R. v. GAUTHIER, 2024 ONCA 621. AUGUST 20, 2024.

FACTS:  The accused was convicted of the first degree murder of his partner.  At the trial, the Crown presented a voice message the accused left at his doctor’s office (Dr. Morrison) before the murder.  The police had seized an audio recording of the message without a warrant.  The Crown also presented an oral statement made by the accused to police officers and correctional officers after his arrest. The recording of the statement contained considerable gaps in the evidentiary record.

The accused appealed from conviction, arguing that this evidence was inadmissible.

HELD: The Ontario Court of Appeal concluded that the trial judge erred in admitting the confession, but upheld the conviction.

The Voice Recording:

The Court of Appeal held that “the trial judge did not err in admitting the voicemail. There is no question that individuals have a reasonable expectation of privacy in private medical communications. But here, I agree with the trial judge that there was no reasonable expectation of privacy in a voicemail that the trial judge described as threatening and harassing. In this case, the appellant left a voicemail that was part of an overall pattern of harassment of Dr. Morrison and her staff. Indeed, the appellant was consequently charged with criminal harassment. Since the appellant had no reasonable expectation of privacy in the voicemail he left for the doctor, the Charter was not triggered and there was no violation of s. 8” (at paragraph 9).

Section 24(2) of the Charter:

The Court of Appeal also held that “even if the appellant did have a reasonable expectation of privacy and the police unlawfully seized the voicemail message without a warrant, this evidence should not be excluded under s. 24(2) of the Charter, because the admission of the voicemail did not bring the administration of justice into disrepute” (at paragraph 10).

The Confession:

The Court of Appeal held that “the trial judge failed to grapple with the poor evidentiary record relied on by the Crown, and that there were significant gaps in the evidence surrounding the circumstances and voluntariness of the appellant’s statements. While deference is ordinarily given to a trial judge’s voluntariness ruling, appellate intervention is required if the relevant circumstances are not considered…In my view, this is such a case. Given the evidentiary record tendered by the Crown, it could not discharge its burden. Accordingly, the trial judge erred in admitting these statements” (at paragraph 12).

Conclusion:

The Court of Appeal concluded, however, “that this error was of no consequence. The appellant’s statements only provided evidence that he killed Ms. Avery, and he knew he had done so. Neither of these points were in dispute at trial. Thus, while the trial judge erred in admitting the statements, this error could not possibly have impacted the jury’s verdict. I would therefore apply the curative proviso under s. 686(1)(b)(iii) of the Criminal Code” (at paragraph 13).