ONTARIO COURT OF JUSTICE
NEWMARKET
BETWEEN:
HIS MAJESTY THE KING
— AND —
STEPHEN APPLETON
JUDGMENT
Evidence Heard: March 2,3, 2026.
Delivered: April 7, 2026
Ms. Esti Azizi counsel for the Crown
Mr. Peter Brody counsel for the defendant
KENKEL J.:
Introduction
1York Regional Police responded to a call about a pickup truck in the ditch in Georgina. They located the vehicle, but the driver was gone. A few minutes later Mr. Appleton walked towards the officers. He was immediately cautioned about the collision investigation and a possible impaired driving investigation. Mr. Appleton advised police that he understood the caution. He said that he was the registered owner of the truck. He was driving and took a corner too fast which resulted in the truck leaving the roadway. He admitted drinking earlier that day. Further observations led to his arrest for impaired operation. Testing at the station on an approved instrument showed Mr. Appleton’s blood alcohol level was over the legal limit. He was charged with “80+” and impaired operation.
2The submissions of counsel identified one central issue for decision – whether the Crown proved the identity of the driver of the truck. Mr. Appleton identified himself as the driver in his statements to police at the roadside and in his statement to the Qualified Technician at the police station. Proof of the identity of the driver at trial turns on the determination of the following questions:
Has the Crown proved the accused’s statement to the breath technician was voluntary?
In the alternative, has the Crown proved the accused’s statement to the officers at the roadside was voluntary? If voluntary, was the accused detained so as to engage a right to consult counsel and a suspension of questioning until he had that opportunity?
3The parties agree that the evidence proves beyond a reasonable doubt that Mr. Appleton was impaired at the time of operation and had a blood alcohol concentration exceeding the legal limit within two hours of ceasing operation. The Crown proved that the officers had reasonable grounds to arrest Mr. Appleton and reasonable grounds for the breath test demand. Mr. Appleton was advised of his right to counsel upon arrest and spoke with duty counsel at the station prior to his statement to the breath technician and the approved instrument tests.
Voluntariness – The Statement to the Qualified Technician
4The Qualified Technician Constable Vincent asked Mr. Appleton a few questions before starting the approved instrument test. He asked whether the accused was ill, whether he knew what time it was, the time since his last drink, to confirm that his vehicle went off the road, whether he was driving home at the time, whether there was anyone else in the car who might have been hurt. Mr. Appleton identified himself as the person driving his truck when it went off the road.
5The defence submits that there remains a reasonable doubt regarding the voluntariness of that statement for two reasons: First, the question about operation was prefaced by general questions, an example of police trickery. Second, the questions came just prior to the administration of the breath test which is a mandatory procedure. It’s possible the defendant may have thought the questions were part of that test procedure. If that’s true, he may have felt compelled to answer those questions.
6Mr. Appleton was cautioned about his right not to speak with police as soon as he approached the officers at the roadside. He was cautioned again on arrest. Mr. Appleton spoke with a lawyer prior to being taken for breath testing with P.C. Vincent. It’s reasonable to infer that the legal advice provided would have included information about the breath test procedure and Mr. Appleton’s right to choose not to answer questions put by the police.
7Constable Vincent read Mr. Appleton the secondary caution. He asked Mr. Appleton to repeat back what that meant to him, but the accused didn’t answer. The officer then explained the caution again in lay terms – “If you don’t want to answer, just say you don’t want to answer, you’re not obligated to answer my questions”. The accused confirmed that he understood.
8The burden is on the Crown to prove that Mr. Appleton’s statements to the Qualified Technician were voluntary beyond a reasonable doubt – R v Oickle, 2000 SCC 38.
9There’s no evidence of threats, coercion of oppression during the breath room interview. There was no promise of any reward. Mr. Appleton had been drinking, but there’s no dispute he had an operating mind.
10Mr. Appleton was relaxed and chatted freely with P.C. Vincent about other matters including the reason he moved to Newmarket and the type of work he does. After the officer prepared the instrument for the first test Mr. Appleton restarted the conversation asking P.C. Vincent whether he also works on the road. When he was brought back to the breath room for the second test, Mr. Appleton started another conversation about radio static in the 404 and Green Lane area.
11Whether police have engaged in “trickery” is a distinct voluntariness inquiry as it’s not concerned with the reliability of the statement but instead is focused on maintaining the integrity of the criminal justice system – Oickle at para 65. In Oickle, the Supreme Court cautioned at para 66 that courts should not unduly limit police discretion.
12There was nothing in the brief questions put by P.C. Vincent which could reasonably have undermined Mr. Appleton’s choice as to whether to remain silent. Asking questions in a particular order may be a strategy, but it’s not “trickery” or “manipulation” as those terms are used in Oickle. There’s nothing in Constable Vincent’s conduct that could have overborne the will of Mr. Appleton or that would offend the community in any way.
13Asking questions before the breath test sequence could not reasonably have suggested to Mr. Appleton that he was compelled to answer, particularly where he was just told that wasn’t the case. There’s no evidence that suggests he felt compelled to answer those questions.
14I find the Crown has proved beyond a reasonable doubt that Mr. Appleton spoke freely and voluntarily throughout his interaction with Constable Vincent.
Voluntariness – The Roadside Statement
15In the alternative, if the breath room statement was not voluntary the Crown seeks to rely on Mr. Appleton’s roadside statements.
16Mr. Appleton abandoned his truck and left the scene. Officers arrived about 5 minutes after being dispatched in response to a 911 call from a person who had seen the truck in the ditch.
17The officers checked the vehicle to make sure there were no injured parties inside. They did an initial check of the license plate to get basic information about the registered owner. They took several photos of the truck from various positions marked as Exhibits 1A to 1D. Mr. Appleton returned to the scene and spoke with them. Within five minutes of his return he was placed under arrest for impaired operation and an approved instrument test demand was made.
18The evidence showed Mr. Appleton lived nearby. His direction of return indicated he likely went home after leaving his truck. P.C. Shelby wasn’t sure how far away Mr. Appleton was when the officers first noticed him. Constable Beveridge recalled it was approximately 50 metres. Mr. Appleton would have seen the two police cars and the two officers by his truck just as they saw him. He continued to walk towards the officers.
19The defence submitted that the officers walked towards Mr. Appleton, perhaps up to halfway or 25 metres and blocked or confronted him similar to the situation in R v Grant, 2009 SCC 32, where police blocked a person from proceeding down the street creating a detention. In Grant the police formed a “small phalanx” and the officers moved in front of Mr. Grant when he tried to walk by – para 183. They did not have the required reasonable suspicion to detain Mr. Grant so there was a breach of s 9 of the Charter.
20Both Constable Selby and Constable Beveridge testified that the accused walked to them. It was established in cross-examination that they approached him as he arrived, but as P.C. Beveridge explained it as a “couple of steps”. There’s no evidence they blocked him in any way. The officers remained with their cars by the truck in the ditch. They didn’t have to seek him out as he was coming to them.
21Mr. Appleton was not detained when he arrived. The officers did not know who he was. The driver had left, so he could have been the 911 caller, a witness, or the registered owner where someone else was driving. The driver returning to the scene was perhaps less likely, but when Mr. Appleton approached the officers saw that he was a mature male appearing to be of similar age to the registered owner. He seemed to live in the same area as the registered owner. The officers thought it possible that he might be the driver. Considering the tire marks which showed the truck drove off a clear and dry roadway and considering the time of night when impaired driving is more common, the officers thought it prudent to caution Mr. Appleton before he spoke with them.
22P.C. Beveridge read Mr. Appleton a caution that included a warning that they were investigating a motor vehicle collision and a possible impaired driving offence. He told Mr. Appleton that he did not have to say anything unless he wished to do so. If he did say anything it could be used in evidence. Mr. Appleton advised the officer he understood the caution.
23Mr. Appleton told the officers his name and that he was the owner of the vehicle. He was driving the vehicle 15 minutes prior. He took the corner too fast, and drove into the ditch.
24Mr. Appleton was under no legal obligation to speak with the officers. Aside from the specific caution in that regard, he was not under any legal duty arising from the truck being in the ditch. The legal duty to report an accident under s 199(1) of the Highway Traffic Act, RSO 1990 c H8, was not engaged as the accident did not result in personal injury and P.C. Selby did not see any damage to the truck when she examined it and took photos. There’s no evidence of damage exceeding $5000 which is the amount prescribed by regulation that results in a duty to report. None of the other circumstances that trigger a legal duty to report under s 199(1)(a) and (b) were present in this case. There’s no evidence that Mr. Appleton mistakenly thought he was speaking to police pursuant to a legal duty to report.
25The defence submits that it’s not credible that Mr. Appleton would return to the scene and then voluntarily identify himself as the driver of the vehicle when he was in an impaired condition. The defence submits that’s “borderline absurd” and unbelievable on its face. The court should completely reject the evidence of both officers on this point.
26None of the interaction at the roadside was captured on in-car-camera (ICC) video. That was reasonably explained by the fact that the truck was abandoned when they found it. The officers activated amber lights for the stopped vehicles, but they did not put on their emergency lights which would have activated the ICC. There was nobody to investigate at that time and nothing to record. When Mr. Appleton returned to the scene and spoke with them, they didn’t think at the time to go back to their vehicles and turn on their flashing lights to activate the ICC as they were engaged with Mr. Appleton.
27The officers are to be commended for proactively cautioning Mr. Appleton before they knew who he was. Their immediate caution was appropriate in the circumstances.
28The circumstantial evidence showed that Mr. Appleton went home after leaving his car in the ditch. If he wanted to continue to avoid any investigation of his driving, he would not have returned to the scene. The fact that he returned, walked up to the officers and spoke with them shows that he returned specifically for that purpose. There was no evidence of any other purpose.
29The testimony of both officers was logical, internally consistent on the central points and consistent with the accused’s actions. Their evidence is also consistent with the accused’s friendly, cooperative and talkative behaviour as shown on the breath room video. Their testimony was not contradicted by any other evidence or circumstance. I find their evidence was credible.
30The fact that Mr. Appleton described what happened at the outset is not itself incredible given the simple facts – he took a corner too fast and ended up in the ditch. While it may not be as common as it should be for a person to return to the scene and take responsibility for his driving, I disagree with the defence that the evidence that Mr. Appleton did so is so incredible that that it must not be true.
31The Crown has proved beyond a reasonable doubt that Mr. Appleton returned to the scene to speak with the officers. It was only after he identified himself as the driver and described the circumstances in which he drove off the road that he was detained. There is no evidence, circumstance or combination of the two that could reasonably leave a doubt as to the voluntariness of the roadside statement.
Conclusion
32The Crown has proved beyond a reasonable doubt that both of the accused’s statements to the police were voluntary. Those statements identified him as the driver of the truck at the time it left the roadway. The direct and circumstantial evidence proved beyond a reasonable doubt that Mr. Appleton’s ability to operate his vehicle at that time was impaired by his consumption of alcohol and that he had a blood alcohol concentration in excess of the legal limit within 2 hours of ceasing operation.
Delivered: April 7, 2026.
Justice Joseph F. Kenkel