During routine inspections or investigations after an environmental incident, EHS coordinators and other company employees may make statements to environmental officials. If the company is later prosecuted for environmental violations, can those statements be used against the company? According to the Supreme Court of Canada, a court must answer this question by first determining whether the statement was made voluntarily. If it wasn’t voluntary, then it’s inadmissible. However, if the court determines that the statement was voluntary, it must then decide whether the defendant’s Charter rights were violated in obtaining that statement. If there was no Charter breach, the statement may be admitted. Here’s a case that shows how an Ontario court applied this test to two sets of statements made by a defendant to a Ministry of the Environment (MOE) investigator.
WHAT HAPPENED
During an investigation of a potential C of A violation by a waste disposal company, an MOE investigator found evidence that the brother of the business owner being investigated had violated a court order not to be involved in the waste industry. He called the brother and explained that he’d found evidence of these violations. The brother admitted signing waste manifests, picking up loads of waste and delivering them to the landfill. The investigator told the brother that he may be charged with violating the court order and invited him to make a voluntary written statement. The brother declined. About four months later, the MOE investigator called and asked to meet the brother to serve him with a summons and other legal documents. They met at a donut shop suggested by the brother, who showed up without a lawyer. After being served the papers and before the meeting ended, the brother made some incriminating statements. The prosecution wanted to use the statements that the brother made on the phone and at the donut shop as evidence in the prosecution against him for violating the court order. The brother argued that the statements were involuntary and violated his Charter rights.
STATEMENTS OVER THE PHONE ARE INADMISSIBLE DECISION
The Ontario Court of Justice ruled that the brother’s statements over the phone were inadmissible because they weren’t made voluntarily.
EXPLANATION
The court acknowledged that the brother had made the incriminating statements about engaging in waste disposal activities over the phone without prompting and without being subjected to threats, tricks or inducements. In addition, he was free to end the conversation at any time by simply hanging up the phone. However, the brother had told the investigator that he would do anything to avoid being charged, including signing an affidavit promising never to transport waste again. Thus, the court said that although the investigator didn’t offer the brother any inducements, he made the incriminating statements in the hope of getting favourable treatment from the investigator. And the fact that he was seeking an inducement indicates that he wasn’t speaking voluntarily, concluded the court.
STATEMENTS AT DONUT SHOP ARE ADMISSIBLE DECISION
The court ruled that the brother’s statements in the donut shop were admissible because they were voluntary.
EXPLANATION
The brother was under no obligation to meet the investigator at the donut shop. He did so voluntarily, even picking the time and place. He knew that the purpose of the meeting was for the investigator to serve him with a summons and other legal papers. But he still chose to meet the investigator without a lawyer. The investigator didn’t detain the brother, threaten or trick him or offer him an inducements to confess. The brother could have left the meeting at any point. Instead, he chose to stay and engage the investigator in conversation about the charges. For example, he asked the investigator why the charges against him were so severe compared to those against his brother. (The investigator explained that non-compliance with court orders was serious business.) These were “deliberate and conscious choices by the defendant,” said the court. Thus, the court was satisfied “beyond a reasonable doubt” that the brother’s statements at the donut shop meeting were voluntarily and not in violation of his Charter rights.
R. v. Hanna, [2009] ONCJ 502 (CanLII), Oct. 23, 2009
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