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[Workplace Investigations: Employee Safeguards: Common Law Confession Rule]

Workplace Investigations: Employee Safeguards: Common Law Confession Rule

The essential question confronting a person being investigated and, indeed, to the investigator may frequently be whether the statements made in the course be inquiry can later be used against the employee in a criminal or quasi-criminal proceeding.

There is no doubt that such statements are admissible in a civil proceeding, again, absent a privilege which has not been waived.

Examples readily come to mind in cases of suspected theft, emotional or physical abuse, child pornography and sexual harassment.

Equally importantly, if such information can be used, should the suspected person be advised or warned of this consequence by the investigator, particularly when the investigator purports to be a neutral third party, with no ties to either side of the controversy, notwithstanding the apparent retainer to the employer?

There is no law on this question in the context of the duty of the investigator. Case law has held, as noted below, that the omission of a warning will go to the question of the whether the statement had been made voluntarily.

It is probable, to summarize that which follows, that a statement made to the investigator may well attract the common law rule in cases involving actual charges of, or suspected, criminal wrongdoing.

If so, the statement will not be inadmissible in a criminal proceeding. It will be allowed in a civil case.

One would expect that in the interests of fairness, particularly where legal counsel for the suspected one is not present, that such a warning should be given.

The Common Law Confession Rule

Not A Charter Right, But Better

As a prelude it is important to note the difference between Charter rights and the above rule. The Charter does not represent all rights, rather it sets the minimum standards. The common law confession rule offers one such greater protection.

The confessions rule is absolute. It always excludes the admission of the statement, whereas the Charter application requires that the administration of justice be in disrepute.

The Charter requires an arrest and detention. The common law rules applies whenever a person in authority questions a suspect. ¹

This rule does not apply to civil proceedings. ² An out of court statement is admissible in administrative or civil proceedings as an exception to the hearsay rule. The manner is which it is given may go to weight or reliability.

The Supreme Court of Canada considered the above issue in its 1998 decision of R. v Hodgson.

The facts of the case showed that following an allegation of sexual assault, the victim, her parents and step-father attended at the accused’s place of employment as a consequence of which those present, apart from the accused, testified that the accused admitted to them his culpability.

The question was whether the statements of the parents on the confession was admissible. ³

Cory J. for the majority, stated the fundamental rule, known as the common law confession rule:

It “can now be taken to be clearly established in Canada that no statement made out of court by an accused to a person in authority can be admitted into evidence against him unless the prosecution shows, to the satisfaction of the trial judge, that the statement was made freely and voluntarily”.  .. This, of course, is the confessions rule.

The Test

The two criteria are then:

1. the statement is made to a person in authority; and if so,

2. the statement has been given freely.

Person in Authority

As to the question of “a person in authority” the court continued to state that the generally accepted meaning is a person involved in the “arrest, detention, examination or prosecution”, also noting that this definition is not precise and may be still used to include a person in authority in the context of the situation:

Second, the person in authority requirement generally refers to anyone formally engaged in “the arrest, detention, examination or prosecution of the accused”:  see, e.g., A.B., supra, at p. 26.  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.

The court noted that the classification of those that may meet this definition is not closed. The critical question is whether the accused person believes that the receiver of the information is in a position to influence the prosecution or the investigation of the crime. Cory J. stated further:

The important factor to note in all of these cases is that there is no catalogue of persons, beyond a peace officer or prison guard, who are automatically considered a person in authority solely by virtue of their status.  A parent, doctor, teacher or employer all may be found to be a person in authority if the circumstances warrant, but their status, or the mere fact that they may wield some personal authority over the accused, is not sufficient to establish them as persons in authority for the purposes of the confessions rule.  As the intervener the Attorney General of Canada observed, the person in authority requirement has evolved in a manner that avoids a formalistic or legalistic approach to the interactions between ordinary citizens.  Instead, it requires a case‑by‑case consideration of the accused’s belief as to the ability of the receiver of the statement to influence the prosecution or investigation of the crime.  That is to say, the trial judge must determine whether the accused reasonably believed the receiver of the statement was acting on behalf of the police or prosecuting authorities.  This view of the person in authority requirement remains unchanged.

This principle was again referenced in the 2005 decision of the Supreme Court of Canada in R. v Grandinetti, in which the court stated that the test of “person in authority” is largely subjective. The trier of fact must ask this question:

The test of who is a “person in authority” is largely subjective, focusing on the accused’s perception of the person to whom he or she is making the statement.  The operative question is whether the accused, based on his or her perception of the recipient’s ability to influence the prosecution, believed either that refusing to make a statement to the person would result in prejudice, or that making one would result in favourable treatment.

This amended the test to be a subjective one, yet still required that the maker of the statement to believe that the willingness to co-operate will result in a benefit with respect to potential criminal proceedings. The Supreme Court accepted the following words of the trial judge which noted that the recipient may be a person working in collaboration with the police:

Reason and common sense dictates that when the cases speak of a person in authority as one who is capable of controlling or influencing the course of the proceedings, it is from the perspective of someone who is involved in the investigation, the apprehension and prosecution of a criminal offence resulting in a conviction, an agent of the police or someone working in collaboration with the police. It does not include someone who seeks to sabotage the investigation or steer the investigation away from a suspect that the state is investigating.

At the time Benson was interviewed, he had retired. His wife was then employed as an Executive Director with the Manitoba Department of Community Services and Housing. Benson referred to the AGO as the “legislative police” and that he believed AGO could investigate as the police for government.

Before being interviewed, Benson asked the team from AGO what their respective backgrounds were. One person, Tario, replied that he was a 25 year veteran of the RCMP and that he worked as a fraud investigator in the Commercial Crime Division and that he worked closely with the RCMP from time to time. Benson testified that he believed that his interviewers had control over him and that he had no choice but to answer their questions. He was not cautioned nor advised to seek counsel.

On these facts, the court concluded that the interview was given to “persons in authority”:

There can be little doubt that when Mr. Benson attended the AGO offices on October 4, 2002, he believed that the AGO investigators were “acting on behalf of the state”.  Mr. Benson viewed the AGO as the legislative police, and he was formally interviewed by a team of experienced investigators.  He felt compelled to attend, and he believed that the AGO investigators had the power to investigate and to act on their investigations.  That is why the assurance of confidentiality was important to Mr. Benson (and to the other accused), and that is why the AGO gave him (and everyone else) that assurance.

[31]         I am satisfied that, before the interview concluded, Mr. Benson perceived the AGO investigators as “allied with the state authorities” and “acting in concert with the police or prosecutorial authorities or as their agent”.  Within days of his interview, he told Helgason that the AGO was investigating possible criminal wrongdoing, and prior to Greenfield’s interview on October 21, 2002, he told her that Tario had a relationship with the police, and the investigation could be referred to the police.

[32]         Based on the totality of the evidence, I am also satisfied that, when Mr. Benson said he felt he had no choice, he believed that if he refused to attend and be interviewed – having been promised confidentiality – it might affect his wife’s employment status, and it could possibly lead to a criminal prosecution against himself, his wife, his sister and/or Helgason.  In other words, Mr. Benson’s perception was that, because the AGO investigators had the power to investigate and to act on their investigations, refusing to co-operate would result in prejudice.

[33]         In my view, the evidence also establishes an objectively reasonable basis for Mr. Benson’s belief that he was speaking to persons in authority, in the context of the circumstances surrounding the making of his statement.  While Mr. Benson was not specifically told of the relationship or close collaboration between the AGO and the police or prosecution, there is no doubt that he knew or inferred that from the following:

(i)      when Mr. Benson attended at the AGO premises for the interview, he knew that the Auditor General was investigating matters on behalf of the Government pertaining to the Hecla Island resettlement program and the allocation of lots;

(ii)      Mr. Benson viewed the AGO as the legislative police, and he believed that he had no choice but to attend and be interviewed;

(iii)     Mr. Benson knew that the AGO had authority to investigate and to act on its investigations;

(iv)     Mr. Benson was given an assurance of confidentiality;

(v)      the interview was conducted by a team of investigators (which included the Deputy Auditor General), and prior to the interview, he was told that the lead investigator (Tario) was ex-RCMP and that from time-to-time he worked closely with the RCMP; and

(vi)     during the interview, Tario told Mr. Benson that he saw signing documents purporting to be someone else as a problem.

[34]         In my view, the fact that a promise of confidentiality was made is relevant to both the subjective and the objective aspects of the persons in authority requirement.  The assurance of confidentiality was important to Mr. Benson and reinforced his belief that the AGO could influence or control the proceedings against him.  Clearly, Mr. Benson was not the only person who held that belief.  As Buchwold said, no one would talk to the AGO without an assurance of confidentiality.

[35]         In my view, Mr. Benson has met the evidential burden by placing some evidence on the record to make the issue of whether the AGO investigators were persons in authority “a live issue”.  With that determination, the ultimate burden of proof rests with the Crown.  I do not believe that the Crown has met the onus on it to prove, beyond a reasonable doubt, that the AGO investigators were not persons in authority or that Mr. Benson’s belief was not reasonable.

The same test was applied in a similar manner for each accused and also for Benson’s second interview. The identical conclusion was reached on each occasion.

This issue was again reviewed by the Saskatchewan Q.B in 2014. ⁴ The two investigators were former police officers, and were referred to by the alleged offenders as “SaskTel police”. These accused persons believed that the investigators were in close relations with the Regina Police Service and the R.C.M.P. The court found that it was reasonable for the accused persons to “have influence whether they would be criminally prosecuted”.

Proof of Freely Given

Apart from the “person in authority” rule, the evidential onus of which is on the accused, the Crown must then prove the statement is voluntary. Both steps must be ruled in favour of the individual to meet the test of inadmissibility.

As to the evidential onus, the court in R. v Benson made offered this explanation:

That burden was described by the Supreme Court as “some evidence on the record to make it a live issue” (para. 37).  If this evidential (but not persuasive) burden is met, the Crown is required to prove, beyond a reasonable doubt, that the AGO investigators were not persons in authority (Hodgson, supra, at para. 38) or that the accused did not reasonably believe that the AGO investigators were persons in authority (Grandinetti, supra, at para. 37).

As to the issue of voluntariness of the statements, the second test, the court found that the false promise of confidentiality in each case proved that the statements were not given freely. It was also noted that none of the accused had been told that the issue had been referred to the RCMP, that fraud and forgery was suspected, that the RCMP could access the statements and that they were not required to attend or provide information.

Criticisms were also offered of the lack of a complete record of the tape recordings, the absence of a record of the promises of confidentiality, and lack of accurate note taking.

The court determined that the Crown did not meet the test of voluntariness and the statements were ruled inadmissible.

This principle was also considered by the Newfoundland Supreme Court, Trial Division, in R. v Reid, a May 2000 decision of Barry J.

The accused was an employee of Atlantic Fundraising, which had reported certain financial irregularities to the police. The police declined to investigate until the employer had completed a forensic audit, which prompted the company to hire KPMG to do so.

Such an interview was conducted with the accused. Ms. Reid was also aware that her employer had reported its concerns to the police.

It was found at trial that it was reasonable for the accused to infer that the information being provided to KPMG which was in turn to be given to the police, although she had no specific knowledge that the police had requested this investigation before it was to take place.

She was also told by her employer of the need to co-operate with KPMG, a finding which led the trial judge for her to reasonably conclude that her job would be in jeopardy, should she fail to do so.

The trial judge found that the issue as to whether the investigator was a person in authority depended on the extent to which the accused believed that this person could influence or control the proceedings against her, and hence applying the test set by Cory J. above. In this context, Barry J. concluded that the test was met.

The secondary test to be met, once the evidential burden of “person in authority” had been met, was whether the statement made was voluntary.

The trial judge found that the threat to induce the statement need not be related to the criminal charge itself:

There is nothing in Hodgson to prevent the conclusion that, once such a close relationship is found, a threat or promise unrelated to the charge may be sufficient to warrant exclusion of the information received subsequently.

[29]                  In the present case I find the statements of the accused are not admissible because, given the implied threat regarding the accused’s employment if she did not cooperate with Oake and Norman, the Crown has not proven beyond a reasonable doubt the voluntariness of her statements.

It is to be again noted that the evidential onus to proof that the recipient was a person in authority is on the accused and that of voluntariness is on the Crown. The statements were determined to be inadmissible.

The court added an alternative logic to the issue of voluntariness relating to the charge specifically:

I have also considered the accused’s testimony that her manager’s comments led her to believe it would be to her benefit if she cooperated with Oake and Norman and provided a statement. I conclude this could reasonably be interpreted as a belief that if she did cooperate and give information concerning the operations of Bingo Country, she would be regarded favourably by the authorities because of her cooperation and charges might not proceed against her, even if it should turn out that in some fashion her conduct should be regarded as unlawful. Therefore, in the circumstances of this case, whether or not I am correct in holding a threat or inducement need not relate to charges or contemplate a charge against an accused, the inducement of being considered favourably by the authorities in terms of contemplated charges was sufficient to raise a reasonable doubt as to the voluntariness of the accused’s statements.

The Provincial Court of Saskatchewan, again in a criminal context, in R. v Nowoselski, a 1990 decision, considered the admissibility of certain statements made by the accused, a cashier employed with Zeller’s, to her employer’s Loss Prevention Supervisor. The interview was conducted in the presence of the company’s Human Resources representative, admitted to be seen objectively as a member of management.

Shortly into the interview, the accused admitted to stealing $10 and $20, after which she was told she was under arrest and purportedly given her Charter rights warnings. Following further admissions and a written statement, the police were called and she was charged with theft under $5,000.

The court found that the Loss Prevention Supervisor met the test as a “person in authority”, this being for the purpose of the common law confession rule:

Any finding concerning the Accused’s knowledge of the role of the Loss Prevention Supervisor must be drawn from the evidence of Crown witnesses. Their was evidence of the role of the Loss Prevention Supervisor which included investigation, interview, arrest and prosecution of employees for staff shortages. He supervised the Accused in that  she was answerable to him for shortages. It was common knowledge that he routinely arrested shoplifters and in the 3 months previous he had arrested 2 employees for theft. Investigating staff shortages was a significant part of his job. I infer from this evidence that the Accused could reasonably have been affected by such knowledge of his role and that she may well have been of the opinion that he could influence the course of the prosecution. The Accused has met the evidential burden. It is significant that the Court stated in Berger, supra, “If his mind was free of such impressions the person receiving this statement would not be considered a person in authority and the statement would be admissible.”  While the Accused bore the evidential burden in establishing that the Loss Prevention Supervisor was a person in authority the ultimate burden of proving that he was not a person in authority lay with the Crown. That burden is proof beyond a reasonable doubt and it includes proving with some reasonable detail the circumstances under which the statement was obtained.

As to the secondary component of this test, as to whether the statement was made voluntarily, the court also found in favour of the employee.

The factors weighed in coming to this conclusion included (1) she was apparently confused, (2) she was not sophisticated, (3) she was told that the HR person was present to look out for her interests, (4) she was given not a warning, and (5) she was interviewed in a potentially misleading way. To the latter point:

He interviewed in a potentially misleading way when he said to the Accused, “I know what happened. I need you to admit it.” In testimony he said that he wanted the truth, but I don’t know what the Accused thought of this statement and whether she adopted his statement or was speaking for herself.  This is particularly troubling when she apparently didn’t understand what was going on.

In addition, the court considered other evidence, namely that the investigator was unable to be precise as to whether his handcuffs were visible, proper note taking was not done by the investigator and his later evidence on other issues cast doubt on the overall reliability of his evidence.

In this context, at the time prior to arrest, when Charter rights were not engaged, the court noted that while the failure to provide a warning need not, in itself, define the issue of admissibility, it remains a significant factor in assessing this issue of voluntariness of the statement:

[28]      The failure to provide a warning is not necessarily fatal. …. However, in these circumstances I find that the failure to provide a warning at the outset of the interview was a significant factor. To be clear, it is my understanding that the warning that would be required of a person in authority in these circumstances may be limited to a statement to the effect that the accused be told that she has nothing to hope for from any promise or favour and nothing to fear from any threats. In circumstances to which the Charter does not apply the further warning that she has the right to remain silent may not be required by the common law. ….. I attach significance to the failure to give a warning in light particularly in light of the somewhat misleading statement to the Accused about the role of the Human Resources Manager, R.B. and the Accused’s apparent confusion for the first 4 or 5 minutes.

The Supreme Court elaborated on the test of voluntariness and offered these indicia to be applied. ⁵

1. Threats of promises, such as the promise of leniency or psychiatric assistant or counselling in exchange for the confession;

2. Oppression, such as being forced to stand naked in a cold cell for hours and forced to stay awake through the night; the denial of counsel, excessive and prolonged questioning;

3.  The “operating mind”, does the suspect have awareness of what he is saying and doing so to police officers who can use this to his detriment;

4. Police trickery, such an officer pretending to be a legal aid lawyer or a minister

The analysis is determined to demonstrate whether the statement was truly voluntary.

Privilege

The question of privilege may seemingly pre-empt this discussion. It is discussed subsequently. It must be kept in mind that the decision to waive privilege is that of the employer. The questioned person should have no comfort in a statement from the investigator that the investigation and ensuing report will be covered by legal advice or for that matter, any other privilege.

Equally statements from the investigator that the interview is “confidential” will be of no consequence when the investigator is met with a police summons, absent a finding that the report is prepared as legal advice or litigation privilege and that such privilege has not been not waived.

Similarly, evidence given by an employee “without prejudice” is meaningless and of no assistance in defending an issue of admissibility in subsequent proceedings.

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1. R. v. Oickle
2. Scott v Ontario Racing Commission
3. There were certain complications as the defence lawyer did not raise the objection at trial and hence a subordinate issue was whether the trial judge was obliged to do so on his independent initiative.
4. R v Yasinowski
5. R. v Oickle