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Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog

EVIDENCE-ADMISSIONS-PERSONS IN AUTHORITY-STATUTORILY COMPELLED STATEMENTS-USE IMMUNITY

In R. v. Berry, 2022 BCCA 389, November 23, 2022, the accused was convicted of murdering his two children. He appealed from conviction, arguing, in part, that the trial judge erred in ruling that comments he made at the scene to emergency personnel and at the hospital, were not made to “persons in authority” and therefore not subject to proof of voluntariness. The accused also argued that the trial judge erred in ruling that statements he made to a doctor (Dr. Pitcher), after being committed under the Mental Health Act (MHA), were not subject to “use immunity” based upon statutory compulsion. 

The appeal was dismissed. The British Columbia Court of Appeal concluded that the statements made at the scene and at the hospital were not made to persons in authority and were properly admitted.  The Court of Appeal also concluded that the comments to the psychiatrist were not statutorily compelled and thus were also admissible.

Admissions-Persons in Authority:

The Court of Appeal pointed out that “[o]ut-of-court statements against interest made by an accused to ordinary persons not connected to law enforcement are admissible as exceptions to the hearsay rule. When a statement against interest is made to a ‘person in authority’, however, it is presumptively inadmissible unless the Crown proves beyond a reasonable doubt that the statement was voluntary…The starting point is that anyone formally engaged in the arrest, detention, examination, or prosecution of an accused is a person in authority for purposes of the confessions rule” (at paragraphs 29 and 30).

The Court of Appeal indicated that determining whether “the recipient of a statement is a person in authority in a given case must be considered from the perspective of the person making the statement. It is not enough to show that the recipient had some authority over the accused in relation to the offence; the accused must have known or believed that the recipient was engaged in their arrest, detention, examination, or prosecution such that they could influence or control the proceedings against them” (at paragraph 32).  Therefore, to “establish that the recipient is a person in authority in relation to the accused, the evidence must show that the accused subjectively believed the receiver of the statement to be in a position to control or influence the proceedings against the accused, but also must establish an objectively reasonable basis for that belief” (at paragraph 34).

The Threshold Question: Is a Voir Dire Required?

The Court of Appeal indicated that “[w]here there is a question as to whether the recipient of the statement is, in law, a person in authority, the requirement to conduct a voir dire depends on whether the status of the recipient is a live issue, or a valid issue for consideration. The status of the recipient as a non-conventional person in authority is a live issue if the accused can point to some evidence to support a finding that they could reasonably have believed that the recipient of the statement had a close connection with the police or prosecution, or otherwise had some form of control or influence over the criminal proceedings”. The accused “bears an evidential burden at this stage of the inquiry” (at paragraphs 36 and 37).  As a result,  “where the accused cannot show there is a valid issue for consideration whether they might have reasonably believed they were speaking to a person in authority, no voir dire is necessary” (at paragraph 38).

A Summary:

The Court of Appeal summarized the principles to be applied, when the Crown “proposes to tender a statement to a person who is or may be a non-conventional person in authority”, in the following manner (at paragraph 42):

i. A voir dire should be held to determine the admissibility of the statement if there is some evidence on the record that the status of the recipient as a person in authority is a live issue. That is, the defence must point to some evidence that, objectively, the accused could have believed the recipient to be a person in authority.

ii. On the voir dire, the evidence must support a finding that the accused subjectively believed the recipient could control or influence the investigation or proceedings against them.

iii. If the evidence does support such a finding, then to avoid application of the confessions rule, the Crown must prove beyond a reasonable doubt that the recipient was not a person in authority.

iv. If the Crown is unable to discharge that burden, it must prove beyond a reasonable doubt that the statement was voluntary.

Conclusion:

The Court of Appeal concluded that “the trial judge did not err in concluding that the Scene Statements and the Hospital Statements were not made to persons in authority as that term is used in the confessions rule. The statements were not inadmissible on that account” (at paragraph 102).

Use-Immunity:

The Court of Appeal noted that when an  accused person who “challenges the admissibility of evidence on the basis that it as statutorily compelled and that the state’s use of it to prove culpability will violate the principle against self-incrimination”, they bear “the onus of establishing on a balance of probabilities that the statement was, in fact, compelled…They meet this test by showing that the statement was given ‘on the basis of an honest and reasonably held belief that [they were] required by law’ to do so” (at paragraph 191).

The Court of Appeal concluded that the MHA “did not place an express obligation on the appellant to speak to Dr. Pitcher…Nor did it impose a corresponding legal obligation on Dr. Pitcher to gather particulars about the events leading to the appellant’s admission to hospital” (at paragraph 195).

Conclusion:

The Court of Appeal concluded that the trial judge did not err “in concluding that the appellant’s statement to Dr. Pitcher was not statutorily compelled” (at paragraph 201).  Dr. Pitcher “was not a police officer who engaged with the appellant at the hospital. Nor was Dr. Pitcher ‘simultaneously investigating a possible crime, in relation to which the [appellant was] a suspect’” (at paragraph 196).