R. v. McLeod 2024 ONSC 6906 – ADMISSIBILITY OF STATEMENTS TO HOCKEY CANADA

The November 2024 decision of Justice Bruce Thomas dealing with statements made by the defendants to the investigator appointed by Hockey Canada in the Canadian Juniors sexual assault proceeding has received very little attention from the employment bar to date. It should be examined closely as it may well have considerable impact on the rules of fairness in an employment context and, indeed, in any investigative context.

The decision arose from a preliminary objection made by the defendants prior to trial. The prosecution had intended to introduce statements made by three of the five defendants to the investigator, Ms. Danielle Robitaille, hired by Hockey Canada.

Prior to the interviews made in the investigative process, counsel for Hockey Canada had agreed to provide the statements made by the players and the investigative file to police, without a court order in place. It had also agreed to waive solicitor client privilege. The London police refused to accept this offer, yet did advise the investigator that it intended to seek a production order for the investigator’s file.

None of this was disclosed to the players.

When the investigator was asked if she was aware of how valuable such statements would have been to the police, Ms. Robitaille replied “I just didn’t care. It was collateral to me.”

Prior to this issue arising, Hockey Canada had put in place a Code of Conduct, which had set out certain safeguards that allowed the players the right to a hearing prior to the imposition of any discipline. This Code was repealed prior to these investigations being commenced. Hockey Canada also threatened the players with an automatic lifetime ban from Hockey Canada and the public disclosure of their identities should they have declined to participate in the interviews to be conducted.

Such sanctions would have prevented the players from participating in international tournaments such as the World Championships, the Olympics, or coaching hockey, even their own child’s minor league team.

This threat was repeated by the investigator to the players prior to the interviews. Counsel for the players had repeatedly objected to participating in the interviews, due to these coercive tactics.

Concurrently with the Hockey Canada requests for information, the London police had made the same requests, which were declined by the players as they maintained their right to silence.

Prior to the interviews, the police had allowed the investigator to view hotel lobby video surveillance of the complainant and the players, on the condition that she would not reveal this to anyone.

Ms. Robitaille also wrote to counsel for the players stating “Our investigation is confidential and we will take any and all reasonable steps to protect the anonymity of the participants, including the complainant and the players”.

When asked why she did not reveal to the players the intent of the police to obtain a production order for her file, she replied that this was a police matter and if the player’s counsel wanted information on this, they should have asked the police.

Ms. Robitaille did interview three of the players, McLeod, Dube and Formenton. Justice Thomas found that she “forged ahead knowing full well that the statements she compelled were going to end up in the hands of the police”.

When the production order was later put in place, the remaining interviews were cancelled. Justice Thomas observed that the investigator was “unable to explain to this court the difference she saw in knowing the production order was arriving imminently and having actually received it”.

The defendants objected to the content of the interviews being admitted for two reasons.

The first was a submission that the statements violated the common law confession rule. This required a preliminary finding that the investigator was a “person in authority”. Had such a finding been made, the Crown would then have had the onus of showing that the statement was made voluntarily. Justice Thomas found that the first step was not met. The Court did add, that had this not been so, the Crown would likely have been unable to show that the statement met the second test. (par 79-80)

The Court did, however, accept the second submission of the defendants, namely, that it would be unfair to admit the evidence based on the common law discretion to refuse the evidence. This was not a Charter argument as the investigator was not a state actor. (par 85)

Justice Thomas excluded this evidence due to “the fashion in which Ms. Robitaille chose to obtain these statements…..leads me to the conclusion that it would render the trial process unfair if they were admitted”. (par 81 and following)

The Court also found that the investigator’s handwritten notes of the interviews did not create a proper form of evidence:

It is clear Ms. Robitaille understood that handwritten notes would likely be vague, incomplete and open to conjecture. She clearly understood and accepted that this limited an accurate and reliable record and minimize the utility in any subsequent prosecution. And yet here we are.

Justice Thomas concluded that:

The probative value of the applicants’ statements compelled by the Hockey Canada investigation is far outweighed by the prejudice that would be occasioned by their admission.

This was a criminal proceeding, but the caselaw on unfairness applies to both civil and criminal proceedings.

This decision, while not in an employment context, raises many of the issues faced by even the most routine of employment investigations.

The case does allow for a duty of fairness owed by the investigator to those persons being investigated. This is obviously in a criminal context in this instance. Given the duty of fairness as expressed by the Supreme Court of Canada in Honda and Matthews and also the duty of honest performance in Bhasin, there is every expectation that the same duty would be extended in a civil context.

The decision raises countless questions related to workplace investigations.

What are principles of fairness to be expected from the investigator. Should they advise the person being questioned to retain legal counsel ? Should counsel be allowed to be present in the interview ?

Issues such as the right to counsel, Charter rights, self-incriminatory statements, the common law confession rule, the right to refuse questions asked, or even the right not to attend the investigative interview, are difficult enough for a lawyer to understand and apply, but consider the position of an unrepresented alleged offender. Should this person not know their rights, however defined, before attending the inquiry?

Similarly, should the inquiry set out the rules under which the investigation is being conducted? Should the suspected one know to what use the final report will be made, whether the report will be subject to solicitor client privilege or some such similarly protective barrier to access? Should the questioned one be able to take notes, and/or be able to comment on the accuracy of the investigator’s notes? These are live issues. The investigator’s position as a true neutral would lead to the disclosure of these issues.

Clearly the investigation should not rely upon handwritten notes to record the contents of the interview.

All of these issues should be considered with the arbitral decision of Metropolitan University in mind. This decision determined that a solicitor client relationship cannot allow for a neutral and fair investigation in the performance of an investigation under statutory authority. One might expect that this may well not be limited to this context in the future.