SUPREME COURT Citation: R. v. Butcher, 2018 Between: Her Majesty V. Nicholas Jordan DECISION: VOIR Voluntariness and Judge: The Honourable Justice Heard: February 22, 26; and Written Decision: March 29, 2018 Counsel: Carla Ball and Tanya Peter Planetta and Jonathan
OF NOVA SCOTIA NSSC 75 Date: 201803 01 Docket: HFX No. 455873 Registry: Halifax the Queen Butcher DIRE 2 911 Call-takers Joshua M. Arnold March 1,2018, in Halifax, Nova Scotia Carter, for the Crown Hughes, for the Defence
By the Court: Overview [1] This decision deals with whether person in authority. [2] On March 26, 2016, through 911, Mr. Masters Butcher. The first exchanges between Mr. Masters 911 CALL TAKER: 911, what is your emergency? MR. BUTCHER: I need -- 1 need help. 911 CALL TAKER: Okay. And what’s MR. BUTCHER: I killed my girlfriend hand. I think I’m dying. 911 CALL TAKER: And where are you MR. BUTCHER: I’m at 17 Ocean-- 911 CALL TAKER: 7 -- 73 Oceanview? MR. BUTCHER: 17. You’re going locked. I need help please. 911 CALL TAKER: Okay. And you’re MR. BUTCHER: No, 1-7. Help. I’m 911 CALL TAKER: I can’t hear the number what...
MR. BUTCHER: 17, 1-7. 911 CALL TAKER: 1-7? Okay. MR. BUTCHER: Yeah. I’m dying. 911 CALL TAKER: Okay. So 17 Oceanview Drive in Halifax, Halifax County? MR. BUTCHER: Yeah. 911 CALL TAKER: .And you phone number 902 430-4135? MR. BUTCHER: Yeah. 911 CALL TAKER: Okay. Just stay on the line, I’m going to bring you right over to ambulance.
Page 2 Jordan Masters, a 911 call-taker, is a received a call from Nicholas and Mr. Butcher were: going on there? and I tried to kill myself, I cut off my at? Oceanview Drive in Purcell’s Cove. to have to breakdown the door, it’s saying 73 Oceanview? dying. that you’re telling me. Where --
[3] Mr. Masters put the call through to line. Paramedics and police were dispatched call originated. [4] Once on scene, the first responders appeared to have a fresh amputation of his his neck and left arm. They also found Kristin surrounded by blood, and with a pillow over saw and a freshly severed right hand. [5) A i’oi.” dire was conducted to determine statement. Mr. Butcher says Mr. Masters, acting authority and that his statements to Mr. Masters argues that a full voluntariness voir dire admissibility of his statements on the 911 [6] The Crown says that Mr. Masters is said by Mr. Butcher is an admission, voluntariness voir dire. [7) In keeping with the decision in R. i request a ruling as to whether the defence showing that Mr. Masters was a person in voir dire. Facts [8] Three pre-trial voir dires are being this trial. Due to the sporadic availability defence, and in keeping with the direction trial judges have been directed to move court along have jumped in and out of the three pre-trial voir have stated on the record that certain evidence to the other. There was some disagreement between been agreed upon in relation to this voir dire. [9] The Crown had filed a brief on this before the actual voir dire. The original trial dates had been adjourned due to a change in counsel by
Page 3 ambulance dispatch and stayed on the to the address where the telephone eventually came upon Mr. Butcher who right hand, as well as other injuries to Johnston in a bedroom, deceased, her face. In the bedroom was a mitre the admissibility of the 911 as a 911 call-taker, is a person in were akin to a confession. He must be conducted to determine the call. not a person in authority, that anything and therefore admissible without a Hodgson, [1998] 2 S.C.R. 449, counsel have met the evidential burden of authority prior to proceeding to a frill conducted simultaneously in relation to of witnesses for both Crown and in R. i’. Cody, 2017 SCC 31, whereby as efficiently as possible, we dires. Counsel for both sides from each voir dire can be applied counsel as to what facts had issue on March 1, 2017, almost one year of April 24 to May 24, 2017, Mr. Butcher. In that brief, the
Crown listed a number of facts they thought had previous counsel, including: - the authenticity of the 911 recording; - that the accused is in fact the 911 caller; - that the victim, Kristen [sic] Johnston the time of the 911 call; - the phone the accused used was found in that Nicholas Butcher’s date of birth is April 13th, - - that Kristen [sic] Johnston’s date of birth - that Nicholas Butcher’s mother, Dale, lives phone number is 902-422-2769. [10] On February 20, 2018, at the outset of exchange occurred: MR. PLANEflA: And the other discussion series of admissions for the purposes of discussed with my client and have his consent to are issues that are not controversial which put them on the record now or we can, I can them in writing at that moment. THE COURT: Why don’t you put them get them in writing as the next day or two. MS. BALL: And they are on, at paragraph person in authority brief. Do you have that with MS. BALL: Okay. So that in addition friend and I will have to prepare a list for MR. PLANETTA: What I’ll probabLy, what today I’ll prepare a list and I’ll sign it and submit it to the court. THE COURT: Okay. MS. BALL: Identification is among making for the purpose of the vofr dire so the ante mortem portion, well any portion accused. Is that correct Mr. Planetta? MR. PLANETTA: Yes.
Page 4 been agreed to by Mr. Butcher’s who was his girlfriend, was deceased at the bedroom that the deceased was in; 1982; is September 17”, 1983; and at 24 Forrest Hill Drive and her the three volt- dires, the following we had, I was asked to make a the i’oir dire. I have agreed. I’ve agree to those admissions. They may save us a little bit of time. I can provide them in writing. I don’t have on the record now and then we’ll 8 of the Crown’s brief of the you cause we have... to a couple of others which my Your Lordship. I’ll do My Lord is I’ll after court have my client sign it and then I’ll the admissions that my friend is that the civilian witnesses testifying on I guess. don’t have to point out the
[11] On February 22, 2018, Mr. Hughes, speaking dire stated the defence was not calling evidence Masters was a person in authority. Mr. Hughes MR. HUGHES: Well My Lord, from particularly make one difference or another. friend is saying and in her defence and to somewhat novel issue here. I didn’t expand thought it was somewhat obvious. The typical stage in authority is the subjective belief of the or not that subjective belief is a reasonably reason why I say it’s all blended together and this again relates to the issue of statement under the principled approach difference because even if the 911 operator that the 911 call itself still goes to that principled are just an exception to the hearsay ru’e. would suggest, given the circumstances and dispensed with in that this isn’t a situation undercover officer or someone who wouldn’t be to be a person in authority and just move of that held belief and that’s why I included just indicating about the reasonableness of So effectively the only difference is that I’m situation in which the subjective belief of absolutely necessary in order to proceed objectively reasonably held belief. In terms have you, even if Your Lordship were to in authority, to me that doesn’t really change comes out because we’ll still need to hear of what is said and the way that the 911 reliability under the principled approach. Lordship at all, but... THE COURT: Well, I can hear abandoning your position that the 911 operators MR. HUGHES: That’s correct. THE COURT: Okay. Then I’m going THE COURT: You’re proposing in 911 operators are akin to what the Supreme Hodgson as police officers and prison obviously persons in authority that voluntariness
Page 5 for Mr. Butcher on this voir to support their position that Mr. stated: my perspective, I mean, it doesn’t I certainly understand what my her fairness, I am somewhat proposing a on it a whole lot in my brief, but I under Hodgson for a person individual and then determine whether held belief. In a situation like this, the is that, as we’ll hear in the 911 video voluntariness and the reliability of the is that to me it doesn’t really make a aren’t a person in authority, it’s still approach because confessions So the issue of his subjective belief, I the injuries he suffered is somewhat where it’s a statement made to an immediately, I guess, knowable to the, I guess, objective reasonableness the cases from Ontario and Alberta 911 operators as persons in authority. suggesting that this is a unique the, of Mr. Butcher in this case, isn’t to the reasonably, or I guess the of the way to proceed on it and what hold that a 911 operator wasn’t a person a whole lot in the way the evidence the 911 tape just because the elements tape comes out goes to that issue of So I’m not sure if that helps Your what you’re saying. You’re not are persons in authority. to need Ml argument. your brief and briefly stated here that Court of Canada recognized in guards and that is that those are so voir dire should be entered into
in every occasion and that even though that otherwise, subjectively, the individual provide the evidence that they believe that this their prosecution, that in this case, objectively, MR. HUGHES: Absolutely. THE COURT: Correct? That’s what MR. HUGHES: Yes My Lord. [121 During Mr. Hughes’ initial address exchange occurred: MR. HUGHES: 911 is effectively the and dispatches the police out. Without the to those situations. THE COURT: Well, I have you saying of that. How... So again we’re not too deep not to call evidence. You can’t give evidence. MR. HUGHES: And I take Your that.
THE COURT: So before we go further. not to call evidence. This is a homicide trial. Do position here or are you content to keep moving MR. HUGHES: I’m content to keep THE COURT: Do you want to take MR. HUGHES: Sure, I would be happy THE COURT: Okay. So we’re going you can go downstairs and have a chat and content to proceed forward once you’ve received MR. HUGHES: Thank you My Lord. THE COURT: Because you cannot inferences. You can make suggestions evidence. Okay? MR. HUGHES: Absolutely My Lord. COURT RECESSED COURT RECONVENED MR. HUGHES: Thank you My Lord. colleague and my client and receive instructions. We’ll be seeking to call Jordan Masters the
Page 6 the Supreme Court of Canada indicates is usually the person who’s going to person had some authority over your client doesn’t need to do that. you want to argue. to the court on this issue, the following agency or the organization that sends call to 911 the police may not respond that, but I don’t have any evidence into this voir dire and you’ve chosen Honour or Your Lordship’s point with
We’ve started. You’ve elected you need time to consider your fonvard? moving fonvard My Lord. some instructions before you do that? to My Lord. to stand down for 15 minutes so that let me know whether or not you’re those instructions. give evidence. You can make based on other cases. You can’t give I took that time to speak to my We will be calling evidence. 911 operator. Given the time of day
though, My Lord, and I’m a little bit out of I thought things would be progressing in, so again afresh in the morning. [13] Mr. Butcher was provided with an and on February 26, 2018, the defence called following discussion occurred regarding whether be relied upon with respect to VD2: MS. CARTER: So I don’t know if that the call wasn’t played, but I, you know, I’m friend said that he didn’t feel there was anything be of assistance, but I think that’s where we’re THE COURT: Well, I do have a question THE COURT: Both Crown and defence in their materials, but the call itself wasn’t played. be evidence and transcripts would be an In this case, both parties have fonvarded been played. What am I to do with the voir dire and, if so, how? And, if not, why THE COURT: And so I’ve got a few substantive argument, I understand your, but just the something I should be considering or not considering call and should I have the call and what’s MS. CARTER: Okay, so, no you shouldn’t have to that, but I’m going to tell you the background MS. CARTER: On related to voir dire and if this proceeds further maybe we’ll have brought this up argument at the pre-trial conference brief first which may or may not have been didn’t know what the nature of the argument assuming that there’d be a standard application Hodgson where saying people are people originally put it in that the call would be mind and made these arguments, at least with based on the defence brief in my mind what right, because they were just asking you to their job, so I don’t see how the call is relevant to
Page 7 order with this based on the order that I would just ask that we just start opportunity to prepare to call evidence Jordan Masters on the voir dire. The the 911 call and transcript could you have any questions about the fact leading from everything that my in there in particular that would at. about that. included the transcript of the call So, normally, the call would aid if the matter was put into evidence. the transcripts to me, but the call hasn’t transcript? Is this somehow part of this do I have it? questions that relate to that, not your transcript itself. Is this and why don’t I have the going on with all that? the call is my first answer of why I feel that way. 3 we’re going to use the call on that to. Right now, so, when Mr. Burrill like I said, I ended up filing a the right procedure for that, but we was, right? So we attached the call that set out the basis based on in authority. So I assumed when we relevant, right? So when he changed his respect to the person in authority, was said on the call was not relevant, change him as a class person based on that particular argument. Now,
if you agree to use the principled approach somehow.
THE COURT: That’s for a later argument. MS. CARTER: Yes, right. THE COURT: But for this aspect, right now, and what you’re indicating to me is one, it was what was coming... MS. CARTER: Ritht. THE COURT: Two, now that you that’s been heard, it may relate to other aspect. Is that correct? MS. CARTER: Yes. That’s how 1... THE COURT: Well you don’t need behind you nodding in agreement. So if then I won’t ask any more questions about it. MS. CARTER: I have to say one other few limiting questions about what was remembered. If there is a change or something know, the question and the answer you had suggesting that he didn’t say anything that would just to cover it off, but if that’s not the argument that it doesn’t THE COURT: You can’t... it’s not the evidence so... MS. CARTER: Right, so I don’t see THE COURT: Well I don’t think call isn’t in evidence. so... MS. CARTER: Right. THE COURT: Okay, thank you. to comment for the record about the transcript? MR. HUGHES: I’ll just start with exactly as my friend said, it’s more for the don’t think that there’s anything in the relevant to the issue of the person in authority THE COURT: Well, whether there relevant things, the issue is you didn’t put the MR. HUGHES: That’s correct.
Page 8 it would have to be played obviously
I have it from both counsel put in pre-emptively not knowing know what’s coming and the evidence aspects of a voir dire, but not to this to say anymore because Mr. Hughes is that’s the case and both counsel agree thing. There was a reason I asked a in the call which the call-taker different and I can’t recite all, you earlier with my friend, you know, I’m give rise to a subjective belief even matter. argument because the call isn’t in it as being important at all. that would be the anument because the Ms. Hughes, any reply and do you want the transcript, My Lord, because it’s purposes of the voluntariness issue. I contents of the call that are necessarily argument. are relevant things or there aren’t call into evidence.
THE COURT: Okay. So, is it your be examined by me or considered by me for the purpose of voir dire 2? MR. HUGHES: Yes, that’s correct My THE COURT: Thank you. [14] The Crown chose to call no evidence counsel proceeded to make argument on February during the voir dire that he was abandoning necessity of a principled approach analysis to be a person in authority. I reserved my [15] The other voir dires continued. On Crown called Mr. Masters to testify in relation admissibility of statements made by Mr. Butcher counsel advised that an agreed statement The agreement is signed by Nicholas Butcher, Peter Carla Ball and Tanya Carter, and states: R. v. Nicholas Butcher For the purposes of the Voir Dires held between defence admits the following: I. The authenticity & continuity of the 911 2. That the accused, Nicholas Butcher, is 3. That the victim, Kristen [sic] Johnston, who the time of the 911 call; 4. That the phone the accused used was was in; 5. That Nicholas Butcher’s date of birth is 6. That Kristen [sic] Johnston’s date of birth 7. That Nicholas Butcher’s mother, Dale, lives phone number is 902-422-2769. 8. The defence admits the identification of [16] Mr. Masters testified and the 911 evidence. Some disagreement arose between recording and transcript should now be relied
Page 9 position that this transcript should not for the purpose of this aspect of, Sony, Lord. on this aspect of the voir dire and 26, 2018. Mr. Butcher advised his alternate position regarding the should the 911 call-taker not be found decision. March 1, 2018, immediately before the to VD3 (the voir dire relating to the to the police during his arrest), of facts was being provided to the court. Planetta, Jonathan Hughes, February 20— March 5, 2018, the recording; the 911 calLer; was his girlfriend, was deceased at found in the bedroom that the deceased April 131)1, 1982; was September 17, 1983; and at 24 Forrest Hill Drive and her Nicholas Butcher. recording and transcript were put into counsel as to whether the 911 on by the court in considering the
outstanding threshold person in authority occurred:
MR. HUGHES: ... we were copied 8, indicating the order that the Crown intended intention was to call evidence on the hearsay voluntariness, Charter, 911, followed by arguments on the basis that on February Masters as a witness. When we were presented facts that was presented to us at the understanding that, in agreeing to the fact that Mr. Butcher was all predicated on this issue of the Crown purposes. So in preparing for it, it was Crown’s evidence Mr. Masters would have made my preparations from there I honestly legal argument until after all of the evidence THE COURT: Well, we need a proposed solution, as I understand it is, and maybe whatever occurred this morning is not applied whether or not Mr. Butcher has met the operators are persons in authority. That’s Carter, without getting you, I’ll give you your position? MS. CARTER: Yes you do. MR. HUGHES: And I indicated for known that the, I guess, the road map that we had been different than the one that I had hesitation in making the admission that Mr. Butcher that’s not necessarily speaking for Mr. Planetta, but at least in it, if I had known that this was going to be that very well may not have been... THE COURT: So you don’t have a MR. HUGHES: Unfortunately I don’t My MR. PLANETTA: If I could just, I think earlier, is that... THE COURT: Apply the evidence Hughes’ aspect, give counsel a flirther opportunity
Page 10 question. The following discussion
on an email to Ms. Murphy on February to call witnesses... It says that the ante mortem stuff first, then the argument on each issue... [prepared my 22 the Crown was going to call Jordan with the.. agreed statement of open of the volt dires, it was my was the 911 caller, calling these witnesses for these my understanding that as part of the had to been called as their witness and was not expecting to make any had been heard based on... solution. The Crown’s proposed I’m misunderstanding things, is that to your argument that relates to evidential burden to show that the 911 their proposed solution. I think. Ms. a chance to reply, but do I understand my position My Lord that if I had were going to take in this position relied on I would have had some was the 911 caller. And I’m. my preparation for the way that that would have unfolded proposed solution? Lord. what our position is is what I said from this morning to your, Mr. to call evidence and or argue,
Page 11 ie reopen yoU’ dire 2 if there’s some misunderstanding, that’s what you’re suggesting.
MR. PLANEYFA: Or let the evidence again. That’s... THE COURT: Okay. Thank you. Ms. Carter? MS. CARTER: I don’t have very much my friend would say that, Mr. Hughes in on hearing the Crown evidence and making breath tell you that no evidence was relevant completely opposite situations. You know, he end. I understand why that may be appealing, but if and say that this is a straight up legal issue then turn around and say he relied on the does matter. I mean, they’re two completely how or why the information on the call is people in authority across Canada are people, I’m are people in authority. THE COURT: Well, if, if, I’ll just evidence that was heard this morning can 2, then I would certainly give counsel further wants to call evidence in reply to that, to both so that you wouldn’t have this new being given an opportunity’ to comment on MS. CARTER: My Lord, might be and confirm that it’s the actual call itself cross examination of Mr. Masters today anything.
MS. CARTER: And maybe some indication it wasn’t, because keep in mind, since Monday when we’re going to get a decision and no right?
THE COURT: ... So do you understand asking for some of the evidence that was was heard today to be applied to your argument wants to know, and so do I, are you asking considered? Or are you also suggesting
cross over rather than just doing it to say. I do find it quite odd that particular, would say that he was relying argument at the end and in the same to his argument. Like, those are two might have wanted to wait until the he’s going initialiy stand up and the evidence doesn’t matter and Crown calling all their evidence cause it different things. I still haven’t heard relevant in light of him saying that all sorry, call-takers across Canada say this, if I determine that either the be applied to the threshold of i’oir dire opportunity to either, if the Crown call evidence or to make argument or evidence injected into the mix without it. helpful for us to hear from Mr. Hughes he wants in and not the particularly the for our consideration without saying
of why it’s relevant today and we’ve sort of been talking about one’s said please wait to hear the call,
the question Mr. Hughes? You’re heard today or all of the evidence that on the threshold test. The Crown that the 911 call and the transcript be that Mr. Masters testimony today and
your cross examination of him which, in and then cross examined him today as the be considered by the court? And do you just ready to answer it? MR. HUGHES: No, I’m ready to answer. be considered as well. I mean.., and again, I’ll reference facts. It was my understanding as qualification as to what goes into where. There talking about this on the telephone conference of facts will apply to everything but that portion MR. HUGHES: So in speaking with just have the call and the transcript go in. evidence today. THE COURT: Okay, and was there that one. I think that there was, but I can’t... MS. CARTER: I just, we’ve already reference to the relevance of the call, so don’t want to be caught off guard, do you this is a technical issue and he’s worried sure what, why it is, why the change, cause not to say that to rush you, but we’ve kind the call, right? So, what is it? THE COURT: Okay. So really, the Hughes, to advise that if I allow that evidence you want to make further argument now indicating that you are content with your make further argument, what does that argument pertain to answered that now or do you need a minute? MR. HUGHES: No, I’m prepared think I need to make further argument on THE COURT: So then it was a concerned that some of what you had said without that being part of the case. Is that correct? MR. HUGHES: Yes, My Lord. THE COURT: I’m not trying to put make sure that I understand what you’re saying. MR. HUGHES: And I appreciate that, My guess from my confusion on the issue of blending
Page 12 fairness, you called him as your witness Crown witness. What are you asking to need time to think about this or are you I think his evidence today should the agreed statement of again from yesterday, there was no was no discussion when we were yesterday that the agreed statement of it. Mr. Planetta, My Lord, we’re happy to I’ll concede the issue of Mr. Masters’ another question, Ms. Carter, beyond made arguments and I didn’t hear any I want to know where this is going and I know what I mean? Or does he think that you need that before you? I’m not like I said, we’ve been waiting for, of been waiting for a decision without question is are you in a position, Mr. to be considered, whether or not that those call and transcript or are you original argument, and if you want to to and are you prepared to answer that now, My Lord. I don’t it. technical issue, is that, that you’re wouldn’t have any foundation or basis words in your mouth, I just want to I really am not. So... Lord. And again, it comes I these two voir cUres.
[17] The parties eventually agreed that with the agreed statement of facts, should determining the threshold question. [18] Mr. Butcher did not testify on this voir Framework [19] In discussing the rationale and practical considerations issue of statements against interest made the majority in Hodgson: 25 On a practical level, the overwhelming burden if it had to establish against interest made by an accused elimination of the person in authority consequences for undercover police work evidence, where the identity of the receiver unknown. For example, if the Crown were accused and a confederate who is senior to would obviously have difficulty tendering to prove beyond a reasonable doubt that the of prejudice or hope of advantage”. Moreover, all statements police officers would become subject to accused was completely unaware of their statement, would never have considered authority.
26 Practical considerations alone in authority requirement should remain a can be no doubt that there may well be great unfairness when an involuntary confession obtained of imminent violence by a private individual [20] In setting out the test to determine whether such that a voluntariness voir dire must be 32 “Person in authority” typically engaged in the arrest, detention, examination However, it may take on a broader meaning. Canadian meaning of “person in authority” in R. i In that case, the accused made a statement prisoners, but who were in fact acting as pp. 526-27, that:
Page 13 the 911 recording and transcript, along now be considered by the court in dire. when exploring the by an accused person, Cory J. stated for Crown would obviously face an the voluntariness of every statement to any person... In particular... the requirement would have serious and for the admissibility of wiretap of the accused’s statement is often to intercept a phone call between an him in a criminal hierarchy, the Crown the requisite evidence if it were forced statements were made without “fear to undercover the confessions rule, even though the status and, at the time he made the the undercover officers to be persons in
lead to the conclusion that the person part of the confessions rule. Yet there suffered by the accused as a result of violence or credible threats is admitted into evidence... someone is a person in authority undertaken, Coiy J. explained: refers to those persons formally or prosecution of the accused... courts first considered the Todd (1901), 4 C.C.C. 514 (Man. K.B.). to two men he believed to be fellow agents of the police. It was held, at
A person in authority means, authority or control over the accused prosecution against him. . . . [T]he persons to possess may well be supposed to animate his hopes of favour on him with awe, and so in some mind. . . . [Emphasis added.] Thus, from its earliest inception in Canadian be considered as a person in authority accused believed the person could influence him or her. The question is therefore accused.
33 The subjective approach to been adopted in this Court The approach then was) in R. v Berger (1975), 27 C.C.C. (2d) in my view, a clear statement of the law: The law is settled that a person in prosecution who, in the opinion of the prosecution. The test to be made to persons connected in voluntary is subjective. In other Whom did he think he was talking that the failure to speak to this person, because the prosecution, would result in prejudice would draw some benefit or reward? impressions the person receiving this person in authority and the statement would 34 However, to this statement I would he is speaking to a person in authority must the circumstances surrounding the making delusional or had no reasonable basis statement could affect the course of the should not be considered a person in authority. requirement is aimed at controlling coercive authority should not include those whom acting on behalf of the state. Thus, where reprisal or hope of advantage because he the statement is acting as an agent of the could therefore influence or control the proceedings receiver of the statement is properly considered words, the evidence must disclose not only the receiver of the statement to be in a position the accused, but must also establish an
Page 14 generally speaking, anyone who has or over the proceedings or the authority that the accused knows such in the majority of instances both the one hand and on the other to inspire degree to overcome the powers of his law, the question as to who should depended on the extent to which the or control the proceedings against approached from the viewpoint of the
the person in authority requirement has adopted by Mcintyre J.A. (as he 357 (B.C.C.A.), at pp. 385-86 is, authority is a person concerned with the the accused, can influence the course of applied in deciding whether statements such a way with the prosecution are words what did the accused think? to? . . . Was he under the impression of his power to influence or did he think that a statement If his mind was free of such statement would not be considered a be admissible. add that the accused’s belief that also be reasonable, in the context of of the statement. If the accused were for the belief that the receiver of the prosecution against him, the receiver Since the person in authority state conduct, the test for a person in the accused unreasonably believes to be the accused speaks out of fear of reasonably believes the person receiving police or prosecuting authorities and against him or her, then the a person in authority. In other that the accused subjectively believed to control the proceedings against objectively reasonable basis for that
belief. For example, if the evidence discloses collaboration between the receiver of the and that relationship was known to the accused, the be considered a person in authority. In prove beyond a reasonable doubt that the [21] Because Mr. Butcher did not testify in this case, the 911 call-taker should presumptively authority because: • The 911 call-taker is a civilian Police;
• 911 calls are recorded; • The 911 call-taker puts calls through to the police computer; • The 911 call-taker might dispatch combination of those first responders, to the call; • If a 911 caller hangs up, the person back; • 911 call-takers might ask a police safety; and • It is “well-known” that 911 calls [22] While not discussed in the context of some direction for the proposition raised by 35 Over the years, the courts circumstances a person will be deemed a the confessions rule. See, e.g., R. v. Trenholme CA), 35 C.C.C. 341 (Que. K.B.) (complainant’s authority where he has control over the Wilband, 1966 CanLIl 3 (SCC), [1967] S.C.R. 14 authority where he cannot control or influence ic Downey (1976), 32 C.C.C. (2d) 511 authority if the accused believed that
Page 15 a relationship of agency or close statement and the police or prosecution, receiver of the statement may those circumstances the Crown must statement was made voluntarily. on this voir dire, his lawyers argue that, be considered a person in employee of the Halifax Regional
that might be of a criminal nature ambulance, fire or police, or any a scene depending on the nature of 911 call-taker will attempt to call the caller questions that concern public or are often played in criminal trials. 911 call-takers, Coiy J. did provide Mr. Butcher, in Hodgson: have determined when and in what person in authority for the purposes of (1920), 1920 CanLil 461 (QC father was held to be a person in prosecution of the accused); R. v. (psychiatrist is not a person in the course of the proceedings); R. (N.S.S.C.A.D.) (victim is a person in the victim had control over the
proceedings); A.B., supra (a parent is not, in no close connection between the decision inducement to a child to make a statement); (CanLil), 34 C.C.C. (3d) 325 (Alta. C.Aj(a if the accused knew the social worker was and believed it could lead to his arrest). These governing rule that defines a person in perception of the receiver’s involvement with the crime nor have these decisions defined the personal authority that a person might wield Moreover, in concluding that the receiver authority, the courts have consistently found was allied with the state authorities and prosecution against the accused. 36 The important factor to note catalogue of persons, beyond a peace automatically considered a person in authority parent, doctor, teacher or employer all may the circumstances warrant, but their status, or some personal authority over the accused, is persons in authority for the purposes of the Attorney General of Canada observed, the evolved in a manner that avoids a formalistic interactions between ordinary citizens. consideration of the accused’s belief as statement to influence the prosecution or say, the trial iudge must determine whether receiver of the statement was acting on authorities. This view of the person in authority [Emphasis added] [23] 911 call-takers are not presumptively [24] Generally, based on the evidence Municipality, 911 call-takers do not wield they have no control over the investigation have no ability to influence or control the case, Mr. Masters is a civilian employee forwards appropriate calls to the police, those relation to this analysis. {25j Because 911 call-takers are not presumptively analysis must be undertaken to determine
Page 16 law, a person in authority if there is to call the authorities and the R. v. Swe.’yda (1987), 1987 ABCA 75 social worker is a person in authority investigating allegations of child abuse cases have not departed from the authority in relation to the accused’s the investigation or prosecution of a person in authority solely in terms of in relation to the accused. of the statement was a person in the accused believed the receiver could influence the investigation or in all of these cases is that there is no officer or prison guard, who are solely by virtue of their status. A be found to be a person in authority if the mere fact that they may wield not sufficient to establish them as the confessions rule. As the intervener person in authority requirement has or legalistic approach to the Instead, it requires a case-by-case to the ability of the receiver of the investigation of the crime. That is to the accused reasonably believed the behalf of the police or prosecuting requirement remains unchanged. persons in authority. of Mr. Masters, in the Halifax Regional any personal authority over the accused, or prosecution of an accused and they course of the proceedings. While in this of the Halifax Regional Police and elements do not carry the day in persons in authority, an whether the specific facts of this case are
such that Mr. Masters should be considered appropriate burden in this situation, Cory 37 Finally, something must be must be borne by the accused and the Crown a statement of the accused to a person Crown, of course, bears the burden of proving statement was made voluntarily. However, in requirement, the evidence required to establish deemed a person in authority will often accused therefore must bear some burden confessions rule. The burden should be John Sopinka, Sidney N. Lederman Evidence in canada (1992), at pp. 56-57, explain burdens: The term evidential burden means insure that there is sufficient evidence a fact or of an issue on the record particular fact or issue. . . . In contrast, the means that a party has an obligation the criminal or civil standard. The the appropriate standard means that party The evidential burden on an accused in a p. 138):
Where an evidential burden for criminal case, for example self-defence, the ensure that there is some evidence The evidence necessary to satisfy case for the Crown or the defence. 38 In the vast majority of cases. the burden by showing the accused’s knowledge receiver of the statement and the police or the fact that the statement was made to identified himself or herself as a peace officer burden in relation to the person in authority satisfies this evidential burden, the ultimate mR. v Postman (1977). 1977 ALTASCAD p. 542, the Alberta Supreme Court, Appellate that where a witness is not prima facie doctor). “it is open to defence counsel to require evidence to be given to determine defence discharges its burden and establishes the claim that the receiver of a statement made
Page 17 a person in authority. In discussing the J. stated, in Hodgson: said about the respective burdens which on a voir dire to determine whether in authority should be admitted. The beyond a reasonable doubt that the relation to the person in authority whether or not a person should be lie primarily with the accused. The in relation to this aspect of the an evidential and not a persuasive one. and Alan W. Bryant, in The Law of the difference between the two that a party has the responsibility to of the existence or non-existence of to pass the threshold test for that term legal burden of proof to prove or disprove a fact or issue to failure to convince the trier of fact to will lose on that issue. criminal case is described as follows (at
an issue rests on the defendant in a accused has the obligation to on the record to make it a live issue. an evidential burden may arise in the accused will meet this evidential of the relationship between the prosecuting authorities. For example, a police officer who was in uniform or will satisfy the accused’s evidential requirement Once the accused burden of proof rests with the Crown. 92 (CanLil). 3 A.R. 524, at Division held, correctly in my view, a person in authority (in that case, a challenge the prima facie case and the facts of the matter”. Thus, once the that there is an evidential basis to by the accused is a person in
authority, the burden shifts to the Crown either that the receiver is not a person in discharged, that the statement was made voluntarily. 39 The receiver’s status as accused had knowledge of that status. If had knowledge of the receiver’s status undercover police officer) or close relationship persons acting on behalf of the state), the person in authority must end. It is therefore the reasonable belief of the accused. It may undertake a full analysis of the objective statement and the authorities, as Justice L’Heureux-Dubé to have those findings vitiated if the accused of this relationship. In addition, it is important to judge’s inquiry on the reasonable belief of of the burden of proof on the voir dire. [emphasis [26] Counsel rely on various cases from refUte Mr. Butcher’s position that he has that Jordan Masters was a person in authority. evidential burden, then the burden shifts reasonable doubt that the 911 call-taker (possibly), to prove beyond a reasonable doubt that the [27] In R. v. Paquette, 1999 CarswellOnt 982, [1999] the accused was charged with second-degree introduce a recorded 911 conversation at trial. The were admissible, but the judge held a precautionary accused testified on the voir dire. In admitting stated:
71 It is not difficult to conclude that Mr. Paquette’s offends neither the common law confessions 72 The statements in this conversation The defence conceded that the emergency or otherwise involved in the arrest, detention, examination accused. Nor was there any evidence to suggest the the 911 operator was a person in authority. Furthermore, Mr. Paquette placed the call, of his own accord, and apparently receive medical attention. 73 It is difficult to imagine that this have been anything but voluntary when
Page 18 to establish beyond a reasonable doubt authority, or, if this burden cannot be a person in authority arises only if the the accused cannot show that he or she (as. for example, in the case of an to the authorities (as in the case of inquiry pertaining to the receiver as a appropriate to consider at the outset not be useful to have the trial judge relationship between the receiver of the suggests (para. 83), only is later found to have no knowledge recognize that focusing the trial the accused accords with the allocation added] other jurisdictions to either support or met the evidentiary burden of showing If Mr. Butcher has met the to the Crown to prove beyond a was not a person in authority and then statement is voluntary. O.J. No. 1277 (Ont. Ct. J.), murder. The Crown sought to defence admitted the 911 calls voir dire nonetheless. The the 911 calls at trial, Whalen J.
call to the 911 operator rule nor the Charter. were not made to a person in authority. operator was not an agent of the police or prosecution of the accused reasonably believed himself out of concern that Ms. Foley call and the ensuing conversation could Mr. Paquette himself initiated it. Nor is
there anything in the content of the conversation, either tone, to suggest coercion, inducement or oppression 74 Therefore, I conclude that the statements course of this call were of his own free rule.
75 Similarly, the reception of this call did Chat-icr because it was not made to an agent of was being detained by the state. [28] In 1?. v. Soikie, [2003j O.J. No. 3134 permission to cross-examine a 911 call-taker preliminary inquiry on a charge of second-degree voir dire, the only evidence was the viva the preliminary inquiry and the transcript of testify on the voir dire. In denying the defence 8 In both Hodgson and cases that have are persons in authority merely by virtue (identifiable as one), prison guards. The upon which the Judge can find that the accused the statement was acting on behalf of the example, evidence that a person wore a police a police officer is sufficient to reasonably believed them to be a person in authority”. 9 Where the recipient does not fit that category, then evidence that the accused reasonably believed course of the prosecution. 10 This required finding of fact only positively bears on the issue. It is an evidential burden 11 A persuasive burden is one which fact or issue beyond a reasonable doubt (or probabilities (the accused). An evidential burden must point to evidence of a fact or issue to 12 In this preliminary hearing, a volt- dire operator or the ambulance worker who spoke authority to him. Evidence on the voir dire voce evidence of Cheryl Dinner on the transcript of his call to 911. The first nineteen of Soikie. 13 There was no specific viva i’oce evidence
Page 19 in the words spoken or the of any kind. made by Mr. Paquette in the will and did not offend the confessions
not violate any right under the the state or while Mr. Paquette (Ont. Ct. J.), the accused requested as a person in authority at his murder. During the admissibility voce testimony of the 911 call-taker on the 911 call. The accused did not request, Cleary J. stated: followed it, it is clear that few people of their status, e.g.: police officers crucial test is whether there is evidence reasonably believe the receiver of authorities. R. v. Hodgson (para. 36) For uniform or identified themselves as infer that an accused “reasonably there must be some them to be able to influence the need be shown by evidence which and not a persuasive one. must be met by evidence that proves a the Crown) or on a balance means the responsible party pass a threshold test. was held to determine if the 911 to Soikie are persons in a position of was agreed by counsel to be the viva preliminary hearing and exhibit #4, the of forty pages have some comments on the voir dire.
14 The evidence established these facts: (1) The call began at 8:05 hours on (2) Soikie is the only caller’; (3) The 911 operator, Cheryl Dinner, answers you” (p. 1) (4) When Soikie says he has “... told she will be putting him through procedure;
(5) Another person is recorded as you need us?” (p. 2) (6) After obtaining the address and person asks to be told exactly what (7) That ambulance worker then someone has some questions for him (8) The 911 operator comes on the him what happened; (9) A short while later in the recording, a Soikie about the condition of the victim: “We there’s anything we could do for him Soikie: “No”
Ambulance Worker: “That we Soikie: “Police would be good”. (10) Cheryl Dinner testified that she civilian employee of the Toronto questions with officer safety and investigation 15 As there was no viva voice evidence evidence which can be used to determine phone is that of his words during the call, any and the factual situation before this Court. 16 1 find no admissible evidence from that the accused reasonably believed the 911 be persons in a position of authority. 17 The only evidence that bears on this had a reasonable belief: (I) the call placed by Soikie was answered: “Emergency, can (2) Because he was not in their presence, no clothing, location or body language
Page 20 Saturday, October 19, 2002; “Emergency, can I help a dead body on my hands’. (p. 1) He is to the ambulance because that is their
saying “Toronto Ambulance. Where do exact location of Soikie, the ambulance happened; tells Soikie to stay on the line because and some help is being sent; line again and talks to Soikie asking male ambulance personnel asks just wanna make sure that if ...“ (p. 14)
do that is a communications operator, a Police Force, and that she was asking in mind. from the accused on the voir dire, the his subjective view of the voices on the reasonable inferences from them which it can even be reasonably inferred operator or the ambulance worker to issue shows that Soikie could not have I help you”. inference can be drawn from of them.
(3) Cheryl Dinner’s action of “I have but we have our procedure” cannot of authority when Soikie is claiming (4) The ambulance worker’s first words do you need us?” (5) When, on page 14 of the transcript, a “We just wanna make sure that if there’s ...“, Soikie responds “Police would think he is talking to the police or agents 18 These support the conclusion that in evidence that he reasonably believes the 911 be person in authority who “could influence against the accused.” R. v Hodgsoiz, para. 35. [29] In R. i’. Hersey, 2006 ABQB 734, the degree murder. A voir dire was held to determine made by the accused to several people, including Department, an EMS paramedic, the arresting The accused did not testify on the voir dire. In member of the Edmonton Fire Department, Moreau 10 In response, Crown counsel referred (3d) 158, [19981 B.C.J. No. 1197 (C.A.), where a fatal collision and asked the driver if she was relayed by the paramedic to the police the purpose of the paramedic’s question ifilfill the requirements of his job. II Crown counsel noted that Hersey did that he failed to meet his evidentiary reasonably viewed McAvoy as a person in 12 The failure of the accused to testify may be cases where the Crown’s evidence whether a receiver of a statement is a “person if the evidence does not show that the relationship to the authorities, the inquiry statement was a person in authority must end 13 I find that the evidence does not raise reasonable belief that McAvoy was part of as to shift the persuasive burden to the Crown person in authority. Mr. Hersey made the arrival of emergency personnel at the scene.
Page 21 to put you through to ambulance, sir reasonably be viewed as an exercise he “... got a dead body on my hands”. are: “Toronto Ambulance. Where male ambulance worker indicates anything that we could do for him be good”. This infers that he doesn’t of them. all these circumstances there is no operator or the ambulance worker to the investigation or prosecution accused was charged with second-the admissibility of statements a member of the Edmonton Fire police officer and a police detective. admitting the statement made to the J. stated: to R. v. M.R.B. (1998), 51 B.C.L.R. paramedics arrived at the scene of had consumed alcohol. Her response on their arrival. The Court held that was not to solicit an admission but to not testify in the you dire. She argued burden to persuade the Court that he authority. is not determinative of this issue as there is such as to make the determination of in authority” a live issue. However accused had knowledge of a close as to whether the receiver of the there. a live issue as to Hersey having a a police or prosecutorial “team” such to establish that McAvoy was not a 911 call himself which resulted in the I find that the fire department crew
identified themselves as such on their arrival as uniforms. Some members of the crew who wore distinctive firemen’s bunker pants. Police to create confusion as to whom Mr. Hersey to nor is there evidence that Hersey was substances. McAvoy made a general inquiry and medications, one appropriate to his explaining the cause of her injuries. 14 I also reject defence counsels argument quo in McAvoy’s request to Hersey for medical information. There either from the tone or content of McAvov’s the surrounding circumstances to sustain this 15 As to the policy argument raised by the majority of the Court in Hodgson (at para. 29) judicial elimination of the “person in authority” rule, the inclusion of emergency personnel generally in authority” is a matter for Parliament. In personnel can be considered “persons determination.
[30] Similarly, Hersey’s comment to admissible by Moreau J.: 22 1 find that the circumstances do not give Hersey may have confused Jeschke for associated with the police. Jeschke and his identifying themselves as emergency personnel evidence to the contrary. I accept that Jeschke seeking information from Hersey. Their appear to be affected by intoxicating consistent with his treating role. While there that time, Jeschke testified that Hersey had the absence of any evidence to the contrary, observed Jeschke involved in treating the the record before me to make the existence the police a live issue. 23 Nor do the circumstances bear out defence treatment by EMS depended on Hersey’s Jeschke having already provided medical attention presence before questioning him. [31] In R. v. Glessman, 2013 ABCA 86, a made three statements: to the complainant and
Page 22 did the identifying badges on their entered the residence with MeAvoy personnel had not yet arrived so as might have thought he was speaking under the influence of intoxicating about the infant’s medical history duties, to which Hersey responded by that there was an implicit quid pro is no evidence questioning as he described it or in suggestion. the defence, consistent with the view of as to the appropriateness of requirement from the confessions in the category of “persons the meantime, whether emergency in authority” is a case-by-case
the EMS paramedic was held to be rise to a live issue as to whether a police officer or for one closely partner were wearing uniforms clearly and, in the absence of any introduced himself as such when exchange was calm, and Hersey did not substances. Jeschke made inquiries were officers present at the scene by been observing what was going on. In I find that Hersey would have child. There is insufficient evidence on of an association between Jeschke and counsel’s suggestion that ongoing cooperation, an implicit quid pro quo, to the infant in Hersey’s sexual assault case, the accused had her boyfriend, the complainant’s
boyfriend alone and the police. The accused discussing the possibility of private citizens Crighton J.A. stated for the court: 9 Statements made to private citizens are other evidentiary rules that may justify their [2010] 1 S.C.R. 688 at para 20. The confessions made to persons in authority for the purpose Hodgson at para 34. For this reason, the term to “those persons formally engaged in prosecution of the accused”: Hodgson at para be enlarged to encompass persons who are result of the circumstances surrounding the para 16. Accordingly, a person in authority accused reasonably believes is “acting authorities and could therefore influence or her’: Hodgson at para 48 [emphasis added]. In person in authority, the accused must subjectively receiving the statement (i) has the ability and (ii) is allied with the police or prosecuting 35. Though these criteria are judged from belief that he or she is speaking to a person Hodgson at para 34, SGTat para 26. If the knowledge of the receiver’s “close relationship pertaining to the receiver as a person in authority [32] The court in Glessman determined complainant and her boyfriend were admissible persons in authority: II Without necessarily accepting the appellant’s reasons in Hodgson, we find that the trial judge the test. She did not find that the complainant could simply because of her status as a complainant. Rather, the the evidence. While the appellant may have ability to influence the proceedings against him, in decline to report the incident to the police initiated, there was no indication that the connected to the police or the prosecution. In that the incident had even been reported, and specifically asked her not to contact the the voir dire, so there was no direct evidence authority, and the balance of the evidence Accordingly, the trial judge did not err in
Page 23 did not testify on the voir dire’s. In being considered persons in authority, prima facie admissible, subject to any exclusion: R v SGT, 2010 SCC 20, rule requires that a statement be of controlling coercive state conduct: ‘person in authority” usually applies the arrest, detention, examination or 32. However. “this definition may deemed to be persons in authority as a making of the statement’: Hodgson at may also include someone whom the on behalf of the police or prosecuting or control the proceedings against him other words, to be deemed a believe that the individual to influence or control the proceedings; authorities: Hodgson at paras 33-the accused’s perspective, the accused’s in authority must be reasonable: accused cannot show that he or she had to the authorities ..., the inquiry must end”: Hodgson at para 39. that the statements made to the as those individuals were not interpretation of the minority’s did not err in the application of not be a person in authority trial judge examined believed that the complainant had the the sense that she could and ensure that proceedings were never appellant believed the complainant was fact, he did not know at that time the complainant testified that he police. The appellant did not testify on that he believed her to be a person in did not compel that inference. concluding that the appellant failed to
meet his evidential burden of establishing complainant was connected to the state. 12 Similarly, we are not persuaded that the regarding the boyfriend. He testified that he that the choice whether to alert the authorities trial judge observed, there was no evidence police contact by the boyfriend before the entitled to infer that it was not reasonable collaboration between the boyfriend and dismissed.
[33] In R. v. Louangrath, 2014 ONSC whether a call-taker at the Ottawa Police authority. Aitken J. stated: 19 In each of R. i Latham, [1993] O.J. No. 4534 (1999), 94 O.T.C. 182 (Gen. Div.), the accused both cases, the court determined that the authority. The 911 operator was not considered addition, the operator was not otherwise examination, or prosecution of the accused. Nor suggest that the accused reasonably thought that the authority.
20 The circumstances of this case are not a 911 operator but was, instead, a civilian Police Services. It is arguable that someone some fashion, an agent of the police. 21 Furthermore, some of the information Vezina could be interpreted as an attempt on might exist regarding his involvement in Fradette. He claimed to have parked his vehicle Drink than other witnesses could place parked in the Market overnight because could not drive home safely. He claimed vehicle until shortly before he called approximately noon. He suggested that occurred overnight. He claimed not to be the course of the trial, the Crown will be assertions. This raises the question as to police was for the purpose of having purposes or whether it was, in fact, an effort reasoning in Grandinetti at paras. 39-44, the
Page 24 that he reasonably believed that the trial judge erred in her conclusion made it very clear to the appellant was the complainants alone. As the that the appellant was aware of any two conversations. The trial judge was to believe that there was any the police. This ground of appeal is
1126, Aitken J. discussed the issue of Reporting Center was a person in (Gen. Div.) and R. v. Paquette called 911 to report a shooting. In 911 operator was not a person in to be an agent of the police. In involved in the arrest, detention, was there any evidence to 911 operator was a person in
slightly different in that Mr. Vezina was call-taker working for the Ottawa would think that Mr. Vezina was, in volunteered by Mr. Louangrath to Mr. his part to reduce any suspicion that the offences against Messrs Morrice and at a locale more distant from The it. He claimed that he had left his car he had consumed too much alcohol and not to have seen the damage to his the police on April 24, 2011 at the damage to the vehicle had likely aware of any potential suspects. During tendering evidence to contradict these whether Mr. Louangrath’s call to the a police report created for insurance to mislead the police. Based on the concept of a “person in authority”
does not include someone who “seeks to investigation away from a suspect that the 22 Although the question of whether Sacha interesting one, I do not see the need to below, even assuming that the Crown has that Mr. Vezina was not a person in authority, the so patently obvious so as to be determinative [34] Justice Aitken then went on to add: 24 In the circumstances of this case, there factors suggesting the exercise of coercive 25 Mr. Louangrath initiated the telephone volunteered information as to why he was was to have a police report completed about the that he could provide the number of the He willingly provided personal details and He provided additional information about subjects as his having had too much to drink the night before Market area overnight. At no time did Mr. Vezina It was clear from the conversation that Mr. Louangrath was communicating in an efficient and employed to get any information from Mr. Louangrath. [35] In R. “. Ziegler, 2016 ABQB 150, Renke whether two 911 call-takers were persons calls were admissible. The accused testified testimony, Renke J. stated: 110 After Mr. Schafers was shot, Mr. Ziegler operators in succession. The recording of proof of the truth of its contents. The conceded. Mr. Ziegler confirmed that he operators as recorded on the CD tendered 911 call was not challenged under the common law voluntariness rules. A voir dire voir dire. I concluded that the 911 call was as an Exhibit. A summary’ of my reasons for 114 I referred to R v Hodgson, [1998] [2010] 1 5CR 688. I found that, in the circumstances, Mr. Ziegler was talking to the police when he was speaking was not undermined through cross-examination. No
Page 25 sabotage the investigation or steer the state is investigating’. Vezina is a person in authority is an determine it conclusively. As outlined not proven beyond a reasonable doubt answer to the third question is of this application. is no evidence whatsoever of any powers on the part of the state. call to the Ottawa Police. He calling. The stated purpose for his call vandalism done to his vehicle so police report to his insurance company. details about the vehicle in question. not raised by Mr. Vezina, such and his leaving his car in the make any threats or promises. had an operating mind and precise manner. No police trickery was J. held a voir dire to decide in authority, and if so, whether the 911 on the voir dire. In discussing this called 911. He spoke to two that call was tendered by the Crown as authenticity of the CD recording was was the person who spoke to the 911 as an exhibit. The admissibility of the Charter, but was challenged under the was held. Mr. Ziegler testified in the admissible and admitted the recording admitting the 911 call follows. 2 5CR 449 and R vSGT, 2010 5CC 20, believed that he with the 911 operator. That claim evidence was tendered that
undermined that conclusion. Mr. Ziegler, then, satisfied of the evidential burden he carried. But was operator was a person in authority? See Aitkin J at paras 15- 21. [36] In deciding that the 911 call-takers stated:
116 However, the manner in which (“fire, ambulance, police”) provided a basis operator was connected with the police identified himself as being connected with stronger basis for the conclusion that the operator See R i’ Glessman, 2013 ABCA 86 at para shooting, he was providing details about the reasonably -- that what he communicated trying to cooperate, to provide the necessary make the situation as safe for all involved 117 As Justice lacobucci emphasized assessment must be contextual, not categorical. Persons only those involved in arrest, detention, individuals who can influence the prosecution is to say, the trial judge must determine whether the receiver of the statement was acting authorities or was allied with the state investigation or prosecution against the accused: Hodgson 118 1 therefore found that the 911 operators Crown then was required to establish, voluntariness of Mr. Ziegler’s communications [37] Having determined that the 911 call-takers Ziegler, Renke J. went on to consider statements were given voluntarily. In admitting 126 Mr. Ziegler testified to the emotions circumstances --panic, thouthts of suicide, despair 127 Mr. Ziegler testified that in his communications was trying to make situation safe, to ensure they needed, so that the danger of the situation responded.
128 Mr. Ziegler testified that he had understood during the arrest process.
Page 26 the “subjective” element it reasonable to believe that the 911 R v Louangrath. 2014 ONSC 1126, were persons in authority, Renke J.
the first 911 operator identified himself for the reasonable inference that the service. The second 911 operator the police only, which provided a was part of the police apparatus. 11. Mr. Ziegler had called about a incident, and he believed -- I find would be relayed to the police. He was information to the authorities, and to as he could. in Qickle at para 71, the voluntariness in authority include not examination or prosecution, but or investigation of the crime. That the accused reasonably believed on behalf of the police or prosecuting authorities and could influence the at para 35. were persons in authority. The beyond a reasonable doubt, the with the 911 operators. were persons in authority in whether the Crown had proven the the statements, the court found: and thoughts one might expect in the at what the Ibture might hold. with the 911 operator he that the police had all information would be minimized when they
the instructions of the police
129 I therefore concluded that Mr. Ziegler the 911 call. He had the cognitive ability comprehend that the evidence may be Oick!e and JVhirlle tests for operating mind to Mr. Ziegler. Analysis [38] Mr. Butcher did not testify, so his direct evidence of his subjective belief, I must consider infer Mr. Butcher’s subjective belief. Mr. Butcher showing that he felt the 911 call-taker was could influence an investigation or prosecution have such a belief, was such a belief reasonable? taker have authority or control over Mr. Butcher prosecution against him? [39] There is no doubt that the 911 call-taker Regional Police. [40] During the 911 call it is obvious that Mr. Butcher assistance for himself. [41] The following is a significant portion 911 CALL TAKER: 911. what is your emergency? MR. BUTCHER: I need -- I need help. 911 CALL TAKER: Okay. And what’s MR. BUTCHER: I killed my girlfriend hand. I think I’m dying. 911 CALL TAKER: And where are you MR. BUTCHER: I’m at 17 Ocean-- 911 CALL TAKER: 7 -- 73 Oceanview? MR. BUTCHER: 17. You’re going locked. I need help please. 911 CALL TAKER: Okay. And you’re MR. BUTCHER: No, 1-7. Help. I’m 911 CALL TAKER: I can’t hear the number what...
Page 27 had an operating mind when making to understand what he was saying and to used in proceedings against him. The were satisfied by the evidence relating subjective belief is unknown. Having no the evidence I did hear to bears the evidential burden of allied with the state authorities and against him. If subjectively he did Objectively, did the 911 call-or over the proceedings or the is a civilian member of the Halifax was calling for medical of the 911 call: going on there? and I tried to kill myself, I cut off my at? Oceanview Drive in Purcell’s Cove. to have to breakdown the door, it’s saying 73 Oceanview? dying. that you’re telling me. Where --
Page 28 MR. BUTCHER: 17, 1-7. 911 CALL TAKER: 1-7? Okay. MR. BUTCHER: Yeah. I’m dying. 911 CALL TAKER: Okay. So 17 Oceanview Drive in Halifax, Halifax County? MR. BUTCHER: Yeah. 911 CALL TAKER: And you phone number 902 430-4135? MR. BUTCHER: Yeah. 911 CALL TAKER: Okay. Just stay on the line, I’m going to bring you right over to ambulance. (Dial tone, phone ringing.) AMBULANCE DISPATCH: Ambulance dispatch. 911 CALL TAKER: Regional 911, we have a call for EMC Metro and District. AMBULANCE DISPATCH: Okay, go ahead. 911 CALL TAKER: It’s going to be 17 Oceanview Drive in Halifax, Halifax, County.
AMBULANCE DISPATCH: Copy. 911 CALL TAKER: Call back 902 430-4135. AMBULANCE DISPATCH: Copy. Thank you, 911. Okay, tell me exactly what happened.
MR. BUTCHER: I killed my girlfriend my hand, and I’m dying. AMBULANCE DISPATCH: Okay. Sorry, can MR. BUTCHER: I -- I -- I need help. I’m AMBULANCE DISPATCH: Okay, just slow MR. BUTCHER: I--I can’t. I’m dying. AMBULANCE DISPATCH: Okay. The What’s your name? MR. BUTCHER: I’m dying. I killed AMBULANCE DISPATCH: Okay, listen, listen. The okay? What’s your name? MR. BUTCHER: I -- I’m dying. AMBULANCE DISPATCH: What is it? MR. BUTCHER: I’m dy -- I’m dying.
and I tried to kill myself, and I cut off you say that again. dying. your breathing down, okay? I cut off my hand. paramedics are on the way, okay? by girlfriend. paramedics are on the way,
AMBULANCE DISPATCH: Listen, we’re you to calm down. MR. BUTCHER: I can’t, I’m... AMBULANCE DISPATCH: I need to get some MR. BUTCHER: I’m bleeding to death. AMBULANCE DISPATCH: You cut off you’re saying. MR. BUTCHER: And I killed my girlfriend. She’s AMBULANCE DISPATCH: You’re girlfriend MR. BUTCHER: I killed her. AMBULANCE DISPATCH: Okay. MR. BUTCHER: I killed her and then AMBULANCE DISPATCH: Okay. What’s MR. BUTCHER: I’m — I’m dying. AMBULANCE DISPATCH: Sir, can you How old are you? Hello? Sir, how old are [Automated Voice: March 26th, 2016, 7 AMBULANCE DISPATCH: Sir, are you MR. BUTCHER: I’m dying. AMBULANCE DISPATCH: Okay. Listen breathing down, okay? Take some nice the paramedics to help you now’, okay? Just stay what to do next. Is there an apartment number So you talk to me there, okay? Tell me what’s MR. BUTCHER: I’m dying. AMBULANCE DISPATCH: Okay, we’re carefully. I’m going to tell you how to stop MR. BUTCHER: I don’t-- I don’t want AMBULANCE DISPATCH: Okay, we’re MR. BUTCHER: No, I don’t want to AMBULANCE DISPATCH: So listen to place it right on the wound, press down firmly, and MR. BUTCHER: I cut my hand off completely. AMBULANCE DISPATCH: Yeah. Can
Page 29 coming to help you, okay? But I need information... I cut off my hand. your hand, I know, I -- I hear what dead. is dead? I tried to kill myself. you name, sir? tell me your name so I can talk to you? you? hours, 46 minutes, 46 seconds.] there? to me. Okay, you’ve got to slow your deep breaths. Okay, listen, I’m sending on the line. I’ll tell you exactly there? Can you talk to me at all? going on. coming to help you. Okay, so listen the bleeding, okay? to die. going to help you. die. me. Get a clean, dry cloth or towel and don’t lifi up to look. you do that for me?
MR. BUTCHER: No. AMBULANCE DISPATCH: Why not? MR. BUTCHER: I’m dying. AMBULANCE DISPATCH: What -- what MR. BUTCHER: It’s off, it’s completely AMBULANCE DISPATCH: Yeah, I -- I -- you use to cut it off? MR. BUTCHER: I’m tired. AMBULANCE DISPATCH: I know. I’m need you to give me... MR. BUTCHER: No. AMBULANCE DISPATCH: ... some information, okay? MR. BUTCHER: No. No. AMBULANCE DISPATCH: Is the bleeding MR. BUTCHER: No, no. AMBULANCE DISPATCH: No? So did on? MR. BUTCHER: No. No. No. AMBULANCE DISPATCH: Okay, I need control the bleeding. MR. BUTCHER: No. No. Oh God. [Automated Voice: March 26th, 2016, 7 AMBULANCE DISPATCH: How -- how you are? Take some nice slow, deep breaths MR. BUTCHER: No. AMBULANCE DISPATCH: Listen, we need [42] Mr. Butcher called 911 for emergency [43] Once Mr. Butcher told him that there confirmed the civic address and call back passed the call to Ambulance Dispatch, and minutes. Mr. Butcher spontaneously told girlfriend and that he tried to kill himselt had
Page 30 did you use to cut your hand? off. I know what you mean. But what did going to help you through this. 1 just controlled now? you -- did you -- did you put a towel you to do that, okay? We need to hours, 49 minutes, 19 seconds.] old are you? Can you tell me how old for me, okay? to get that bleeding controlled. medical assistance. was a medical emergency, Mr. Masters telephone number for Mr. Butcher, then monitored the line for several Mr. Masters that he had killed his cut off his own hand, was dying, and
needed help. He repeated this to Ambulance involved in the call. [44] Toward the end of the call Mr. Masters of Mr. Butcher inside the residence and to the police were arriving on scene and he safety of the police. [45] There is absolutely nothing about Mr. Butcher’s call-taker that would suggest in any way that Jordan Masters had some sort of influence have that subjective belief, objectively, such [46] There is no evidence that the 911 call-taker Butcher or over the proceedings or the prosecution influence the investigation or prosecution spoken by Mr. Butcher to the 911 call-taker, and medical personnel (ambulance and paramedics) Police were also dispatched. Mr. Butcher and was placed under arrest. Conclusion [47] 911 call-takers are not presumptively evidence that Mr. Butcher subjectively believed taker, was a person in authority. Objectively, even evidence, Mr. Butcher’s belief in this regard [48] Mr. Butcher has not met the evidential burden Masters, the 911 call-taker, was a person in
Page 31 Dispatch as soon as they became attempted to determine the location ascertain whether he had a weapon, as wanted to ensure public safety and the interaction with the 911 that Mr. Butcher subjectively believed over his prosecution. Even if he did a belief was entirely unsupported. had authority or control over Mr. against him, or that he could against Mr. Butcher. Based on the words then to Ambulance Dispatch, were dispatched to the scene. received emergency medical attention persons in authority. There is no that Jordan Masters, the 911 call if there was such subjective would not be reasonable. required to show that Jordan authority.