Dennis W. Fenton

The accused applied to exclude evidence following a fatal accident investigation, arguing Charter breaches under ss. 8, 9, and 10 after police obtained statements, roadside screening results, and subsequent breath samples.

Earlier reasons excluded the accused’s compelled roadside statements under s. 24(1) and ruled they could not justify the approved screening device demand.

The remaining issue concerned whether observations made by a breath technician while obtaining Intoxilyzer samples should also be excluded.

The court held the detention was not arbitrary and the arrest was justified by a failed roadside screening device.

However, because the Intoxilyzer process and resulting observations flowed solely from compelled statements, admitting the observations would indirectly permit use of compelled evidence and undermine the right against self‑incrimination.

The observations were therefore excluded under s. 24(1), or alternatively under the court’s common law discretion.

The accused was charged with impaired driving causing death following a UTV accident.

In a pretrial motion, the accused sought to exclude statements made to police at the scene, arguing they were statutorily compelled under the Highway Traffic Act and their admission would violate his right against self-incrimination under s. 7 of the Charter.

The court found that the accused honestly and reasonably believed he was required by law to report the accident and answer the officer's questions.

The court excluded the statements for all purposes under s. 24(1) of the Charter, including as the basis for the approved screening device demand.

However, the court held that the officer's observations of the accused at the scene were not compelled and remained admissible.

The applicant brought a Charter motion seeking exclusion of roadside statements, police observations, and breath sample results arising from a motor vehicle collision investigation.

The court reconsidered an earlier ruling in light of appellate authority holding that statements compelled under a statutory duty to report a collision under the Highway Traffic Act are inadmissible in a criminal prosecution, including for the purpose of establishing grounds for a breath demand.

The court excluded the applicant’s admissions about having consumed alcohol because they were statutorily compelled.

However, the officer’s observation of the odour of alcohol was admissible as it was a passive observation made during a lawful detention and not the result of compelled participation.

The detention was reasonable and no breach of the rights to silence or counsel was established.