Court Information

Date: September 8, 2017

Ontario Court of Justice

Her Majesty the Queen v. Brian Savoie

Before: The Honourable Justice Copeland

Location: Brampton, Ontario

Date of Hearing: September 8, 2017

Appearances

M. Thomaidis – Counsel for the Crown

S. Patel – Counsel for Brian Savoie

Ruling

Copeland J. (Orally):

Introduction

Brian Savoie is charged with one count of operation of a motor vehicle with excess blood alcohol. The defence has brought a motion under ss. 7 and 8 of the Charter seeking to exclude the breath sample results. The crux of the motion is whether Mr. Savoie's statements at the roadside identifying himself as the driver of the vehicle involved in the collision were statutorily compelled statements as part of the reporting duty under s. 199 of the Highway Traffic Act. Thus, this case turns on the Ontario Court of Appeal decision in Soules 2011 ONCA 429.

Crown counsel resists the motion primarily by arguing that Soules is wrongly decided. In very brief summary, the Crown's argument is that using a statutorily compelled statement for the purposes of providing reasonable suspicion to make an ASD demand or reasonable and probable grounds to make a breath demand as part of the Charter voir dire is not a self-incriminating use of the evidence, because it is being used only on the voir dire, and it not being used to prove an element of the offence charged. In the alternative, if I find I am bound by Soules, Crown counsel argues that Mr. Savoie's roadside statements were not statutorily compelled.

I will deal first with whether I am bound by Soules, and then with my findings of fact and application of the law to this case.

Stare Decisis and Binding Authority

Without going into a lot of detail, I note that the Crown's challenge to the correctness of Soules raises issues of stare decisis, and my role as a trial judge, who is bound to follow decisions of both the Ontario Court of Appeal and Supreme Court of Canada. In this regard, I find persuasive and follow the approach of Justice Paciocco, when he was a member of this court, set out in the decision of Gebrekirstos, 2013 ONCJ 265, at paras 4-13.

For the sake of clarity, I divide my consideration of the Crown's argument that I should not follow Soules into two sections: before the decision of the Supreme Court in Paterson, 2017 SCC 15; and after Paterson.

Pre-Paterson Analysis

I will deal first with pre-Paterson. Essentially, Crown counsel argues that Soules is an unwarranted expansion of White, [1999] 2 S.C.R. 417, and is contrary to Orbanski and Elias, 2005 SCC 37, [2005] 2 S.C.R. 3, regarding the limited use of compelled evidence for the limited purpose of showing reasonable suspicion to make an ASD demand or reasonable and probably grounds to make a breath demand. My brief response to that argument is that it was considered by the Ontario Court of Appeal in Soules, and rejected. As a trial judge I am bound by Soules.

Post-Paterson Analysis

I turn then to Crown counsel's second argument based on Paterson. The substance of this argument is the same, that Soules is contrary to Orbanski and Elias regarding the limited use of compelled statements for reasonable suspicion or reasonable and probably grounds to make a breath demand. The new part of the argument is that Paterson post-dates Soules, and in the Crown's view supersedes Soules.

In particular, Crown counsel argues that Paterson holds that use of compelled statements for reasonable suspicion or reasonable and probable grounds is not an incriminatory use, since it is not used on the trial proper to prove an element of the offence, and for that reason the Crown argues there is no s.7 violation. It is common ground that in Paterson the issue before the Supreme Court was a slightly different one, whether voluntariness of a statement has to be proven in order for the Crown to rely on the statement during a Charter voir dire. But Crown counsel argues that the principle is the same.

There is much force to the Crown's argument. The problem I have in accepting it arises from my role as a trial judge, the principle of stare decisis, and a comment in footnote 2 of Paterson. In footnote 2, Justice Brown, writing for the Court on this issue, noted that the Attorney General of Ontario specifically raised in argument some comments about the Soules decision, indeed about the exact issue raised in this case. Justice Brown then states:

Without commenting on the correctness of Soules, I observe that Orbanski's direction that the police may rely upon roadside statements for the purpose I have described was categorical.

Clearly, in footnote 2 of Paterson, the Supreme Court turned its mind to the Soules decision, and expressly declined to say that Soules was wrongly decided. I do not know why the Supreme Court chose not to say whether Soules was wrongly decided. It may be that the Supreme Court did not express a view of whether Soules was wrongly decided based on the principle of judicial economy, because, strictly speaking, the Soules issue was not before the Court in Paterson. But with the Supreme Court expressly adverting to the Soules decision, and not saying it was wrongly decided, I find that I am bound by the holding of the Ontario Court of Appeal in Soules. Although the logic of the last clause of footnote 2, as well as of paragraph 23 of Paterson may suggest what conclusion the Supreme Court would come to if it had before it a case squarely raising the Soules issue, I find that unless and until either the Ontario Court of Appeal, or the Supreme Court of Canada holds that Soules is wrongly decided, I am bound by the holding in Soules. I note that I am not holding that for the Supreme Court to overrule a Court of Appeal decision, it must always do so expressly. But I am unable to find that where the Supreme Court expressly declines to comment on the correctness of a particular Court of Appeal decision, it impliedly overruled the decision.

Section 1 Justification

Crown counsel also argued that even if I find that I am bound by the s. 7 holding in Soules, that the Court of Appeal in Soules did not consider whether the use of a compelled statement given as part of the duty to report only to prove reasonable suspicion or reasonable and probably grounds to make a breath demand is reasonable limit under s.1 of the Charter.

I find that a s.1 justification is not made out in this case.

First, the Supreme Court of Canada has expressed the view that it is unlikely that a s.7 violation could ever be justified under s.1, given the internal qualification in s.7 of the principles of fundamental justice. In my view, the Crown's argument stands or falls under s.7, not under s.1.

Second, it is not clear to me what would be "prescribed by law" in this context. The reporting duty in the provincial Highway Traffic Act is not what is being challenged. Rather, what is challenged is the use of the statement in a trial by the Crown in order to prove reasonable suspicion or reasonable and probable grounds. It is not clear to me that this action by Crown counsel can be something that is "prescribed by law" in the s.1 sense.

Third, I am not persuaded that allowing the use of compelled statements to prove reasonable suspicion or reasonable and probable grounds is a minimally intrusive limitation on the right to silence. There are other means by which the police can investigate a motor vehicle collision where there is the possibility of a concurrent criminal investigation which are less intrusive of the right to silence. I accept that some of these other ways are a bit round-about, but they are not unworkable or impracticable. Soules has been established law in Ontario since 2011. Police officers should be familiar with it. It is not unusual for police to come to a motor vehicle accident and initially investigate it under the HTA, but to find out as they investigate that there is a basis also for a criminal investigation. Being aware of both this regular possibility, and the law in Soules, in circumstances such as the case before the court, a police officer could avoid the situation that occurred in this case relatively easily. Rather than asking everyone at the scene who the driver is, the first officer on the scene could proceed by saying, for example: "I am not at this point taking accident report, and I am not asking drivers to respond yet, only witnesses, can anyone tell me who was driving this particular vehicle?" These sorts of alternatives are discussed in White at paragraphs 65 and 80.

For these reasons I find that the Crown has not shown on a balance of probabilities that the violation of the right to silence created in a Soules situation where statutorily compelled statements are sought to be used as evidence to prove reasonable suspicion or reasonable and probable grounds is a reasonable limit under s.1 of the Charter.

Findings of Fact

I turn then to my findings of fact in this case as they relate to the s.7 and s.8 Charter application, and the application of Soules. The burden of proof in a Charter application is on the applicant on a balance of probabilities. However, in a s.8 application involving a warrantless search, the Crown bears the burden of proof on a balance of probabilities. Thus, in this case, the s.8 burden is on the Crown, and the s.7 burden is on the defence.

Although I have concerns about the credibility of some aspects of Mr. Savoie's evidence, it is well established that in assessing the credibility of any witness, a trier of fact can accept some, none, or all of the evidence of witness. I accept as true Mr. Savoie's evidence of the questions that Constable Popalzai asked at the roadside, and how Mr. Savoie identified himself as the driver. I also accept his evidence that he believed he had a statutory duty to report the collision to Constable Popalzai and to identify himself as one of the drivers in the collision. I also find that his belief that he had a statutory duty to report was reasonable.

I note that on the issue of what questions Constable Popalzai asked when he got to the roadside, and the circumstances of Mr. Savoie identifying himself as the driver of one of the vehicles involved in the collision, Constable Popalzai's evidence does not significantly differ from Mr. Savoie's. The only issue on which there is a significant difference is the issue of Mr. Savoie's response to the question of whether he had been drinking. On that particular issue, I believe Constable Popalzai's evidence that Mr. Savoie's response was that he first replied "no", and then said, "yeah, about two and a half hours ago". But given the similarity of Constable Popalzai's evidence and Mr. Savoie's on the questions asked and the circumstances of Mr. Savoie identifying himself as the driver, I believe Mr. Savoie's evidence that he identified himself as the driver in response to a question from Constable Popalzai, and that he believed he had a statutory duty to report under the Highway Traffic Act.

Credibility Concerns

As I have noted, I do have concerns with the credibility of two aspects of the defendant's evidence. I do not believe his evidence that in response to Constable Popalzai's question about whether he had been drinking, he responded, "No", and then said "not before the accident". Constable Popalzai recorded a different response in his notes. I cannot see any reason for Constable Popalzai to be mistaken about the response Mr. Savoie gave. Also, one would expect, if a person who had just been involved in a collision gave the response "not before the accident", that this might prompt some follow up questions from the investigating officer.

I also have concerns about the credibility of Mr. Savoie's evidence about drinking in or by his truck after the collision, and then throwing the bottle away in the ditch. There is no objective evidence to support his evidence on this point. Constable Carulo searched Mr. Savoie's truck and did not find any alcohol containers. Mr. Savoie's evidence that he threw the alcohol bottle away at the roadside seems very convenient. Mr. Savoie testified that he threw the bottle in the ditch because he knew it was not a good idea to have open alcohol in the vehicle. But that explanation seems inconsistent with his evidence of making a decision to drink in or near the vehicle after the collision, which obviously would also not be a good idea.

In the absence of some supporting evidence besides the defendant's word, I simply do not believe that a person who has just been in a collision, and would expect police to arrive at some point, would decide to drink alcohol at the scene, given the obvious potential this action would present for the police to think the person had been drinking before they were driving. I note that at this stage I am working on the balance of probabilities standard, and not on the reasonable doubt standard that would apply at the end of a trial.

Accepted Evidence Regarding Roadside Interaction

However, I accept Mr. Savoie's evidence as to Constable Popalzai approaching the scene and asking three questions:

1. "Who are my drivers?", to which Mr. Savoie responded by identifying himself as the driver of the vehicle in the ditch;

2. Constable Popalzai then asked Mr. Savoie if he was injured, and Mr. Savoie said he was fine; and

3. Constable Popalzai then asked Mr. Savoie how the collision happened.

As I have noted, except for the response to a later question about whether he had had anything to drink, Mr. Savoie's and Constable Popalzai's evidence about the initial interaction at the roadside was in substance the same. Constable Popalzai described the same initial three questions as Mr. Savoie, and essentially the same responses; although neither Constable Popalzai nor Mr. Savoie could say the exact words used in Mr. Savoie's responses.

Statutory Duty to Report

I also accept Mr. Savoie's evidence that he believed he had a statutory duty to report when he was speaking to Constable Popalzai. Mr. Savoie had just been involved in a collision which caused significant damage to his vehicle. Thus, his assertion that he believed he had a duty to report is supported by the objective circumstances of the nature of the collision.

Further, Mr. Savoie testified about previous collisions he had been involved in, and the steps he took in terms of reporting them. In two cases when the damage was serious he waited at the scene and reported to police at the scene; and in two cases when the damage was less serious, he went to the reporting centre.

The Crown did not challenge his evidence about the previous collisions. Mr. Savoie's evidence about his previous collisions, which I believe, provides further support for his evidence that he had some experience with the duty to report under the Highway Traffic Act, and believed he had a duty to report that evening when he spoke to Constable Popalzai. Although Mr. Savoie did agree in cross-examination that he believed, in general, that as a citizen he has a duty to assist police, I find as a fact that that evening he believed he had a statutory duty to report the collision, including identifying himself as a driver under the Highway Traffic Act.

Legal Duty to Report

Lastly, I find that as a matter of law, Mr. Savoie did have a duty to report the collision to Constable Popalzai. Crown counsel did not contest that as a matter of law Mr. Savoie did have a statutory duty to report at the time Constable Popalzai arrived. I find that the fact that legally the duty was engaged, provides support for the credibility of Mr. Savoie's evidence that he believed he had a duty to report. S. 199 of the Highway Traffic Act provides, inter alia, if the damage exceeds the amount prescribed by regulation, the involved drivers must "report the accident forthwith to the nearest police officer" and provide the information set out in s 199(3). The information required to be provided includes "the particulars of the accident, the persons involved, the extent of the personal injuries or property damage, if any...."

Constable Popalzai was the first officer on the scene. Mr. Savoie was the driver of one of the vehicles involved in the collision. According to the evidence of both Mr. Savoie and Constable Popalzai, it was evident at the time of the discussion at the roadside that there was severe front end damage to Mr. Savoie's vehicle. It was reasonable for Mr. Savoie to believe that the damage exceeded the threshold of $1,000 to require reporting under the Highway Traffic Act. And Mr. Savoie's identity as one of the driver's involved is clearly a required aspect of the report, both as the "persons involved" in the collision and as the "particulars of the accident". Although a more detailed report was also taken later, the reporting duty arose as soon as Constable Popalzai arrived, and Constable Popalzai did nothing to delay the reporting duty.

Application of Law to Facts

I turn then to applying the law to these facts. In considering whether on the facts of the case, Mr. Savoie's roadside utterances were compelled statements within the meaning of White and Soules, I follow the three part approach in Parol, 2011 ONCJ 292, [2011] O.J. No. 2641, which has been cited with approval by the Superior Court in Bhangal, [2013] O.J. No. 3032.

First and Second Branches: Compulsion and Statutory Report

On the first and second branch, I find that as a matter of fact and law, in the circumstances facing Mr. Savoie, he was compelled by the Highway Traffic Act to provide a report of the collision to Constable Popalzai when they were at the roadside, and the statements provided were a report within the meaning of the Highway Traffic Act. Constable Popalzai was the first officer on the scene. S. 199 of the HTA provides that if the damage exceeds the amount prescribed in the regulation, the involved drivers must "report the accident forthwith to the nearest police officer" and provide the information set out in s.199(3). I have already gone over the information that s.199(3) requires be provided. Constable Popalzai was the first officer on the scene. Mr. Savoie was a driver of one of the vehicles involved in the collision. The amount of damage to Mr. Savoie's vehicle appeared to exceed the $1000 threshold requiring a report. And Mr. Savoie's identity as one of the driver's is clearly a required aspect of the report under s.199 of the Highway Traffic Act.

Third Branch: Honest and Reasonable Belief

With respect to the third branch of the Parol, whether Mr. Savoie had an honest and reasonable belief that he was compelled to report by statute, I have already explained that I accept his evidence that he believed he was compelled by statute to provide a report. So, I accept that he had an honest belief, and as I have already stated I find that his belief was reasonable. He explained why he believed he was compelled to report, and his explanation was logical and reasonable. Further, as a matter of law, he was compelled to report, which surely makes his belief reasonable.

Crown's Specific Arguments

Before leaving the compelled statement issue, I want to address two specific issues raised by Crown counsel. Crown counsel argued that Constable Popalzai's primary concern when he asked who the drivers were was to find out if anyone was injured, and that he needed to know who was driving to find that out. I do not accept that finding out who was injured can be divorced from the compelled reporting under s.199 of the Highway Traffic Act on the facts of this case, as a matter of either fact or law.

First, Constable Popalzai asked three questions, in quick succession, all of which related to issues that must be included in a report under s.199 of the Highway Traffic Act: Who are the drivers? Was Mr. Savoie injured? And what happened in the collision? This questioning was all part of the same transaction. In my view, it is formalistic to try and split up finding out about injuries from asking about identification of the drivers and the duty to report.

Second, as a matter of law, asking about injuries is inseparable from the duty to report, as "the extent of any injuries or property damage" is a required aspect of the reporting duty under s.199(3) of the Highway Traffic Act.

Crown counsel also argues that the fact that Constable Popalzai approached the group of people standing by the roadside to ask his initial questions, rather than approaching Mr. Savoie alone distinguishes this case from Soules. I reject this argument. Whether the question was asked to the group, or to Mr. Savoie alone, the question was asking the driver to identify himself. As I have noted, this could have been avoided by Constable Popalzai saying something to the effect of "I am not at this point taking accident report, and I am not asking drivers to respond yet, only witnesses, can anyone tell me who was driving this vehicle?"

Conclusion on Compelled Statements

For these reasons, I find that Mr. Savoie's statements to Constable Popalzai identifying himself as the driver of one of the vehicles involved in the collision were statutorily compelled statements.

Exclusion of Evidence

It is not clear to me that a s.24(2) analysis is required, as the exclusion of the use of the compelled statements appears to flow from s.7 and 24(1) as a result of the use immunity provided by s.7. In the absence of the compelled statements there was not reasonable suspicion for the ASD demand or reasonable and probable grounds for the breath samples, because the only information that Constable Popalzai had that Mr. Savoie was the driver of the vehicle involved in the collision with the truck was the compelled statements. I note that in this particular case, because of the snow storm, the evidence was that there were other vehicles and drivers at the roadside.

Section 24(2) Analysis

However, in the event that a s.24(2) analysis is required, I find that it supports exclusion. The breach is a serious one. The right to silence is a fundamental right in a criminal trial. The law in Soules was well-settled at the time of the investigation in this case, and had been since 2011. Although Constable Popalzai's actions were not in bad faith in the sense of being malicious, they were not in good faith, given his failure to consider the well-established law in Soules in deciding how to approach the investigation. Constable Popalzai should have been alive to the Soules issue, and if he had been, he could have taken steps to avoid the issue before the court. These factors favour exclusion of the evidence.

The impact on Mr. Savoie's Charter protected interests is significant. Although the breath samples themselves are reliable evidence and obtained in a minimally intrusive way, even post-Grant the Charter protection for compelled statements apart from breath samples is still robust. Thus, the use of Mr. Savoie's roadside statement identifying himself as the driver would have a significant impact on Mr. Savoie's Charter protected interests. In the absence of the compelled statements of Mr. Savoie identifying himself as the driver, there was not reasonable suspicion for the ASD or reasonable and probable grounds for the breath demand. This factor also favors exclusion.

With respect to the third branch of the Grant analysis, I accept that there is a societal interest in a trial on the merits of impaired driving related offences, both due to the societal interest in any trial being resolved on the merits, and due to the societal harms caused by impaired driving. This factor favors not excluding the breath results.

Final Determination

On balance, I find that the long-term repute of the administration of justice favors exclusion of the breath samples. The breath sample results are excluded from evidence.

Released: September 8, 2017