R. v. Ermine 2014 SKPC 67 – as this case is out of the Saskatchewan Provincial Court, it has no binding effect, but it is interesting because of the principles discussed in it.
Drugs were found in a school locker shared by the accused and another student. When the accused was asked to remove her belongings from the locker and she took the purse containing the drug, the other student was excused. The accused, however, was taken to the office where the vice-principal began to question her. The vice-principal sat behind his desk and the accused sat in a chair on the other side of the desk. He then began asking the accused questions. It was at this point that the witnesses begin to give some divergent testimony as to what occurred. The vice-principal said that he questioned the accused in his office for about an hour. She was upset and crying. He asked her if she was selling the drugs at school. She acknowledged that she was but that this was the first time that she had done this. He asked her where she got the drugs and she said from a family friend. He was not yelling at the accused and he denied threatening the accused, making any promises to her, or saying anything by way of an inducement to get her to talk.
The vice-principal said that his normal practice is to interview the student and then decide if the police should be called. In this case, he said that after the accused admitted selling at school, he told her he was going to call the police. This interview occurred on a Friday and it was his recollection that he called the police on the following Monday. After the interview was completed, he let the accused go but kept her purse and the contraband he had located and put them in the school safe until an officer could come and get them. This discussion in the vice-principal’s office was not videotaped or audiotaped and no written statement or verbatim accounting of the questions asked and the answers given were created. At the end of the questioning, the vice-principal made some notes of what he recalled was said, but by his own admission, there were a lot of questions and answers that he did not make note of. He admitted that the length of time that had passed from the meeting in his office until his testimony at trial had affected his memory.
The accused gave a somewhat different version of what took place in the vice-principal’s office. She testified that once the vice-principal found the drugs in her purse, he told her to come to his office. She went to the vice-principal’s office with him and another teacher because she did not feel that she had a choice. In the office, the vice-principal sat behind his desk, she sat in front of his desk and the other teacher sat in a chair by the door. The vice-principal did not tell her she could call her grandparents or anyone else, that she did not have to say anything or that she could leave at any time. Instead, he just started questioning her. The accused said that she was questioned by the vice-principal in his office for over an hour. He kept asking her if she was selling drugs at school. She kept denying that she was selling. He asked her where she got her drugs from but she refused to answer. She got up to leave a couple of times and the vice-principal told her to sit down. The other teacher was sitting by the office door so she sat down as she did not think she could leave. The vice-principal threatened to call the police a number of times if she did not answer his questions. He said that she would spend the weekend in Pinegrove, meaning the Correctional Centre for Women. The accused was getting tired, she was scared that she would end up going to Pinegrove and she wanted to go home. She thought that the only way that she would get out of the vice-principal’s office and not end up in jail would be to tell him what he wanted to hear. She did not feel that she had any other options. As a result, she told the vice-principal that she was selling and where the drugs had come from. It was only then that he let her leave, but told her she was suspended from school for three days. He also kept her purse and its contents. The only thing he gave back to her before she left was her cell phone.
The female student was subsequently charged with possession of cannabis marihuana for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act and further, that she had possession of hydromorphone contrary to s. 4(1) of the Controlled Drugs and Substances Act. The question on the voir dire was whether the statements the accused made to vice-principal in his office, in effect a confession, were admissible as evidence in the trial proper. These statements are governed by the confessions rule. This rule states that:
No statement made out of court by an accused to a person in authority can be admitted into evidence against him or her unless the prosecution shows to the satisfaction of the trial judge that this statement was made freely and voluntarily.
The Honourable Provincial Court Judge D.E. Labach said there was an evidentiary burden on the accused to show that there was a valid issue for consideration in that when the accused made the confession, she believed that the person to whom it was made was a person in authority. A person in authority is generally someone engaged in the arrest, detention, interrogation or prosecution of the accused. When one thinks of a person in authority, what immediately comes to mind is a police officer or Crown prosecutor. However, there is no catalogue of persons who are automatically considered “persons in authority” solely by virtue of their status. While these traditional examples will usually be considered persons in authority, so too will persons whom the confessor perceives to be an agent of the police or prosecuting authorities, allied with the state authorities or acting on behalf or in concert with the police or prosecuting authorities.
In this case, said the Judge, the accused had met the evidentiary burden. She testified that despite the fact that the vice-principal had already found the marihuana in her purse, she still had to go to his office where he questioned her behind closed doors for over an hour. Throughout the questioning, he was adamant that they were going to get to the bottom of this and that he needed to know if she was selling at school and who she got her drugs from. She tried to leave and he told her to sit down. She denied selling drugs at school more than once but he would not accept that answer. He made it clear to her that if she did not admit that she was selling and who she got her drugs from, he would call the police and she would spend the weekend in jail. He suggested it would go better for her with the police if she cooperated with him and later he made it clear to her that given the quantity of drugs she had, he was going to call the police and pass that information on to them. She was scared about going to jail for the weekend and felt that her only option to get out of the office was to tell him what he wanted to hear. This was some evidence that the accused believed the vice-principal was acting as an agent of the police or in concert with them sufficient to shift the burden to the Crown.
The Judge said, in this case, the vice-principal had found drugs and drug paraphernalia in the accused’s purse before he ordered her to his office for questioning. He had a basis to suspend her from school and to report the contraband to the police. He kept the purse, the drugs, and the drug paraphenalia. He did not have to do anything more than give the police the items he seized, provide a statement to them, and let the police investigate and lay the appropriate charges. Instead, he chose to question the accused further, so the only inference the court could draw was that the vice-principal was attempting to get information to give to the police to justify a more serious trafficking charge.
Accordingly, considering all of the evidence, the Judge concluded that the vice-principal was acting as a person in authority vis-a-vis the accused and the court was not satisfied that the confession made by the accused to the vice-principal was voluntarily made by her and the Judge was concerned that it was not reliable. As a result, the accused’s statements made to the vice-principal in his office were not admitted as evidence on the Charter voir dire or the trial proper.