ONTARIO COURT OF JUSTICE DATE: 2022 01 28 COURT FILE No.: Windsor 20-1777
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
DARREN THORNE
Before: Justice S. G. Pratt
Heard on: 6, 14 December 2021
Reasons for Judgment released on: 28 January 2022
Counsel: Christina Eid, for the Crown Evan Weber, for the Defendant
1Darren Thorne, hereinafter the Defendant, is charged with one count of operating a conveyance with a blood alcohol concentration in excess of the legal limit. The charge arose on 12 September 2020 following a collision involving the Defendant’s vehicle. The Defendant argues that his admission to police that he was driving was compelled by the Highway Traffic Act and is therefore inadmissible to prove he was the driver of vehicle at the relevant time. Beyond that, there are multiple issues surrounding the evidence of the arresting officer. For the reasons that follow, I agree with the Defendant that his statement to police was compelled and therefore unavailable to the Crown to prove the identity of the driver. As there was no other evidence on the issue of identity, the Defendant will be found not guilty.
Admissions
2Date and jurisdiction were admitted. Identity was also admitted, but only to the extent that the person the police spoke to that night was the Defendant. It was also acknowledged that a collision occurred between a blue Honda Civic driven by Roy Macatangay and an orange Kia Sportage. That the Defendant was driving the Kia in question was not admitted.
Issues
3There are 2 issues to be decided in this case:
(1) Was the admission of the Defendant that he was driving that night a compelled utterance?
(2) If his admission was compelled, what use, if any, can the Crown make of it?
Issue 1: Was the admission of the Defendant that he was driving that night a compelled utterance?
4This matter proceeded as a blended voir dire and trial. It was agreed that the Crown’s evidence on the voir dire will apply to the trial while the evidence given by the Defendant will apply solely to the voir dire. The voir dire relates to the admissibility of the admission made by the Defendant.
5Section 199 of the Ontario Highway Traffic Act (hereinafter “HTA”) states:
199 (1) Every person in charge of a motor vehicle or street car who is directly or indirectly involved in an accident shall report the accident immediately to the nearest police officer and provide the officer the information concerning the accident as may be required by the officer under subsection (3) if,
(a) the accident results in personal injuries or in damage to property apparently exceeding an amount prescribed by regulation; or
(b) the accident involves any door of the motor vehicle that is open or opening coming into contact with a cyclist, a bicycle or a moving vehicle, even if the motor vehicle is stationary, stopped or parked. 2021, c. 26 , Sched. 1, s. 18.
(3) A police officer receiving a report of an accident, as required by this section, shall secure from the person making the report, or by other inquiries where necessary, the particulars of the accident, the persons involved, the extent of the personal injuries or property damage, if any, and the other information that may be necessary to complete a written report concerning the accident and shall forward the report to the Registrar within ten days of the accident. R.S.O. 1990, c. H.8, s. 199 (3) .
6The Regulation mentioned in s. 199(1)(a) is Regulation 596, R.R.O. 1990, which states the following at s. 11:
- For the purpose of subsection 199 (1) of the Act, the prescribed amount for damage to property is $2,000. O. Reg. 537/97, s. 1; O. Reg. 228/15, s. 1.
7Taken together, these sections require a person involved in a collision where the combined damage to both vehicles is over $2,000 to report that collision “immediately to the nearest police officer.” Failure to do so can result in a fine of up to $1,000 pursuant to s. 214(1) of the HTA .
8In the present case it is agreed that the Defendant told police he had been driving one of the involved vehicles. In his examination in chief, the following exchange took place:
COUNSEL: And so you say there was two officers that you…
DEFENDANT: Correct.
COUNSEL: …had sort of an exchange with?
DEFENDANT: Yes, correct.
COUNSEL: And go over exactly what you say happened?
DEFENDANT: Yep, they came over, I showed them my vehicle, they come over and asked me, and I told them that I was the driver of the vehicle, they started looking at my vehicle, they started asking for my documentations…
COUNSEL: Ok.
DEFENDANT: They started just asking me simple questions which I was answering to.
9And later in the examination:
COUNSEL: And so what was your purpose of doing what you did in terms of what you described, getting their attention, etc?
DEFENDANT: Well, ‘cause, and from my understanding, and I know, that you have to report an accident under the Highway Traffic Act .
COUNSEL: Ok, and so then, based on that, what did you do?
DEFENDANT: I gave my information and gave them a statement, and then I watched them take down my information and what not.
10The Supreme Court of Canada considered this question in some detail in the case of R. v. White, [1999] 2 S.C.R. 417. Writing for the majority, Justice Iacobucci considered what use could be made of a statement given under s. 61 of the British Columbia Motor Vehicles Act (effectively equivalent to s. 199 of the HTA ). At paragraph 75, Justice Iacobucci stated:
The Court of Appeal below did not discuss this issue in detail. I would like to elaborate briefly on the legal definition of a compelled statement under s. 61. In my view, the test for compulsion under s. 61(1) of the Motor Vehicle Act is whether, at the time that the accident was reported by the driver, the driver gave the report on the basis of an honest and reasonably held belief that he or she was required by law to report the accident to the person to whom the report was given.
11A compelled statement cannot be used against a defendant to prove his or her guilt as to do so would infringe on the right against self-incrimination. It is for the Defendant to prove that admission of his utterance would violate his rights under s. 7 of the Charter. Like any claimed Charter breach, he must do so on a balance of probabilities.
12I adopt, with one reservation, my brother Justice Duncan’s requirements for the test the Defendant must meet. In R. v. Parol, 2011 ONCJ 292, His Honour set out three points to be established:
(1) That the Defendant was, in fact, compelled to report the collision;
(2) That his statements were a “report”; and
(3) He honestly and reasonably believed he was compelled by statute to report the collision.
13First, I find that the Defendant was compelled in law to report the collision. He testified that the side of his vehicle was “caved in”. This constitutes significant property damage and triggers the reporting requirement of s. 199 . It is this point, however, where I express a reservation. It arises from the words of Justice Iacobucci at paragraph 78 of White:
I would note that the requirement that a driver's honest belief be reasonably held does not necessarily mean that the driver must have had, as a strict matter of law, a statutory duty to report the accident. This point was made by the trial judge, who found that it may be reasonable for a driver to believe that he or she is required to report an accident even where the damage caused by the accident is not sufficient to trigger the duty to report under s. 61 of the Motor Vehicle Act, or where the driver is unaware of the extent of damage caused. Clearly, the existence of a general statutory duty to report accidents is a critical factor in determining the reasonableness of a driver's belief that he or she was required to do so. However, I would not go so far as to say that a driver's belief in the duty to report will be unreasonable simply because, for example, the property damage caused by the accident appeared to total only $500 in value, while the trigger value for the duty to report under the Motor Vehicle Act is $1000 in the case of a motor vehicle other than a motorcycle. The nature and extent of the damage caused by the accident, and the driver's awareness of such damage, will simply be [page454] factors for the trial judge to consider in evaluating the reasonableness of the driver's belief.
14Justice Iacobucci seemed to be more concerned with the “general statutory duty to report accidents” than with whether a specific accident triggered the legal duty to report. Even if it was not immediately apparent to the Defendant that the amount of damage to the vehicles exceeded the threshold, he was still under a general duty to report the accident.
15Second, to determine if his words to police constituted a “report”, I must consider how they came about. He testified that he identified himself as the driver in answer to police questions. He further provided documentation in answer to their requests. This is vastly different from the roadside game of charades found in Parol . This was a conversation in which the Defendant provided identification information and discussed the collision. There is no evidence that he embarked on that conversation for any ulterior purpose. He did not volunteer the information or seek to get an exculpatory version of events on record. He answered questions. I find that his utterances are a “report”.
16Thirdly, did the Defendant have an honest and reasonable belief that he was compelled to report the collision? I look again to his evidence on that point:
DEFENDANT: Well, ‘cause, and from my understanding, and I know, that you have to report an accident under the Highway Traffic Act.
17In his evidence, the Defendant testified that he intended to call police following the collision but did not only because he was told they’d already been called. When they arrived, he motioned them over to his location. He answered their questions, as he believed he was required to do under the law.
18I heard no evidence that he knew or suspected that the total damage to the involved vehicles exceeded $2,000. That is the threshold for the legal reporting requirement (the HTA also requires reporting when the collision causes personal injuries, but that is not relevant here). Did the Defendant have to know about the damage threshold for his belief to be reasonable? In my view the answer is no. I am supported in that finding by Justice Iacobucci in White , at paragraph 78 set out above.
19In the result, I find that the Defendant’s self-identification as the driver of the Kia Sportage was a compelled statement. He held an honest and reasonable belief that he was under a duty to report the collision to police, and he did so at his first opportunity.
Issue 2: If his admission was compelled, what use, if any, can the Crown make of it?
20Though the Defendant’s admission to driving his vehicle was compelled by the HTA , that does not mean it is entirely unavailable to the Crown. Section 320.31(9) of the Criminal Code permits the admission of a statement compelled by provincial statute for the purpose of justifying a demand made under either of ss. 320.27 or 320.28. That is, while the compelled statement may or may not be admissible to prove the element of identification, it is still admissible to show the investigating officer’s grounds.
21But what of its use to prove identity? Parliament did not carve out an exception for that use, as it did for the issue of grounds to make a demand. Absent a specific legislative allowance, I must consider if admitting the report would violate the Defendant’s s. 7 Charter right against self-incrimination.
22One of the core elements of an offence under s. 320 of the Criminal Code is the identity of the driver. For the Crown to obtain a conviction, it must show beyond a reasonable doubt that the person before the Court was the operator of the conveyance in question. An inability to do that will render the rest of the evidence, however strong it might be, moot.
23For a confession (which is what this effectively is, at least related to identity) to be admissible, it must be found to be voluntarily given. I have already found that the Defendant’s statement was compelled by the HTA . It was clearly not voluntary. Admitting it as part of the Crown’s case to prove identity would violate the Defendant’s right against self-incrimination. Had Parliament wanted to further extend the use to which a compelled utterance could be put, it would have. It did not. I find that admitting the utterance would violate the Defendant’s s. 7 Charter right. The Defendant’s Charter application is granted.
24I now turn to the question of how to deal with it. The Crown argues that s. 24(2) of the Charter is engaged, and that an analysis under the principles of R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 is required. The Defendant would have to prove on a balance of probabilities that the evidence should be excluded.
25I cannot ignore, however, Justice Iacobucci’s comments on this very point in White . In that case the trial judge employed s. 24(1) to exclude the evidence. Justice Iacobucci looked at the history of using subsection 1, as opposed to subsection 2, as a basis for excluding evidence. This included citing with approval the words of Justice McLachlin (as she then was) in R. v. Harrer, [1995] 3 S.C.R. 562 at paragraph 42:
In addition to the common law exclusionary power, the Charter guarantees the right to a fair trial (s. 11(d)) and provides new remedies for breaches of the legal rights accorded to an accused person. Evidence obtained in breach of the Charter may only be excluded under s. 24(2): R. v. Therens, [1985] 1 S.C.R. 613 . Evidence not obtained in breach of the Charter but the admission of which may undermine the right to a fair trial may be excluded under s. 24(1), which provides for "such remedy as the court considers appropriate and just in the circumstances" for Charter breaches.
26There is a distinction between evidence that is obtained in a manner that breaches the Charter and evidence obtained in compliance with the Charter but whose admission would render the trial unfair. Put another way, it is not the evidence that is the problem, but its proposed use. In my view, that rationale fits HTA-compelled statements perfectly. There is nothing legally wrong with the manner in which the Defendant’s statement was obtained; the rub is in how it is to be used.
27I find that s. 24(1) is the appropriate section for determining the fate of the Defendant’s utterance. Admitting the statement would give the Crown powerful evidence to incriminate the Defendant, provided under compulsion by the Defendant himself. That is patently unfair. The unfairness is compounded by the fact that his statement is the only evidence I heard that put him behind the wheel of his vehicle. Without it, there is no evidence identifying the Defendant as the driver. His compelled statement, therefore, would be the cornerstone of the Crown’s case. Admission of the statement to prove identity would render the trial unfair, and so I exclude it under s. 24(1).
28Without the Defendant’s utterance, there is no evidence of identity. The Crown has not proved beyond a reasonable doubt that the Defendant was driving the motor vehicle at the relevant time. As a result, he must be found not guilty.
ASD Concerns
29Before I conclude, I want to address another aspect of the evidence. I expressed several concerns with the ASD testing procedure during the Crown’s submissions. While those concerns do not factor into the disposition of this case, I nonetheless will address them given that it was I who brought them up in the first place.
30I had three issues with the Crown’s evidence related to the ASD. They were:
(1) PC Salmon’s articulation of the “reasonable grounds to suspect” test before making an ASD demand under s. 320.27;
(2) The 13-minute delay in administering the ASD test; and
(3) PC Salmon’s evidence regarding what a “fail” result meant.
31All these issues relate to the lawfulness of the demand and the existence of reasonable and probable grounds to make an approved instrument demand under s. 320.28. In the result, none of these issues are relevant to the outcome of this trial. I say that as a result of the Supreme Court of Canada’s decision in R. v. Rilling, [1976] 2 S.C.R. 183. Justice Judson upheld the decision of what was then the Supreme Court of Alberta, Appellate Division. Justice Judson stated:
The cases are all reviewed in the judgment under appeal and I have nothing to add to this review. I agree with the conclusion of the Appellate Division expressed in the following terms:
It is my opinion that this Court should accept and adopt the views expressed in the Orchard, Showell and Flegel cases, Supra, and hold that while absence of reasonable and probable grounds for belief of impairment may afford a defence to a charge of refusal to submit to a breathalyzer test laid under subs. (2) of s. 235 of the Code, it does not render inadmissible certificate evidence in the case of a charge under s. 236 of the Code. The motive which actuates a peace officer in making a demand under s. 235(1) is not a relevant consideration when the demand has been acceded to.
32Rilling has been confirmed to remain good law by the Ontario Court of Appeal in R. v. Charette, 2009 ONCA 310, [2009] 94 O.R. (3d) 721. At paragraph 44, Justice Moldaver, then of the Court of Appeal, was unequivocal:
As Gundy makes clear, Rilling remains good law and it will continue to bind this court unless and until it is overturned by the Supreme Court of Canada or Parliament intervenes and changes the law.
33Here, the Defendant has brought a Charter application. Initially it included claims for relief under ss. 7, 8, and 9. At the outset of trial, however, counsel for the Defendant advised the Court that he would not be pursuing the s. 8 argument regarding reasonable grounds to make the instrument demand. Instead, the defence would argue only a s. 7 breach based on White .
34There was, therefore, no Charter application attacking the sufficiency of the officer’s reasonable and probable grounds. The demand made was acceded to. Rilling and Charette instruct me that the certificate of the qualified technician, filed on this trial as Exhibit 4, is admissible.
Conclusion
35Having granted the Defendant’s Charter application, there is no evidence before me to identify the driver of the vehicle that collided with Mr. Macatangay’s vehicle on 12 September 2020. The Defendant will be found not guilty.
Released: 28 January 2022 Signed: Justice S.G. Pratt