charges would be laid. It was no longer police policy to obtain such audits.

While the accused had not beenaware of this information, the accused was aware that the forensic auditors had been retained by the employer to investigate activityinvolving misappropriation of funds. [37] Before speaking with the investigators, the accused’s manager commented to the accused and another employee about the needto cooperate with the auditors.

While the auditors did not inform the accused that she had to answer their questions, they also did say shecould leave without answering. [38] After thoroughly canvassing the requirements from Hodgson, Barry, J. gave his conclusion regarding whether the forensicinvestigators met the definition of persons in authority.

He stated the following at paragraphs 20 and 21: 20 I conclude in the present case the accused was aware of a sufficiently close collaboration between her employer and the police andof a sufficiently close association through AFRA between the representatives of KPMG and the police, to make Oake and Norman partof the prosecution team.

Although she may not have known that the police had informed AFRA the laying of charges depended uponobtaining a forensic audit, I am satisfied the accused would have believed the interview with Oake and Normal to some extent wouldinfluence the decision whether charges should be laid against her. 21 The evidence meets the evidential burden on the accused to show that she believed the receivers of her statements were in concertwith the police or prosecutorial authorities, acting as their agent, or part of their team.

In the circumstances of this case, I conclude Oakeand Norman were persons in authority and not mere witnesses as suggested by the Crown. [39] While there is little case law dealing with social workers as persons in authority, a relevant decision from this jurisdiction is thedecision in R. v. Matchim, 2011 NLTD(G) 60.

The circumstances of that case were somewhat similar as the accused who gave astatement to a child protection social worker was a parent who was under investigation for child physical abuse. [40] In Matchim, both the police and CYFS (now known as CYS) were involved in investigating the alleged child abuse. Two socialworkers sat in on the parents’ first interview with police at the hospital where the child was being treated for a head injury. During thisinitial interview, both parents were told there would be a CYFS investigation and assessment as to the child’s placement.

The accusedwas aware that CYFS was looking out for the best interests of the child while the police were involved in a criminal investigation. Hewas also aware that any information CYFS obtained would be shared with the police, although their roles would be different. [41] At paragraph 38, Dymond, J. found that, although there were separate interests between the police and CYFS, both werefocused on how the child was injured.

The Court found that, because of the continuous contact between the two organizations, in theaccused’s subjective view, he had reason to believe that CYFS could have some impact on the investigation. [42] At paragraph 51, Dymond, J. stated he was also satisfied that the circumstances, viewed objectively on the facts of the case,demonstrated the reasonableness of the accused’s subjective belief that the social worker was a person in authority. [43] Similarly, having considered the evidence on this voir dire, and looking objectively at the facts and circumstances, I find theAccused would have had a reasonable and subjective belief that Ms.

Hearn was a person in authority. [44] In particular, while Ms. Hearn is not a police officer, in the circumstances, the Accused would have subjectively believed thatMs. Hearn was a person acting in concert with the prosecution, as part of their team, and she could influence the course of theinvestigation or prosecution. [45] In so finding, I have considered that, while Ms. Hearn explained to the Accused that her role was to investigate the allegationsfrom a child protection perspective, the allegations related to the same conduct. As well, both the RNC and Ms.

Hearn were advised ofthe allegations at the same time. [46] Further, Ms. Hearn clearly indicated to the Accused that she had been speaking with the RNC. It was the RNC who advisedMs. Hearn that the Accused had not agreed to provide a statement. Ms. Hearn spoke of the Accused’s alleged “non-cooperation” withthe police. Ms. Hearn then asked the Accused, before he gave a statement to her, why he had not been cooperating with the police. [47] Ms.

Hearn also gave evidence that part of her role at CYS is to work in collaboration with the police when allegations aremade involving child abuse. [48] The circumstances before me can be differentiated from the decision of this Court in Smith, in which persons employed by aprivate employer obtained statements before the police had effectively commenced their criminal investigation.

Similarly, in Kimberley,Judge Gorman was dealing with a situation where an internal investigator employed by the complainant employer took a statement andcarried out an internal investigation prior to the police becoming actively involved in the prosecution. In that case, the accused was noteven aware that there had been any prior collaboration between the investigator and the police.

As such, there was no basis upon whichto find that the accused reasonably perceived the maker of the statement as acting as a person in authority. [49] The circumstances here are closer to those in Reid, in which the accused was questioned by an employer-hired investigatorregarding the financial irregularities and misappropriation of funds. The forensic auditing and accounting firm was carrying out itsinvestigation both for internal purposes and in order for the police to obtain the information required to lay a charge. Barry, J. found it

was a reasonable inference that the accused would have reasonably believed that the investigation would be used to determine whetherthe employee should be prosecuted. [50] In fact, the evidence in this case is even stronger to support the Accused’s belief. As in Matchim, there was knowncollaboration between CYS and the RNC in respect of these allegations. There was also a legislative requirement to report and shareinformation regarding child abuse. Voluntariness [51] Having decided that Ms.

Hearn was a person in authority for the purpose of the admissibility of statements made to her, I mustnow consider the circumstances surrounding the taking of the statement to determine whether the Crown has proven beyond a reasonabledoubt that the statement was voluntary. [52] In R. v. Saunders, 2010 NLTD 86, at paragraph 13, LeBlanc, J. notes that the goal of the confessions rule identified in R. v.Oickle, 2000 SCC 38 is to protect the rights of the accused without unduly limiting society’s need to investigate and solve crimes.

Inprotecting the rights of an accused, a court must be concerned with ensuring fairness and reliability. Those concerns encompass both thefairness and reliability of the statement being admitted into evidence at trial as well as the protection of the accused during theinvestigative process. The court must guard against improper coercion by the state. Because admission of a confession may beconclusive of guilt, the Crown bears the burden of proving voluntariness beyond a reasonable doubt. [53] At paragraph 18 of the Newfoundland and Labrador Provincial Court case of R. v.

Critch (2011), 95 W.C.B. (2d) 761, [2011]N.J. No. 256 (Prov. Ct.), Judge Gorman also made reference to the Supreme Court of Canada decision in Oickle, in which the court notedthat the “most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes inthe form of a threat or a promise”. Courts must take a contextual approach by considering the entire circumstances when determiningwhether an inducement or promise had an actual impact on an accused’s decision to speak to a person in authority.

The judge must thenask whether there is a reasonable doubt that the resulting confession was voluntary. [54] At paragraph 16 of that decision, Judge Gorman noted that the focus for determining whether the statement was givenvoluntarily must be on the effect of the threat or inducement and not merely the fact that the threat or inducement was made. [55] With respect to the nature of the inducement, at paragraph 26, Judge Gorman noted that Oickle held that the inducement mustbe strong enough to produce an unreliable confession. In R. v.

Singh, 2007 SCC 48, the Supreme Court of Canada put the focus on theconduct of the person in authority and its effect of the accused’s ability to exercise free will. While the test is objective, the individualcharacteristics of the accused are relevant when applying that objective test. [56] In Reid, Barry, J. found that statements made to an accused by a person in authority amounted to an implied threat regarding theaccused’s employment if she did not cooperate with the investigators.

Barry, J. held at paragraph 30 that, even if he was incorrect inholding that a threat or inducement need not relate to charges or contemplate a charge against an accused, the statement made to theaccused that it would be to her benefit to cooperate with the forensic investigators could reasonably be interpreted as the accusedbelieving she would be favourably regarded by the authorities because of her cooperation. Charges may not even proceed against her.

The making of those statements would be sufficient to raise a reasonable doubt about the voluntariness of the statement. [57] In the Manitoba Court of Queen’s Bench decision in R. v. Beaulieu (1996), (MB KB), 114 Man. R. (2d)269, 33 W.C.B. (2d) 110 (Q.B.), the court also had occasion to consider whether statements provided to social workers investigating anallegation of child abuse were voluntary for the purposes of the confessions rule. [58] In that case, hospital staff had concern that a child’s injuries might be the result of abuse.

As a result, they contacted the childprotection centre who assigned a social worker to the case. Her function was to both gather information regarding the child’s medicalcondition, the child’s home and the cause of the injuries, and also to act as liaison between the hospital, the police and the child andfamily services agency.

A different agency social worker would be the one responsible for deciding whether the child would beapprehended. [59] The accused gave statements to both social workers on separate occasions to the effect that he may have hurt the baby duringplay. [60] The police investigation was just beginning a couple of days after the last information provided by the accused to the socialworkers. During his initial interview with the police, at which point he was not a suspect, the accused admitted to police that he hadbecome frustrated and shook the baby.

He was then charged, cautioned and read his Charter rights. [61] After the police confession, the accused complained that he had made the confession under duress.

However, he later met withthe same social worker and disclosed to her that he had shaken the baby and yanked the baby’s legs. [62] In that case, the Court did not actually have to find whether or not the two social workers were persons in authority as, even ifthey were persons in authority, the accused’s statements to the social workers were admissible on the basis that there had been noinducement or alleged inducement perceived by the accused. [63] In particular, at paragraph 23, the Court stated that: 23 In this case, there were no actions or statements by either the police officers or either of the social workers which could cause theaccused to either fear he would be worse off or hope he would be better off if he made a statement.

The accused was told that hischildren had been apprehended and that they could not be returned until the Agency was satisfied that it knew how the injuries occurredand were satisfied that the baby would be safe. While the social workers and police officers asked the accused for information, his givingof the information was never linked, or made a pre-condition, to the return of the children.

[ 64 ] Similarly, in Matchim , Dymond, J. found that the statements given to the CYFS social worker were voluntary. In that case, the accused made the statements to the social worker during a meeting in which the social worker was explaining the process of assessment and placement to the parents. The social worker was not conducting a formalized interview and did not intend to invite a response from the accused. [ 65 ] Further, the accused in Matchim made the statement to the social worker after he had already provided a confession to police.

He had also been given a full caution and read his Charter rights on no less than five prior occasions. [ 66 ] The circumstances before me are distinguishable from Matchim and Beaulieu . In this case, the more important factors that I have taken into account in determining whether I have a reasonable doubt on the voluntariness of the statement provided to Ms. Hearn are as follows:

i) Ms. Hearn was aware from the RNC that the Accused had retained a lawyer whose advice was for C.D. not to provide a statement; ii) Despite the fact that Ms. Hearn was aware the Accused had obtained such legal advice, she continued to follow up with him numerous times by phone and making visits to his home in an effort to obtain a statement from him. At the time, the mother of O.M. had already denied any access and CYS was satisfied O.M. was living with a protective parent; iii) Ms. Hearn specifically made a query of the Accused as to why he was not cooperating with the criminal investigation.

She said that was information she obtained from the RNC and non-cooperation was a factor she would need to take into account; iv) While Ms. Hearn did not make any overt promises or threats to the Accused, she did indicate that the first step for him in getting access to the children was to provide her with his own account of what happened;

v) Ms. Hearn did not advise the Accused that she would be providing notes of her meeting to the RNC, as well as giving them an oral interview; vi) While Ms. Hearn did explain to the Accused that the issue of access would be decided by the Family Division in a private custody dispute, she also advised him that she would, in all likelihood, be subpoenaed to testify and she ultimately did make a recommendation with respect to continued access between the Accused and his children; vii) The evidence suggests that the Accused was quite anxious and upset over not having access to his children. [ 67 ] I find that Ms.

Hearn’s comment that cooperating and providing a statement was the “first step” in obtaining access would, in the mind of a reasonable person in the circumstances of the Accused, amount to a strong inducement; i.e., one that is strong enough to produce an unreliable confession.

Linking cooperation and the provision of a statement to access to children can be a powerful inducement for a parent to provide whatever information he or she feels will facilitate such access. [ 68 ] While I recognize that CYS did not have an ongoing protective intervention application before the Court, it certainly cannot be said that the results of their investigation and any recommendation would not carry significant weight in a judge’s consideration of access. [ 69 ] Further, as did Barry, J. in Reid , I have considered whether the statements would be voluntary even if I am incorrect in holding that the inducement relating to access to the children is sufficient (i.e., the threat or inducement must relate to the prosecution of the criminal charges or contemplated charges against the accused). [ 70 ] In these circumstances, I also find that Ms.

Hearn’s comments regarding the failure to provide a statement to the RNC and failure to cooperate in the investigation could reasonably be interpreted by the Accused as meaning that the provision of a statement would be regarded favourably by the authorities, including the RNC. In this case, CYS were admittedly collaborating with the RNC in respect of the same allegations. Ms.

Hearn had specifically referenced her conversations with the police to the Accused. [ 71 ] While I appreciate that society has a legitimate and compelling need to investigate allegations of child abuse, when there is a concurrent ongoing criminal investigation, in my view, employees of a government department collaborating with police should not be able to use their investigative authority and statutory obligation to report to infringe the right of an accused to remain silent.

This is even more so in a case where the accused has previously invoked his right to silence. [ 72 ] In making the above statement, I reiterate that my findings are based on the particular circumstances of this case. I am in general agreement with the comments made in Matchim and Beaulieu that CYS and the police have different interests and goals in carrying out investigations of child abuse. However, the social workers in those cases were meeting with the accused to provide information and determine placement of or apprehension of the child.

Also, they conducted their dealings with the accused quite differently. [ 73 ] In the circumstances before me, I am concerned that the Accused’s rights were breached during the investigation process and the admission of those statements may result in unreliable statements being entered into evidence at trial, thereby breaching the Accused’s rights to a fair trial. [ 74 ] Overall, with respect to voluntariness, having considered all the circumstances, I find that the Accused did not provide the statements to Ms. Hearn voluntarily. In particular, Ms.

Hearn’s statements to the Accused, both questioning his non-cooperation with police and indicating the provision of a statement was the first step in obtaining access to the children would, in the mind of a reasonable person in the position of the Accused, amount to a strong inducement. It would also suggest to a reasonable person that there would be a benefit to the Accused in cooperating with the investigation; an investigation in which CYS was collaborating with the police. conclusion

[ 75 ] In conclusion, I find that the Crown has not proven beyond a reasonable doubt that Ms. Hearn was not a person in authority. I further find that the Crown has not proven beyond a reasonable doubt that the statements made by the Accused to Ms. Hearn were voluntary. As such, the statements are not admissible into evidence. _____________________________ Rosalie McGrath Justice