



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Foster, 2017 ONCA 751

DATE: 20170927

DOCKET: C63252

Pardu, Huscroft and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Kevin Foster

Appellant

Stephen Whitzman, for the appellant

Katherine Beaudoin, for the respondent

Heard: September 21, 2017

On appeal from the conviction entered by Justice Dale
    Parayeski of the Superior Court of Justice on July 15, 2015.

REASONS FOR DECISION

(A) Overview

[1]

The appellant was convicted of possession of a
    firearm knowing it to be obtained by crime pursuant to s. 96(1) of the
Criminal Code.
The firearm belonged to his employer, Brinks.

[2]

The appellant raises two grounds of appeal that
    are said to constitute reversible errors: (1) the trial judge erred by finding the
    appellants police statement voluntary; and (2) the admission of evidence
    derived from an involuntary statement the appellant gave to non-police actors
    rendered the trial unfair.

[3]

We do not agree with either of these submissions.

(B) General Background

[4]

A Brinks regional security director met with the
    appellant following an investigation into missing money and a firearm. The security
    director first asked the appellant about the missing money. The appellant was
    told that if he returned the money, Brinks would not pursue the matter with the
    police. The appellant returned most of the money, after which the security director
    turned his attention to the missing gun.

[5]

The appellant admitted that he disposed of the
    gun in a lake. He showed the security director where he had thrown it into the
    water. While the appellant was assured that if he returned the gun, the security
    director would be prepared to tell the court that he had cooperated, he was not
    promised immunity from prosecution, nor could he have been. To the contrary,
    implicit in the security directors promise to tell the court that the
    appellant had cooperated in the return of the gun was the fact that the police
    would be informed of the appellants conduct and criminal charges could result.

[6]

While Brinks had earlier informed the police
    about the missing gun, they later reported to the police what they had learned
    from the appellant. Brinks also provided the police with a video copy of the
    appellants two statements: one relating to the stolen money, and the other
    relating to the gun. The police conducted a search of the lake where the gun
    had been thrown, but only recovered the guns slide.

[7]

Ten days following his discussion with the security
    director, the appellant was arrested by the police and then interviewed. He
    confessed to having disposed of the gun in pieces.

(C) Voluntariness

[8]

The Crown sought only to lead the police
    statement, and not the appellants videotaped statements to the security
    director. The appellant argues that the trial judge erred in finding the police
    statement voluntary, maintaining that it was tainted by what he argues was an
    earlier involuntary statement to the security director. While the appellant accepts
    that the trial judge correctly stated the law relating to the derived
    confessions rule, he submits that trial judge erred in applying the rule. We
    disagree.

[9]

The derived confessions rule in this case rests
    on the understanding that the statement given to the security director about
    the gun was an involuntary one, thereby tainting the subsequent police
    statement: see
R. v. I.(L.R.) and T.(E.)
,

[1993] 4 S.C.R. 504, at pp. 526-527. We first observe that it is not
    at all clear that there was any voluntariness issue relating to the first
    statement, such that the derived confessions rule was even operative. It
    appears that the parties and trial judge simply proceeded on the assumption
    that the statement given to the security director about the gun was
    involuntary, thereby triggering the need to consider the derived confessions
    rule. No one appears to have directly turned their minds to whether the security
    director was a person in authority (an issue upon which the appellant bears the
    onus):
R. v. Hodgson
, [1998] 2 S.C.R. 449, at
    paras. 34-37. Moreover, even if the security director stood in a position of
    authority, there is a real question about whether the inducement was strong
    enough to raise a reasonable doubt about whether the will of the subject had
    been overborne:
R. v. Oickle
, 2000 SCC 38, at
    para. 57.

[10]

Despite our reservations about the basis for the
    assumption that the statement to the security director about the gun was
    involuntary, an assumption that clearly inured to the appellants benefit, we
    see no error in the application of the derived confessions rule. The trial
    judge cited the correct law on this point; an involuntary statement may render
    a later statement involuntary where, the tainting features which disqualified
    the first confession continued to be present or if the fact that the first
    statement was made was a substantial factor contributing to the making of the
    second statement:
I.(L.R.) and T.(E.)
,

at p. 526.

[11]

The trial judge accepted the concession of both
    counsel that the tainting features of the first statement were no longer
    present during the second statement. He also concluded that while the earlier
    statement was a factor in the appellants later statement, it fell short of
    being a substantial factor. He noted various factors in support of this
    conclusion, including:

(1)

the distance in time
    between the statements;

(2)

the fact that
    different people took the statements;

(3)

the fact that the
    police statement commenced with a clear comment by the officer that the
    appellant should not be influenced in any way in making a statement by
    anything that someone in authority may have already said to him;

(4)

the fact that the
    appellant had spoken to duty counsel prior to the police interview; and

(5)

the fact that although
    the earlier statement was frequently referenced by the police officer, it was
    largely met with assertions of silence.

[12]

It was open to the trial judge to conclude that
    the earlier statement was not a substantial factor contributing to the making
    of the police statement. This was largely a question of fact. As this court
    noted in
R. v. M.D.
, 2012 ONCA 841, at para.
    59, appellate review in these circumstances is limited to deciding whether the
    judge erred in her assessment of the evidence, failed to consider relevant
    circumstances, or failed to apply the correct principles. We see no such error
    in the trial judges approach. This ground of appeal fails.

(D) Exclusion of Evidence for Reasons of
    Trial Fairness

[13]

The appellant changed counsel after he was found
    guilty. He then sought permission to reopen the trial so that he could argue
    that some evidence should have been excluded because it adversely impacted the
    fairness of the trial. The trial judge dismissed the request to re-open, finding
    that it was really a disguised attempt to challenge the competence of previous
    counsel, a matter the trial judge concluded was best left for appeal.

[14]

The appellant does not raise an issue of counsel
    competence on appeal. Instead, he maintains that the trial judge was wrong to
    dismiss the application to re-open the trial so that he could argue for the
    exclusion of evidence. He does not press the issue respecting the failure to
    re-open, as long as this court is prepared to consider the substantive
    arguments respecting the exclusion of evidence. We do not see any error in the
    trial judges dismissal of the application to re-open. In any event, we would
    not give effect to the appellants arguments regarding why the admission of
    certain evidence resulted in unfairness.

[15]

The appellant maintains that his trial was
    rendered unfair because the trial judge considered evidence that was derived
    from his involuntary statement to the security director. In particular, he
    argues that all of the evidence arising from his comments to the security
    director about the gun, its whereabouts, and what he did with it, should have
    been excluded.

[16]

For the reasons already given, we have strong
    reservations about whether the statement to the security director was
    involuntary. The appellant seems to suggest that because the Crown proceeded as
    if it was, it was a Crown concession to which this court is bound. We do not
    agree. The appellant calls upon this court to assess whether the fairness of
    the trial was adversely impacted by the admission of certain evidence. That
    analysis necessarily requires this court to consider the circumstances in which
    that evidence was taken.

[17]

Even if the statement was involuntary, there is
    nothing about the way the statement was taken that would trigger any concerns
    about trial fairness. The record establishes that the appellant was treated
    respectfully by the security director, that he was not coerced into speaking
    with him, and that the security director acted in good faith.

[18]

Leaving aside the fact that we see nothing wrong
    with how the appellant was treated that would raise any trial fairness
    concerns, he admitted to possession of the gun in his admissible police
    statement. While the impugned evidence may have also factored into the trial
    judges reasons for conviction, it was entirely unnecessary to the analysis. The
    appellant told the police that he possessed the gun.

(E) Conclusion

[19]

The appeal is dismissed.

G. Pardu J.A.

Grant Huscroft J.A.

Fairburn J.A.


