Quand la personne ordinaire devient une personne en situation d'autorité au sens de la règle des confessions?

R. v. Glessman, 2013 ABCA 86

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[7]               Whether someone qualifies as a “person in authority” is a matter of law: R v Grandinetti, 2003 ABCA 307 at para 90, 339 AR 52, aff’d 2005 SCC 5, [2005] 1 SCR 27. Therefore, the applicable standard of review is correctness. However, absent an error in principle, appellate courts are reluctant to interfere with a trial judge’s decision regarding admissibility: R v Andres, 2003 ABCA 333 at para 21, 339 AR 334, leave to appeal to SCC refused, [2005] 1 SCR v; R v B(CR), 1990 CanLII 142 (SCC), [1990] 1 SCR 717 at 733, 107 NR 241.

 

[8]               Under the common law confessions rule, the accused must be able point to some evidence showing that the receiver of the statement was a person in authority. If that is done, the Crown must demonstrate, beyond a reasonable doubt, that the statement was voluntary. However, voluntariness does not become an issue if the receiver of the statement is not a person in authority: R v Hodgson, 1998 CanLII 798 (SCC), [1998] 2 SCR 449 at paras 37-39, 163 DLR (4th) 577.

 

[9]               Statements made to private citizens are prima facie admissible, subject to any other evidentiary rules that may justify their exclusion: R v SGT, 2010 SCC 20, [2010] 1 SCR 688 at para 20. The confessions rule requires that a statement be made to persons in authority for the purpose of controlling coercive state conduct: Hodgson at para 34. For this reason, the term “person in authority” usually applies to “those persons formally engaged in the arrest, detention, examination or prosecution of the accused”: Hodgson at para 32. However, “this definition may be enlarged to encompass persons who are deemed to be persons in authority as a result of the circumstances surrounding the making of the statement”: Hodgson at para 16. Accordingly, a person in authority may also include someone whom the accused reasonably believes is “acting on behalf of the police or prosecuting authorities and could therefore influence or control the proceedings against him or her”: Hodgson at para 48 [emphasis added]. In other words, to be deemed a person in authority, the accused must subjectively believe that the individual receiving the statement (i) has the ability to influence or control the proceedings; and (ii) is allied with the police or prosecuting authorities: Hodgson at paras 33-35. Though these criteria are judged from the accused’s perspective, the accused’s belief that he or she is speaking to a person in authority must be reasonable: Hodgson at para 34, SGT at para 26. If the accused cannot show that he or she had knowledge of the receiver’s “close relationship to the authorities ..., the inquiry pertaining to the receiver as a person in authority must end”: Hodgson at para 39.

1.         The Complainant as a Person in Authority

 

[10]           The appellant acknowledges that the trial judge correctly stated the test when she concluded that: “The accused needs to show some evidence that he believed [the complainant and her boyfriend] were allied with the state authorities and could influence the investigation of the prosecution.” Despite this, the appellant says that the trial judge erred in assessing the connection between the complainant and the state. In particular, he suggests that the trial judge proceeded on the basis that a complainant can never be a person in authority, and argues that this approach, which had been adopted by L’Heureux‑Dubé J. on behalf of the minority in Hodgson, was expressly rejected by the majority in that case.

 

[11]           Without necessarily accepting the appellant’s interpretation of the minority’s reasons in Hodgson, we find that the trial judge did not err in the application of the test. She did not find that the complainant could not be a person in authority simply because of her status as a complainant. Rather, the trial judge examined the evidence. While the appellant may have believed that the complainant had the ability to influence the proceedings against him, in the sense that she could decline to report the incident to the police and ensure that proceedings were never initiated, there was no indication that the appellant believed the complainant was connected to the police or the prosecution. In fact, he did not know at that time that the incident had even been reported, and the complainant testified that he specifically asked her not to contact the police. The appellant did not testify on the voir dire, so there was no direct evidence that he believed her to be a person in authority, and the balance of the evidence did not compel that inference. Accordingly, the trial judge did not err in concluding that the appellant failed to meet his evidential burden of establishing that he reasonably believed that the complainant was connected to the state.