COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Moussavi, 2016 ONCA 924

DATE: 20161208

DOCKET: C60584

MacPherson, Cronk and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohammad Moussavi

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

Gillian Roberts, for the respondent

Heard: November 3, 2016

On appeal from the conviction entered by Justice Peter Tetley of the Ontario Court of Justice on February 20, 2015.

MacPherson J.A.:

A. introduction

[1] The appellant was convicted of dangerous operation of a motor vehicle causing bodily harm, contrary to s. 249(3) of the Criminal Code. At the scene of a very serious accident, the appellant answered questions from a police officer. He was then given a breath test that he failed. At his trial, the appellant argued that the results of the breath test were inadmissible on several Charter grounds. The trial judge dismissed the appellant’s Charter application in its entirety and convicted the appellant, who now appeals to this court.

B. facts

(1) The parties and the events

(a) The collision

[2] On June 21, 2011, the appellant’s black BMW struck the rear of Trevor Newhook’s red Toyota on Highway 407 at approximately 1:35 a.m. The appellant’s BMW was travelling between 171 and 226 km/h just after impact and would have been going faster prior to impact. Newhook was driving approximately 105 km/h.

[3] At the time of the collision, the roadway was dry and well lit. Traffic was light. The force of the collision was significant. The two cars ended up about 100 meters apart and Newhook’s Toyota came to rest about 250 meters from the point of impact. There was a great deal of debris on the highway between the two cars.

[4] Newhook’s Toyota was all but demolished. Newhook sustained a significant laceration to his head and intracerebral bleeding. His injuries had lasting effects.

[5] The appellant’s BMW tipped over, rolled, rotated, and slid on its roof before turning upright and coming to a stop. It was severely damaged. Incredibly, the appellant was not injured.

[6] Allan Reynolds, driving with his wife and son, saw the debris and pulled over. He called 911. Michael Armstrong, a tow-truck driver, arrived next. Reynolds indicated that he was approached by a man whom he assumed was the driver of the “dark car” (the BMW). Reynolds recalled that man asking “what hit me?”. Armstrong also testified that he was approached by an individual who indicated that the Toyota hit his vehicle. The man then walked back toward the BMW.

(b) The appellant and the police

[7] Constable Bill Gerov arrived at the scene at 1:44 a.m. He spoke to Newhook, Armstrong, Reynolds and Reynolds’s wife and son.

[8] Constable Eugene Johnson arrived at 1:47 a.m. He went to the Toyota and discovered that the driver was bleeding badly. He then went to look for the driver of the BMW. Cst. Johnson noticed the appellant and approached him. The appellant was walking towards the police cruiser as the officer approached him.

[9] When they met, Cst. Johnson asked the appellant if he was the BMW driver. The appellant answered that he was. The appellant said that the other vehicle hit him as he was driving back from downtown Toronto. At this point, Cst. Johnson detected an odour of alcohol coming from the appellant’s breath and asked whether he had been drinking. The appellant responded that he had. Cst. Johnson concluded that the appellant had been consuming alcohol recently and directed Cst. Gerov to escort the appellant to Gerov’s police cruiser to determine whether the appellant was “253 or not”.

[10] Cst. Gerov noticed the appellant walking in what he believed to be a nervous fashion. Cst. Gerov approached him. He asked whether the appellant was the driver of the BMW. The appellant confirmed that he was and indicated that the other vehicle hit him. Cst. Gerov detected an odour of alcohol on the appellant’s breath and asked him if he had been drinking. The appellant admitted that he had consumed three glasses of wine and two shots of Jägermeister. Cst. Gerov testified that he suspected the appellant had alcohol in his blood and, at approximately, 1:49 a.m., he directed the appellant to accompany him to his police cruiser to perform a sobriety test.

[11] At 2:00 a.m., Cst. Gerov demanded a breath sample from the appellant. At 2:04 a.m., the appellant failed the screening test and, at 2:07 a.m., the appellant was arrested. Cst. Gerov read the appellant his rights at 2:08 a.m. After arriving at the police station, the appellant consulted duty counsel. He was turned over to a qualified technician and provided two further breath samples.

[12] A Crown toxicologist testified that the appellant’s blood-alcohol concentration at the time of the collision would have been between 130 to 170 milligrams of alcohol in 100 millilitres of blood.

(c) The trial judgment

[13] At his trial, the appellant brought an application, alleging breaches of ss. 7, 8, 9, 10(a) and 10(b) of the Charter of Rights and Freedoms. He testified on the Charter application but not during the trial proper. Essentially, he made three arguments.

[14] First, the appellant asserted that he provided a self-incriminatory statement to the police at the scene of the accident. He says that these inculpatory utterances were statutorily compelled by s. 199 of the Highway Traffic Act, R.S.O. 1990, c. H. 8 (the “HTA”) and that their admission as part of the Crown case establishing his identity as the driver of the BMW violated his Charter s. 7 right to silence.

[15] Second, the appellant submitted that he was detained for investigative purposes at the scene prior to his arrest and was not advised in a prompt fashion of the reasons for the detention, thus infringing s. 10(a) of the Charter.

[16] Third, the appellant contended that the demand made under s. 254(2) of the Criminal Code was not made “forthwith” once it became apparent to the arresting officer that the appellant had alcohol in his body and had been operating a motor vehicle within the preceding three hours.

[17] The trial judge dismissed the appellant’s Charter application and convicted the appellant of dangerous operation of a motor vehicle causing bodily harm.

[18] The appellant appeals.

C. issues

[19] The appellant frames his issues in this fashion:

(1) The trial judge erred in admitting the roadside utterances and by concluding that they were not statutorily compelled;

(2) The trial judge erred in finding that there was sufficient evidence, absent the compelled statements, to justify taking the breath samples and to arrest the appellant; and

(3) The trial judge erred in finding that the police were permitted to “hold off” providing rights to counsel or to make the Approved Screening Device demand over “public safety” concerns.

D. Analysis

(1) Whether the appellant’s statements were compelled by statute

[20] The starting point for this issue is s. 199 of the HTA which provides in relevant part:

199. (1) Every person in charge of a motor vehicle … who is directly or indirectly involved in an accident shall, if the accident results in personal injuries or in damage to property apparently exceeding an amount prescribed by regulation, report the accident forthwith to the nearest police officer and furnish him or her with the information concerning the accident as may be required by the officer under subsection (3).

(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.

[21] The personal injuries sustained by Newhook and the amount of damage to property were circumstances that required the drivers of the two automobiles to provide the police officers with information concerning the accident in accordance with s. 199(1) of the HTA.

[22] The leading case dealing with statutory provisions like s. 199 of the HTA is R. v. White, 1999 CanLII 689 (SCC), [1999] 2 S.C.R. 417, where the Supreme Court of Canada considered a similar reporting requirement under the British Columbia Motor Vehicle Act, R.S.B.C. 1979, c. 288. In striking a balance between the statutory reporting requirements in provincial highway traffic laws and the Charter s. 7 right to silence, Iacobucci J., for the majority of the court, explained, at para. 75, that the test for compulsion in these circumstances 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.”

[23] The trial judge was aware of, cited and applied White. On the issue of the appellant’s subjective belief, the trial judge said, at para. 134:

The defendant testified that he had an honest and reasonably held belief that he was legally obligated to provide information to the police and to remain at the scene of the motor vehicle collision. By virtue of a combination of his driver training and previous peripheral participation in a motor vehicle collision involving his now ex-spouse, I am satisfied, at the very least, that the defendant had at least a generalized, non-specific, understanding of his duty to report the details of an accident under the Highway Traffic Act. [Footnote omitted.]

[24] On the issue whether the appellant’s answers to the initial police questions were in fact compelled, the trial judge said, at paras. 145-47:

I conclude that the defendant did not identify himself as [the] driver of the BMW as a result of his belief that he had a lawful obligation to report his involvement in a motor vehicle accident.

The trial record, and the evidence offered by the applicant on the Charter voir dire, serve to confirm that the applicant’s motivation was much more basic than that. It is evident that the applicant had a self-serving purpose for speaking to the police and did so in order to offer an exculpatory declaration of his own involvement in the collision.

The record confirms that the applicant approached Constable Johnson. I conclude the applicant volunteered the information requested freely and without coercion by statute or otherwise.

[25] The appellant submits that the trial judge erred in so finding. He says that when he told the police that he was the driver of the BMW his free will to remain silent was overborne by his statutory duty under s. 199 of the HTA. Accordingly, his Charter s. 7 right was triggered.

[26] I am not persuaded by this submission. Whether a statement was compelled by the HTA in all the circumstances of a case is a finding of fact. Absent an error in principle in applying the test from White or a palpable and overriding error leading to an unreasonable conclusion, a trial judge’s determination of the issue must be accorded deference.

[27] In my view, there is no basis to interfere with the trial judge’s conclusion that the appellant’s admission that he was the driver of the BMW was not statutorily compelled. The trial judge properly understood and articulated the test from White for statutory compulsion and reached a conclusion that was open to him on the evidence.

[28] From his comments at the scene to Reynolds and Armstrong, before the police arrived, it appears that the appellant was willing to admit that he was the driver of the BMW and, importantly, that he was anxious to state his position about the collision – that is, that the other vehicle hit him. Nothing changed when the police arrived. His interaction with the police was identical to his prior interactions with Reynolds and Armstrong. Accordingly, the trial judge’s conclusion that the appellant “volunteered the information requested freely and without coercion by statute or otherwise” is entirely supportable on the record.

[29] Whether a roadside statement made by an accused to a police officer after an accident is statutorily compelled is a question of fact to be determined based on the particular circumstances of each case. There will be instances where the accused will in fact be speaking based on a subjective and reasonably held belief that he or she must do so. But there will be other cases where the accused responds freely, entirely unmotivated by any statutory duty. In the latter case, the statements are not protected by the use immunity provided by s. 7 of the Charter.

[30] The proper balance is struck in White, at para. 76:

[C]ompulsion, by definition, implies an absence of consent. If a declarant gives an accident report freely, without believing or being influenced by the fact that he or she is required by law to do so, then it cannot be said that the statute is the cause of the declarant’s statements. The declarant would then be speaking to police on the basis of motivating factors other than s. 61 of the Motor Vehicle Act.

[31] In this case, the appellant believed that he had to report the accident. However, he was not influenced by this fact. The HTA did not cause him to answer the police questions. Thus, when the police asked him about whether he was the BMW driver, he gave his answer “freely”, as the trial judge found.

(2) Whether there was sufficient evidence, absent the appellant’s statements, to justify taking the breath samples

[32] In light of my conclusion on the first issue, it is not necessary to address this issue.

(3) Whether the ASD demand was administered “forthwith”

[33] Constable Gerov testified that at 1:49 a.m. he suspected that the appellant had alcohol in his blood and, therefore, he directed the appellant to accompany him to his police cruiser to perform a sobriety test. At 2:00 a.m., he made the breath demand. At 2:04 a.m., the test was administered and the appellant failed. The appellant submits that the 11 minute gap between forming the grounds for the demand and making the demand were offside the requirement of “forthwith” in s. 254(2) of the Criminal Code.

[34] I do not accept this submission. The trial judge’s reasoning on this issue was, at para. 154:

While it can be argued that the demand could have been made at an earlier opportunity, I conclude the very brief time that passed from the point that the defendant was determined to be the driver of the automobile and alcohol was detected on the defendant’s breath to the point of the demand is justified by the exigencies inherent in this investigation. In reaching this conclusion, I note that the investigation took place in the early morning hours, on a major highway, at an accident scene that featured two badly damaged automobiles and one injured driver. The debris field resulting from the collision was strewn over three lanes of the highway for a distance of approximately 100 metres. In these circumstances, the police concern for public safety serves to justify and explain the brief period of delay in the administration of the approved screening device (see Quansha, at paragraphs 45-49).

[35] I do not see a problem with this analysis. I would simply add that the Photograph Log of the accident scene easily supports the public safety rationale for a short delay. The collision was extremely violent and created a large debris field on a major public highway.

E. disposition

[36] I would dismiss the appeal.

Released: “JCM” DEC 8 2016

“J.C. MacPherson J.A.”

“I agree. E.A. Cronk J.A.”

“I agree. David Watt J.A.”