Court File and Parties

Court File No.: Brampton 13-9251 Date: May 13, 2014 Ontario Court of Justice Central West Region

Between: Her Majesty the Queen — and — Alexandra Bociat

Before: Justice Richard H.K. Schwarzl

Heard on: April 3, 2014 Reasons released on: May 13, 2014

Counsel:

• Mr. Michael Michaud for the Crown
• Mr. Randy Norris for the Accused

SCHWARZL, J.:

1.0: INTRODUCTION

[1] In the early morning hours of June 21, 2013 the Accused was charged with Impaired Driving and Driving with Excess Alcohol. A trial was held in which there were three main issues.

[2] The first issue is whether or not the Accused's section 7 Charter right was breached by allegedly being forced to identify herself as the driver due to compulsion by the Ontario Highway Traffic Act. If her Charter right was violated, the Accused argues that the breath demand was invalid and that all subsequent evidence obtained in police custody including the breath tests, her statements to police, and evidence of impairment ought to be excluded.

[3] The second issue is whether the breath demand was valid. The defence argued that in the absence of any direct evidence as to the time of the collision, the police did not have reason to believe that the alleged offences occurred within three hours of making the demand.

[4] The third and last issue at trial is whether or not there is sufficient proof of impairment if all evidence gathered while in police custody is excluded upon the finding of a Charter breach or breaches.

2.0: SUMMARY OF THE EVIDENCE

2.1: Evidence for the Prosecution

[5] Chad Montgomery worked with the Accused at Turtle Jack's, a local licensed establishment. After finishing their shift in the early hours of June 21, 2013 Montgomery and the Accused decided to hang out together. Prior to leaving the bar, Montgomery had a few drinks but the Accused had nothing. She drove them to a friend's house where Montgomery got very drunk. He was not paying attention to what the Accused drank other than he knows she had at least one drink.

[6] Montgomery got a ride home from the Accused, but he was so drunk he didn't remember leaving or the trip itself. All he remembered was that the Accused, who was in the driver's seat, was trying to rouse him and get him to leave the car because they had been in some sort of accident and wound up in a ditch. He called 911 at the request of the Accused and he guessed the police arrived ten to fifteen minutes after the call was made. He had no idea how long they were in the ditch before the Accused roused him and he made the call.

[7] At around 4:34 a.m. P.C. Rae-Anne Parris was dispatched to the accident scene. She arrived there at 4:37 and saw a red car in a ditch. Although there was a significant curve at that point in the roadway that requires caution, P.C. Parris had no difficulty staying on the road while driving. The Accused and Mr. Montgomery were sitting on the side of the road. The officer approached them to ask them if they were alright. They said they were. No one said they required medical attention. Ambulance attendants checked out both occupants and did not administer any medical treatment.

[8] After checking the car to determine if anyone else was inside, P.C. Parris asked both the Accused and Montgomery what happened. Both appeared dazed and Montgomery said that they had an accident while the Accused was driving. The Accused began vomiting and was unsteady on her feet. The officer could smell alcohol on her breath at that time. P.C. Parris believed the Accused was drunk then asked her if she was driving, which the Accused acknowledged that she was. This confirmed what Montgomery had already told the officer. Other than being dispatched to a collision, P.C. Parris did not know or ask when the collision occurred.

[9] Around the time that P.C. Parris was speaking to the Accused, P.C. Karmjit Grewal arrived. She had been dispatched at 4:33 a.m. and arrived at 4:42 a.m. After observing the car in the ditch, P.C. Grewal approached the two occupants and asked if they were alright and what had happened. The Accused told P.C. Grewal that she was driving too fast around the bend, lost control, and went into the ditch. In response to the officer's questions the Accused said that she had a double shot of vodka at work and had a second drink later at a friend's house. When P.C. Grewal spoke to the Accused, the Accused was not detained nor arrested and was thus not cautioned. The officer initially approached her investigation at the scene as a Highway Traffic Act matter given the fact that there was a car in the ditch on its side.

[10] P.C. Grewal observed that the Accused's speech was slurred, that she was unsteady on her feet, her eyes were watery, and her breath smelled of alcohol.

[11] With respect to the time of the collision, P.C. Grewal disagreed with the suggestion that she had no idea when it happened. She said that the dispatcher was relaying information from the scene to her as she was on her way which suggested that the events were either still in progress or very recent. In the officer's experience it is common to receive calls regarding collisions within minutes of them having occurred.

[12] Given the entirety of the investigation, the matter had become a criminal one and at 4:43 a.m. P.C. Grewal arrested the Accused for impaired driving. The arrest was based on the dispatch to a single motor vehicle collision plus the totality of her observations and the information received from the Accused at the scene. At the time of the arrest, P.C. Grewal had not received any information from P.C. Parris or from Mr. Montgomery.

[13] The Accused was placed in the rear of P.C. Grewal's car and was given rights to counsel, a caution, and a breath demand, all of which the Accused said she understood. The Accused became sick and vomited outside of the police car. Shortly afterward, the Accused was transported by P.C. Grewal to the police station for breath testing. Prior to the breath testing procedure the Accused spoke to a lawyer in private.

[14] P.C. Grewal agreed that when she gave the Accused the breath demand, she had spoken with neither P.C. Parris nor Mr. Montgomery. However, P.C. Grewal testified that post-arrest and shortly after she gave the breath demand to the Accused, she spoke directly to Mr. Montgomery who told her that the Accused was the driver, thereby reinforcing the officer's belief that the Accused was in fact the driver. P.C. Grewal did not make another breath demand on the Accused after speaking with Mr. Montgomery.

[15] At 5:49 a.m. P.C. Grewal gave her grounds to the qualified technician, P.C. Darcy. P.C. Grewal told the qualified technician in part that the Accused was unsteady, had slurred speech, was nauseated, threw up, and smelled of alcohol. P.C. Grewal also told P.C. Darcy that the passenger had pointed out to her that the Accused was the driver.

[16] At 6:05 a.m. the Accused provided a suitable sample of her breath into an approved instrument operated by P.C. Darcy. The sample was analyzed and revealed a blood alcohol concentration of 192 milligrams of alcohol per one hundred millilitres of blood.

[17] At 6:27 a.m. the Accused provided a second suitable sample of her breath into an approved instrument operated by P.C. Darcy. The analysis of this sample revealed a blood alcohol concentration of 183 milligrams of alcohol per one hundred millilitres of blood.

[18] Between the breath tests, the Accused provided a voluntary statement to P.C. Darcy in which she made the following relevant utterances:

• she was driving the car
• she had no idea how much the damage was, but the car was sideways
• she felt the effects of alcohol while driving but felt OK to drive
• she was going way too fast across a turn and ended up in a ditch
• she did not hit her head
• she told her friend to get out
• they called right away
• the first officer came within two or three minutes after calling
• she had a double shot at the bar and one drink at her friend's

2.2: Evidence for the Defence

[19] Ms. Bociat testified only on the Charter voir dire. She testified that when she took driver's training, she was taught that she had to give a statement to a police officer in the event of an accident. She said that when she spoke with the police at the scene she didn't know her words could be used against her and didn't know that she could refuse to speak to them. She didn't recall speaking with a lawyer at the station prior to the breath tests but agreed she must have. Although voluntariness was admitted, Ms. Bociat said that she felt she had no choice but to answer P.C. Darcy's questions in the breath room.

[20] Ms. Bociat agreed that she had a lot to drink and that the consumption could have adversely affected her memory of events. She also agreed that she knows the police are there to protect everyone. She admitted that she wanted to cooperate with the police and to be helpful regardless of any legal obligation. She agreed that she would have cooperated whether or not there had been an accident.

3.0: ISSUES AND ANALYSIS

3.1: Was the Accused's s.7 Charter right breached?

3.1.1: Applicable legal principles

[21] In R. v. White (1999), 135 C.C.C. (3d) 257 the Supreme Court of Canada held that section 7 of the Charter is breached when a person is compelled by a statute to provide the police with inculpatory information, including the identity of the person as the driver of a motor vehicle involved in a reportable accident.

[22] The onus is upon the Accused to prove on a balance of probabilities that she had an honest and reasonably held belief that she had to provide information to the police and that she made the statements because of that belief. Statements may be excluded where the court finds that the Accused was influenced by as little as a generalized, non-specific understanding of a driver's responsibilities to report the details of an accident under the Highway Traffic Act: R. v. DaCosta (2001), 156 C.C.C. (3d) (Ont. S.C.J.). However, the Accused's knowledge of the nature and extent of any damages or injuries that might trigger a statutory duty to report are factors in determining the reasonableness of the Accused's belief that she was compelled by law in inculpate herself: White, supra, at ¶ 78.

[23] In Ontario, s.199 (1), (3) and (5) of the Highway Traffic Act provides:

199 (1) Every person in charge of a motor vehicle or street car 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….

(5) The Lieutenant Governor in Council may make of property damage for the purposes of subsection (1).

[24] Regulation 596, R.R.O. 1990 as amended by O.Reg.537/97 s. 11 states that for the purpose of subsection 199 (1) of the Highway Traffic Act, the prescribed amount for damage to property is $1,000.

[25] Ontario law thus compels drivers to furnish information as requested by a police officer where there has been an accident. The duty is not absolute, but limited to instances where there are personal injuries or property damage apparently over $1000.

[26] In reviewing the authorities on this issue, it would appear that the trial court should address three factors in assessing the honesty and reasonableness of the Accused's belief in legal compulsion to speak to the police at an accident:

(i) Did a law actually compel the Accused to make a statement to the police?

(ii) Whether or not the law compelled the Accused to make a statement, was it reasonable for the Accused to believe it did?

(iii) Did the Accused act upon her belief in legal compulsion or was there some other reason to make the statement?

[27] Where the court finds a section 7 Charter breach, the compelled information must excised and cannot be used for any litigation purpose by the prosecution: R. v. Soules, 2011 ONCA 429, [2011] O.J. No. 2500 (C.A.).

3.1.2: Analysis

[28] When P.C. Grewal first arrived on scene, she saw a car flipped on its side as well as the Accused and Mr. Montgomery, both of whom said they were uninjured. Both parties were examined by ambulance attendants and released at the scene without any treatment. Both the Accused and Mr. Montgomery said they were shaken up, but otherwise uninjured.

[29] Beyond the car being on its side, there was no evidence of any damage per se to the car. P.C. Grewal assumed she was dealing with a reportable accident but never said why. The Accused told the qualified technician that she had no idea of how much damage there was to the car. No evidence was led of any repair costs or repair estimates.

[30] In the circumstances of this case, it is unclear to me whether the Accused had any duty to provide a section 199(1) Highway Traffic Act report or statement.

[31] The Accused told Mr. Montgomery to call the police. There was no evidence that she told him to call the police to report the accident for a statutory purpose. In the absence of any evidence it is equally likely that she told him to call the police for help.

[32] Ms. Bociat's memory of the events is poor. She agreed she had a lot of alcohol that night and her memory may well have been compromised by the alcohol. She does not recall speaking to duty counsel, although it is clear from the police evidence that she did.

[33] Ms. Bociat testified that she was taught in driver's school that in the event of an accident she had to give a statement to the police. She also testified that the police are there to help citizens in need. She admitted that she wanted to cooperate with the police and would have regardless of any legal obligation or of any accident.

[34] Given the absence of any injuries, the absence of any evidence of damages, the lack of evidence as to what motivated her to have her friend call the police, and her fuzzy recollections of the events, I am not persuaded that Ms. Bociat's stated belief that she had to divulge information to the police on this occasion was reasonably held in the circumstances of this case.

[35] Even if she had an honest and reasonably held belief that she had a duty to provide details of the accident, I am not satisfied on a balance of probabilities that this duty was the motivating force in her decision to tell P.C. Grewal she was the driver. On this evidentiary record, it is equally likely that the Accused was compelled by a moral sense of duty to cooperate with the police. In other words, even if Ms. Bociat believed she had a duty to report details of the accident under the Highway Traffic Act, she has failed to show that it was more likely than not that she acted upon this legal duty, versus her acting upon her moral desire to cooperate: R. v. Pita, [2013] O.J. No. 5974 (O.C.J.); R. v. Saunders, [2004] O.J. No. 472 (S.C.J.).

[36] The section 7 Charter application is therefore dismissed.

[37] If I am wrong and the Accused's section 7 Charter right was breached I would not exclude the evidence of her identity as driver and all subsequent evidence gleaned while in police custody. Applying the test in Grant, 2009 SCC 32, [2009] S.C.J. No. 32, I would not find the breach, if any, to be serious. This is because a very short time after making the breath demand, P.C. Grewal was told by Mr. Montgomery that the Accused was the driver. If the Accused's admission is excised, the officer would nevertheless have almost immediately had at her disposal an alternative, and wholly admissible, basis upon which to believe the Accused was the driver. Indeed, when she gave her grounds to the qualified technician, P.C. Grewal told him that the passenger had identified the Accused as the driver. Also, the Accused's motive in speaking to the officer was unclear. The imminent discoverability of the identity of the Accused as driver and her mixed and unclear motivation places the seriousness of the breach at the lower end of the scale and does not favour exclusion. The Charter protected interests of the Accused were not impaired, especially given the statement made to P.C. Grewal by Mr. Montgomery that the Accused was the driver. Lastly, the public interest in a trial on the merits militates in favour of inclusion. On balance, even if there was a breach of the Accused's section 7 Charter rights, I would not have excluded the evidence.

[38] Even if the evidence of the Accused's self-identification was excluded, and P.C. Grewal's demand rendered invalid, it may well be that the qualified technician's demand was nevertheless valid as it was based in part on independent evidence from Mr. Montgomery that she was the driver.

[39] It is clear from the tone and quality of the police evidence in this case that the officers did not appear to turn their mind to the principles set out in White, supra. The case before me is one of many where the police seem unaware of both the principles at stake and of the potential means of avoiding problems. In White, the Supreme Court made specific suggestions on how the police can cope with this issue, to wit:

¶ 65 … There are several ways in which police might organize their investigation in order to prevent any information acquired independently of s. 61 from becoming "tainted", as it were, by the accident report that is subject to use immunity. One possibility … is for police to inform the driver that they intend to secure the details of the accident report, not from the driver himself or herself, but "by other inquiries", thus terminating the driver's statutory duty to report the accident and permitting police to begin their investigation immediately.

¶ 80 … [A]s a practical matter, it will be very important for the police officer who takes an accident report while simultaneously investigating a crime to delineate clearly for the declarant the start and end points of the accident report. For example, it may be useful for police to tell the driver that they will postpone the taking of an accident report until after they have questioned, or attempted to question, the driver. Alternatively, as discussed above, police may wish to tell the driver that they intend to secure the details of the accident report from sources other than the driver, thus terminating the statutory duty to report.

(Emphasis added)

[40] Awareness of these methods by the police will help ensure greater protection for the public and better quality of police investigations. I hope that in future cases, the police will elect to follow the Supreme Court's recommendations or other strategies to enhance the interests of both accused persons and of justice.

3.2: Did the police have reasonable grounds to believe the offence had occurred within the preceding three hours?

3.2.1: Applicable Legal Principles

[41] Section 254(3) of the Criminal Code states, in part, that for there to be a valid breath demand, the peace officer making the demand must have reasonable grounds to believe that the Accused has committed an offence under section 253(1) within the preceding three hours.

[42] The officer's grounds must be both subjectively and objectively reasonable: R. v. Shepherd (2009), 2009 SCC 35, 245 C.C.C. (3d) 137 (S.C.C.). The officer is entitled to rely on hearsay information in establishing his grounds: R. v. Strongquill (1978), 43 C.C.C. (2d) 232 (Sask. C.A.).

3.2.2: Analysis

[43] At 4:33 a.m. P.C. Grewal was dispatched to what was said to be a personal injury single vehicle collision. As such it was treated as a priority call. En route P.C. Grewal received updates from her dispatcher. P.C. Grewal arrived on scene at 4:42 and saw that P.C. Parris was already there.

[44] P.C. Grewal did not ask anyone what time the collision happened, nor did anyone volunteer the information. However, she believed that the incident had happened just shortly before 4:33 for two reasons. The first reason is that she was receiving updates while driving to the scene, which indicated to the officer that the situation was both fresh and fluid. Secondly, P.C. Grewal testified that in her experience as a police officer it common that people call the police within a few minutes of an accident happening.

[45] I find that P.C. Grewal's subjective belief that the offence occurred shortly before her being dispatched to the scene is reasonable. Her belief was also objectively reasonable in that her explanations make sense given the circumstances and her experience.

[46] I find that the breath demand was made upon reasonable grounds that the offence had occurred within the preceding three hours.

3.3: Is there sufficient proof impairment if a section 7 Charter breach had been established and evidence excluded?

[47] This issue is moot given my ruling that there was no Charter breach. However, if there had been a Charter breach and had evidence been excluded, I would have found there was sufficient admissible evidence to prove beyond a reasonable doubt that the Accused's ability to drive was impaired by the consumption of alcohol.

[48] If there was a section 7 Charter breach and an accompanying exclusory remedy, the observations made of the Accused by the police prior to the purported breach and any other independent evidence led at trial prove the Impaired Driving charge. Mr. Montgomery proved that the Accused was the driver. The police evidence proved that the Accused was drunk. Both officers noticed that the Accused smelled of alcohol, her speech was slurred, her eyes were watery, she was unsteady on her feet, she drove off the road for no apparent reason, and she was vomiting at the scene. The Accused was screened by ambulance personnel and not treated. Absent any evidence to the contrary, the inescapable conclusion on the police evidence prior to the demand in combination with that of Mr. Montgomery is that the Accused drove while too drunk to drive safely.

4.0: CONCLUSIONS

[49] For all of these reasons, Alexandra Bociat is found guilty of Impaired Driving and guilty of Driving with Excess Alcohol. Crown counsel will advise me upon which count a conviction should be registered and I will order a judicial stay on the other count.

Original Signed By The Honourable Justice Richard H.K. Schwarzl

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice