R. v. Tom

2007 BCSC 913 R. v. Tom IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Tom, 2007 BCSC 913 Date: 20070622 Docket: 132269-5 Registry: Victoria Regina v. Ellen Tom and Lenard Tom Before: The Honourable Mr. Justice Macaulay Ruling Re Statements to Social Worker Counsel for the Crown: N. Jensen Counsel for Ellen Tom: C. Massey Counsel for Lenard Tom: A. Tam Date and Place of Trial/Hearing: 20070622 Victoria, B.C. [1] The day after making involuntarily induced admissions to the police, the accused, Ellen Tom, repeated parts of the admission to her social worker when asked what she had told the police. The social worker was not a person in authority and accordingly, the Crown did not have to prove the voluntariness of the second statement. The questions are whether the second statement is nonetheless sufficiently connected to the making of the involuntary statement to be inadmissible at common law even though not made to a person in authority and, in any event, whether s. 7 of the Charter of Rights and Freedoms prevents the Crown from relying on the second statement as evidence at trial. [2] The common law rule respecting statements subsequent to involuntary statements, or "derived confessions", is set out in R. v. I. (L.R.) and T. (E.), [1993] 4 S.C.R. 502, albeit in the context of statements made to a person in authority. Where an inadmissible statement is followed by one that otherwise appears voluntary, the court must consider admissibility in conjunction with the first statement and the grounds for its exclusion. This involves "a factual determination based on factors designed to ascertain the degree of connection between the two statements" (p. 526). There is no "hard and fast rule" that the second statement is tainted irrespective of the first (p. 526). However, the subsequent statement will be involuntary: if either the tainting features which disqualified the first confession continued to be present or if the fact that the first statement was made was a substantial factor contributing to the making of the second statement. (p. 526) This must include circumstances where the inducement that results in the making of the first statement remains in effect at the time of the subsequent statement. Indeed, even a caution or warning may have no effect in such circumstances (p. 527). [3] While the derivative confessions rule is readily comprehensible if all statements are made to a person in authority, does the rule apply in the same way if the subsequent statement is made to someone other than a person in authority as was the case here? The majority judgment in R. v. G. (B.), [B.G.], [1999] 2 S.C.R. 475, suggests that it does. Unfortunately, neither counsel nor I have found any authority of more direct assistance. [4] The circumstances in G. (B.) do not directly parallel the present case. There, the accused made an incriminating statement to the police that led to him being charged. Following a court order, a psychiatrist assessed the accused's mental status under s. 672.11(a) and (b) of the Criminal Code. During the course of the interview, the psychiatrist asked the accused to explain the statement that he had made to the police. This led to further admissions. At the request of the defence, a further psychiatric assessment was conducted. [5] The trial judge, relying on the psychiatric assessments, found the statement to the police to be involuntary but later permitted the Crown to cross-examine the accused on his statement to the first psychiatrist as a challenge to his credibility. It is significant that the actual statement to the psychiatrist was not admissible at the instance of the Crown as it was a "protected statement" under the applicable provisions of the Criminal Code. The Code permits, however, as an exception, the use of protected statements to cross-examine on credibility. [6] I set out these facts, in part, to explain why the majority did not directly decide whether the psychiatrist was a person in authority when considering the entitlement of the Crown to make limited use of the subsequent statement as permitted by the Criminal Code. Having said that, it seems unlikely that the psychiatrist was a person in authority based on the test in R. v. Hodgson, [1998] 2 S.C.R. 449. As I set out in the extract reproduced two paragraphs below, this appears implicit in the reasoning. [7] The decision by the majority to apply the test in I. (L.R). to determine that the Crown was not entitled to make use of the statement is, in my view, significant. I find that particularly so when I contrast the reasons of the majority to the dissent. I will refer to both to illustrate. [8] Bastarache J., for the majority in G. (B.), described I. (L.R.) as the leading case on the common law "derived confessions rule" (para. 21) and went on (in para. 22) to say: In my view, it is not necessary here to analyse I. (L.R.) and T. (E.), where Sopinka J. was dealing with a situation in which two confessions are made to persons in authority. It is sufficient to retain from it that the derived confessions rule applies where there is a sufficient connection between the two statements. This follows from the rationale for the rule. The Quebec Court of Appeal cited Monette v. The Queen, [1956] S.C.R. 400, in this regard, where the Court said of an inadmissible statement: "nothing more ought to be heard of it". The second statement is inadmissible because the first confession contaminated it. Therefore, it is not necessary to decide whether the second statement is a confession made to a person in authority in the present case. This interpretation also meets the requirements of the Charter, which entrenched certain aspects of the confessions rule in s. 7. A confession found to be inadmissible could not be introduced indirectly without affecting the right to silence and the principle against self-incrimination, which is what we would be doing by admitting a statement that was "contaminated" by an inadmissible confession. The foregoing was emphasized, in para. 23, by stating: "what matters is that the court is satisfied that the degree of connection between the two statements is sufficient for the second to have been contaminated by the first". [9] By contrast, McLachlin J., as she then was, for the dissent, wrote (at para. 61): A preliminary issue arises of whether statements derived from an involuntary confession may be excluded whether or not such statements are made to a person in authority. I can find no case where the common law doctrine of derivative exclusion has been applied to exclude a secondary statement not made to a person in authority. The common law doctrine of derivative exclusion is concerned with voluntariness, a concern which arises only in the case of confessions made to persons in authority. I confess to being attracted to the reasoning of the dissent but conclude that I am bound to apply the reasoning of the majority in the case at bar notwithstanding my earlier finding that the social worker was not a person in authority. [10] What then is the degree of interconnectedness of the statements having regard to the factors identified in I. (L.R.)? As I have earlier pointed out, the statements were made on consecutive days but to different persons, only the first of whom was a person in authority. It is necessary to consider the circumstances in which Ms. Tom made the first statement and briefly set out the improper inducement to determine whether there is a connection to the making of the statement to the social worker. I will then consider whether the inducement continued in effect at the time of the second statement and the degree to which the circumstances at that time were connected to the first statement. [11] In ruling that the statement to the police was inadmissible, I adverted to the contextual circumstances. I will repeat them here. At the material time, Ms. Tom had four sons, ranging in age from a breast feeding infant to a five year old. In the middle were the declarant, then almost three, and the alleged victim, Nicholas, then age 19 months. The infant lived with his parents but the declarant and his older brother lived with one foster parent and Nicholas with another foster parent. From time to time, the parents had visiting rights with their children in foster care. At the time of the events in question, Ms. Tom was working with the Ministry of Children and Family Services (the "Ministry") on a plan to gradually reintegrate the family unit through overnight visits. By the time of the first statement, the Ministry had removed the infant and Nicholas entirely from Ms. Tom's care and was not permitting access to the other two. [12] The police officer concluded during the interview that Ms. Tom viewed her relationship with the victim differently than her other children and then began linking the making of admissions respecting the alleged abuse of Nicholas with the return of the other children. I expressed some of my conclusion as follows: The officer made it clear that if Ms. Tom continued to deny responsibility that she would lose the rest of her children. Conversely, if she was "truthful", the officer would say that she only hurt Nicholas. The express implication was that the other children could come home if that was the case. The officer also emphasized that it was she who had to be convinced and that, in exchange, she would personally assist Ms. Tom in her efforts to re-unite the rest of the family. Phrases such as "we'll get on the road with the Ministry so that you don't lose everything" and "so that we can work on the rest of the kids do you want the rest of your kids back" were expressly linked to the making of the statement that the officer wanted. If there was any doubt in Ms. Tom's mind, it was surely removed when Detective Cottingham then said "Okay, so help me keep them, help me help you keep them Ellen. I already know you did it. I just want to know how it happened " Given Ms. Tom's age [21], her role as a mother, her apparent love for her other children, and the family circumstances [aboriginal living off reserve], there is a reasonable doubt whether she concluded that electing not to speak or continuing to deny would inevitably result in the loss of contact with the rest of her family; as a result, she seized on the offer of assistance even at the risk of making a false confession respecting Nicholas. Following the making of her statement to the police, Ms. Tom was released on conditions, including one that she not have any contact with her children. [13] The meeting with the social worker occurred the next day outside the Family Court before the protection hearing relating to the infant and Nicholas. The social worker was first assigned to the Tom family file in 2002 and had worked with Ms.Tom in that capacity since. As I pointed out in my earlier ruling, Ms. Tom must have had regular contact with the Ministry respecting the foster care and access arrangements for her children. She would have been generally familiar with the power of the Ministry to control those issues. [14] It is against this backdrop that the social worker questioned Ms. Tom the day after she made her statement to the police and was charged. Of course, Ms. Tom would not then have known that her statement of the previous day was inadmissible. In the course of the discussion, the social worker either asked, or Ms. Tom volunteered, she had made a statement to the police the previous day. The social worker then asked Ms. Tom what she told the police and Ms. Tom immediately repeated the substance of the inadmissible admissions. [15] There is, in my view, a high degree of interconnectedness between the statements both as to timing, subject matter and context. The only intervening events were the formal arrest and release on conditions. Those steps would not obviate the effect of the inducement and may well have reinforced it. Ms. Tom's next official contact after the police was with the social worker whom she knew would be actively involved in the process of determining whether she would have contact with her remaining children. Given the police officer's offer to assist her with the Ministry in exchange for the statement, it is not surprising that she readily repeated it to the social worker when asked to do so. The first statement was a substantial factor leading to the making of the second as it was in I. L.R.) I am satisfied that the degree of connection required by I. (L.R.) existed. [16] The reasoning of the majority in G. (B.) suggests that the same result obtains upon applying Charter principles. This is because "[t]he principles which govern the admissibility of a statement made by an accused to a person in authority are essential to the integrity of the judicial process" and have acquired constitutional status under s. 7 (para. 28). After referring again to the common law authority of Monette, set out earlier in my reasons, Bastarache J. observed, at para. 33: To reintroduce an involuntary statement in this way would run counter to the most fundamental aspect of trial fairness. In many cases, as here, the guilt of the accused will depend solely on his or her credibility and on that of the other witnesses. To allow the statement to be used, even for the limited purpose of undermining the credibility of the accused, could lead to abuse and serious injustice. That is why the traditional rule, which is still in force in Canadian law, must be interpreted in such a way that no use may be made of an inadmissible statement at any stage whatsoever of the trial. He then concluded: As I have stated earlier, the confessions rule does not allow for any use of an involuntary statement. Now that Whittle, supra, has given constitutional expression to this rule, it must be concluded based on the historical definition of the confessions rule that both obtaining and using evidence contrary to this rule infringe s. 7 of the Charter. (para. 43) Since the protected statement in the instant case was inadmissible because of its degree of connection with the prior inadmissible confession, Parliament could not make it admissible for any purpose whatsoever without violating s. 7 of the Charter. (para. 44) These passages strongly suggest that the Crown would not be entitled to make otherwise lawful use of the admissions to the social worker at trial without violating s. 7. [17] As pointed out by Rosenberg J.A., in R. v. Sweeney, [2000] O.J. No. 3534 (Ont. C.A.), at para. 59, some uses of evidence at trial are more incriminating than others. The attempt by the Crown to rely on the admissions to the social worker as substantive evidence in the case at bar is more incriminating than the use contemplated in G. (B.). As pointed out in Sweeney, the comments in G. (B.) "represent a strong indication that using an involuntary confession is inconsistent with fundamental notions of trial fairness and the administration of justice" (para. 60). [18] For these reasons, I conclude that the statement made to the social worker is inadmissible. "M.D. Macaulay, J." The Honourable Mr. Justice Macaulay