R. v. Wells, [1998] 2 SCR 517

R. v. Wells, [1998] 2 S.C.R. 517

Her Majesty The Queen                                                                   Appellant

v.

Sidney Walwyn Wells  Respondent

and

The Attorney General of Canada,

the Attorney General for Ontario,

the Attorney General of Quebec

and the Attorney General for Alberta                                              Interveners

Indexed as:  R. v. Wells

File No.:  25435.

1998:  March 24; 1998: September 24.

Present:  Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.

on appeal from the court of appeal for british columbia

Criminal law ‑‑ Evidence ‑‑ Confessions ‑‑ Parents of victims of sexual assault consulting with police and deciding to trick accused into confession ‑‑ Statement made to parent wielding knife and making death threat ‑‑ Out-of-court statement admitted without voir dire and without objection by defence counsel ‑‑ Extent to which person in authority requirement should remain part of confessions rule -- Whether voir dire should have been held to determine whether statements made to person in authority and whether statements made voluntarily ‑‑ Whether onus always rests on defence to request voir dire ‑‑ If not, circumstances under which trial judge should hold voir dire ‑‑ Evidence which triggers trial judge’s obligation to hold voir dire.

The respondent confessed to sexually touching young boys.  Two of the victims told their fathers who, in turn, discussed the matter with the RCMP on two occasions and then decided to try to trick the accused into confessing.  The father of one boy confronted the accused and, when he denied the allegations, grabbed him by the hair, held a knife to his throat and threatened him.  When the accused replied with an inculpatory statement, the father punched him and forced him to apologize to the children.  Throughout his statement to the police, the accused kept expressing surprise that it had taken the father three days to have him arrested.  At trial, the statements made by the accused to the father and the children were admitted into evidence.  Defence counsel raised no objection to the admission of this evidence, but argued to the jury that the statements were patently unreliable in light of the circumstances under which they were made.  The accused was convicted.  The Court of Appeal allowed his appeal and ordered a new trial.

At issue here is whether the trial judge erred in failing to direct a voir dire of his own motion to determine whether the statements made to the father of one of the complainants were given to a person in authority and, if so, whether the statements were made voluntarily.  In order to determine whether the trial judge erred several subsidiary issues needed to be considered.  First, does the onus always rest with the defence to request a voir dire to test the voluntariness of an accused’s out‑of‑court statements?  If not, when and under what circumstances should a trial judge hold a voir dire of his own motion?  Further, is the trial judge’s obligation to hold a voir dire triggered only where the receiver of the confession is a “conventional” person in authority, or should the obligation be construed more broadly?  Lastly, to what extent should the “person in authority” requirement remain part of the confessions rule?

Held (L’Heureux-Dubé and Bastarache JJ. dissenting):  The appeal should be dismissed.

Per Lamer C.J. and Gonthier, Cory, McLachlin, Iacobucci, Major and Binnie JJ.:  The applicable principles and factors to be considered were set out in R. v. Hodgson, [1998] 2 S.C.R. 449.

The evidence adduced was sufficient to have alerted the trial judge to the need for a voir dire.  Significantly, the complainants’ parents visited and spoke to the police and, after their second visit, planned to obtain an admission from the respondent by a trick.  In light of the evidence, the trial judge should have inquired of defence counsel whether or not he was willing to waive a voir dire in relation to statements against interest made by the accused to the father.  There was sufficient evidence before the judge to constitute this one of those “rare cases” where the trial judge in the absence of a request by the accused to hold a voir dire would be required to make an inquiry as to whether there should be a voir dire to determine if the parents were persons in authority for the purposes of the confessions rule. If, on retrial, the respondent’s statements to the father were again admitted into evidence, fairness requires that a direction, as suggested in Hodgson, be given regarding these statements.

Per L’Heureux-Dubé and Bastarache JJ. (dissenting): The pertinent definitions and tests to be considered were established in the companion case of R. v. Hodgson, [1998] 2 S.C.R. 449.

The confessions rule excludes statements made by the accused to persons in authority which are not proven voluntary beyond a reasonable doubt by the Crown.  A “person in authority” is someone formally involved in the arrest, detention, examination or prosecution of the accused, and whom the accused believes to have such authority.

As a general rule, the defence must raise the issue of the accused’s statement being made to a “person in authority” and request a voir dire to examine the statement’s voluntariness.  This basic obligation is supplemented, however, by the trial judge’s duty to ensure the fair conduct of a criminal trial, and therefore, in exceptional circumstances, she or he may have to direct a voir dire proprio motu.  These exceptional circumstances, and the duty to host a voir dire without any request from counsel, arise where the evidence before the judge reveals the realistic potential that the accused’s statement was made to a “person in authority”.  In practical terms then, where the statement is made to a non-obvious person in authority, there must be a realistic potential that the person is acting as an agent of the state and the accused might have known of this relationship for the voluntariness of the state to become a live issue and the trial judge’s obligation to host a voir dire to arise.

Here, the evidence of a meeting of unknown content and the father’s independent development of a plan to extract an incriminating statement from the accused, fails to establish the realistic potential that the father was a person in authority, and therefore, the trial judge’s duty to conduct a voir dire prior to admitting the statements never arose.  Even if the evidence established the reasonable possibility that the father met the basic definition of a “person in authority”, as someone formally involved in proceedings against the accused, there was no reasonable basis on which to assume that this potential fact affected the voluntariness of the accused’s statements.  It would be unreasonable to assume that the accused  knew of the father’s visits  to the police and thus that the father had authority under the confessions rule which affected the voluntariness of the accused’s statements.

Cases Cited

By Cory J.

Applied:  R. v. Hodgson, [1998] 2 S.C.R. 449.

By L’Heureux-Dubé J. (dissenting)

R. v. Hodgson, [1998] 2 S.C.R. 449.

APPEAL from a judgment of the British Columbia Court of Appeal (1996), 77 B.C.A.C. 129, 126 W.A.C. 129, 107 C.C.C. (3d) 504, [1996] B.C.J. No. 1233 (QL), allowing an appeal from conviction by Curtis J. sitting with jury, [1994] B.C.J. No. 2374 (QL).  Appeal dismissed, L’Heureux-Dubé and Bastarache JJ. dissenting.

John M. Gordon, for the appellant.

Patrick D. Angly and David H. Albert, for the respondent.

S. David Frankel, Q.C., for the intervener the Attorney General of Canada.

Ian R. Smith, for the intervener the Attorney General for Ontario.

Joanne Marceau and Jacques Gauvin, for the intervener the Attorney General of Quebec.

Written submission only by Martin W. Mason, for the intervener the Attorney General for Alberta.

The judgment of Lamer C.J. and Gonthier, Cory, McLachlin, Iacobucci, Major and Binnie JJ. was delivered by

1                                   Cory J. --                                                                      The same issues must be resolved in both this appeal and that of R. v. Hodgson, [1998] 2 S.C.R. 449.

2          In both cases, defence counsel did not request a voir dire to test the voluntariness of certain out‑of‑court statements allegedly made by the accused, and as a result, the statements were admitted into evidence.  The appellants contend that the trial judge erred in failing to direct a voir dire of his own motion to determine whether the statements were given to a person in authority and if so, whether they were made voluntarily.

3          In order to determine whether the trial judge erred it is necessary to consider several subsidiary issues.  First, does the onus always rest with the defence to request a voir dire to test the voluntariness of an accused’s out‑of‑court statements?  If not, when and under what circumstances should a trial judge hold a voir dire of his or her own motion?  Further, is the trial judge’s obligation to hold a voir dire triggered only where the receiver of the statement is a “conventional” person in authority, or should the obligation be construed more broadly?  Lastly, to what extent should the “person in authority” requirement remain part of the confessions rule?

I.  Background

A.  Facts

4          The respondent was an acquaintance of G.D., the father of the complainant A.D.  When G.D. invited the respondent to stay at his home, G.D. noticed that A.D.’s behaviour began to change, and he began wetting his bed.  This prompted G.D. to ask A.D. if the respondent had been touching him improperly but A.D. denied it.

5          G.D. moved with his family to another town and refused to let the respondent accompany them.  Shortly after the D. family moved, the respondent showed up at their door.  G.D. allowed the respondent to stay with the family for a couple of days.  During that time, T.T., a playmate of A.D., told his father, S.T., that the respondent had touched his penis. S.T. and G.D., who were friends, discussed the matter the following day at work.  After work, they stopped at the local RCMP detachment and discussed the situation with a police officer.  The evidence does not disclose the content of their discussions with the police on either that occasion or on the visit of the following day.  Both G.D. and S.T. testified that after the visits to the RCMP, they decided to try to trick the respondent into confessing.  This plan elicited a response from the respondent that he had accidentally touched T.T. while playing and that he (the respondent) would explain it all to S.T.  The respondent told G.D. that he was not the kind of man who touched young boys.

6          G.D. then asked A.D. and C.M., G.D.’s nephew, if the respondent had touched them.  The children admitted that he had.  G.D. confronted the respondent with the allegations, and he denied them.  G.D. then grabbed the respondent by the hair and held a bread knife to his throat.  He said he could kill the respondent for what he had done to his children.  The respondent replied, “I wish you would.  I don’t know what’s wrong with me.”  G.D. then dropped the knife and punched the respondent once, cutting him above the eye.  G.D. also forced the respondent to apologize to the children.  The respondent told the children, “I never meant to hurt you and I was wrong for touching you.  I’m sorry.”  G.D. took the children to see the RCMP the next day and the day after that, the respondent was arrested.

7          Throughout his statement to the police, the respondent kept expressing surprise that it had taken G.D. three days to have him arrested.  He expressed it in these words:

That was on a Tuesday, Tuesday of . . . around what?  Around two‑thirty . . . no, around two . . . or two‑thirty, this happened . . . when he came outta the bush and why it took him so long to put out a warrant for me or have me arrested right on the spot, why?  It took ’em three days?

It was conceded before the Court of Appeal that the word “him” referred to G.D.

8          At trial, the statements made by the respondent to G.D. and the children were admitted into evidence.  Defence counsel raised no objection to the admission of this evidence, but argued to the jury that the statements were patently unreliable in light of the circumstances under which they were made.  The respondent was convicted.

II.  Judgments Below

A.  Supreme Court of British Columbia, [1994] B.C.J. No. 2374 (QL)

9          A jury found the respondent guilty of three counts of sexual interference and two counts of sexual assault.

B.  British Columbia Court of Appeal (1996), 77 B.C.A.C. 129

10      Hinds J.A. (Williams J.A. concurring) reviewed the evidence and concluded that, in this case, it would appear on a subjective basis that the respondent may well have believed that G.D. was capable of his “arrest” and had some degree of power over him.  Thus, at the time that the respondent made the statement to G.D. at knife point, and when he made the incriminating apology to the children, he might have believed that G.D. was a person in authority.  Hinds J.A. based this conclusion on the respondent’s statement to the RCMP that he was surprised G.D. did not have him arrested on the spot, and that he had taken so long to have him arrested.

11      The Crown argued that the respondent had deliberately refrained from raising the issue as to whether G.D. was a person in authority at trial in an attempt to focus on the credibility of Crown witnesses.  Hinds J.A. disagreed, and further held that the failure of counsel to raise this issue at trial was not fatal.  Hinds J.A. allowed the appeal and ordered a new trial.

12      In a separate judgment, McEachern C.J. (Williams J.A. concurring) added that, if it had been argued, he would also have excluded the statements made by the respondent under the threat of physical violence as they failed the test for reliability.

III.  Analysis

13      The basic issue in this appeal, as in Hodgson, is whether the trial judge erred in failing to hold a voir dire of his own motion to test the voluntariness of certain out‑of‑court statements made by the accused before admitting them.  In order to resolve this issue, it is appropriate to consider whether the confessions rule should continue to apply only to statements made to persons in authority, or whether it should be expanded so as to capture the out‑of‑court statements made by the accused in this case.

14      The applicable principles and factors to be considered are set out in the reasons given in Hodgson.  It will suffice to repeat the summary set out in Hodgson, at para. 48.

1.  The rule which is still applicable in determining the admissibility of a statement made by an accused to a person in authority is that it must have been made voluntarily and must be the product of an operating mind.

2.  The rule is based upon two fundamentally important concepts: the need to ensure the reliability of the statement and the need to ensure fairness by guarding against improper coercion by the state.  This results in the requirement that the admission must not be obtained by either threats or inducements.

3.  The rule is applicable when the accused makes a statement to a person in authority.  Though no absolute definition of  “person in authority” is necessary or desirable, it typically refers to those formally engaged in the arrest, detention, examination or prosecution of the accused.  Thus, it would apply to person such as police officers and prison officials or guards.  When the statement of the accused is made to a police officer or prison guard a voir dire should be held to determine its admissibility as a voluntary statement, unless the voir dire is waived by counsel for the accused.

4.  Those persons whom the accused reasonably believes are acting on behalf of the police or prosecuting authorities and could therefore influence or control the proceedings against him or her may also be persons in authority.  That question will have to be determined on a case-by-case basis.

5.  The issue as to who is a person in authority must be resolved by considering it subjectively from the viewpoint of the accused.  There must, however, be a reasonable basis for the accused’s belief that the person hearing the statement was a person in authority.

6.  The issue will not normally arise in relation to undercover police officers.  This is because the issue must be approached from the viewpoint of the accused.  On that basis, undercover police officers will not usually be viewed by the accused as persons in authority.

7.  If it is contended that the recipient of the statement was a person in authority in the eyes of the accused then the defence must raise the issue with the trial judge.  This is appropriate for it is only the accused who can know that the statement was made to someone regarded by the accused as a person in authority.

8.  On the ensuing voir dire the accused will have the evidential burden of demonstrating that there is a valid issue for consideration.  If the accused meets the burden, the Crown will then have the persuasive burden of demonstrating beyond a reasonable doubt that the receiver of the statement was not a person in authority or if it is found that he or she was a person in authority, that the statement of the accused was made voluntarily.

9.  In extremely rare cases the evidence adduced during a trial may be such that it should alert the trial judge that the issue as to whether the receiver of a statement made by an accused was a person in authority should be explored by way of voir dire.  In those cases, which must be extremely rare in light of the obligation of the accused to raise the issue, the trial judge must of his or her own motion direct a voir dire, subject, of course, to waiver of the voir dire by counsel for the accused.

10.  The duty of the trial judge to hold a voir dire of his or her own motion will only arise in those rare cases where the evidence, viewed objectively, is sufficient to alert the trial judge of the need to hold a voir dire to determine if the receiver of the statement of the accused was, in the circumstances, a person in authority.

11.  If the trial judge is satisfied that the receiver of the statement was not a person in authority but that the statement of the accused was obtained by reprehensible coercive tactics such as violence or credible threats of violence, then a direction should be given to the jury.  The jury should be instructed that if they conclude that the statement was obtained by coercion, they should be cautious about accepting it, and that little if any weight should be attached to it. [Emphasis in original.]

IV.  Application to this Appeal

15      Although this case is not easy to resolve, the evidence adduced was, in my view, sufficient to have alerted the trial judge to the need for a voir dire.  To demonstrate this it is necessary to refer to the evidence.  When G.D. testified during the Crown’s case in chief, he made the following statements:

Q    You [and S.T.] had a conversation, did you, about [T.T.]?

A    Yes, we did.

Q    And as a result then of that conversation did you and he do something later that day?

A    Yes, we did.  We went in to the RCMP station.

                                                                   . . .

Q    Okay.  And did you see a police officer there?

A    Yes, we did.

                                                                   . . .

Q    Okay.  Now I presume you had some conversations there and did [S.T.] also in your presence tell the police officer what he told you?

A    Yes, he did.

Q    Okay.  And after your visit to the police station, what did you and [S.T.] do?

A    Well, we went back to the house ‑‑ headed back towards Hixon and we decided that we were going to play a little trick on Mr. Wells, not so much a trick as it was just to see if we thought that he could do such a thing.

                                                                   . . .

A    ...The plan was we were going to see how Mr. Wells would react to [S.T.] knowing about what had happened to [T.T.].

Q    Okay. And whose idea was it to carry out this plan?

A    It was both of our ideas.  It wasn’t really either one.  It was both of our ideas.

Q    And you planned this on the way back from the police station on the way to Hixon?

A    Yes, it was.  [Emphasis added.]

16                               Thus G.D. testified that he had contacted the police and informed them of the situation, and that he and S.T. were planning, by means of a trick, to obtain an admission from the respondent.  The content of the conversation with the RCMP was not revealed.  It is significant that the complainants’ parents visited and spoke to the police and, after that visit, planned to obtain an admission from the respondent by a trick.  In light of the evidence, it is reasonable to conclude that the trial judge should have inquired of defence counsel whether or not he was willing to waive a voir dire in relation to statements against interest made by the respondent to G.D.  It does appear that there was sufficient evidence before the judge to constitute this one of those “rare cases”.  The testimony was such that it required the trial judge make an inquiry as to whether there should be a voir dire to determine if the parents were persons in authority for the purposes of the confessions rule.

17                               A new trial should be directed for the respondent.  If, on retrial, the respondent’s statements to G.D. are again admitted into evidence, fairness requires a direction to be given regarding these statements.  It would be along the lines suggested in Hodgson, at para. 30, and might be put in this way:

. . .  A statement obtained as a result of inhuman or degrading treatment or the use of violence or threats of violence may not be the manifestation of the exercise of a free will to confess.  Rather, it may result solely from the oppressive treatment or fear of such treatment.  If it does, the statement may very well be either unreliable or untrue.  Therefore, if you conclude that the statement was obtained by such oppression very little if any weight should be attached to it.

V.  Disposition

18      In the result, the appeal is dismissed and the order of the British Columbia Court of Appeal directing a new trial is confirmed.

The reasons of L’Heureux-Dubé and Bastarache JJ. were delivered by

19               L’Heureux-Dubé J. (dissenting) -- This case addresses the same issues raised in R. v. Hodgson, [1998] 2 S.C.R. 449, where I set out my view as to the proper test for determining who is a “person in authority” under the confessions rule, as well as the circumstances which give rise to an independent obligation for a trial judge to conduct a voir dire into this possibility, notwithstanding counsels’ failure to request one.  Applying this test to the facts of this case, I would dispose of it differently than my colleague Justice Cory. I find that the trial judge’s duty to conduct a voir dire on his own motion never arose because whether the complainant’s father in this case was a “person in authority” was never a live issue.  On this basis, I would allow the appeal.

20                      My colleague comprehensively reviews the relevant facts of this appeal, which focuses on certain admissions made by the respondent Wells to G.D., the father of the young complainant. I would only emphasize that the sole evidence available prior to the admission of the impugned statements by Wells which connected G.D. to the RCMP was two visits to the local detachment.  Furthermore, G.D. specifically testified that it was he and S.T., the father of another young boy, who decided they would try to trick Wells into confessing.  As no objections were raised at trial, these incriminating statements were admitted into evidence. Only on appeal did Wells argue that they were inadmissible as they were extracted under the threat of harm from a person in authority.

21                      The confessions rule excludes statements made by the accused to persons in authority which are not proven voluntary beyond a reasonable doubt by the Crown. Its application to such evidence hinges on the pivotal concept of a “person in authority”.  In the companion case of Hodgson, I established that a “person in authority” is someone formally involved in the arrest, detention, examination or prosecution of the accused, and whom the accused believes to have such authority.  In other words, the proper test for “persons in authority” begins with an objective threshold test and then subsequently examines the subjective belief of the accused.

22                      As a general rule, the defence bears the evidentiary burden of raising the issue that the accused’s statement was made to a “person in authority”, and of requesting a voir dire to examine the statement’s voluntariness.  This basic obligation is supplemented, however, by the trial judge’s duty to ensure the fair conduct of a criminal trial, and therefore, in exceptional circumstances, she or he may have to direct a voir dire proprio motu.

23                      These exceptional circumstances, and the duty to hold a voir dire without any request from counsel, arise where the evidence before the judge reveals the realistic potential that the accused’s statement was made to a “person in authority”. Essentially, the evidence available to the trial judge prior to the admission of the statement must show the reasonable possibility that the admission was made to a representative of the state and the accused might objectively have known of this authority.

24                      In practical terms then, the trial judge must direct a voir dire proprio motu, subject to informed waiver by the accused, where a statement is made to an obvious “person in authority”.  In such a case, it can be reasonably inferred that the accused knew of the person’s authority.  Where the statement is made to a non-obvious person in authority, however, the evidentiary burden on the accused is not met so easily.  In this instance, there must be a realistic potential that the person is acting as an agent of the state and that the accused might have known of this relationship for the voluntariness of the statement to become a live issue and the trial judge’s obligation to hold a voir dire to arise.

25                      The critical question in this appeal is whether this obligation arose on the facts available to the trial judge prior to the admission of the impugned statements made by Wells to G.D.  Contrary to my colleague, I find that there was no realistic potential for G.D. to be a “person in authority” on the evidence and, therefore, no such duty ever arose.

26                      In general, as the father of the complainant G.D. was not an obvious person in authority, the accused bore the evidentiary burden of identifying the voluntariness of the statements for this question to be a live issue.  There was no objection to the statements’ admission though.  In the alternative, for the judge’s obligation to conduct a voir dire independently to arise, the evidence must have revealed the reasonable possibility first, that the complainant’s father G.D. was acting as an agent of the state and second, that the accused could have known of this fact.

27                      However, G.D. was the first witness called by the Crown, and the evidence available to the trial judge prior to admitting the incriminating statements of Wells reveals only that G.D. and his friend S.T. had stopped at the local RCMP detachment on two occasions to discuss the alleged sexual assaults on their children. Nothing further was established about the content of these discussions from which any relationship between G.D. and the authorities could be inferred.  In fact, G.D. testified that it was he and his friend  who had decided to trick Wells into confessing.  This idea was their own, and formed on the way back from the RCMP. 

28                      In my view, this evidence of a meeting of unknown content, and the fathers’ independent development of a plan to extract an incriminating statement from Wells, fail to raise the reasonable possibility that the men were acting as agents for the RCMP, or that either had any control over prospective proceedings. Relying on the facts that G.D. attended the RCMP prior to extracting the statements from the accused, subsequently formed a plan to obtain an admission from Wells, and then returned to the RCMP, my colleague concludes there was a “close connection” between G.D. and the authorities.  He finds, at para. 15, that this evidence “was ... sufficient to have alerted the trial judge to the need for a voir dire” and therefore, the trial judge erred in failing to conduct a voir dire.

29                      With respect, I find that the connection between G.D. and the authorities on this basis is extremely tenuous since, according to G.D.’s testimony, it was his and his friend’s idea to trick Wells into making a statement. Such evidence fails to establish the reasonable possibility that G.D. was a person in authority, and therefore, the trial judge’s duty to conduct a voir dire prior to admitting the statements does not arise.

30                      In the alternative, even if I were to accept for argument’s sake that this possibility arose objectively on the evidence, and one could reasonably infer that the father was formally acting under the directions of the police, I would still find that the trial judge’s duty was not triggered.  Indeed, there was nothing in the record to show that the accused could have known of the visit to the RCMP and any alleged relationship between the RCMP and the complainant’s father.  In other words, even accepting for argument’s sake that the evidence established the reasonable possibility that the father met the basic definition of a “person in authority”, as someone formally involved in proceedings against the accused, there was no reasonable basis on which to assume that this potential fact affected the voluntariness of  Wells’ statements. In the end, it would be unreasonable to assume that Wells knew of G.D.’s visit to the RCMP and thus that G.D. had authority under the confessions rule which affected the voluntariness of Wells’ statements.

31                      I observe that my colleague refers, in his summary of the facts,  to the fact that the accused wondered why it took the authorities so long to arrest him. This evidence, however, only came out at trial after the impugned evidence was admitted and, therefore, it has no relevance to this Court’s review of whether an obligation to hold a voir dire for purposes of the confessions rule arose. While my colleague’s reasons do not rely on this fact, I think it is important to state its irrelevance to the issue at hand.

32                      In conclusion, as I find that the trial judge’s obligation to direct a voir dire independently never arose in the circumstances of this case, and the impugned statements were properly admitted, I would allow the appeal, set aside the judgment of the British Columbia Court of Appeal and restore the jury’s verdict at trial.

Appeal dismissed, L’Heureux-Dubé and Bastarache JJ.  dissenting.

Solicitor for the appellant:  The Attorney General of British Columbia, Victoria.

Solicitor for the respondent:  Patrick Angly, Vancouver.

Solicitor for the intervener the Attorney General of Canada:  The Attorney General of Canada, Ottawa.

Solicitor for the intervener the Attorney General for Ontario:  The Attorney General for Ontario, Toronto.

Solicitor for the intervener the Attorney General of Quebec:  The Attorney General of Quebec, Sainte‑Foy.

Solicitor for the intervener the Attorney General for Alberta:  The Attorney General for Alberta, Edmonton.