Citation and Court
Ontario Court of Justice (West Region, at St. Thomas, Ontario)
Parties
Between:
Her Majesty, The Queen
- and -
Christy Addley
Counsel and Court Information
Counsel:
- Elizabeth Wilson for the Crown
- Phillip Millar for the Accused
Trial Dates: August 25 & November 10, 2014
Decision Released: November 20, 2014
Justice: M.P. O'Dea
Endorsement
Charge
The accused is charged that on May 25, 2013 she had care, charge or control of a motor vehicle that was involved in a collision with a parked vehicle after which she failed to stop and give her name and address contrary to s. 252(1)(b) of the Criminal Code.
The accused served a Charter application alleging a breach of her s. 10(a) and (b) Charter rights and asking that her statements to police be excluded. At the close of the voir dire, I advised counsel the application would be granted and advised reasons would follow. These are my reasons.
Facts
The Collision and Initial Investigation
At or about 6:00 P.M. on May 24, 2013, Nicole Cartlidge parked her undamaged 2001 Dodge Caravan in front of her home at 95 Alma Street in the City of St. Thomas. At or about 3:00 A.M. on May 25, 2013, she was notified that her vehicle had been damaged. She advised the court that the damage was so extensive that the vehicle had to be written off.
At or about 2:20 A.M. on May 25, 2013, Officer Hindley of the St Thomas Police was advised by his dispatcher that a vehicle was seen driving north on Balaclava Street with sparks coming from its underside. Balaclava Street runs parallel to and one block east of Alma Street. As Hindley drove toward the area of Balaclava Street where the moving vehicle had been seen, he noted Ms. Cartlidge's damaged vehicle and stopped to investigate a possible connection. He notified other officers searching for the moving vehicle.
Officer Cosby received the same dispatch as did Hindley. He was at the intersection of Balaclava and Hammond Streets when he noted gouges in the road. He followed the gouges to a residence on Johnson Place several blocks away. He saw a heavily damaged van in the driveway of 7 Johnson Place. He heard noises from the rear of the residence and upon investigating, he saw the accused standing on an air conditioner trying to get into a window above it.
The Accused's Initial Statement to Officer Cosby
He spoke to the accused and told her he was investigating an accident that he believed the van in the driveway was involved in. The accused acknowledged it was her van and it had been in an accident but she was a passenger. She told the officer her van was being driven by a male she met at a bar. She said he agreed to drive her home and that she did not know his name nor could she describe him. She told the officer he was driving when her van struck the other vehicle. She advised Cosby when they arrived at her home, the male ran off with her keys. She explained she was trying to climb in the window because her house keys were on the same chain as her car key.
Cosby noted the accused was "quite drunk". Cosby looked inside the van and saw a purse. He wanted to look inside it for the keys but the van was locked. He notified other officers to search for the unidentified male driver. He told the accused police would contact her after she had sobered up and left her to find her own way into her house while he searched for the male driver.
Video Evidence
Officer Hindley had carriage of the investigation. It appears he was working his last scheduled night shift and was entitled to some days off. In the result, he did not contact the accused until May 31, 2013. However, the investigation continued. Police secured a security video from Legends tavern. It showed the rear of the building and a lone van parked in the lot. It showed a woman approach the vehicle, get in, back out and turn to leave the lot. Police allege the woman who entered the van was the accused. Another portion of the video shows the van leaving the lot with only one occupant. Within a matter of about nine minutes, the collision occurred.
The Police Interview on May 31, 2013
When Hindley called the accused on May 31st, he advised her he wanted her to come to the police station "to report the accident to us and help us identify the driver". On her arrival, Hindley told the accused he was investigating an accident and then issued a truncated primary caution. He told her the investigation was "not just HTA stuff, it is more an investigation on the criminal side" After this comment, he asked "if you wanna talk to anybody, do you wanna talk to a lawyer". The accused questioned whether she needed one and Hindley responded "it's totally up to you, I don't right now….you're not being charged with anything right now".
The accused chose not to call a lawyer and spoke with the police officer. She gave a statement describing her circumstances during the evening of May 24th and early on the 25th. In her statement, the accused reiterated that her van was being driven by an unknown male she had met at a bar just minutes before leaving. She also confirmed she had parked her van behind Legends.
After the accused finished her statement, Officer Hindley reminded her of the caution he read to her at the outset, reminded her this was a criminal investigation and warned her "so at any time if you tell us to go down a different path or lead us on an investigation which you know is wrong then that is a criminal charge called public mischief". He gave her another warning restricted to anything she might say and then asked her again if she wanted to call a lawyer.
Following the question, there were exchanges regarding whether the accused needed a lawyer upon which the accused asked "are you charging me?" Hindley responded "I'm not, there's no charges yet, I just wanna make sure that you are aware of what the potential is here".
Shortly thereafter, Hindley told the accused about the Legends video and told her it was only her who walked to the vehicle, got in, drove away and six minutes later, police were notified about the collision. He told her to think about what she might want to say and he stepped out to give her time to do so.
When Hindley returned, the accused asked whether she should "call and book off work?" Hindley did not answer but told her what his evidence showed. The accused continued to profess that she couldn't remember much because she was so intoxicated and she could not understand why she had become so intoxicated.
At this point, the accused became upset saying she hadn't drank that much, that her friends had abandoned her at the bar, she "just wanted to go home" so "I tried to go home". Hindley had her explain what she meant and she told him "I didn't think I drank that much" and she acknowledged she had driven herself.
With this admission, Hindley told the accused that "you're jeopardy has changed so right now, you're gonna be charged with the Criminal Code fail to remain at an accident". With this, the transcript clearly shows the officer reading rights to counsel from the text in his notebook. Just before doing so, the officer told the accused, in response to some questions she had"we can continue to investigate the investigation into that but right now, you've been forthcoming with me in regard to what's happened and actually filled in the blanks for us and we already knew the story".
Charter Application - Section 10 Rights
Detention
Section 10 is engaged only in circumstances where a person is "detained". Neither counsel addressed this issue but when the evidence is considered as a whole, there can be no doubt the accused was detained as soon as she attended the police station. As will be discussed below, the police firmly believed she was driving when the collision occurred and she was not going to be allowed to leave without being charged. Even if she did not acknowledge driving, police had more than reasonable grounds to arrest her for "care and control".
As far as the accused was concerned, when she arrived at the police station, she was there to report the accident and help police identify the driver. The officer confirmed he was investigating an accident – which would have been obvious to the accused. The officer's comments about the investigation not being "HTA stuff" but "on the criminal side" were intentionally obscure.
Police Conduct and Misleading Statements
The evidence is clear that when the accused was asked to come in, police knew exactly what they intended to charge her with. They saw the video. They did not accept her explanation that someone else was driving. What they believed they needed, however, was an admission of driving from the accused. Until they got the admission they were looking for, the accused was intentionally misled respecting her jeopardy at the time.
The officer's comments at the beginning that she wasn't being charged with anything "right now" were intentionally misleading. Police had all the information they needed to assess reasonable and probable grounds for an arrest. Even Officer Hindley acknowledged as much when he said you "actually filled in the blanks for us and we already knew the story".
Charter Breach Finding
Considering R. v. Evans, [1991] 1 S.C.R. 869 and R. v. Black, [1989] 2 S.C.R. 138, the accused's s. 10(a) rights were breached on these facts. In this context, the accused's questions whether she needed a lawyer become quite relevant with the result that the obligation of police to explain the exact nature of her jeopardy in context of the rights read – at that point - is accentuated. Not understanding one's jeopardy significantly interferes with one's ability to make a reasonable decision whether to call a lawyer or indeed, whether to answer questions or make a statement. On these facts, the accused was denied her right to an informed choice whether to speak to a lawyer or cooperate further because she did not understand the extent of her jeopardy.
Section 24(2) Analysis - Exclusion of Evidence
In the course of these breaches, the accused provided inculpatory comments that would almost assure the police would secure a conviction. The seminal question is whether the admission of this evidence will bring the administration of justice into disrepute. The answer is generated by a three stage balancing of facts addressing: (1) the seriousness of the Charter-infringing conduct of the State; (2) the impact of the breach on the Charter-protected interests of the defendant; and, (3) society's interest in the adjudication of the case on its merits. The inquiry is objective.
Stage 1: Seriousness of Police Conduct
The first stage examines the conduct of the police and weighs the seriousness of their actions on a spectrum from blameless to good faith to negligent to blatant disregard for the Charter rights of an accused. On the facts before me, I find the breach to be a blatant disregard for the accused's Charter rights.
On the evidence, the police believed the accused was driving her vehicle but wanted her admission of this fact. The interview was not an extension of the investigation but a focused effort to extort from the accused an admission against interests. The evidence supports that the accused was intentionally misled as to her jeopardy solely to secure the admission and this conduct amounts to a willful disregard for upholding the Charter standards demanded of police.
Stage 2: Impact on Charter-Protected Interests
The second stage assesses the interests of the defendant by identifying the right the Charter provision is intended to protect and balancing that right against the extent to which the breach actually undermined it. The extent to which the right is undermined will be assessed on a spectrum from the fleeting to the technical to the profoundly intrusive so this assessment will, by necessity, consider the stage 1 findings.
On these facts, the rights protected are intended to foster adjudicative fairness and fair treatment of a person who has been detained or arrested: Clarkson v. R., [1986] 1 S.C.R. 383. It seeks to limit the powers many in the community believe police have during an investigation of a crime and avoid the situation where an accused who, unaware of his/her rights or jeopardy, might believe he/she is obligated to answer questions. All of the s. 10 cases emphasize the critical importance of this understanding by every detainee.
In this case, the accused's rights were profoundly undermined. For whatever reason, the police wanted an admission of driving and I am of the view the officer believed that if the accused became aware of the real extent of her jeopardy, he might not secure the admission he sought. The fact that he eventually secured the admission all the while the accused operated in the dark about what was her jeopardy defines the profundity of the undermining of her rights.
Stage 3: Society's Interest in Adjudication on Merits
The third stage focuses the interests of the public in seeing that all criminal charges are adjudicated on their merits and at what point the appropriately informed member of the public would agree the impact of a Charter breach outweighs that interest.
The right to counsel is a right almost universally understood by most in our community. Most generally understand the purpose the right serves. Most in our communities would recognize how poorly informed the accused was from the outset in regard to her jeopardy. Considering the findings in the first two stages, I believe almost all would agree that to allow this evidence in would grossly outweigh its interest in seeing a trial completed.
Balancing and Conclusion on Charter Application
The court is then required to balance its findings in the three stages to determine if the admission of evidence tainted by a Charter breach would bring the administration of justice into disrepute. The interests of the community in seeing an accused brought to justice is significantly overwhelmed by the seriousness of the conduct of police and the importance of the right breached – to the accused and the community in general.
In the circumstances, I must disassociate myself from the conduct complained of. Not doing so would bring the administration of justice into disrepute on these facts and in context of the ability of the community to trust its rights will also be protected in similar circumstances.
On these findings, the Charter application is granted and the entirety of the interview of May 31, 2013 is excluded as evidence in this hearing.
Trial on the Merits - Care and Control
This finding did not end the trial. The Crown relied on the accused's "care and control" independent of driving. After submissions, I convicted the accused on this element of the offense and promised written reasons. The following are my reasons for the finding of guilt.
The Accused's Argument
The issue in these facts from the perspective of the accused is whether she, as a passenger, exercised any level of care and control at the time of the collision in question? She argues it can only be the driver at the time who is in the position to exercise the necessary care, charge or control of the vehicle.
Care and Control as Distinct from Driving
This position is not adopted by the Ontario Court of Appeal in R. v. Slessor, [1970] 1 O.R. 664. The Court found "it is not the driver who is required to give his name and address; it is the person who has the care, charge or control of a vehicle which has been involved in an accident who must give the information". In this, the Court obviously severed the concept of care and control as it relates to driving from the care and control as it relates to the intent of s. 252(1).
Purpose of Section 252(1)
Section 252(1) of the Code demands proof beyond a reasonable doubt that a person who had care, charge or control of a vehicle that was involved in an accident did not stop and give his or her name and address in an effort to escape civil or criminal liability. The intent of the offense appears clear in its wording. It demands information or assistance. The information demanded allows the innocent owner of another vehicle to know who hit his/her vehicle and to pursue any claims that may arise.
Application to the Accused
The accused alleges she delegated the task of driving her home on May 25, 2013 to another person. On the evidence adduced through Officer Crosby, the accused delegated a narrow task to the alleged driver: to take her from point "A" (a bar) to point "B" (her house) in her van. If this allegation were correct, it is clear she gave up some aspects of care and control connected with the task of driving between those points and even if the collision was the fault of her driver, the accused did not delegate to this driver the obligation to deal with the aftermath of the collision. It was her van and her obligation to demand that the driver stop and allow her to leave the information demanded under s. 252. It would be absurd, in context of the informational intent of s. 252(1), to find that only a stranger who happened to be driving the owner and her vehicle is required to leave his name and address but the owner is not obligated to leave any information about the vehicle simply because she was not driving. Such an interpretation would thwart the innocent owner's ability to seek redress for the damages to her vehicle.
The evidence is clear that the accused was aware of the collision as soon as it occurred. It is equally clear that the van left as soon as the collision occurred. It is clear the accused had it within her control to demand that her driver stop while she left the particulars demanded under subsection 252(1). That the accused left the collision scene without stopping and leaving her name and address is, without evidence to the contrary, proof she did so to avoid civil and/or criminal liability: R. v. Kresko, [2013] O.J. No. 1523, S.C.J.
On the evidence, the Crown has satisfied me beyond a reasonable doubt of the accused's responsibility for both the act and intent demanded under s. 252(1) and a conviction shall issue.
Credibility Assessment - The Unknown Driver
I should also note that had the issue been specifically argued, I would have rejected the accused's evidence, through the police officer, that another person drove her home. This finding can easily be made completely independent of the information disclosed on May 31, 2013.
Irrespective of her level of intoxication, it is utterly illogical that the accused would surrender any level of control over her motor vehicle without knowing the man's name, without any ability to identify him and without any consideration respecting his level of intoxication since they met at a bar.
There is no indication how this unknown person was to get himself home after he drove the accused to her house. There was no indication he intended to spend the night – the only evidence was he would drive and nothing more.
It is illogical that this man would run from the accused's home but not directly from the point of the collision. It is illogical that he would shut off the vehicle, remove the keys from the ignition and run away with them. It is equally illogical that before running, he and the accused would exit the vehicle, she would leave her purse inside and he would lock the doors before running.
Circumstantial Evidence - Who Was Driving
The Crown's case regarding who was driving at the time of the collision is entirely circumstantial. There is video evidence that the accused's van was driven away from Legend's about nine minutes before the collision and that only one person occupied the van as it left. There is no solid evidence who the driver was but once the alibi respecting the male driver is addressed, there is absolutely no evidence anyone other than the accused had access to the vehicle. The damaged van and the accused were found on her property. The fact of the collision was acknowledged.
Before finding that the accused was the driver, I must be satisfied on the totality of the evidence that the circumstances are not only consistent with an inference supporting that finding but that the circumstances could not lead to any other reasonable inference: Hodges Case (1838), 168 E.R. 1136; R. v. John, [1971] S.C.R. 781. I also note that unsupported conjecture cannot invoke the second part of the rule to rebut a prima facie case: R. v. Stevens, 11 C.C.C. (3d) 518, OCA. I find the facts are not only consistent with an inference supporting that the accused drove her vehicle to the point of the collision but that the circumstances could not lead to any other reasonable inference.
Nevertheless, the conviction is based on care and control other than by driving.
Justice M.P. O'Dea