Case Summary

The defendant was charged with two offences under the Highway Traffic Act: failing to supply name and address contrary to s. 200(1)(c) and failing to report an accident contrary to s. 199(1). The defendant allegedly struck another vehicle at an Esso gas station in Mississauga and refused to provide his information to the other driver. The court conducted a voir dire to determine the voluntariness of the defendant's statements to the investigating officer. The court granted the motion of no evidence on the first charge, finding that the gas station property did not constitute a "highway" as defined in the Act. The court dismissed the motion of no evidence on the second charge, finding sufficient evidence of property damage exceeding $1000 and that the defendant's statements were voluntary. interesting_citations_summary: > The decision provides significant guidance on the definition of "highway" under the Highway Traffic Act, distinguishing between private property and public highways. It clarifies that the reporting requirement under s. 199(1) applies even to accidents not occurring on highways, while the requirement to supply information under s. 200(1)(c) is limited to accidents on highways. The court extensively analyzed the voluntariness of statements made during accident investigations versus offence investigations, establishing the "Rubicon" test for determining when an adversarial relationship crystallizes between the state and an individual. The decision also addresses lay opinion evidence regarding property damage valuation and the admissibility of non-verbatim police notes. final_judgement: > Motion of no evidence granted with respect to the charge of failing to supply name and address contrary to s. 200(1)(c) of the Highway Traffic Act. Motion of no evidence dismissed with respect to the charge of failing to report an accident contrary to s. 199(1) of the Highway Traffic Act. The defendant's statements to the investigating officer were found to be voluntary and admissible. keywords: - Highway Traffic Act - Motor vehicle accident - Failing to report accident - Failing to supply information - Definition of highway - Voluntariness of statements - Voir dire - Accident investigation - Offence investigation - Lay opinion evidence - Property damage valuation - Charter rights - Right to silence - Statutory compulsion areas_of_law: - Motor Vehicle Law - Criminal Procedure - Evidence Law - Charter Rights - Regulatory Offences legislation: - title: "Highway Traffic Act, R.S.O. 1990, c. H.8" url: "https://www.ontario.ca/laws/statute/900008" - title: "General Regulation (Highway Traffic Act), R.R.O. 1990, O. Reg. 596" url: "https://www.ontario.ca/laws/regulation/900596" - title: "Canadian Charter of Rights and Freedoms, 1982" url: "https://laws-lois.justice.gc.ca/eng/const/page-12.html" case_law: - title: "Ebsworth v. Alberta, 2005 ABQB 976" url: "https://www.canlii.org/en/ab/abqb/doc/2005/2005abqb976/2005abqb976.html" - title: "Graat v. R." url: "https://www.canlii.org/en/ca/scc/doc/1982/1982canlii33/1982canlii33.html" - title: "Hudon v. United States Borax & Chemical Corporation" url: "https://www.canlii.org/en/sk/skkb/doc/1970/1970canlii660/1970canlii660.html" - title: "Lawson v. Watts" url: "https://www.canlii.org/en/bc/bcsc/doc/1957/1957canlii297/1957canlii297.html" - title: "R. v. S. (R.J.)" url: "https://www.canlii.org/en/ca/scc/doc/1995/1995canlii121/1995canlii121.html" - title: "R. v. Anderson, [1990] S.J. No. 298 (QL) (S.Q.B)" url: "https://www.canlii.org/en/sk/sksb/doc/1990/1990canlii2849/1990canlii2849.html" - title: "R. v. Boudreau" url: "https://www.canlii.org/en/ca/scc/doc/1949/1949canlii26/1949canlii26.html" - title: "R. v. Colquhoun, [2002] O.J. No. 349 (QL) (O.C.J.)" url: "https://www.canlii.org/en/on/oncj/doc/2002/2002canlii42849/2002canlii42849.html" - title: "R. v. DaCosta" url: "https://www.canlii.org/en/on/onsc/doc/2001/2001canlii28409/2001canlii28409.html" - title: "R. v. Faruq, [2003] B.C.J. No. 2183 (QL) (B.C. Prov. Ct.)" url: "https://www.canlii.org/en/bc/bcpc/doc/2003/2003bcca2183/2003bcca2183.html" - title: "R. v. Fitzpatrick" url: "https://www.canlii.org/en/ca/scc/doc/1995/1995canlii44/1995canlii44.html" - title: "R. v. Fontaine, 2004 SCC 27" url: "https://www.canlii.org/en/ca/scc/doc/2004/2004scc27/2004scc27.html" - title: "R. v. Hajivasilis, 2013 ONCA 27" url: "https://www.canlii.org/en/on/onca/doc/2013/2013onca27/2013onca27.html" - title: "R. v. Harris, 2012 ONSC 6465" url: "https://www.canlii.org/en/on/onsc/doc/2012/2012onsc6465/2012onsc6465.html" - title: "R. v. Hebert" url: "https://www.canlii.org/en/ca/scc/doc/1990/1990canlii118/1990canlii118.html" - title: "R. v. Huntley, [1995] O.J. No. 2412 (QL) (Ont. Ct. (Prov. Div.))" url: "https://www.canlii.org/en/on/onca/doc/1995/1995canlii2412/1995canlii2412.html" - title: "R. v. Ibrahim, [1914] A.C. 599" url: "https://www.canlii.org/en/ca/scc/doc/1914/1914canlii599/1914canlii599.html" - title: "R. v. Jackson" url: "https://www.canlii.org/en/bc/bcca/doc/1977/1977canlii287/1977canlii287.html" - title: "R. v. Jarecsni, [2008] O.J. No. 4565 (QL) (O.C.J.)" url: "https://www.canlii.org/en/on/oncj/doc/2008/2008canlii4565/2008canlii4565.html" - title: "R. v. Jarvis, 2002 SCC 73" url: "https://www.canlii.org/en/ca/scc/doc/2002/2002scc73/2002scc73.html" - title: "R. v. Ling, 2002 SCC 74" url: "https://www.canlii.org/en/ca/scc/doc/2002/2002scc74/2002scc74.html" - title: "R. v. Mann, 2004 SCC 52" url: "https://www.canlii.org/en/ca/scc/doc/2004/2004scc52/2004scc52.html" - title: "R. v. Marshall" url: "https://www.canlii.org/en/ca/scc/doc/1960/1960canlii18/1960canlii18.html" - title: "R. v. Naces, [2001] O.J. No. 3854 (QL) (O.C.J.)" url: "https://www.canlii.org/en/on/oncj/doc/2001/2001canlii3854/2001canlii3854.html" - title: "R. v. Oickle, 2000 SCC 38" url: "https://www.canlii.org/en/ca/scc/doc/2000/2000scc38/2000scc38.html" - title: "R. v. Ouimet, [2012] M.J. No. 97 (QL) (M.Q.B.)" url: "https://www.canlii.org/en/mb/mbqb/doc/2012/2012canlii97/2012canlii97.html" - title: "R. v. Parol, 2011 ONCJ 292" url: "https://www.canlii.org/en/on/oncj/doc/2011/2011oncj292/2011oncj292.html" - title: "R. v. Relleve, [2004] M.J. No. 269 (QL)" url: "https://www.canlii.org/en/mb/mbqb/doc/2004/2004canlii269/2004canlii269.html" - title: "R. v. Simpson" url: "https://www.canlii.org/en/ca/scc/doc/1988/1988canlii89/1988canlii89.html" - title: "R. v. Jagrup Singh, 2007 SCC 48" url: "https://www.canlii.org/en/ca/scc/doc/2007/2007scc48/2007scc48.html" - title: "R. v. Spencer, 2007 SCC 11" url: "https://www.canlii.org/en/ca/scc/doc/2007/2007scc11/2007scc11.html" - title: "R. v. Teske" url: "https://www.canlii.org/en/on/onca/doc/2005/2005canlii31847/2005canlii31847.html" - title: "R. v. White" url: "https://www.canlii.org/en/ca/scc/doc/1999/1999canlii689/1999canlii689.html" - title: "R. v. Wilson" url: "https://www.canlii.org/en/ab/abkb/doc/1960/1960canlii611/1960canlii611.html" - title: "R. v. Wenham, 2013 ONSC 7431" url: "https://www.canlii.org/en/on/onsc/doc/2013/2013onsc7431/2013onsc7431.html" - title: "R. v. Visuvalingam, [2002] O.J. No. 3515 (QL) (O.C.J.)" url: "https://www.canlii.org/en/on/oncj/doc/2002/2002canlii3515/2002canlii3515.html" - title: "Shah v. Becamon, 2009 ONCA 113" url: "https://www.canlii.org/en/on/onca/doc/2009/2009onca113/2009onca113.html" - title: "Toronto (City) v. Baillie, [2007] O.J. No. 2178 (QL) (O.C.J.)" url: "https://www.canlii.org/en/on/oncj/doc/2007/2007canlii2178/2007canlii2178.html" - title: "Toronto (City) v. Bednarski, [2009] O.J. No. 2955 (QL) (O.C.J.)" url: "https://www.canlii.org/en/on/oncj/doc/2009/2009canlii2955/2009canlii2955.html" - title: "United States v. Sheppard" url: "https://www.canlii.org/en/ca/scc/doc/1976/1976canlii8/1976canlii8.html" - title: "Woodbridge v. Bragg" url: "https://www.canlii.org/en/bc/bcsc/doc/1956/1956canlii331/1956canlii331.html" --- # Court File and Parties **In the Matter of:** the Highway Traffic Act, R.S.O 1990, c. H.8 **Between:** Her Majesty The Queen, Prosecutor **and** Syedali Rizvi, Defendant **Ontario Court of Justice** Mississauga, Ontario **Before:** Quon J.P. **Counsel:** - G. Hume, prosecutor - B. Morris, legal representative for the defendant **Trial (prosecution's case only) held:** May 16, 2014 **Ruling on motion made on:** August 15, 2014 --- # Charges (1) s. 200(1)(c) H.T.A. – "failing to supply name and address" (2) s. 199(1) H.T.A. – "failing to report an accident" --- # Reasons for Ruling on Motion of No Evidence and Ruling on Admissibility of Defendant's Statements ## 1. INTRODUCTION [1] As licensed drivers, most of us are aware that if we unfortunately get into a motor vehicle accident with another vehicle that we are to stop and exchange driver's licenses, vehicle permits, and insurance slips with that other driver. And, for the most part, we are also mindful of the obligation to report or notify the police promptly about that accident. In Ontario, this exchange of information between the respective drivers involved in an accident and their obligation to personally and individually report and provide details of the accident promptly to the police is legally required if there is an injury or if the total damage to property or to all the vehicles in the accident appears to be valued at more than $1000. These legal requirements are set out in s. 200 and s. 199, respectively, of Ontario's [Highway Traffic Act, R.S.O. 1990, c. H.8](https://www.ontario.ca/laws/statute/900008). However, if one of the drivers involved in the collision fails to provide or refuses to provide that exchange of information to the other driver, or fails to report the accident straightaway to the police when required to do so, then the recalcitrant driver could be charged with committing several offences under those sections of the Highway Traffic Act. [2] Now, in respect to the regulatory proceeding before me, it is this legal requirement to exchange information after a motor vehicle accident and to immediately report the accident to the police that forms the basis for the charges laid against the defendant, Syedali Rizvi. The defendant had supposedly been involved in a minor collision with another vehicle at an Esso gas station in Mississauga on June 19, 2013, but had failed or refused to provide his name, address, and other required information to the other driver involved, as well as failing to promptly report the accident as required to the nearest police officer. Specifically, the defendant had been charged with committing two offences under the Highway Traffic Act in failing to supply his name and address to another motorist when asked for that information under s. 200(1)(c) and by failing to promptly report that accident to the nearest police officer under s. 199(1). [3] In addition, this alleged collision involving the defendant had supposedly occurred at approximately 12:15 p.m. within the property of the Esso gas station located at Erin Mills Parkway and Credit Valley Road, in the City of Mississauga. The other driver involved in the alleged collision was 18-year old Marek Ruta, a relatively new driver, who had been pumping gasoline into his father's motor vehicle at the time in question. While Ruta had been putting gas into his father's vehicle, it is alleged that a blue-coloured Dodge Grand Caravan minivan that was being driven by the defendant had backed out from a parking spot on the gas station property, and while turning the vehicle to the defendant's left, had allegedly backed into the front driver's side bumper of the Ruta vehicle, causing damage to the Ruta vehicle that had apparently exceeded $1000. Immediately after the alleged collision occurred, Marek Ruta's brother, who had been sitting in the Ruta vehicle, immediately sounded the vehicle's horn. Marek Ruta then said he approached the vehicle that had just hit his father's vehicle. Ruta then said that the defendant had exited the blue-coloured minivan to see what, if any, damage had occurred between the two vehicles that had allegedly come into contact with each other. Ruta also said there had been no other person with the defendant at that time. Marek Ruta then asked the defendant for his driver's licence and insurance information. However, Marek Ruta said that the defendant had refused to give his driver's license or insurance information to Ruta and instead waved his hand and said"I did not hit you -- I did not hit you", and then re-entered his vehicle and drove away from the gas station. Because the defendant had refused to give Marek Ruta his driver's license or insurance information, Ruta said he then used his cellphone to take a photograph of the license plate number on the vehicle driven by the defendant, as the defendant drove away. [4] However, Marek Ruta did not call 9-1-1 or contact the police right away because Ruta said he had not been hurt. And, it was not until some 10 hours after the incident had occurred, which had been sometime before 10:20 p.m., when Ruta finally attended at the 11 Division police station of the Peel Regional Police located at Erin Mills Parkway and Dundas Street in Mississauga, to report the motor vehicle collision that had occurred earlier at the Esso gas station. Ruta had also felt that the driver who had backed into his father's car had taken advantage of him because of his age and inexperience. Ruta also did not think it had been right for someone involved in a motor vehicle collision to not comply with the requirement to exchange documents and information, as Ruta had felt that the defendant should have done the proper thing. [5] After Ruta had informed a police cadet working at the front desk of the police station about the incident at the Esso gas station, Cst. Ovidiu Cornea was called in to investigate the incident. Cst. Cornea arrived at 10:20 p.m., met with Marek Ruta, and then examined the Ruta motor vehicle where Cst. Cornea said he had observed fresh scratches or damage to the paint of the bumper on the front driver's side of the Ruta vehicle, which Cst. Cornea had estimated to be over $1000 worth of damage. Ruta then provided to Cst. Cornea the details of the incident, a sketch of the gas station, names of witnesses, the license plate number of the blue-coloured Dodge Grand Caravan motor vehicle that had backed into his father's vehicle at the gas station, and a description of the driver. [6] Shortly after speaking with Marek Ruta, Cst. Cornea attended at that Esso gas station located at Erin Mills Parkway and Credit Valley Road in Mississauga, to view the video surveillance of the incident, but had been unable to check the video. Cst. Cornea then determined that the license plate given to him by Marek Ruta had been registered to Syedali Rizvi ("the defendant"). Cst. Cornea then, at approximately 11:00 p.m., attended at the defendant's residence, which is also located on Credit Valley Road in Mississauga, to continue his investigation. At the defendant's residence, Cst. Cornea noticed a blue or black-coloured Dodge Grand Caravan motor vehicle parked in the driveway of the defendant's residence, and upon examining the Grand Caravan vehicle, Cst. Cornea said he had observed fresh paint scratches on the rear passenger-side bumper of the vehicle, which he estimated had also been over $1000 worth of damage. [7] Cst. Cornea then spoke with the defendant, who had been the registered owner of that blue-coloured Dodge Grand Caravan minivan, and who had identified himself to Cst. Cornea with a valid Ontario driver's license in the name of Syedali Rizvi. Cornea also noted that the registered owner of the minivan had matched the description provided by Marek Ruta of the other driver involved in the incident with Ruta at the Esso gas station. [8] In addition, when Cst. Cornea had first approached the defendant, Cornea said he had not cautioned the defendant, as Cornea said the defendant was not under arrest, and that Cornea had no intention to charge the defendant at that time, and that Cornea had been still investigating what had occurred in respect to the alleged motor vehicle accident. Moreover, Cst. Cornea said he only cautions an individual when the individual is under arrest. Cornea also testified that in his conversation with the defendant, the defendant had admitted to being the driver involved in the incident at the gas station, but had informed Cst. Cornea that there had been no collision and that the defendant had not provided any information to the other driver because the other driver had wanted money from the defendant, and that the defendant had also believed at the time that he did not have to provide any information to the other driver. Cst. Cornea also said that he did not record the defendant's statements verbatim, but had only recorded the defendant's statements in his notes in summary form, and that the defendant had not been given an opportunity to review Cst. Cornea's notes that contained the defendant's statements. [9] After Cst. Cornea had completed his investigation of the alleged collision between the Ruta vehicle and the defendant's vehicle, Cst. Cornea charged the defendant, Syedali Rizvi, on July 4, 2013, with committing two offences under the Highway Traffic Act, R.S.O. 1990, c. H.8, namely for: (1) "failing to supply name and address", contrary to s. 200(1)(c) and (2) for "failing to report an accident", contrary to s. 199(1). [10] The trial of these two charges then commenced on May 16, 2014. However, the defendant did not personally attend the trial and proceeded with his trial through his legal representative, who had appeared on his behalf. Two witnesses testified during the prosecution part of the trial: (1) Marek Ruta, the other driver involved in the alleged collision, and (2) Cst. Cornea, the investigating officer. [11] During Cst. Cornea's testimony, a voir dire had been conducted into the voluntariness of the defendant's utterances or statements that had been made or given to Cst. Cornea on June 19, 2013. Only Cst. Cornea testified in the voir dire. After testimony was heard in the voir dire, the legal representative for the defence submitted that the statements made by the defendant had not been voluntary because the defendant had lacked an operating mind, as described in [R. v. Oickle, 2000 SCC 38](https://www.canlii.org/en/ca/scc/doc/2000/2000scc38/2000scc38.html), since Cst. Cornea did not provide the defendant with a caution before questioning the defendant. The defence also contends that since Cst. Cornea did not record the defendant's statements verbatim, but had only summarized the defendant's statements in his notes, then the defendant's statements cannot be considered voluntary or reliable. [12] However, based on the evidence presented in the voir dire, I had determined that the defendant's utterances, statements, or admissions had indeed been voluntarily given to Cst. Cornea beyond a reasonable doubt. However, I had also informed the defence that they could re-address this issue in their closing submissions when the trial was completed and all the evidence had been entered. [13] The trial then continued after the voir dire was completed. At the end of the prosecution's case, the defendant's legal representative brought a motion of no evidence based on two grounds. For the "failing to supply name and address" charge under s. 200(1)(c), the defence argued that since the incident had occurred in a gas station then the Highway Traffic Act did not apply to that charge, since the gas station property was not a "highway", and as such, the defendant had not been required to supply his name and address to the other driver, even if there had been a motor vehicle accident in which the defendant had been involved in. In regards to the second charge of "failing to report an accident" under s. 199(1), the defence contends that there is no evidence that there had been any injury or damage to either motor vehicle and that the estimate of the monetary value of the damage to either vehicle made by Cst. Cornea had only been Cst. Cornea's personal opinion, and since Cst. Cornea had not been qualified as an expert in determining the monetary values of the damage done to motor vehicles involved in collisions or accidents, then Cst. Cornea's opinion on the value of the property damage that he had observed is not evidence of damage to either vehicle amounting to a value exceeding $1000. [14] Moreover, the prosecution in their reply to the "no evidence" motion, had concurred with the defence submission that the "failing to supply name and address" charge under s. 200(1)(c) did not apply to the defendant, since the gas station property was not a "highway". However, before I could accept or adopt that joint submission that s. 200(1)(c) of the Highway Traffic Act does not apply to the defendant because the alleged collision did not occur "on a highway", a proper review and consideration of the decision rendered by the Court of Appeal for Ontario in [R. v. Hajivasilis, 2013 ONCA 27](https://www.canlii.org/en/on/onca/doc/2013/2013onca27/2013onca27.html), and the definition of "highway" set out in s. 1(1) of the Highway Traffic Act, along with an critical assessment of the specific nature or layout of the Esso gas station property in question, had to be first undertaken before it could be settled that the requirement to supply the defendant's name and address under s. 200(1)(c) to the other driver does not apply to the defendant or the collision, if any, that had occurred on the property of the Esso gas station. [15] These, therefore, are my written reasons on both my ruling on the defence motion of no evidence and on the voluntariness and admissibility of the defendant's statements made to Cst. Cornea, the police officer who had charged the defendant with committing the two offences in question. --- ## 2. THE CHARGES [16] The defendant has been charged under a Part III information that was sworn on July 4, 2013, with committing the following two offences: **(1)** Syedali Rizvi, of [residential address removed for privacy], Mississauga, Ontario, on or about the 19th day of June, 2013, at the City of Mississauga in the Central West Region did commit the offence of: being the person in charge of a motor vehicle, license number [license plate number removed for privacy], that was directly or indirectly involved in an accident on a highway to wit: Erin Mills Parkway, did unlawfully fail to supply his name and address to the person suffering loss when required to do so, contrary to the Highway Traffic Act Section 200(1)(c). **(2)** And further that Syedali Rizvi, on or about the 19th day of June in the year 2013, at the City of Mississauga in the Central West Region, being the person in charge of a motor vehicle, license number [license plate number removed for privacy], that was directly or indirectly involved in an accident resulting in property damage exceeding $1000.00, did unlawfully fail to report the accident forthwith to the nearest Municipal or Provincial Police Officer and furnish such information as required contrary to the Highway Traffic Act Section 199(1). --- ## 3. SUMMARY OF TESTIMONY ### (A) Relevant Testimony Of Marek Ruta (The Driver Of The Motor Vehicle That Had Been Allegedly Struck and Damaged By A Vehicle Registered To The Defendant) [17] Marek Ruta testified that sometime in June he had been putting gas into his father's motor vehicle at the Esso gas station located at Erin Mills Parkway just before Highway 403, which is located in the City of Mississauga. He also said that his brother had been with him and sitting in his father's motor vehicle. Then while Ruta was putting gas into his father's motor vehicle, he said that a blue-coloured Dodge Grand Caravan motor vehicle came out of a parking spot and backed into his father's motor vehicle, which also happened to be a Dodge Grand Caravan motor vehicle. Ruta also said that his brother had sounded the horn on his father's motor vehicle immediately after the collision between the two vehicles. [18] Furthermore, Ruta said that after the other motor vehicle had hit his father's vehicle he stopped gassing his father's car and approached the other motor vehicle. He then said the other vehicle had stopped and the driver of that blue-coloured vehicle then got out of his vehicle to take a look and view the damage. Then Ruta said the other driver had stated to Ruta"I didn't hit you -- I didn't hit you." Ruta also said he had asked the other driver for his driver's license and insurance information, but the other driver had refused to give out any information. Ruta then said the other driver just got back into the blue-coloured vehicle and drove off. And, while that vehicle was driving off, Ruta said he took out his cellphone and took a picture of the other car and its license plate, since the other driver did not give Ruta any information regarding his name or insurance company. [19] Ruta then said he had finished putting gas into his father's car and paid for the gas in cash. He then said the cashier at the gas station had told him to report what had just happened with the other vehicle. Ruta said he then went to the police station for 11 Division. [20] However, in his testimony, Ruta said could not remember the license plate number of the motor vehicle that had backed into his father's motor vehicle. [21] In addition, Ruta said the damage to his father's motor vehicle was $1000, but the vehicle had not been taken in to be repaired because it had only been paint damage. He also said that his father had gone to a body shop to get an estimate for the repairs. However, Ruta said he had no bills or receipts in respect to the estimated cost to repair his father's motor vehicle. [22] Ruta also said the other driver was a male person who was wearing jeans and a white polo shirt with a blue stripe. In addition, Ruta said the other driver was Middle-Eastern and middle-aged, about 50 to 60 years old. He also said that there had been no other person with the other driver. [23] Moreover, Ruta said he had asked the other driver for his information, but the other driver had refused to give the information, exited the gas station, and left the scene. Ruta also said that the other driver had just waved his hand and said"I did not hit you." [24] Furthermore, Ruta said the left front or driver's side of his father's vehicle had been damaged, but that he did not see any damage to the other vehicle. [25] In describing how the other vehicle collided into his father's vehicle, Ruta said the other vehicle had backed up while turning to the driver's left. [26] Ruta also said he did not call 9-1-1, since he had not been injured, but did eventually go to the police station afterwards, and had attended the police station at Erin Mills and Dundas where he spoke to a police cadet working at the front desk. Ruta then said that a police officer named Cst. Cornea came afterwards. Ruta said he then gave Cst. Cornea the names of witnesses and the details of what had occurred. [27] More important, Ruta said he had reported the accident, not because of the damage to his father's vehicle, but because of principle and his notion to do everything right. He further explained that he had been treated unfairly by the other driver, who he felt had taken advantage of him. [28] Ruta also said he had been issued his license to drive motor vehicles in Ontario prior to the incident at the Esso gas station on June 19, 2013. ### (B) Relevant Testimony Of Cst. Ovidiu Cornea (The Officer Who Had Investigated The Incident At The Esso Gas Station And Who Laid The Two Charges Against The Defendant) #### (i) Summary of Cst. Cornea's Testimony prior to entering the voir dire [29] Prior to entering into the voir dire in respect to the voluntariness and admissibility of the defendant's utterances or statements made to Cst. Cornea, Cst. Cornea had testified that on June 19, 2013, he had been assigned that day to patrol duties in a marked cruiser. He also said he had been wearing his uniform at that time. [30] Furthermore, at 10:20 p.m., Cst. Cornea said he had received a radio call to attend the 11 Division police station in regards to speaking to a complainant. He said he then attended at the 11 Division station and spoke with the complainant named Marek Ruta with a birthdate of [month and day removed for privacy], 1995. Cst. Cornea then said he had been advised by the complaint about the incident that had occurred at 12:15 p.m. at the Esso gas station located at Erin Mills and Credit Valley Road in the City of Mississauga, where the complainant had alleged that a "black-coloured" Dodge Caravan vehicle had backed into the vehicle being operated by the complainant. Cst. Cornea also said the complainant had provided Cst. Cornea with a diagram of the gas station. [31] In addition, Cst. Cornea said he had checked out the vehicle being operated by the complainant and noted that there had been paint scratches on the driver's side front bumper. [32] Furthermore, Cst. Cornea said the complainant had provided Cst. Cornea with the license plate number of the "black-coloured" Dodge Caravan vehicle that had allegedly backed into the vehicle being operated by the complainant. [33] Cst. Cornea also said he then attended at the Esso gas station located at Credit Valley Road and spoke with the gas station attendant about viewing the video surveillance tape of the incident involving the complainant. However, Cst. Cornea said he had been unable to check the video. [34] Then Cst. Cornea said he attended at [municipal address number removed for privacy] Credit Valley Road, the address of the registered owner of the vehicle that had allegedly backed into the Ruta vehicle at the Esso gas station earlier that day. [35] When Cst. Cornea arrived at the address of the registered owner of the other vehicle involved in the alleged collision with the Ruta vehicle, Cst. Cornea said he had observed a male that had matched the description of the driver that had been provided by the complainant. In addition, Cst. Cornea said he had observed a "black-coloured" Dodge Caravan on the driveway of that residence. He also said he had observed what had appeared to be fresh paint scratches on the rear bumper on the passenger side of that Dodge Caravan. [36] In addition, Cst. Cornea said he had a conversation with the male that matched the description of the other driver provided by the complainant. [37] At this point in Cst. Cornea's testimony in the trial proper, a voir dire was then commenced to determine the voluntariness of any utterances or statements made by the defendant, Syedali Rizvi, to Cst. Cornea. #### (ii) Summary Of Cst. Cornea's Testimony In The Voir Dire [38] In the voir dire, Cst. Cornea testified that he had been in full uniform when he spoke with the defendant, Syedali Rizvi. Cst. Cornea also said there had been no one else present during his conversation with Syedali Rizvi, and that the conversation had taken place on the driveway of the residence located at Credit Valley Road. [39] Furthermore, Cst. Cornea said that Rizvi did not state that he did not wish to give a statement. In addition, Cst. Cornea said he did not make any threats or give any inducements to Rizvi. He also said that Rizvi had understood English and that Rizvi had not been under the influence of drugs or alcohol. Moreover, Cst. Cornea said that Rizvi's answers were consistent with Cornea's questions. Cst. Cornea also said that Rizvi had not been under arrest at that point. [40] In addition, Cst. Cornea said he had summarized and had written out Rizvi's statement. [41] Cst. Cornea also said he had not cautioned Rizvi, since Rizvi had not been under arrest and since Cst. Cornea had been still investigating the incident at that time. In addition, Cst. Cornea said he did not have the intention to charge Rizvi at that time, since it had been Cst. Cornea's intention to investigate and find out what had happened after the alleged collision. Furthermore, Cst. Cornea said he only provides a caution when a person is under arrest. [42] Moreover, Cst. Cornea said that Rizvi had not reviewed his statement, nor did Cst. Cornea give Rizvi an opportunity to do so. [43] After submissions were heard from the defence and the prosecution, I determined from the evidence adduced in the voir dire that Syedali Rizvi's utterances and statements made to Cst. Cornea were voluntary beyond a reasonable doubt. I also decided that the defendant's statements were permitted to be entered as evidence into the trial proper. [44] At that point, Cst. Cornea repeated what Syedali Rizvi had stated to him on June 19, 2013. Cst. Cornea said that Rizvi had admitted to being the driver of the Dodge Grand Caravan involved in the incident at the Esso gas station with Marek Ruta, but that he did not hit the Ruta vehicle and that he did not give his name and address to Marek Ruta because Ruta had wanted money from Rizvi. Furthermore, Cst. Cornea said that Rizvi had also informed Cst. Cornea that Rizvi did not believe that he had to give his name and address to Marek Ruta at that time. [45] In addition, it was decided that all the testimony given in the voir dire would apply and be permitted to be used in the trial proper without Cst. Cornea having to repeat in the trial proper the testimony he had given in the voir dire. #### (iii) Summary Of Cst. Cornea's Testimony After Re-Entering The Trial Proper [46] After re-entering the trial proper, Cst. Cornea testified that Syedali Rizvi had provided Cornea with a driver's license as proof of identity. In addition Cst. Cornea said the driver's license was in the name of Syedali Rizvi and the birthdate on the license was [month and day of birth removed for privacy], 1956. As a result, Cst. Cornea said he had been satisfied with the identity of Syedali Rizvi. [47] Cst. Cornea also said that on the totality of the evidence he had obtained, he had concluded that Syedali Rizvi had failed to give the required information under s. 200(1)(c) to Marek Ruta and that Rizvi had also failed to report the accident as required under s. 199(1). [48] In addition, Cst. Cornea said he had filled out a collision report. He also said he had examined the vehicle on the defendant's driveway and said that it had been dark in colour, but could not tell for certain if it had been black or blue in colour because he had arrived at 11:00 p.m. and it had been dark outside. He further said it had been a Dodge Caravan minivan. [49] Cst. Cornea also said he has been employed with the Peel Regional Police since August of 2009 and has investigated more than 100 accidents. And, with respect to estimating the value of damage or the cost to repair the damage to vehicles involved in accidents, Cst. Cornea said that he himself had been personally involved in an accident three years ago when he had been rear-ended, for which he had personally dealt with. Moreover, Cst. Cornea said that with his own personal vehicle he had obtained three quotes to repair his vehicle from autobody repair shops, but did not negotiate the price for those repairs. [50] In addition, Cst. Cornea said the damage to the defendant's motor vehicle had been paint scratches to the rear bumper on the passenger side of the vehicle. He further said the paint scratches were fresh because they had happened recently and less than a day ago, since he did not observe dust over the scratches. However, he said he did not count the number of scratches, nor did he record the length of those scratches. [51] In regards to the Ruta motor vehicle, Cst. Cornea said there had been damage to it that consisted of paint scratches that were located on the front bumper on the driver's side of the vehicle. However, he also said he did not measure the length of the scratches, nor did he count the number of scratches on the Ruta vehicle. [52] Furthermore, Cst. Cornea said he has no experience as a reconstructionist, but has experience in regards to estimating the cost of repairing the damage to motor vehicles, as he has been involved in examining lots of motor vehicles involved in collisions and accidents while working at the front desk of a self-reporting collision center. He also said he has seen many estimates from repair shops at the police station. He further explained that on occasion people would bring in estimates and since the police are mandated to go out and look at the damage to the motor vehicle, he would note the damage, make a note of it, compare the damage with the estimate, and confirm the damage to the motor vehicle. [53] Cst. Cornea then said that based on his own personal experience the cost to repair the damage to the vehicles belonging to the defendant and to Ruta's father, especially damage consisting of paint scratches to a motor vehicle, would be over $1000 to repair. He then said the scratches he had observed on the defendant's vehicle and on the complainant's vehicle were similar in nature. [54] Furthermore, Cst. Cornea explained that in order to repair a scratch on a bumper the entire bumper would have to be painted. He also acknowledged there are hundreds of ways to fix the damage, as well as hundreds of estimates that could be obtained. He further acknowledged that he is not an expert, but had based his estimate of the value of the damage to the vehicles in question from his own knowledge and experience as a police officer. In addition, he said he was not aware that some paint would be more expensive than other paints. [55] In addition, Cst. Cornea said that if there had been any doubt about the value of the damage to a motor vehicle, he said he would then ask the complainant to get a certified estimate from a repair or body shop. --- ## 4. RELEVANT LAW [56] The "failing to report an accident" offence that is contained in s. 199(1) of the [Highway Traffic Act, R.S.O. 1990, c. H.8](https://www.ontario.ca/laws/statute/900008), obligates every person in charge of a motor vehicle, who is directly or indirectly involved in an accident, where the accident results in personal injuries or in damage to property apparently exceeding an amount prescribed by regulation, to report the accident forthwith to the nearest police officer and furnish the officer with the information concerning the accident as may be required by the officer under s. 199(3): **Duty to report accident** **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). **Officer may direct person to report accident at another location** **199(1.1)** If, on reporting the accident to the nearest police officer under subsection (1), the person is directed by the officer to report the accident at a specified location, the person shall not furnish the officer described in subsection (1) with the information concerning the accident but shall forthwith attend at the specified location and report the accident there to a police officer and furnish him or her with the information concerning the accident as may be required by the officer under subsection (3). **Where person unable to report** **199(2)** Where the person is physically incapable of making a report and there is another occupant of the motor vehicle, the occupant shall make the report. [57] The threshold amount of property damage that triggers the requirement under s. 199(1) for a motorist involved in a motor vehicle accident or collision to report that accident promptly to the nearest police officer and furnish that officer with information about the accident, as required by that officer to complete an accident report under s. 199(3), is presently $1000. In other words, the amount of apparent damage to property resulting from the accident must exceed $1000 before the reporting requirement is triggered. This $1000 amount is established by s. 11 of the [General Regulation (Highway Traffic Act), R.R.O. 1990, O. Reg. 596](https://www.ontario.ca/laws/regulation/900596): **Damage to Property Accident Report** **11.** For the purpose of subsection 199(1) of the Act, the prescribed amount for damage to property is $1,000. [58] Furthermore, s. 199(3) of the Highway Traffic Act imposes a legal duty on a police officer, who receives a report about an accident involving a motor vehicle, to 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 any other information that may be necessary to complete a written report concerning the accident: **Duty of police officer** **199(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. **Report of police officer** **199(4)** The report of a police officer under subsection (3) shall be in the form that is approved by the Minister. **Regulations as to amount of property damage** **199(5)** The Lieutenant Governor in Council may make regulations prescribing the amount of property damage for the purposes of subsection (1). [59] In addition, the "failing to supply name and address" offence that is set out in s. 200(1)(c) of the Highway Traffic Act, obligates a person in charge of a vehicle that is directly or indirectly involved in an accident that occurs "on a highway" to give in writing his or her name, address, driver's licence number and jurisdiction of issuance, motor vehicle liability insurance policy insurer and policy number, name and address of the registered owner of the vehicle and the vehicle permit number, when such information is requested for by anyone sustaining loss or injury from that accident, by any police officer, or by any witness. Furthermore, under s. 200(2), a motorist's failure to comply with this request for such information subjects the person to being charged with an offence, and upon conviction, subjects the person to being sentenced to a fine of not less than $400 and not more than $2000, or to imprisonment for up to a period of six months, or to both a fine and imprisonment, and to also having their driver's license suspended for up to a period of two years: **Duty of person in charge of vehicle in case of accident** **200(1)** Where an accident occurs on a highway, every person in charge of a vehicle or street car that is directly or indirectly involved in the accident shall, (a) remain at or immediately return to the scene of the accident; (b) render all possible assistance; and (c) upon request, give in writing to anyone sustaining loss or injury or to any police officer or to any witness his or her name, address, driver's licence number and jurisdiction of issuance, motor vehicle liability insurance policy insurer and policy number, name and address of the registered owner of the vehicle and the vehicle permit number. **Penalty** **200(2)** Every person who contravenes this section is guilty of an offence and on conviction is liable to a fine of not less than $400 and not more than $2,000 or to imprisonment for a term of not more than six months, or to both, and in addition the person's licence or permit may be suspended for a period of not more than two years. --- ## 5. ISSUES [60] The following are issues that have arisen in respect to the motion of no evidence, which need to be resolved: (1) Is there evidence of a motor vehicle collision that had occurred between the defendant's motor vehicle and the Ruta motor vehicle? (2) For the alleged motor vehicle collision that had occurred on the property of the Esso gas station, did the collision for the purposes of s. 200(1)(c) occur on a "highway", as defined under s. 1(1) of the Highway Traffic Act? (3) Was the defendant aware of the alleged collision between the defendant's motor vehicle and the Ruta motor vehicle? (4) If the alleged collision did not occur "on a highway" as required under s. 200(1)(c), is the defendant still required to supply his name and address to the other driver involved in the alleged motor vehicle accident by necessary implication of the motorist's requirement to report an accident under s. 199(1) or by any other provision of the Highway Traffic Act? (5) Does Cst. Cornea have to be qualified as an expert witness before being able to give an opinion about the value of the "apparent" damage to the two motor vehicles allegedly involved in the collision at the Esso gas station? (6) Did Cst. Cornea's failure to record the defendant's utterances or statements verbatim in the notes prepared by Cst. Cornea create reasonable doubt as to the voluntariness of the defendant's utterances or statements made to Cst. Cornea? (7) Was the defendant statutorily compelled under the Highway Traffic Act to provide a statement or information to Cst. Cornea about the alleged motor vehicle accident involving the defendant's motor vehicle? (8) Did Cst. Cornea have to read the defendant his right to counsel or to provide a police caution on the right to silence to the defendant before Cst. Cornea could obtain any information from the defendant about the alleged accident? (9) Was Cst. Cornea still primarily obtaining information from the defendant for an accident investigation or was Cst. Cornea gathering information of an offence when the defendant made the utterances or statements? (10) Did Cst. Cornea objectively have reasonable and probable grounds to believe that the defendant had committed an offence before he started questioning the defendant? --- ## 6. ANALYSIS ### (A) IS THERE EVIDENCE ADDUCED BY THE PROSECUTION THAT THERE HAD BEEN A COLLISION BETWEEN THE DEFENDANT'S MOTOR VEHICLE AND THE RUTA MOTOR VEHICLE? [67] In regards to the first issue on whether there is evidence of a collision, Marek Ruta had testified that a blue-coloured Dodge Grand Caravan had backed into his father's vehicle, which also happened to be a Dodge Grand Caravan. In addition, Ruta said that while the blue-coloured vehicle had been backing up and while moving towards its left, it had collided with the Ruta vehicle and had caused paint damage to the front bumper on the driver's side of the Ruta vehicle. Furthermore, Cst. Cornea testified that he had observed fresh scratches to the paint finish of the driver's side of the front bumper of the Ruta vehicle and fresh scratches to the paint finish of the rear bumper on the passenger side of the defendant's Dodge Grand Caravan motor vehicle while it had been parked on the driveway of the defendant's residence, within 12 hours of the alleged collision occurring at the Esso gas station. [68] On the other hand, there is also evidence given through the testimony of Marek Ruta and through Cst. Cornea that the defendant had stated to Marek Ruta and to Cst. Cornea, respectively, that the defendant's vehicle did not collide with the Ruta vehicle and that the defendant did not hit the Ruta vehicle. #### (i) Exculpatory statements made by the defendant out of court [69] For those exculpatory statements that had been made by the defendant to Cst. Cornea and to Marek Ruta out of court and then repeated by them at the trial, that there had been no collision between the defendant's vehicle and the Ruta vehicle, that the defendant had not provided any information to the other driver because the other driver had wanted money from the defendant, and that the defendant had also believed at the time that he did not have to provide any information to the other driver, are specifically not receivable as evidence for the truth of its contents, since they are self-serving statements made by the defendant outside of court. The general rule which applies to those exculpatory statements is that exculpatory statements made by the defendant outside of court and entered through other witnesses is not receivable as evidence in favour of the defendant, since it is an unsworn statement, self-serving, and not subject to cross-examination. See para. 24 in [R. v. Simpson](https://www.canlii.org/en/ca/scc/doc/1988/1988canlii89/1988canlii89.html): > As a general rule, the statements of an accused person made outside court -- subject to a finding of voluntariness where the statement is made to one in authority -- are receivable in evidence against him but not for him. This rule is based on the sound proposition that an accused person should not be free to make an unsworn statement and compel its admission into evidence through other witnesses and thus put his defence before the jury without being put on oath and being subjected, as well, to cross-examination. It is, however, not an inflexible rule, and in proper circumstances such statements may be admissible; for example, where they are relevant to show the state of mind of an accused at a given time or to rebut the suggestion of recent fabrication of a defence. [70] Ergo, there is evidence of a collision between the defendant's vehicle and the Ruta vehicle from Marek Ruta's testimony that a blue-coloured Dodge Grand Caravan, identified as the defendant's motor vehicle through a license plate number photographed by Ruta and provided to Cst. Cornea, had backed into the Ruta vehicle causing more than $1000 of damage to the Ruta vehicle, along with the testimony of Cst. Cornea in which Cst. Cornea had stated that he had observed fresh paint scratches on the rear bumper of the defendant's vehicle and on the front bumper of the Ruta vehicles, which respective damage had appeared to Cst. Cornea to be more than $1000 worth of damage to each of the vehicles. [71] As a consequence, since there is evidence of a collision, I will now have to consider and resolve the other two issues of whether there is any evidence that the alleged accident, which had supposedly occurred on the property of the Esso gas station, had occurred "on a highway", as defined under s. 1(1) of the Highway Traffic Act; and whether there is evidence that the value of the property damage that had occurred and resulted from the alleged accident had exceeded $1000, since the admissibility of Cst. Cornea's testimony is being challenged on the ground that Cst. Cornea had not been qualified as an expert witness to give an opinion about the value of damage that occurs to vehicles involved in accidents. ### (B) IS THERE EVIDENCE ADDUCED BY THE PROSECUTION THAT THE COLLISION BETWEEN THE DEFENDANT'S MOTOR VEHICLE AND THE RUTA MOTOR VEHICLE HAD OCCURRED "ON A HIGHWAY"? [72] Before accepting the submission from both the defence and prosecution that s. 200(1)(c) does not apply to the defendant, for the reason that the accident that had supposedly occurred on the property of the Esso gas station had not been "on a highway", a proper review of the Court of Appeal for Ontario's decision in [R. v. Hajivasilis, 2013 ONCA 27](https://www.canlii.org/en/on/onca/doc/2013/2013onca27/2013onca27.html) and the definition of "highway" set out in s. 1(1) of the Highway Traffic Act, has to be undertaken, along with considering the evidence of the physical layout of the Esso gas station, in order to determine if there is evidence in the record that indicates whether the area where the alleged accident had occurred had been "on a highway". [73] From Marek Ruta's testimony, the collision between the defendant's motor vehicle and the Ruta motor vehicle had supposedly occurred in the property of the Esso gas station located at Erin Mills Parkway and Credit Valley Road in the City of Mississauga, near the gas pumps where the Ruta motor vehicle was stopped and being gassed up by Ruta. [74] However, the defence submits that the legal requirement for the defendant to provide his name and address to another driver under s. 200(1)(c) does not apply to the defendant, nor does s. 200(1)(c) apply to any collision that occurs on the property of that particular Esso gas station, since it is not a "highway". [75] By law, where a provision of Ontario's Highway Traffic Act specifically and expressly refers to a "highway", then that specific provision only applies to events that occur on a "highway", as defined under s. 1(1) of the Highway Traffic Act; but where the provision is silent and does not refer to an event having to occur on a "highway" or in respect to a "highway", then that particular provision does not require the event to occur on a highway before it can legally apply: [R. v. Hajivasilis, 2013 ONCA 27](https://www.canlii.org/en/on/onca/doc/2013/2013onca27/2013onca27.html), at para. 4: > I agree with the position advanced by the appellant. I would hold that the obiter in Shah limiting the operation of the "entire HTA" to "highways" is wrong and should not be followed. Many provisions of the HTA are by their terms limited to "highways". Other provisions, however, are not so limited. Nothing in the overall structure of the HTA or its purpose compels the reading of the word "highway" into sections in which it does not appear. Section 199 is one such section. I would hold that the reporting requirement in s. 199 generally applies even if the accident does not occur on a "highway" as defined in the HTA. [76] Therefore, the operation of the entire Highway Traffic Act is not limited to only events that occur on highways, but the application of a specific provision of the Highway Traffic Act is only limited to a highway when that provision expressly contains a reference to the event in question having to occur on a "highway" or in respect to a "highway". [77] Moreover, as it applies directly to the case at bar, the Court of Appeal held in [R. v. Hajivasilis, at para. 27](https://www.canlii.org/en/on/onca/doc/2013/2013onca27/2013onca27.html), that the requirement to report an accident under s. 199(1) of the Highway Traffic Act is not restricted to events that only occur on a highway within the meaning of s. 1(1) of the Act, but includes areas that are not on a "highway", since the application of s. 199(1) is not limited to events that occur only on a highway: > A plain reading of s. 199(1) reveals no reference to the word "highway" or any word that incorporates the definition of "highway". The reporting obligation in s. 199(1) is placed on "every person in charge of a motor vehicle". If the legislature has defined certain terms in the definition section of legislation, but chooses to use other undefined terms in a particular section, the interpretative exercise must strive to give some meaning to the choice made by the legislature. In s. 199, the legislature chose to use the phrase"every person in charge of a motor vehicle", a more expansive phrase than the word "driver". This choice suggests a reporting requirement that is not limited to persons who fall within the definition of the word "driver", that is, persons who drive a vehicle on a "highway". [78] A "highway" for the purposes of the Highway Traffic Act is specifically defined in s. 1(1) of that Act and its meaning includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof: > **1(1)** In this Act, > > **"highway"** includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof; ("voie publique") [79] In addition, at para. 10 in [R. v. Hajivasilis](https://www.canlii.org/en/on/onca/doc/2013/2013onca27/2013onca27.html), the Court of Appeal explained that the definition of "highway" contained in s. 1(1) of the Highway Traffic Act, which contains the phrase "intended for or used by the general public for the passage of vehicles", explicitly limits the meaning of "highway", so that where a vehicle is being driven on property to which the general public does not have access, or if that access is for a limited purpose other than passage, such as for parking motor vehicles, then the property or place in question will not fall within the meaning of a "highway" for the purposes of the Highway Traffic Act: > The phrase "intended for or used by the general public for the passage of vehicles" limits the meaning of "highway". If a vehicle is being driven on property to which the general public does not have access or if that access is for a limited purpose other than passage (such as parking), the property will not fall within the meaning of "highway". Most privately owned parking lots are not "highways" as defined in the HTA: see R. v. Mansour, [1979] 2 S.C.R. 916; Gill v. Elwood, [1970] 2 O.R. 59 (C.A.); and Sked v. Henry (1991), 28 M.V.R. (2d) 234 (Ont. Gen. Div.). It is accepted that the parking lot where the respondent allegedly struck the parked vehicle does not fall within the meaning of "highway" in the HTA. [80] Furthermore, s. 1.1 of the Highway Traffic Act permits the Lieutenant Governor in Council to pass a regulation designating the applicability of the Highway Traffic Act to places that are not defined as a "highway" under the Act: > **Application of Act to places other than highways** > > **1.1** The Lieutenant Governor in Council may make regulations providing that this Act or any provision of this Act or of a regulation applies to a specified place or class of place that is not a highway. [81] However, there has been no regulation that has been passed by the Lieutenant Governor in Council designating that the Highway Traffic Act applies specifically to gas station properties. [82] As to whether gas stations are generally considered to be a highway, the British Columbia Supreme Court in [Lawson v. Watts (1957)](https://www.canlii.org/en/bc/bcsc/doc/1957/1957canlii297/1957canlii297.html), at para 20, held the gas station in that case had not been a highway under the statutory definition of the governing statute and adopted the reasoning in [Woodbridge v. Bragg (1956)](https://www.canlii.org/en/bc/bcsc/doc/1956/1956canlii331/1956canlii331.html), in which it had been held that the property of a gas station, a private business premise, is not a highway: > Following the hearing, counsel for the husband defendant directed my attention and that of the solicitor for the plaintiff to a decision of my brother Whittaker in Woodbridge v. Bragg, an unreported decision referred to in "The Advocate", September-October, 1956, Volume 14, Part 5, page 211, which decision had just come to his notice and he felt it was his duty to bring it to the attention of the Court and of plaintiff's counsel. In this case Whittaker J., in his written reasons for judgment, stated: > > "The liability imposed by said s. 81(1) is a vicarious liability. Apart from the statute there would be no liability. The Legislature evidently considered it reasonable that when the owner entrusts his car to someone else knowing that that other person intends to operate it on a highway, the owner should be held responsible for resultant damage, there being well-known risks attendant upon the operation of a car in highway traffic. But there is nothing in the section or in the definitions of 'highway', to indicate that it was intended to saddle the owner with the consequences of such unusual risks as might be incurred in driving the car from one part of a service-station lot to another part without encroaching on a highway. If that had been the intention one would expect to find the words 'on any highway or other public place'. > > "The only words upon which an argument in favour of the plaintiff could be founded are the words 'or right-of-way' contained in said s. 2 of the Motor-vehicle Act. No doubt drivers entering the service-station for the purpose of having their cars serviced have a right-of-way over the service-station property for that limited purpose; but I think it is clear from the following words 'designed or intended for, or used by the general public for the passage of vehicles', that private business premises were intended to be excluded." [83] However, just because a motor vehicle accident occurs on a gas station property does not necessarily exclude all gas stations or all private property from being found to be a highway within the meaning of s. 1(1) of the Highway Traffic Act, especially where the area of the private property in question is clearly designated or marked to be primarily used for the passage of motor vehicles. This reasoning was accepted in [R. v. Wilson](https://www.canlii.org/en/ab/abkb/doc/1960/1960canlii611/1960canlii611.html), at paras. 5 and 6, where the Alberta District Court in deciding whether the Alberta statute, The Vehicles and Highways Traffic Act, should apply to an area in a parking lot where a motor vehicle collision had occurred and whether that particular area had been a public highway, had first considered the finding in [Lawson v. Watts (1957)](https://www.canlii.org/en/bc/bcsc/doc/1957/1957canlii297/1957canlii297.html), but unlike the gas station in that case that was determined not to be a highway, had held that an area on private property that had been clearly marked into separate lanes, so that the lanes would be primarily used for the passage of motor vehicles was indeed a highway for the purpose of that Act: > I note the British Columbia case to which counsel for the appellant has referred, Lawson v. Watts (1957), 7 DLR (2d) 758, and I would merely note that it refers to an area which is described as a service station area-way. I doubt gravely whether a service station area could be compared with the parking lot in question. I have never seen a service station area laid out in lanes, well-marked lanes, for the passage of cars, and I presume the service station area in the case cited was not so laid out. The decision of Lett, C.J.S.C., even if binding on me, could scarcely be taken as applicable to an area of the kind with which we are dealing here. > > I have no hesitation at all in finding as a fact that the two lanes in question, one, the lane from which Mr. Wilson's car, proceeding in an easterly direction emerged, and the other, a north-south lane in which Mrs. Stevens' car was travelling at the time of the impact, fall within the definition of "highway" as contained in sec. 2(f) of the Act. I have no hesitation in holding further that the square formed by the prolongation of boundary lines which has been referred to extensively in the evidence, was in fact an intersection. [84] As such, not all areas of private property are necessarily to be excluded from being found to be a highway for the purposes of Ontario's Highway Traffic Act, especially where a specific area of the private property in question is primarily used for the passage of motor vehicles by the general public and such primary use can be ascertained. In particular, there may exist gas stations that are located in large shopping centers or on other private properties that may contain specifically marked lanes or clearly identified areas that are to be primarily used for the passage of motor vehicles by the general public. #### (i) Is there evidence in the record that the alleged collision had occurred in area of the Esso gas station property that is clearly set apart from other areas of the gas station property, so that the specific area in question is primarily used for the passage of motor vehicles by the general public? [85] Although gas stations are private property premises, in which motorists are permitted to enter and drive their motor vehicles onto the property, and then through the property, for the limited purpose of purchasing gasoline and other products, gas stations are not generally considered to be highways, unless there is evidence that a part of the gas station has been specifically marked or set apart to be primarily used for the passage of motor vehicles by the general public. [86] However, the evidence adduced in the case at bar does not indicate that the Esso gas station where the alleged accident had occurred had been clearly marked with lanes or clearly set apart as an area primarily for the passage of motor vehicles by the general public, so as to be a "highway". Specifically, there is no evidence adduced of specific pathways for motor vehicles travelling on that Esso gas station property that had been clearly or specifically marked with painted lines or other markings that would designate lanes or set apart an area primarily for the passage of motor vehicles. [87] Furthermore, it should also be noted that there is no requirement in s. 199(1) in which a motorist is required to report an accident to the nearest police officer, to also supply their name and address to the other driver involved in the accident, nor is there any other provision in the Highway Traffic Act or under a regulation that directs the defendant to provide his name and address to Marek Ruta, the other driver involved in the alleged accident, as required under s. 200(1)(c). As such, the defence succeeds on the motion of no evidence in respect to the "failing to supply name and address" charge under s. 200(1)(c), as there is no evidence that the alleged accident had occurred on a "highway" within the meaning of s. 1(1), or that the defendant by implication or by any other provision of the Highway Traffic Act had been legally obligated to provide his name and address to the other driver under s. 200(1)(c). Accordingly, this particular charge will be dismissed against the defendant. ### (C) IS THERE EVIDENCE ADDUCED BY THE PROSECUTION THAT THERE IS DAMAGE TO PROPERTY RESULTING FROM THE ALLEGED MOTOR VEHICLE ACCIDENT BETWEEN THE DEFENDANT'S MOTOR VEHICLE AND THE RUTA MOTOR VEHICLE THAT EXCEEDS $1000? [88] Section 199(1) of the Highway Traffic Act requires that a motorist involved in a motor vehicle accident that results "in personal injuries or in damage to property apparently exceeding an amount prescribed by regulation", which is currently set at $1000, report the accident forthwith to the nearest police officer. First of all, there has been no evidence adduced of any personal injuries that resulted from the alleged collision at the Esso gas station to the defendant, to Marek Ruta, to Marek Ruta's brother, or to anyone else that would have triggered the defendant's reporting requirement. [89] And, whether there is any evidence of property damage resulting from the alleged accident that apparently exceeds the value of $1000, Marek Ruta had testified that a blue-coloured Dodge Grand Caravan motor vehicle had backed into his father's vehicle and had caused paint damage to the front bumper on the driver's side of his father's vehicle that had caused $1000 worth of damage, which he had learned from his father who had gone to an autobody shop for an estimate. However, Ruta also said that he did not have any receipts or written estimates from an autobody shop in respect to what it would cost to repair the damage to the Ruta vehicle. [90] In addition, Cst. Cornea testified that he had observed fresh scratches to the paint finish of the front driver's side bumper of the Ruta vehicle and fresh scratches to the paint finish of the rear bumper on the passenger side of the defendant's Dodge Grand Caravan motor vehicle while it had been parked on the driveway of the defendant's residence. Cst. Cornea also said that the damage to the defendant's vehicle and to the Ruta vehicle were similar in nature. Furthermore, Cst. Cornea opined that the damage to the defendant's vehicle from the alleged collision had exceeded $1000 and that the damage to the Ruta vehicle had also exceeded $1000. [91] And, to determine whether the threshold amount of $1000 has been met, the value of the alleged property damage would be calculated by totalling up all of the property damage that would have resulted from the accident, which would include the alleged damage to the defendant's vehicle, to the Ruta vehicle, and to any other property. [92] Ergo, based on Marek Ruta's and Cst. Cornea's testimony, there is evidence in the record of a collision occurring between the defendant's vehicle and the Ruta vehicle, which resulted in property damage that apparently exceeded the value of $1000. #### (i) Does Cst. Cornea have to be qualified as an expert witness on the subject of estimating the cost of repairing damage to motor vehicles involved in collisions before Cst. Cornea's estimation of the value of the damage to the motor vehicles involved in the alleged collision at the Esso gas station can be considered to be evidence of property damage that exceeds the amount of $1000? [93] However, despite Marek Ruta's and Cst. Cornea's testimony on the value of the damage to the Ruta vehicle and to the defendant's vehicle that would have exceeded the prescribed amount of $1000, the defence nevertheless submits that there is no evidence of damage to either the defendant's motor vehicle or to the Ruta motor vehicle, since Cst. Cornea has not been qualified as an expert witness in estimating the monetary value of damage to motor vehicles involved in a collision. Hence, does Cst. Cornea have to be qualified as an expert before Cst. Cornea's testimony in regards to the value of the damage that Cst. Cornea had observed on the defendant's motor vehicle and on the Ruta motor vehicle can be accepted as evidence of property damage that would apparently exceed the value of $1000? In respect to the motion of no evidence, evidence on the value of the damage to either vehicle is critical, since the threshold amount of property damage that triggers the defendant's legal obligation to report the alleged accident forthwith to the nearest police officer pursuant to s. 199(1) has to exceed the prescribed amount of $1000. [94] In addition, Cst. Cornea had testified that he is not an expert on valuing the damage to motor vehicles involved in accidents, nor does he have experience as an accident reconstructionist. [95] As for the reception of Cst. Cornea's opinion on the value of the damage he had observed, the traditional exclusionary rule that opinion evidence from a lay person is generally not admissible has been modified by the Supreme Court of Canada in [Graat v. R. (1982)](https://www.canlii.org/en/ca/scc/doc/1982/1982canlii33/1982canlii33.html). In that case, Dickson J. held at p. 310, that lay witnesses can present their observations as opinions where they "are merely giving a compendious statement of facts that are too subtle and too complicated to be narrated separately and distinctly." [96] Moreover, at pp. 183-184 of their textbook"The Law of Evidence, 6ed.", Paciocco and Stuesser intimated that the general exclusionary rule which disallowed opinion evidence of lay witnesses is often not applied since the distinction between fact and opinion is not always clear. Furthermore, they also noted that the Supreme Court of Canada in [Graat v. R.](https://www.canlii.org/en/ca/scc/doc/1982/1982canlii33/1982canlii33.html) had adopted a more general, sensible, and less technical approach for dealing with the admissibility of lay opinion evidence, where such evidence would be admissible on the basis that lay witnesses can present their observations as opinions, in which compendious statements of fact made by the lay witness incorporates a myriad of subtle characteristics or attributes that have been observed and digested by that witness, which could not be otherwise communicated effectively without resort to conclusions: > Even for lay witnesses, the general exclusionary rule disallowing opinion evidence is often not applied. This is because the stark dichotomy between fact and opinion that is presupposed by the general rule is unrealistic. As Dickson J. said in Graat v. R.: "Except for the sake of convenience there is little, if any, virtue in any distinction resting on the tenuous and frequently false antithesis between 'fact' and 'opinion.' The line between 'fact' and 'opinion' is not clear." For example, when a witness identifies the driver of the vehicle by pointing her out in court, he is stating as a fact that she is the driver. Yet, in a real sense he is offering his opinion that the person in court is the same person who was driving the vehicle. Numerous apparent statements of fact are arguably no more than expressions of opinion; things like age, height, weight, the identification of people or things, the speed of vehicles, distance, whether someone is happy or angry, all call for judgment to be made about what has been observed and for conclusions to be drawn. Obviously, it is common for witnesses to testify about such things. The fact is that lay witnesses do offer opinions. > > We once proceeded on the basis that there was a general exclusionary rule prohibiting lay witnesses from testifying about their opinions, to which there were numerous particular exceptions allowing for proof of the kinds of things that have just been described. In Graat the Supreme Court of Canada adopted a more general, sensible, and less technical approach. Graat was charged with impaired driving, and the trial judge had permitted a series of witnesses to offer opinion evidence about whether the ability of Graat to drive a motor vehicle was impaired. Dickson J. held that it was appropriate to allow such testimony, but not because the degree of impairment of an individual is one of those established, exceptional cases where laypersons can offer their opinion. Rather, Dickson J. decided that the evidence was admissible on the more general basis that lay witnesses can present their observations as opinions where they "are merely giving a compendious statement of facts that are too subtle and too complicated to be narrated separately and distinctly." To understand this distinction, attempt to describe the difference between a vehicle travelling at forty kilometres an hour and one travelling at seventy kilometres an hour without expressing what will clearly be conclusions that capture the series of indescribable and internalized observations that enable most people to provide fair estimates of speed. Or, consider the recognition of faces. The compendious statement of fact"That is Aunt Sally" subsumes myriad subtle characteristics observed and digested by the witness, attributes that could not be communicated effectively without resort to conclusions. [97] In addition, at p. 183 of their textbook (6th ed.), Paciocco and Stuesser outlined four situations when lay witnesses may present their relevant observations in the form of opinions: > (1) they are in a better position than the trier of fact to form the conclusion; > > (2) the conclusion is one that persons of ordinary experience are able to make; > > (3) the witness, although not expert, has the experiential capacity to make the conclusion; and > > (4) the opinions being expressed are merely a compendious mode of stating facts that are too subtle or complicated to be narrated as effectively without resort to conclusions. [98] Furthermore, in their discussion on the admissibility of opinion evidence based on "experiential capacity", Paciocco and Stuesser at pp. 181-182 in their textbook (6th ed.) made it quite clear that when the "experiential capacity" needed is only that of ordinary experience, then the lay opinion evidence rule can be used, but when the opinion offered requires special knowledge, training, or experience that goes beyond that of ordinary persons, then the expert opinion rules should apply. Paciocco and Stuesser also noted that the rules related to expert evidence do not apply where a witness, even one having special training or education, simply describes factual observations that can be interpreted by lay persons: > In our system of trial, it is the neutral, impartial trier of fact who is to determine what inferences to draw from facts. "A basic tenet of our law is [therefore] that the usual witness may not give opinion evidence, but testify only to facts within his knowledge, observation and experience." In spite of this general exclusionary rule, opinion evidence is often offered. It is therefore more instructive to focus on when opinion evidence will be allowed. As will be developed in this chapter, there are two categories of admissible opinion evidence, one for lay witnesses and one for expert witnesses. In simple terms, we let lay witnesses offer opinions when there is no other meaningful way for them to communicate ordinary knowledge that they possess. We let expert witnesses offer opinions where triers of fact do not have the special training or experience required to make the relevant and worthwhile observations that the witness is offering. > > It is therefore a straightforward matter as to which set of rules apply in a given case. If all that is required to form the opinion is ordinary experience, the lay opinion rule should be used. For example, the lay opinion evidence rule governed whether a police officer could testify to the direction the person who made footprints in the snow was running, since "any school child would deduce this from the tracks . . . observed." By contrast if special training or experience is needed to form the opinion, the expert opinion rules apply. For example, evidence predicting the effects that the pharmaceutical "antabuse" would have on alcohol abuse by an alcoholic had to meet the expert evidence rules. The expert evidence rules are, of course, intended to determine when individuals can offer testimony about things that lay persons do not have the special training or experience to observe. As a result, the expert evidence rules that govern opinion evidence are not confined to opinions per se. Any time a witness offers observations — even descriptive ones — that cannot competently be made without special training or experience, the expert evidence rules described in this chapter apply. For example, a lay witness would not be permitted to describe the anatomy of the eyeball. > > Confusion can be avoided if it is remembered that the issue in determining which rules to apply is not whether the witness is an expert. It is whether the witness, expert or not, is offering information that requires special training or experience to observe. Accordingly in R. v. Collins the expert evidence rules did not apply to testimony about the results of an experiment conducted by police officers to determine whether bullets would ricochet off the water, striking a target on the opposite shore. The experiment did not require expertise to conduct, and no scientific principles were required to observe the results. Even if the police officers conducting the experiment had been ballistic experts, expert evidence rules would not have applied. By contrast, had the officers offered testimony about the speed the bullets travelled when fired from the gun their testimony would have to comply with the expert evidence rules. It is the substance of the evidence that matters, not the status of the witness. [99] Moreover, at p. 190 of their textbook, Paciocco and Stuesser commented that expert evidence would be necessary where ordinary people are unlikely to form a correct judgment about a subject-matter without the assistance of an expert: > Expert opinion evidence is presumptively inadmissible. It can be admitted only if the party calling it satisfies the following four preconditions to admissibility, on the balance of probabilities: > > • the expert evidence must be "necessary" in the sense that the expert deals with a subject-matter that ordinary people are unlikely to form a correct judgment about without assistance; > > • the expert evidence must be logically relevant to a material issue; > > • the witness must be qualified to offer the opinion in the sense that the expert possesses special knowledge and experience going beyond that of the trier of fact in the matters testified to; and > > • the proposed opinion must not run afoul of any exclusionary rule apart entirely from the expert opinion rule ("the absence of an exclusionary rule") > > Even if these four preconditions are met, the trial judge, as the "gatekeeper" must decide whether the expert evidence is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence. [100] Furthermore, the "ultimate issue rule" no longer applies in regards to receiving expert opinion evidence: [Graat v. R. (1982)](https://www.canlii.org/en/ca/scc/doc/1982/1982canlii33/1982canlii33.html). Also, at pp. 185-186 in their textbook (6th ed.), Paciocco and Stuesser emphasized that similar to lay opinion evidence, the "ultimate issue rule" no longer applies to expert opinion evidence as a rule of general application: > It was once said that "an opinion [whether lay or expert] can never be received when it touches the very issue before the [court]." The concern was that to allow a witness to express her "verdict" on the very issue that the trier of fact had to decide would be "usurping the functions of the jury." Put more simply, there was fear that the trier of fact might be influenced unduly by the opinion, accepting it uncritically regardless of the actual evidence in the case. There is no longer an "ultimate issue" rule that absolutely bars qualified witnesses from offering opinions on the ultimate issues in a case. The ultimate issue rule was put to rest for lay witnesses in Graat v. R. There the accused attempted to use the ultimate issue rule to oppose the admission of lay opinions about his impairment. He argued that impairment was the very issue before the court and that to let witnesses say that his ability to drive was impaired might cause the judge simply to accept their judgment, rather than deciding the case on the evidence. Dickson J. criticized the ultimate issue rule and said that so long as the opinions were not superfluous, they were properly heard. He remarked that witnesses cannot "usurp" the role of the trier of fact because the trier is free to accept all, or part, or none of their testimony. It is the trier of fact who renders the verdict, not the witnesses. > > Even though the fear of undue influence is more compelling where the opinion witness is an "expert" it has since been resolved that the ultimate issue rule is also gone for expert witnesses; there is no rule of general application preventing expert witnesses from offering opinions on the ultimate issues in a case. As will be seen later in this chapter, however, the fact that an expert is about to testify on one of the ultimate issues in the case will sometimes be a factor to consider in determining whether the testimony will be admitted. Although the ultimate issue rule itself is gone, two of its cousins survive. The first of those rules provides that a witness cannot offer an opinion on a pure question of domestic law. The second has come to be known as the rule against oath-helping. [101] On the other hand, the law still recognizes that neither a lay or an expert witness may provide an opinion on a pure question of law; however, as Paciocco and Stuesser indicated at p. 186 of their textbook (6th ed.), where the witness's opinion is not on a pure question of law and requires nothing more than a conclusion of fact to resolve, then the witness is permitted to state their opinion on the ultimate issue to be decided: > No witness, expert or otherwise, can provide an opinion on a pure question of domestic law. The rule is easy to state and to understand — evidence is to be about questions of fact, not law. The law is for lawyers to argue, not witnesses to offer. It was therefore an error for a trial judge to permit a taxpayer to call a family law lawyer to explain that a clause in a separation agreement was legally enforceable, it was an error for the trial judge to allow an expert witness to interpret the word "appreciates" in section 16 of the Criminal Code, pertaining to the mental disorder defence, and it was wrong for an expert to offer an opinion on whether the accused was "guilty." Occasionally, however, a legal standard does not have its own technical definition and requires nothing more than a conclusion of fact to resolve. For example, the concept of impairment in the offence of impaired driving refers to nothing more than the fact of impairment. Because it holds the same legal meaning as the term would have for laypersons, it is not a pure question of law and there is no problem in allowing witnesses to state opinions on that ultimate issue. [102] Therefore, lay opinion evidence is admissible if the witness has the "experiential capacity" to make a conclusion on factual matters and the conclusion is one that a person of ordinary experience is able to make. [103] In respect to Cst. Cornea's opinion on the value of the damage he observed on the vehicles in question, Cst. Cornea testified that he had based his opinion on the experience and knowledge he had gained from being involved personally in an accident where he had to obtain repair estimates from autobody repair shops and also from experience garnered as a police officer investigating over 100 motor vehicle accidents, as well as from the experience he had gained from working at a self-reporting collision center where he had been able to review written repair estimates from autobody shops that had been brought in by motorists and compare those estimates with the damage that had been visible on the motorists' motor vehicles that had been involved in an accident that had been shown to Cst. Cornea at the reporting center. [104] As such, Cst. Cornea would have the necessary and relevant experience, as well as knowledge, to be able to estimate and provide a suitable opinion on the value of the damage to a motor vehicle involved in an accident. Simply put, Cst. Cornea has the "experiential capacity" of an ordinary person to give factual and opinion evidence on the apparent value of the damage he had observed on the defendant's vehicle and on the Ruta vehicle. [105] Furthermore, Cst. Cornea testified that the cost of repairing the damage to the respective bumpers on either the defendant's vehicle or to the Ruta vehicle would be over $1000, because the whole bumper would have to be repainted. Thus, the $1000 cost to repaint an entire bumper is not an unusual or an excessive amount and is the type of value that can be estimated by someone with ordinary experience, which could be easily gained from working at a self-reporting collision centre and from investigating motor vehicle accidents. [106] In addition, Cst. Cornea's testimony is not captured by the rules for admitting expert opinion evidence. An opinion on the value of the damage visible on both the defendant's vehicle and on the Ruta vehicle is not an opinion that requires specialized education, knowledge, or training to formulate. Moreover, this type of opinion can come from anyone with ordinary experience. Therefore, Cst. Cornea's personal knowledge and experience that he described would satisfy such ordinary experience. [107] However, it should not be overlooked that when a court is required to consider opinion evidence, the court still has the final say on legal conclusions and the finding of facts, as well as making the determination on how much weight to place on Cst. Cornea's testimony, including any opinion evidence he may give. Moreover, the determination of the admissibility of Cst. Cornea's opinion on the value of the property damage he had observed is a decision of the trier of law, and where the proposed testimony is relevant to a material issue then it is admissible unless it falls within an exclusionary rule or its prejudicial effect, if admitted, exceeds its probative value. [108] Additionally, s. 199(1) only refers to "apparent" property damage and not to a more quantifiable or veritable degree of property damage that triggers the reporting requirement. As such, receipts or written estimates from autobody repair shops, although evidentially helpful, are not legally required in order to prove the value of the apparent property damage. Furthermore, s. 199(1) refers to the value of all property damage that results from a motor vehicle accident. Therefore, the "apparent" property damage to both vehicles would have to be added together in order to determine if the property damage exceeds the $1000 threshold amount. [109] As such, Cst. Cornea's opinion in regards to the value of the property damage that he had observed on the defendant's vehicle and to the Ruta vehicle is relevant and material, and therefore, admissible. Accordingly, there is evidence in the record that the property damage that had resulted from the alleged collision had exceeded $1000, which consequently would then trigger the defendant's legal obligation under s. 199(1) to report the alleged accident to the nearest police officer. As a result, the defence motion of no evidence does not succeed in respect to the "failing to report an accident" charge laid under s. 199(1). ### (D) VOLUNTARINESS OF THE DEFENDANT'S STATEMENTS MADE TO CST. CORNEA [110] Based on Cst. Cornea's failure to read to the defendant his right to counsel or to caution the defendant on his right to silence before questioning the defendant, as well as his failure to record the defendant's responses verbatim, the defence contends that the defendant's utterances or statements were not voluntarily given to Cst. Cornea. Consequently, because of Cst. Cornea's omission to caution the defendant, the defence argues that the defendant did not have an operating mind when Cst. Cornea obtained the defendant's statements as outlined in [R. v. Oickle, 2000 SCC 38](https://www.canlii.org/en/ca/scc/doc/2000/2000scc38/2000scc38.html); while his failure to record the defendant's statements verbatim creates reasonable doubt as to its voluntariness. [111] However, based on the evidence that had been adduced in the voir dire, which consisted only of Cst. Cornea's testimony, I had determined that the defendant's statements had been voluntarily given to Cst. Cornea beyond a reasonable doubt. This had been based on Cst. Cornea's testimony that the defendant's statements had not been obtained through improper promises, inducements, or threats from Cst. Cornea. In addition, Cst. Cornea had testified that the defendant did not indicate that he did not wish to speak with Cst. Cornea, that the defendant had understood the English language, that the defendant's answers had been consistent with Cst. Cornea's questions, and that the defendant had not been under the influence of alcohol or drugs when the statements were given. Moreover, Cst. Cornea had also testified that the defendant had not been under arrest and that Cornea did not have the intention to charge the defendant before he began questioning the defendant. Furthermore, Cst. Cornea testified that the conversation between the defendant and Cst. Cornea had taken place on the driveway of the defendant's residence and that Cornea had been still conducting an investigation into the alleged motor vehicle accident at the time of their interaction and conversation. Moreover, I find that the defendant had not been detained for the purposes of s. 9 and s. 10 of the Charter, since the evidence indicates that the interaction and conversation between the defendant and Cst. Cornea had been relatively short in duration. [112] In addition, Cst. Cornea had still been gathering evidence for a motor vehicle accident and not for penal liability, when Cst. Cornea had first approached the defendant at the defendant's residence. In other words, Cst. Cornea had not crossed the "Rubicon", so as to be primarily gathering evidence of penal liability or of an offence, nor did the evidence show that an adversarial relationship had crystallized between the state and the defendant prior to the defendant making the statements in question to Cst. Cornea. [113] Furthermore, after I had ruled that the defendant's statements were proven to be voluntary beyond a reasonable doubt, Cst. Cornea then testified as to what the defendant had stated, which was that the defendant had said he had been the driver of the defendant's vehicle at the Esso gas station, but did not hit the (Ruta) vehicle, and that the defendant had not given his name and address to the other driver (Marek Ruta) because the other driver had wanted money from the defendant. Then Cst. Cornea said the defendant had informed Cornea that the defendant left and did not believe that he had to provide his name and address to the other driver. #### (1) Statutorily-Compelled Statements And The Principle Against Self-incrimination [114] The modern version of the confessions rule was critically examined and outlined by the Supreme Court of Canada in [R. v. Oickle, 2000 SCC 38](https://www.canlii.org/en/ca/scc/doc/2000/2000scc38/2000scc38.html). At paras. 68-69 of that decision, the Supreme Court held that inculpatory statements made to law enforcement officials, when taken in context, would be involuntary and not admissible when they result from promises or threats, an atmosphere of oppression, the lack of an operating mind, or police trickery that unfairly denies the accused's right to silence. Hence, the modern confessions rule not only protects an accused from unreliable confessions, it also protects their rights, and ensures them fairness in the criminal or regulatory process: > While the foregoing might suggest that the confessions rule involves a panoply of different considerations and tests, in reality the basic idea is quite simple. First of all, because of the criminal justice system's overriding concern not to convict the innocent, a confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness. Both the traditional, narrow Ibrahim rule and the oppression doctrine recognize this danger. If the police interrogators subject the suspect to utterly intolerable conditions, or if they offer inducements strong enough to produce an unreliable confession, the trial judge should exclude it. Between these two extremes, oppressive conditions and inducements can operate together to exclude confessions. Trial judges must be alert to the entire circumstances surrounding a confession in making this decision. > > The doctrines of oppression and inducements are primarily concerned with reliability. However, as the operating mind doctrine and Lamer J.'s concurrence in Rothman, supra, both demonstrate, the confessions rule also extends to protect a broader conception of voluntariness "that focuses on the protection of the accused's rights and fairness in the criminal process": J. Sopinka, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 339. Voluntariness is the touchstone of the confessions rule. Whether the concern is threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused's right to silence, this Court's jurisprudence has consistently protected the accused from having involuntary confessions introduced into evidence. If a confession is involuntary for any of these reasons, it is inadmissible. [115] Furthermore, in order to ensure that due process or fairness would be accorded to an accused when a court has the task of deciding whether a confession should be admissible at trial, the Supreme Court at paras. 70 to 71 in [R. v. Oickle](https://www.canlii.org/en/ca/scc/doc/2000/2000scc38/2000scc38.html), found it necessary to broadly characterize when statements obtained in certain circumstances would create reasonable doubt as to their voluntariness, instead of just making statements inadmissible that were obtained by threats or inducements. The Supreme Court further indicated that fairness required that the determination of the voluntariness of a statement would no longer have that narrow reference to statements made under threats or promises (the Ibrahim confession rule), but would also encompass statements that had been obtained through an oppressive atmosphere, the lack of an operating mind, or from police trickery: > Wigmore perhaps summed up the point best when he said that voluntariness is "shorthand for a complex of values": Wigmore on Evidence (Chadbourn rev. 1970), vol. 3, 826, at p. 351. I also agree with Warren C.J. of the United States Supreme Court, who made a similar point in Blackburn v. Alabama, 361 U.S. 199 (1960) at p. 207: [N]either the likelihood that the confession is untrue nor the preservation of the individual's freedom of will is the sole interest at stake. As we said just last Term"The abhorrence of society to the use of involuntary confessions . . . also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves." . . . Thus a complex of values underlies the stricture against use by the state of confessions which, by way of convenient shorthand, this Court terms involuntary, and the role played by each in any situation varies according to the particular circumstances of the case. See Hebert, supra. While the "complex of values" relevant to voluntariness in Canada is obviously not identical to that in the United States, I agree with Warren C.J. that "voluntariness" is a useful term to describe the various rationales underlying the confessions rule that I have addressed above. > > Again, I would also like to emphasize that the analysis under the confessions rule must be a contextual one. In the past, courts have excluded confessions made as a result of relatively minor inducements. At the same time, the law ignored intolerable police conduct if it did not give rise to an "inducement" as it was understood by the narrow Ibrahim formulation. Both results are incorrect. Instead, a court should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession's voluntariness, taking into account all the aspects of the rule discussed above. Therefore a relatively minor inducement, such as a tissue to wipe one's nose and warmer clothes, may amount to an impermissible inducement if the suspect is deprived of sleep, heat, and clothes for several hours in the middle of the night during an interrogation: see Hoilett, supra. On the other hand, where the suspect is treated properly, it will take a stronger inducement to render the confession involuntary. [116] In [R. v. Spencer, 2007 SCC 11](https://www.canlii.org/en/ca/scc/doc/2007/2007scc11/2007scc11.html), at paras. 11, 12, and 14, Deschamps J. confirmed that the test set out in [R. v. Oickle](https://www.canlii.org/en/ca/scc/doc/2000/2000scc38/2000scc38.html) relating to the voluntariness of an accused's statements had adopted a contextual approach where voluntariness is a concept broadly understood. Furthermore, she reiterated that the Court in Oickle had recognized that threats or promises are to be considered together and not as discrete inquiries divorced completely from the rest of the confessions rule, but that the use of police trickery to obtain a confession is a distinct inquiry that is related to maintaining the integrity of the criminal justice system: > At common law, statements made by an accused to a person in authority are inadmissible unless they are made voluntarily. This Court set out the test for ascertaining the voluntariness of such statements in Oickle. That case "recast the law relating to the voluntariness of confessions ... It rejected resort to fixed and narrow rules": D. M. Paciocco and L. Stuesser, The Law of Evidence (4th ed. 2005), at p. 290. As Iacobucci J. explained in Oickle, at para. 27, the rule "is concerned with voluntariness, broadly understood". He also emphasized that a contextual approach is required (at para. 47): > > The application of the rule will by necessity be contextual. Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over- and under-inclusive. A trial judge should therefore consider all the relevant factors when reviewing a confession. > > In Oickle, the Court recognized that there are several factors to consider in determining whether there is a reasonable doubt as to the voluntariness of a statement made to a person in authority, including the making of threats or promises, oppression, the operating mind doctrine and police trickery. Threats or promises, oppression and the operating mind doctrine are to be considered together and "should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule" (Oickle, at para. 63). On the other hand, the use of "police ... trickery" to obtain a confession "is a distinct inquiry ... [given that] its more specific objective is maintaining the integrity of the criminal justice system" (para. 65). > > To the extent that any distinction in law may be asserted between the traditional "confessions rule" in Ibrahim v. The King, [1914] A.C. 599 (P.C.), at p. 609, per Lord Sumner, and this Court's decision in Oickle, the latter must prevail. In my view, however, Lord Sumner's formulation of the "narrow" rule does not mean that any quid pro quo will automatically render a statement involuntary. Indeed, Lord Sumner required that in order for a statement to be admissible, it must not have been "obtained from [the accused] either by fear of prejudice or hope of advantage". In the subsequent case of Director of Public Prosecutions v. Ping Lin, [1976] A.C. 574 (H.L.), at p. 595, Lord Morris asked: "was it as a result of something said or done by a person in authority that an accused was caused or led to make a statement". [117] Furthermore, in [R. v. White](https://www.canlii.org/en/ca/scc/doc/1999/1999canlii689/1999canlii689.html), Iacobucci J. held at paras. 44-45, that the principle against self-incrimination is an overarching principle of the criminal justice system from which the confessions rule, the right to silence, and the right to counsel emanate. However, he also pointed out that the principal against self-incrimination does not imply that there is absolute protection for all accused against all uses of information that has been compelled by statute or otherwise: > The jurisprudence of this Court is clear that the principle against self-incrimination is an overarching principle within our criminal justice system, from which a number of specific common law and Charter rules emanate, such as the confessions rule, and the right to silence, among many others. … Within the Charter, the principle against self-incrimination is embodied in several of the more specific procedural protections such as, for example, the right to counsel in s. 10(b), the right to non-compellability in s. 11(c), and the right to use immunity set out in s. 13. The Charter also provides residual protection to the principle through s. 7. … > > That the principle against self-incrimination does have the status as an overarching principle does not imply that the principle provides absolute protection for an accused against all uses of information that has been compelled by statute or otherwise. The residual protections provided by the principle against self-incrimination as contained in s. 7 are specific, and contextually sensitive. … The principle against self-incrimination demands different things at different times, with the task in every case being to determine exactly what the principle demands, if anything, within the particular context at issue. [118] Additionally, in [R. v. Fitzpatrick](https://www.canlii.org/en/ca/scc/doc/1995/1995canlii44/1995canlii44.html), at paras. 33 and 34, La Forest J. reiterated that any state action which would coerce an individual to furnish evidence against themselves in a proceeding where the individual and the state are adversaries would generally violate the principle against self-incrimination: > The parameters of the general principle against self-incrimination were succinctly described by the Chief Justice in Jones, supra. Although the Chief Justice was there speaking in dissent, his analysis of the principle against self-incrimination was endorsed by Iacobucci J. for a majority of the Court in S. (R.J.), and must, accordingly, be considered authoritative. In Jones, the Chief Justice wrote (at p. 249): > > Any state action that coerces an individual to furnish evidence against him- or herself in a proceeding in which the individual and the state are adversaries violates the principle against self-incrimination. Coercion, it should be noted, means the denial of free and informed consent. [119] And, similar to the issue that is confronting this court in the proceeding at bar, a statement that is made under statutory compulsion may also be inadmissible for infringing an individual's constitutionally protected right against self-incrimination and their right to remain silent under s. 7 of the Charter or for rendering the trial unfair: [R. v. White](https://www.canlii.org/en/ca/scc/doc/1999/1999canlii689/1999canlii689.html). On the other hand, the Supreme Court in [R. v. Fitzpatrick](https://www.canlii.org/en/ca/scc/doc/1995/1995canlii44/1995canlii44.html), at para. 30, recognized that the right against self-incrimination in certain circumstances may not apply in the regulatory context: > in Wholesale Travel, 67 C.C.C. (3d) 193, supra, at p. 243 C.C.C., p. 211 D.L.R., 84 D.L.R. (4th) 161, Cory J. held that "a Charter right may have different scope and implications in a regulatory context than in a truly criminal one", and that "constitutional standards developed in the criminal context cannot be applied automatically to regulatory offences". … In this regulatory environment, we must be careful to avoid automatically applying rules that have been developed respecting self-incrimination in the criminal sphere. [120] Therefore, not all statutorily-compelled or conscripted statements used in the regulatory sphere would necessarily violate the principle against self-incrimination, nor breach the Charter. Also see L'Heureux-Dubé J.'s opinion in [R. v. S. (R.J.)](https://www.canlii.org/en/ca/scc/doc/1995/1995canlii121/1995canlii121.html), at para. 269, in which she had noted that "where the state, on justifiable grounds, compels the individual to assist in procedures which may incriminate that person, then state compulsion involved in obtaining this evidence need not necessarily offend the principles of fundamental justice": > It follows that where the state, on justifiable grounds, compels the individual to assist in procedures which may incriminate that person, then the state compulsion involved in obtaining this evidence need not necessarily offend the principles of fundamental justice. As such, the "common thread" that is truly fundamental to our system of justice cannot be so broad as to extend to all potentially self-incriminatory effects of state action. [121] The Supreme Court also remarked in [R. v. Jarvis, 2002 SCC 73](https://www.canlii.org/en/ca/scc/doc/2002/2002scc73/2002scc73.html), at para. 68, that s. 7 does not envelop an abstract and absolute rule that would prevent the use of information in all contexts in which it is statutorily compelled. In that respect, on whether the principal against self-incrimination is engaged, the Supreme Court held that a concrete and contextual analysis of all the circumstances must be undertaken. Indeed, in some contexts the Supreme Court acknowledged that the search for truth would outweigh protecting the individual against undue compulsion by the state where information or statements have been obtained through state compulsion: > s. 7 does not envelop an abstract and absolute rule that would prevent the use of information in all contexts in which it is statutorily compelled: Jones, supra, at p. 257; S. (R.J.), supra, at paras. 96-100; Fitzpatrick, supra, at paras. 21 and 24; White, supra, at para. 45. A court must begin "on the ground", with a concrete and contextual analysis of all the circumstances, in order to determine whether or not the principle against self-incrimination is actually engaged: Fitzpatrick, at para. 25; White, at para. 46. This analysis necessarily involves a balancing of principles. One must, in assessing the limits on compellability demanded by the principle against self-incrimination, consider the opposing principle of fundamental justice suggesting that relevant evidence should be available to the trier of fact in a search for truth: S. (R.J.), at para. 108, per Iacobucci J. These competing interests will often be brought to the foreground in regulatory contexts, where the procedures being challenged have generally been designed (and are employed) as part of an administrative scheme in the public interest: Fitzpatrick, at para. 27. As the Court stated in White, at para. 48: > > In some contexts, the factors that favour the importance of the search for truth will outweigh the factors that favour protecting the individual against undue compulsion by the state. This was the case, for example, in Fitzpatrick, supra, where the Court emphasized the relative absence of true state coercion, and the necessity of acquiring statements in order to maintain the integrity of an entire regulatory regime. In other contexts, a reverse situation will arise, as was the case, for example, in Thomson Newspapers, supra, S. (R.J.), supra, and Branch, supra. In every case, the facts must be closely examined to determine whether the principle against self-incrimination has truly been brought into play by the production or use of the declarant's statement. [122] Furthermore, the question of whether statutorily-compelled statements are admissible as evidence when scrutinized under the Charter has been considered by the Supreme Court of Canada in [R. v. White](https://www.canlii.org/en/ca/scc/doc/1999/1999canlii689/1999canlii689.html), in the context of criminal charges, and in [R. v. Fitzpatrick](https://www.canlii.org/en/ca/scc/doc/1995/1995canlii44/1995canlii44.html), in the context of regulatory offences. From those two seminal cases, the Supreme Court has established an "investigatory continuum for admissibility" in determining whether conscripted statements would violate the Charter. At one end of the continuum are situations like the fisher in [R. v. Fitzpatrick](https://www.canlii.org/en/ca/scc/doc/1995/1995canlii44/1995canlii44.html) who had been compelled to make reports on the quantity of fish caught, where the conscripted reports were held to be admissible and would not violate the principle against self-incrimination. While at the other end of the continuum, in which statutorily-compelled statements are not admissible, there is the situation that had been decided in [R. v. White](https://www.canlii.org/en/ca/scc/doc/1999/1999canlii689/1999canlii689.html) where an inculpatory statement made by a motorist, who struck a pedestrian with her vehicle, had been given under the requirement to furnish an accident report to a police officer. In that case, because the motorist had faced a criminal charge with the potential for imprisonment upon conviction, the compelled statement was held not to be admissible in a criminal proceeding against the motorist since its reception would violate the principle against self-incrimination. [123] Moreover, in differentiating between why statutorily-compelled statements should not be admissible nor used against an accused in a criminal proceeding and why they are admissible and permitted to be used against an accused in a regulatory proceeding, Bruce J. in [R. v. Faruq, [2003] B.C.J. No. 2183 (QL) (B.C. Prov. Ct.)](https://www.canlii.org/en/bc/bcpc/doc/2003/2003bcca2183/2003bcca2183.html), at paras. 40 and 41, has succinctly summarized the factors which had permitted statutorily-compelled statements to be admitted by the Supreme Court in [R. v. Fitzpatrick](https://www.canlii.org/en/ca/scc/doc/1995/1995canlii44/1995canlii44.html), a regulatory prosecution, yet excluded in [R. v. White](https://www.canlii.org/en/ca/scc/doc/1999/1999canlii689/1999canlii689.html), a criminal prosecution. For the factors in Fitzpatrick, Bruce J. noted that the Supreme Court had found that the statutorily-compelled statements were admissible in that regulatory prosecution, since s. 7 was not engaged, nor had there been an adversarial relationship between the accused and the state at the time the data had been collected; that the element of coercion had been absent; that the purposes underlying the principle against self-incrimination had not been present; that the activity engaged in by the accused had been a voluntary one; and that the entire regulatory scheme involved depended upon the ability to prosecute based on the compelled reports. On the other hand, Bruce J. noted that the Supreme Court had found that the statutorily-compelled statement given by the accused in [R. v. White](https://www.canlii.org/en/ca/scc/doc/1999/1999canlii689/1999canlii689.html) had not been admissible in the criminal proceeding against the declarant for the factors that an adversarial relationship had existed at the time the statement was compelled; that the admissibility of the statement in a criminal trial had not been necessary to maintain the integrity of the regulatory scheme; that the purposes behind the principle against self-incrimination had been present; and that the element of coercion had been undeniable: > In Regina v. Fitzpatrick, supra, the accused was charged with catching fish in excess of his quota and the Crown sought to admit reports statutorily compelled under s. 61 of the Fisheries Act that provided details of the number of fish caught by the accused. The Supreme Court held that although the statements were compelled, Section 7 was not engaged in the circumstances because there was no adversarial relationship between the accused and the state at the time the data was collected, the element of coercion was missing, the purposes underlying the principle against self-incrimination were not present, the activity was a voluntary one, and the entire regulatory scheme depended upon the ability to prosecute based on the reports. > > In Regina v. White, supra, the Supreme Court addressed whether the Crown could rely upon statements made by the accused to a peace officer in response to a statutory requirement to provide an accident report. The accused was charged with failure to stop at the scene of an accident contrary to Section 252(1) of the Criminal Code. The police had taken a statement from at her pursuant to s. 61 of the Motor Vehicle Act shortly after the accident and the statement contained incriminating evidence. Acknowledging that the Motor Vehicle Act was a regulatory scheme, the Supreme Court held that statements made under compulsion of s. 61 of the Act were inadmissible in a criminal proceedings against the declarant because there existed an adversarial relationship at the time the statements were compelled, admissibility of the statements in a criminal trial was not necessary to maintain the integrity of the regulatory scheme, the purposes behind the principle against self-incrimination were present, and the element of coercion was undeniable. [124] Moreover, I had the opportunity to apply the criteria and analyses established in [R. v. Fitzpatrick](https://www.canlii.org/en/ca/scc/doc/1995/1995canlii44/1995canlii44.html) and in [R. v. White](https://www.canlii.org/en/ca/scc/doc/1999/1999canlii689/1999canlii689.html) in a regulatory context in [R. v. Colquhoun, [2002] O.J. No. 349 (QL) (O.C.J.)](https://www.canlii.org/en/on/oncj/doc/2002/2002canlii42849/2002canlii42849.html), where I had to consider the voluntariness and admissibility of a statutorily-compelled statement in the context of the obligation under provincial legislation to furnish information to a police officer investigating a motor vehicle accident, in circumstances not unlike the ones in the case at bar, and in [R. v. Visuvalingam, [2002] O.J. No. 3515 (QL) (O.C.J.)](https://www.canlii.org/en/on/oncj/doc/2002/2002canlii3515/2002canlii3515.html), where I had to decide on the admissibility of a motorist's oral statements, as well as his written statement contained in a collision report that had been given to an investigating police officer at the scene of an accident under statutory compulsion, in which the motorist had been subsequently charged after the officer had read that written statement in the collision report. [125] In [R. v. Colquhoun](https://www.canlii.org/en/on/oncj/doc/2002/2002canlii42849/2002canlii42849.html), I had found the conscripted statement in the particular circumstances of that case to be voluntary, admissible, and not in violation of the accused's right against self-incrimination under s. 7. [126] On the other hand, in [R. v. Visuvalingam](https://www.canlii.org/en/on/oncj/doc/2002/2002canlii3515/2002canlii3515.html) I had determined that the written statement produced under statutory compulsion by the accused to be voluntary and admissible for the circumstances, but not the accused's subsequent oral statement made to the investigating officer after the officer had the opportunity to read the accused's written statement. I further ruled that the accused's oral statement subsequently given to the officer after the officer had read the accused's written statement had not been admissible because the accused had not been given his right to counsel or cautioned on the right to silence before the accused's oral statement had been made to the officer. I had also determined that after the police officer had read the accused's written statement, the officer would have objectively had reasonable and probable grounds to believe that the accused had committed an offence, and for that reason, I concluded that that the police officer had been no longer collecting information for an accident investigation at that time, but gathering evidence from the accused for an offence inquiry. In addition, I found that after the police officer had read the motorist's statement his relationship with the accused had become adversarial, and as such, was under the obligation to read to the accused his right to counsel and to caution the accused on his right to silence, and to also stop using the officer's accident investigation powers under s. 199(3) of the Highway Traffic Act to elicit further information from the accused until such warnings or cautions had been given to the accused. [127] Also, at para. 54 in [R. v. Colquhoun](https://www.canlii.org/en/on/oncj/doc/2002/2002canlii42849/2002canlii42849.html), I had referred to Iacobucci J.'s comments set out in the [R. v. White](https://www.canlii.org/en/ca/scc/doc/1999/1999canlii689/1999canlii689.html) decision, in which Iacobucci J. had remarked that an individual should still know when they have to speak or when to exercise their right to remain silent when questioned by a law enforcement official, and to know where that dividing line is between an accident investigation where they are required to speak on one hand, or an inquiry into an offence when they are not required or compelled to speak on the other hand. Iacobucci J. also had concluded that not all answers to police questions are compelled under statute or protected under s. 7 of the Charter. Accordingly, when the authorities are conducting an inquiry into penal or regulatory liability, conducting an adversarial investigation, or when an investigating officer objectively has reasonable and probable grounds to believe that the individual has committed an offence, the individual's right to remain silent is engaged, as well as the obligation of the enforcement officer to "Charter" and caution the individual, respectively, on his right to counsel and his right to remain silent: > At para. 74 in White, Iacobucci J. wrote that individual drivers have an interest in knowing when one is required to speak and when one is permitted to exercise the right to remain silent in the face of police questioning since not all answers to police questions are compelled under statute or protected under s. 7 of the Charter: > > A declarant under s. 61 of the Motor Vehicle Act will be protected by use immunity under s. 7 of the Charter only to the extent that the relevant statements may properly be considered compelled. Accordingly, the driver has an interest in knowing with some certainty precisely when he or she is required to speak, and when he or she is permitted to exercise the right to remain silent in the face of police questioning. Conversely, the ability of the state to prosecute crime will be impaired to the extent of the reporting requirement under s. 61 of the Motor Vehicle Act. Thus the public, too, has a strong interest in identifying with some certainty the dividing line between the taking of an accident report under s. 61, on the one hand, and ordinary police investigation into possible crimes, on the other. When will a driver's answers to police questioning cease to be protected by the use immunity provided by s. 7 of the Charter? [128] Furthermore, in [R. v. Colquhoun](https://www.canlii.org/en/on/oncj/doc/2002/2002canlii42849/2002canlii42849.html) at paras. 151-153, I determined, after reviewing the common law in [R. v. Slopek (1974)](https://www.canlii.org/en/on/onca/doc/1974/1974canlii1553/1974canlii1553.html) and [R. v. Marshall](https://www.canlii.org/en/ca/scc/doc/1960/1960canlii18/1960canlii18.html), which are pre-Charter cases, that statements made to law enforcement officials under the statutory compulsion contained in s. 199(1) to report an accident is not an involuntarily-made statement for the purpose of admissibility, since statutorily-compelled statements do not fall within the inadmissible and involuntarily-made category of statements that are made under the narrow category of voluntariness which refer to promises or threats: > Iacobucci J. alludes in R. v. White to the subjective belief of giving a report under statutory compulsion implied the absence of consent. It is this absence of consent that the defendant argues is the basis of his argument that his inculpatory statement was not given voluntarily to Officer Johnston. At para. 76 in White, his Lordship comments on the implied absence of consent when giving a statement compelled under statute: > > The requirement that the accident report be given on the basis of a subjective belief exists because compulsion, 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. > > Although R. v. Slopek (1974), 21 C.C.C. (2d) 362 and R. v. Marshall, [1961] S.C.R. 123, were decided prior to the advent of the Charter, and stand for the notion that statutorily compelled statements are not involuntary in the sense that it is not made by promise or threat, I cannot envision how that has changed under the Charter for the specific charge of failing to report an accident. Iacobucci J.'s comment in R. v. White that people freely enter the regime governing the driving of motor vehicles in a province and consent to follow the rules governing this driving privilege, which includes a duty to report accidents and to furnish details, on the other hand implies they have given their free and informed consent to provide information for accident reports. … . > > Martin J.A. in R. v. Slopek, writing for the Court of Appeal of Ontario held that the law was settled in Ontario that statutorily compelled statements are not involuntary: > > The law in Ontario, however has taken a different course. The law has, of course, been settled since the case of Walker v. The King (1939), 71 C.C.C. 305, [1939] 2 D.L.R. 353, [1939] S.C.R. 214, that the fact that a statement is made under the compulsion of a statute does not render the statement involuntary; that the term "voluntary" in relation to statements made by an accused to a person in authority is used in a special sense, namely, in a sense that the statement has not been obtained by promises or threats. [129] However, even though statutorily-compelled statements are not considered involuntary under the narrow "Ibrahim" confessions rule, in certain circumstances these conscripted statements may still be considered involuntary under the modern confessions rule that encompasses a broader notion of voluntariness. Therefore, a statutorily-compelled statement may be inadmissible or excluded based on the principle against self-incrimination under s. 7 of the Charter in a particular context, or for being an involuntary statement. [130] In short, a contextual analysis of all the relevant factors must be conducted in order to properly determine whether there exists an adversarial relationship between the state and the individual when the statement at issue was produced or obtained by an enforcement official, and in determining whether the principle against self-incrimination protected under s. 7 would be violated or the trial rendered unfair, if the statutorily-compelled statement that is not otherwise found to be involuntary were to be admitted as evidence into the trial. #### (a) When Are Statutorily-Compelled Statements Not Admissible In A Regulatory Trial? [131] Generally, state action that coerces an individual to furnish evidence against oneself in a proceeding when the state and the individual are adversaries would violate the principle against self-incrimination. The purpose of this principle is to ensure that individuals are treated fairly in the criminal or regulatory process and to prevent unreliable confessions and abuses of power by officials. However, in certain contexts in the regulatory sphere a report or statement made or obtained under state compulsion would not violate the principle against self-incrimination. Accordingly, since the principle against self-incrimination is not an absolute rule, then each case has to be determined on its own merits by considering all the factors involved related to the production or use of the conscripted statement for determining its admissibility. [132] In addition, societal and individual interests are in conflict when a statement that is made under state compulsion would be used by the state in a proceeding against an individual. To balance the societal interest in enforcement officials being able to properly and efficiently enforce regulations and achieve the public goal behind the regulation, which benefit society on one hand, with the societal and individual interest in protecting individual rights on the other hand, I formulated a test in [R. v. Visuvalingam, [2002] O.J. No. 3515 (QL) (O.C.J.)](https://www.canlii.org/en/on/oncj/doc/2002/2002canlii3515/2002canlii3515.html), at para. 41, for determining when to admit or exclude a conscripted statement obtained or made for an accident report under s. 199(1) of the Highway Traffic Act: > The written statement made by the defendant was conscripted by statute. It was made during the investigation stage of the traffic accident. As such, when it is used in a regulatory prosecution it does not violate the principles of fundamental justice protected by s. 7 of the Charter. The defendant was not under arrest nor had the officer formed the opinion that the defendant had committed an offence. The officer was required by s. 199(3) of the Highway Traffic Act to investigate the accident and to obtain certain information. Correspondingly, the defendant was also compelled by the same statute to report the accident and to give the particulars of the traffic accident to the police officer. Therefore, the public interest in road safety, the defendant's participation in the regulated activity of driving which he voluntarily entered by obtaining a driver's license, the implicit consent of all drivers to obey the rules of the regulated activity including reporting an accident, tips the balance and subverts the defendant's individual interest against self-incrimination. See R. v. Colquhoun for an extensive discussion of the issue of statutorily compelled statements and the right against self-incrimination in a Highway Traffic Act prosecution. [133] My test, therefore, for determining whether statutorily-compelled statements made under s. 199(1) of the H.T.A. should be admissible in the trial is analogous to the "predominant purpose" test and "crossing the Rubicon" analysis established by the Supreme Court of Canada in the two income tax cases of [R. v. Jarvis, 2002 SCC 73](https://www.canlii.org/en/ca/scc/doc/2002/2002scc73/2002scc73.html) and [R. v. Ling, 2002 SCC 74](https://www.canlii.org/en/ca/scc/doc/2002/2002scc74/2002scc74.html), that had been developed for determining the admissibility of inculpatory statements, records or information obtained by or given to an official under statutory compulsion. In my test in [R. v. Visuvalingam](https://www.canlii.org/en/on/oncj/doc/2002/2002canlii3515/2002canlii3515.html), I had divided those conscripted statements made at the accident investigation stage, which is the stage where the enforcement officer has not objectively formed reasonable and probable grounds to believe that an offence has occurred, from conscripted statements given to an officer at the offence inquiry or penal investigation stage, which is the stage where the enforcement officer has or ought to have formed reasonable and probable grounds to believe that the actus reus of a regulatory offence had occurred. Once the enforcement officer's inquiry enters the offence inquiry stage, then an adversarial relationship crystallizes between the individual and the state, and the individual's right to silence is engaged. [134] Moreover, using the objective criteria of reasonable and probable grounds to believe that an offence had been committed by an accused as the point at which the enforcement officer would have to stop his questioning of the accused person and provide a caution on the right to silence before the officer is permitted to continue questioning the accused person, will prevent officers from simply relying on or misusing the statutory requirement imposed on motorists under s. 199(1) to report the particulars of an accident to a police officer and to continue collecting or obtaining incriminating evidence that can be used against a motorist, and will also provide the appropriate balance between competing societal and individual interests. [135] Also, in considering whether an adversarial relationship between the state and an accused had crystallized during an information gathering inquiry of an accused by a law enforcement official while the enforcement official had been using their statutory powers to inspect or to collect information, the Supreme Court in [R. v. Jarvis, 2002 SCC 73](https://www.canlii.org/en/ca/scc/doc/2002/2002scc73/2002scc73.html), at paras. 88 and 89, developed the "predominant purpose" test. This test required a court to consider all factors that would bear upon the nature of the enforcement official's inquiry in order to determine whether the predominant purpose of that inquiry had been for the determination of penal liability. Moreover, the Supreme Court noted that where all elements of an offence are reasonably believed to have occurred, then the Rubicon would have been likely crossed, in which the enforcement official would then have to stop using their statutory inspection and requirement powers in respect to obtaining information from the accused: > In our view, where the predominant purpose of a particular inquiry is the determination of penal liability, CCRA officials must relinquish the authority to use the inspection and requirement powers under ss. 231.1(1) and 231.2(1). In essence, officials "cross the Rubicon" when the inquiry in question engages the adversarial relationship between the taxpayer and the state. There is no clear formula that can answer whether or not this is the case. Rather, to determine whether the predominant purpose of the inquiry in question is the determination of penal liability, one must look to all factors that bear upon the nature of that inquiry. > > … In most cases, if all ingredients of an offence are reasonably thought to have occurred, it is likely that the investigation function is triggered. [136] In addition, the Supreme Court of Canada held in [R. v. S. (R.J.)](https://www.canlii.org/en/ca/scc/doc/1995/1995canlii121/1995canlii121.html), at paras. 266-267, that the right to remain silent is triggered when an adversarial relationship arises between the individual and the state. However, where the state is pursuing a valid purpose in its inquiry and not obtaining evidence of penal liability, as its predominant purpose, the Supreme Court concluded that the right to silence is not engaged nor would an adversarial relationship be crystallized between the state and the compelled witness. Moreover, the Supreme Court held that when the predominant purpose of the state's inquiry is to obtain evidence from the witness for use in an adversarial proceeding against that witness, a violation of the Charter would be established. The Court also noted that this adversarial position could exist even in circumstances where the witness has not yet been charged, although they conceded that such a finding would be far less likely where a witness has not actually been charged: > The right to silence is triggered when an adversarial relationship arises between the individual and the state: > > The right to remain silent, viewed purposively, must arise when the coercive power of the state is brought to bear against the individual -- either formally (by arrest or charge) or informally (by detention or accusation) -- on the basis that it is at this point that an adversary relationship comes to exist between the state and the individual. The right, from its earliest recognition, was designed to shield an accused from the unequal power of the prosecution, and it is only once the accused is pitted against the prosecution that the right can serve its purpose. [Emphasis added.] > > (Hebert, supra, at p. 201, per Sopinka J.) > > See also R. v. Jones, [1994] 2 S.C.R. 229, at p. 249 (per Lamer C.J. dissenting). Within his own proceedings, an accused always stands in an adversarial relationship vis-à-vis the state. By contrast, given the protections that already enure to a witness under s. 13 of the Charter and s. 5 of the Canada Evidence Act, an individual who is compelled as a witness at other proceedings only truly stands in an adversarial position vis-à-vis the state when the state is seeking predominantly to build its case against that witness. A witness may not be compelled in a proceeding which is, in essence, an investigation of that witness, rather than a prosecution of an accused. Such conduct by the state would be both clearly adversarial and abusive, and the individual's right to silence vis-à-vis the state will have crystallized. > > As long as the state is pursuing a valid purpose, however, the right to silence is not engaged, nor has an adversarial relationship between the compelled witness and the state crystallized. In such circumstances, unfavourable effects to the individual flowing from the possibility of discovery of derivative evidence or the vesting of some strategic advantage to the Crown through the disclosure of a possible defence do not violate the principles of fundamental justice. On the other hand, where it becomes apparent that the predominant purpose of the state's actions is to obtain the evidence of the witness for use in an adversarial proceeding against that witness, a violation of the Charter will be established. In such cases, the state will be engaging in conduct that triggers an adversarial relationship between the state and the individual, notwithstanding the protections accorded that individual in s. 13 of the Charter. I agree with Iacobucci J. that this adversarial position can exist even in circumstances where the witness has not yet been charged, although, as I shall explain below, such a finding will be far less likely where a witness has not actually been charged. [137] Furthermore, in analyzing whether the predominant purpose of an enforcement official's inquiry would be the determination of penal liability, the Supreme Court also concluded in [R. v. Jarvis, 2002 SCC 73](https://www.canlii.org/en/ca/scc/doc/2002/2002scc73/2002scc73.html), at paras. 93-94, that this analysis would be based on context, in which all relevant factors and factual circumstances have to be taken into account. The Supreme Court also suggested that the following factors are some of the relevant factors that could assist a court in determining if the predominant purpose of the investigation is for the determination of penal liability: > To reiterate, the determination of when the relationship between the state and the individual has reached the point where it is effectively adversarial is a contextual one, which takes account of all relevant factors. In our opinion, the following list of factors will assist in ascertaining whether the predominant purpose of an inquiry is the determination of penal liability. Apart from a clear decision to pursue a criminal investigation, no one factor is necessarily determinative in and of itself, but courts must assess the totality of the circumstances, and make a determination as to whether the inquiry or question in issue engages the adversarial relationship between the state and the individual. > > In this connection, the trial judge will look at all factors, including but not limited to such questions as: > > (a) Did the authorities have reasonable grounds to lay charges? Does it appear from the record that a decision to proceed with a criminal investigation could have been made? > > (b) Was the general conduct of the authorities such that it was consistent with the pursuit of a criminal investigation? > > (c) Had the auditor transferred his or her files and materials to the investigators? > > (d) Was the conduct of the auditor such that he or she was effectively acting as an agent for the investigators? > > (e) Does it appear that the investigators intended to use the auditor as their agent in the collection of evidence? > > (f) Is the evidence sought relevant to taxpayer liability generally? Or, as is the case with evidence as to the taxpayer's mens rea, is the evidence relevant only to the taxpayer's penal liability? > > (g) Are there any other circumstances or factors that can lead the trial judge to the conclusion that the compliance audit had in reality become a criminal investigation? [138] Also, in [Ebsworth v. Alberta, 2005 ABQB 976](https://www.canlii.org/en/ab/abqb/doc/2005/2005abqb976/2005abqb976.html), at paras. 49-54, the court in that case recognized that the nature of a proceeding may change over time from an investigatory function to an inquiry into penal liability. Ergo, when the predominant purpose of the investigation changes to one of penal liability, then any compelled evidence obtained during this adversarial stage where the individual providing the compelled statement has not been cautioned on the right to silence, or told that their statements are no longer being obtained for the purpose of the accident investigation, but for penal liability, then the compelled evidence that is obtained after that point would infringe the individual's Charter rights: > Moreover, the principle of fundamental justice alleged to be engaged is the protection from self-incrimination, but statutory compulsion in a regulatory, rather than penal, investigation does not necessarily breach the principles of fundamental justice. > > In Fitzpatrick the Supreme Court held that the general principle against self-incrimination in the regulatory context did not require the accused to be granted immunity against the use by the Crown of statutorily compelled reports. The reports in question were in response to a reasonable regulatory requirement relating to fishery management. The Court also pointed to the lack of an adversarial relationship at the time the reports were statutorily compelled and that any "coercion" by the State was indirect. > > Where the purpose of the agency seeking to compel a witness to testify is to determine penal liability, s. 7 interest is engaged: R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757. In Jarvis the Court considered whether statutorily compelled statements provided in the course of a tax audit and investigation engaged the tax payer's s. 7 rights. The Court noted that "... s. 7 does not envelop an abstract and absolute rule that would prevent the use of information in all contexts in which it is statutorily compelled ..." The evidence here is that this is a regulatory investigation, not a penal proceeding. > > The rationale underlying the protections are to avoid unreliable confessions and abuses of power by the state: R. v. Jones, [1994] 2 S.C.R. 229 at p. 249 (in dissent but principles accepted in: Fitzpatrick; and R. v. Brown, 2002 SCC 32, [2002] 2 S.C.R. 185). In the regulatory context of investigating a workplace accident, a compelled statement threatens neither rationale. > > The nature of a proceeding may change over time, from an investigatory function to an inquiry into penal liability: R. v. Ling, 2002 SCC 74, [2002] 3 S.C.R. 814. Once the predominant purpose of the investigation is in regards to penal liability, any compelled evidence is the result of an infringement of Charter rights. However, the OHS investigation is clearly regulatory and not concerned with penal liability of the Applicant. > > The Applicant further alleges that his right to remain silent, a residual right under s. 7, is breached, noting that the right to silence is triggered when the coercive power of the state is brought against the individual, either formally or informally: R. v. Hebert, [1990] 2 S.C.R. 151 at para. 117. I note, however, that Sopinka J. based this statement on there being an adversarial relationship between the state and the individual, and that he referred to formal coercion as being arrest or charge and informal coercion as by detention or accusation. The Applicant is not in an adversarial relationship with the state; he has not been arrested, charged, or accused. … [139] Also, in their textbook, Regulatory And Corporate Liability: From Due Diligence To Risk Management (Aurora, Ontario: Canada Law Book Inc., 2007 Ed.) at p. 11-20, the authors, T. Archibald, K. Jull and K. Roach, surmise that the Rubicon is likely crossed, so as to create an adversarial relationship between the state and an individual, when the authorities have reasonable and probable grounds to believe that the actus reus of a regulatory offence has been committed by that individual: > A question that remains unanswered, is whether or not the Rubicon is crossed in regulatory offences where the authorities have reasonable and probable grounds to believe that the actus reus of a regulatory offence has been committed. In light of the description of the ITA in R. v. Jarvis as a regulatory statute, an affirmative answer is likely. [140] Therefore, the criteria from [R. v. White](https://www.canlii.org/en/ca/scc/doc/1999/1999canlii689/1999canlii689.html), [R. v. Fitzpatrick](https://www.canlii.org/en/ca/scc/doc/1995/1995canlii44/1995canlii44.html) and [R. Jarvis](https://www.canlii.org/en/ca/scc/doc/2002/2002scc73/2002scc73.html) that do not favour the admissibility of statutorily-compelled statements or reports would include the following: - the potential for imprisonment upon conviction exists; - the investigating officer objectively having reasonable and probable grounds to believe that an offence had been committed; - the statement was produced or obtained when there was an adversarial relationship between the individual and the state; - the presence of coercion in producing or obtaining the statement; - the purposes underlying the principle against self-incrimination were present; - right to silence triggered; - statement or report made after inquiry commenced; - individuals not truly enter regulated or licensed activity freely and voluntarily; - the increased potential for abuse by the authorities is present; - the increased risk for unreliable confessions is present; - the authorities were not collecting information for a legitimate public purpose but for penal or regulatory liability; - acquiring statements or reports are not integral to maintaining the integrity of entire regulatory regime; - at the time of giving the statement or report, the motorist gave the report on the basis of an honestly held belief that they were required by law to report the accident; - statement or report made in physical presence of law enforcement official; - the Rubicon was crossed; - individual was detained; - search for truth does not outweigh protecting the individual against undue compulsion by the state; - trial would be rendered unfair if inculpatory statement is admitted; or - the state and individual are not truly in partnership to maintain regulatory scheme and the requirement for admitting the conscripted statement is not necessary to maintain the integrity of the regulatory system. [141] On the other hand, the criteria from [R. v. White](https://www.canlii.org/en/ca/scc/doc/1999/1999canlii689/1999canlii689.html), [R. v. Fitzpatrick](https://www.canlii.org/en/ca/scc/doc/1995/1995canlii44/1995canlii44.html) and [R. Jarvis](https://www.canlii.org/en/ca/scc/doc/2002/2002scc73/2002scc73.html) that do favour the "admissibility" of statutorily-compelled statements or reports when taken in context, would include the following: - the possibility of imprisonment upon conviction is non-existent; - the investigating officer did not objectively have reasonable and probable grounds to believe that an offence had been committed; - the statement was produced or obtained when there was not an adversarial relationship between the individual and the state; - the absence of coercion in producing or obtaining the statement; - the potential for abuse by the authorities is not present; - the purposes underlying the principle against self-incrimination were not present; - the Rubicon was not crossed; - the risk of unreliable confessions is not present; - the authorities were collecting information for a legitimate public purpose and not for penal or regulatory liability; - state and individual in partnership in maintaining regulatory scheme; - participants freely and voluntarily enter and participate in the regulated industry or licensed activity and implicitly consent to abide by regulatory scheme (licensing principle); - statement or records made before inquiry commenced and the expectation of privacy that would attach is low; - search for truth outweighs protecting the individual against undue compulsion by the state; - not affect trial fairness if inculpatory statement admitted; - at the time of giving the statement that the motorist did not give the statement or report on the basis of an honestly held belief that they were required by law to report the accident to the person to whom the statement or report is given; - statement not made in physical presence of law enforcement official; or - the entire regulatory scheme depended upon the ability to prosecute based on the reports or the requirement for admitting the conscripted statement is necessary to maintain the integrity of the entire regulatory system. [142] Moreover, in [R. v. Visuvalingam](https://www.canlii.org/en/on/oncj/doc/2002/2002canlii3515/2002canlii3515.html), at paras. 58 to 62, I had resolved and integrated the principles or criteria developed in [R. v. White](https://www.canlii.org/en/ca/scc/doc/1999/1999canlii689/1999canlii689.html) and [R. v. Fitzpatrick](https://www.canlii.org/en/ca/scc/doc/1995/1995canlii44/1995canlii44.html) concerning admitting or excluding statutorily-compelled statements with the principle against self-incrimination for written or oral statements by dividing statements given in the accident investigation stage, as being admissible, from ones given in the offence-gathering or adversarial investigation stage, as being inadmissible: > The modern confessions rule as considered in R. v. Oickle, 2000 SCC 38, [2000] S.C.J. No. 38 (S.C.C.), covers a broad conception of voluntariness that also includes the protection of the defendant's rights and fairness during the pre-charge stage of the investigation of an offence. In the instant case, the right to remain silent is not engaged or become pertinent until the officer's investigative activity has left the accident investigation stage and enters the offence investigation stage. > > In order to resolve and integrate the various rules, principles and legal issues at play in the present matter and in the regulatory universe that this matter is found in, a comprehensive test has to be established for determining when the right to remain silent and the obligation to caution an individual are engaged, when statutorily compelled statements infringe the right against self-incrimination and when it does not, and finally when an individual is compelled to furnish information to the state and when that compulsion ends. > > In a nutshell, this judicial inquiry can be simply explained by dividing the officer's investigation into two stages - one being the "accident investigation stage" and the other being the "offence inquiry or investigation stage". The defendant's obligation under s. 199(1) of the Highway Traffic Act to give particulars of the accident to a police officer only exist when the officer is still in the accident investigation stage. The defendant's obligation under s. 199(1) ends once the officer enters the offence inquiry stage. The need to caution the defendant and inform him of his right to remain silent occurs when the officer enters the offence inquiry stage. If an individual supplies a police officer with an uncautioned statement in the offence inquiry stage, the courts may be reluctant to consider it a statutorily compelled statement. Cautions are not required in the accident investigation stage since motorists involved in accidents are compelled to furnish information about a traffic accident to a police officer. Ergo, inculpatory statements given by the defendant during the accident investigation stage are admissible and considered voluntary in the legal sense, if they pass the criteria enunciated by the Supreme Court of Canada in R. v. Oickle. The statutorily compelled statements made during the accident investigation stage fall into the R. v. Fitzpatrick public interest umbra, which permits conscripted information to be used in regulatory prosecutions, for reasons of road safety and the implicit consent of individuals who drive motor vehicles. Conversely, the protection of the R. v. White "use immunity shield" over conscripted statements taken during the accident investigation stage is not available to the defendant. > > … Moreover, in this developing analysis an individual is not obligated to give statutorily compelled statements to an officer in the "offence inquiry stage". The individual can exercise his right to remain silent in the offence inquiry stage and is no longer compelled under s. 199(1) to speak to a police officer. Furthermore, if the officer fails to caution that individual about his or her right to remain silent and an inculpatory statement is furnished by that individual in the offence inquiry stage, that statement is not admissible. It is not admissible as it is considered to be legally involuntary. It had not come from an operating mind. If the defendant in the instant case would have been properly cautioned, when the oral inculpatory statement had been made during the "offence inquiry stage", that statement would then be legally admissible and deemed to be given voluntarily by an operating mind. He would also not be able to claim that the statement had been compelled by statute, as long as he would have been warned about the possibility of incriminating himself and that the investigation had turned into an offence inquiry. [143] Also, I concluded in Colquhoun and Visuvalingam that the purpose of the legislation requiring motorists involved in an accident to report the particulars of that accident to a police officer is for the public goal of road safety and the protection of the public from bad motorists. Moreover, this legitimate public purpose, coupled with the licensing principle applicable to this regulatory regime, justifies conscripting motorists to make statements to a police officer for an accident report that may effectively breach the principle against self-incrimination. However, I also noted that this justification for compelling statements from motorists involved in accidents for the purpose of preparing accident reports must also be balanced with the individual interest against self-incrimination. [144] Accordingly, using the criteria of the investigating officer objectively having reasonable and probable grounds to believe an offence had been committed by the individual making the statement, as the basis of finding the existence of an adversarial relationship between the state and the individual, provides the appropriate test for demarcating the accident investigation stage from the offence inquiry stage. [145] Therefore, I concluded that the demarcation between collecting information for an accident investigation on one hand, from gathering evidence of an offence on the other hand, based on whether there is objectively reasonable and probable grounds for the enforcement official to believe that the individual in question had committed an offence is suitable for balancing these conflicting interests and permits the admission of inculpatory statements made under statutory compulsion in some instances and not in others. In addition, the test to separate conscripted statements obtained in the accident investigation stage that are admissible from conscripted statements obtained in the offence inquiry stage that are not admissible, is also grounded on the key factors that there be no adversarial relationship between the state and the individual when the statement was produced or obtained and that the possibility of imprisonment upon conviction is non-existent for the offence in question. #### (b) Did Cst. Cornea Have To Read The Defendant His Right To Counsel Or To Caution The Defendant Of The Right To Silence Before Questioning The Defendant? [146] The defence contends that the defendant's statements should not be admitted into the trial proper because the defendant did not have an operating mind when the statements had been obtained by Cst. Cornea, since Cst. Cornea had failed to caution the defendant before obtaining the defendant's statements. [147] In [R. v. Jagrup Singh, 2007 SCC 48](https://www.canlii.org/en/ca/scc/doc/2007/2007scc48/2007scc48.html), at paras. 27 and 28, Charron J., writing for the majority of the Supreme Court of Canada, noted that the common law right to silence simply reflects the general principle that, absent statutory or other legal compulsion, no one is obligated to provide information to the police or respond to questioning, but that this does not mean that a person has the right not to be spoken to by state authorities. Moreover, Charron J. also indicated that the common law also recognizes the importance of police interrogation in the investigation of crime: > As stated earlier, the right to silence, although now constitutionally entrenched, long pre-dates the Charter. The right to silence as a common law principle was recently affirmed by this Court in R. v. Turcotte, [2005] 2 S.C.R. 519, 2005 SCC 50. Stated broadly, the common law right to silence simply reflects the general principle that, absent statutory or other legal compulsion, no one is obligated to provide information to the police or respond to questioning. At para. 41, Abella J., writing for the Court, reiterated Lamer J.'s defining statement of the right in Rothman v. The Queen, [1981] 1 S.C.R. 640: > > In Canada the right of a suspect not to say anything to the police ... is merely the exercise by him of the general right enjoyed in this country by anyone to do whatever one pleases, saying what one pleases or choosing not to say certain things, unless obliged to do otherwise by law. It is because no law says that a suspect, save in certain circumstances, must say anything to the police that we say that he has the right to remain silent, which is a positive way of explaining that there is on his part no legal obligation to do otherwise. [Footnotes omitted; p. 683.] > > What the common law recognizes is the individual's right to remain silent. This does not mean, however, that a person has the right not to be spoken to by state authorities. The importance of police questioning in the fulfilment of their investigative role cannot be doubted. One can readily appreciate that the police could hardly investigate crime without putting questions to persons from whom it is thought that useful information may be obtained. The person suspected of having committed the crime being investigated is no exception. Indeed, if the suspect in fact committed the crime, he or she is likely the person who has the most information to offer about the incident. Therefore, the common law also recognizes the importance of police interrogation in the investigation of crime. [148] Moreover, the Supreme Court of Canada has reminded the courts of the need to not unduly limit police investigations while protecting an individual's right to remain silent. ##### (i) Was the defendant statutorily compelled to give a statement to Cst. Cornea? [149] Before there can be a determination of whether the defendant's statements obtained by Cst. Cornea under s. 199(3) were statutorily-compelled statements and whether they should be admissible or inadmissible for infringing the defendant's right against self-incrimination, I will have to first conclude that the defendant made those utterances or statements under a legal compulsion to do so. [150] However, the defendant did not testify in the voir dire, so there is no evidence whether the defendant had believed that he had been responding to Cst. Cornea's inquiry because of the obligation or statutory compulsion to report an accident under s. 199(1) and that the defendant had also believed that he had to legally provide Cst. Cornea with the information Cst. Cornea had been requesting, or that the defendant had believed that he had to or had been motivated to cooperate with police officers and answer Cst. Cornea's questions because Cst. Cornea was a police officer. [151] Hence, even though courts have recognized that most motorists understand or are aware that they have an obligation to report the particulars of a motor vehicle accident to the police, there has been no evidence proffered in the present voir dire or in the trial proper that the defendant himself had felt compelled to make those statements to Cst. Cornea because the defendant knew or been aware of his obligation to report the alleged accident to the police or that he had believed he had been required to do so by law: [R. v. White](https://www.canlii.org/en/ca/scc/doc/1999/1999canlii689/1999canlii689.html). See [R. v. DaCosta](https://www.canlii.org/en/on/onsc/doc/2001/2001canlii28409/2001canlii28409.html) and [R. v. Naces, [2001] O.J. No. 3854 (QL) (O.C.J.)](https://www.canlii.org/en/on/oncj/doc/2001/2001canlii3854/2001canlii3854.html) for judicial recognition of this public awareness about reporting accidents. [152] Under s. 199(1), motorists that are involved in an accident where there is property damage resulting from the accident that exceeds $1000 in value are required to forthwith report the accident to the nearest police officer and furnish information to the police officer taking the accident report that is required by that police officer to prepare an accident report under s. 199(3). Even though there is no evidence in this case that the defendant had believed he had been providing information to Cst. Cornea under a legal obligation to report an accident, there is still evidence on which it could be inferred that the defendant had been aware that an alleged collision had occurred between the defendant's motor vehicle and the Ruta vehicle and that the property damage to the two vehicles from the alleged accident had been in excess of $1000, which would have triggered the defendant's obligation under s. 199(1) of the Highway Traffic Act to provide information in respect to that accident, as required by Cst. Cornea who had been investigating that alleged accident and preparing an accident report under s. 199(3) of the Highway Traffic Act. [153] In addition, most people when questioned by a police officer or asked by a police officer to complete a form about a motor vehicle accident would normally volunteer information or cooperate, since they generally believe they have to comply with a police officer's request because of the officer's position of authority, or that they believe that by cooperating they could avoid penal liability or gain a benefit. Hence, despite there being no evidence that the defendant had made his statements to Cst. Cornea because of the defendant's understanding that he had been obligated by law to report the particulars of the accident to a police officer, which generally make them voluntarily given as compelled statements, the defendant's statement may still be excluded if those statements had been made when Cst. Cornea had been no longer investigating a motor vehicle accident for the purposes of preparing an accident report, but had been in fact gathering evidence of penal liability or for an offence. ##### (ii) When Does An Enforcement Official Have To Read An Accused His Right To Counsel Or To Caution An Accused On The Right To Silence? [154] In regards to whether Cst. Cornea had been required to caution the defendant before Cst. Cornea could question the defendant, Cst. Cornea had testified in the voir dire that he did not caution the defendant because he had not intended to charge the defendant when he first went to the defendant's residence, but had gone to the defendant's residence to investigate an alleged motor vehicle collision involving the defendant's vehicle. [155] In [R. v. Jagrup Singh](https://www.canlii.org/en/ca/scc/doc/2007/2007scc48/2007scc48.html), Charron J., in considering the circumstances under which police officers would be required to caution a suspect, noted at paras. 31 to 33, that the confessions rule applies whether or not the suspect is in detention and that a police caution given to the suspect informs the suspect of his right to remain silent. Charron, J. also recognized that the absence or presence of a police caution is also an important factor on the question of voluntariness of a suspect's statement given to a police officer. Moreover, as to when a police caution should be given to a suspect that has not been formally arrested nor under detention, Charron J. indicated that police officers are well advised to give the police caution to a person, which informs the person of their right to remain silent, in the circumstances when there are reasonable grounds to suspect that the person being interviewed has committed an offence: > Therefore, the notion of voluntariness is broad-based and has long included the common law principle that a person is not obliged to give information to the police or to answer questions. This component of the voluntariness rule is reflected in the usual police caution given to a suspect and the importance attached (even before the advent of the Charter) to the presence of a caution as a factor in determining the voluntariness of a statement made by a person under arrest or detention: see Boudreau v. The King, [1949] S.C.R. 262; R. v. Fitton, [1956] S.C.R. 958; and R. v. Esposito (1985), 24 C.C.C. (3d) 88 (Ont. C.A.). A common form of the police caution given to a person who has been charged with an offence is the following: "You are charged with... Do you wish to say anything in answer to the charge? You are not obliged to say anything but whatever you do say may be given in evidence." Therefore, the police caution, in plain language, informs the suspect of his right to remain silent. Its importance as a factor on the question of voluntariness was noted by this Court as early as 1949 in Boudreau: > > The fundamental question is whether a confession of an accused offered in evidence is voluntary. The mere fact that a warning was given is not necessarily decisive in favour of admissibility but, on the other hand, the absence of a warning should not bind the hands of the Court so as to compel it to rule out a statement. All the surrounding circumstances must be investigated and, if upon their review the Court is not satisfied of the voluntary nature of the admission, the statement will be rejected. Accordingly, the presence or absence of a warning will be a factor and, in many cases, an important one. [Emphasis added; p. 267.] > > Although the confessions rule applies whether or not the suspect is in detention, the common law recognized, also long before the advent of the Charter, that the suspect's situation is much different after detention. (As we shall see, the residual protection afforded to the right to silence under s. 7 of the Charter is only triggered upon detention.) After detention, the state authorities are in control and the detainee, who cannot simply walk away, is in a more vulnerable position. There is a greater risk of abuse of power by the police. The fact of detention alone can have a significant impact on the suspect and cause him or her to feel compelled to give a statement. The importance of reaffirming the individual's right to choose whether to speak to the authorities after he or she is detained is reflected in the jurisprudence concerning the timing of the police caution. Ren Marin, in his text Admissibility of Statements (9th ed. (looseleaf)), at pp. 2-24.2 and 2-24.3, provides a useful yardstick for the police on when they should caution a suspect: > > The warning should be given when there are reasonable grounds to suspect that the person being interviewed has committed an offence. An easy yardstick to determine when the warning should be given is for a police officer to consider the question of what he or she would do if the person attempted to leave the questioning room or leave the presence of the officer where a communication or exchange is taking place. If the answer is arrest (or detain) the person, then the warning should be given. > > These words of advice are sound. Even if the suspect has not formally been arrested and is not obviously under detention, police officers are well advised to give the police caution in the circumstances described by Marin. Of course, with the advent of the Charter, the s. 10 right to counsel is triggered upon arrest or detention. The right to counsel has both an informational and an implementational component. It seeks to ensure that persons who become subject to the coercive power of the state will know about their right to counsel and will be given the opportunity to exercise it so they can make an informed choice whether to participate in the investigation against them. Therefore, if the detainee has exercised his s. 10 Charter right to counsel, he will presumably have been informed of his right to remain silent, and the overall significance of the caution may be somewhat diminished. Where the suspect has not consulted with counsel, however, the police caution becomes all the more important as a factor in answering the ultimate question of voluntariness. [156] However, as Charron J. confirmed in [R. v. Jagrup Singh](https://www.canlii.org/en/ca/scc/doc/2007/2007scc48/2007scc48.html), the constitutional requirement of Cst. Cornea to inform the defendant of his right to counsel under s. 10(b) of the Charter is only triggered when the defendant has been arrested or detained. In this case, the defendant had not been under arrest before the defendant made the inculpatory statements. Consequently, the question then becomes whether the defendant had been detained by Cst. Cornea, so that Cst. Cornea would have had to read the defendant his right to counsel and provide a caution on the right to silence, and provide an opportunity for the defendant to call legal counsel before Cst. Cornea could continue with his questioning of the defendant. ##### (iii) Was the defendant detained by Cst. Cornea when the defendant's statement had been given? [157] In [R. v. Mann, 2004 SCC 52](https://www.canlii.org/en/ca/scc/doc/2004/2004scc52/2004scc52.html), at para 19, Iacobucci J., writing for the majority of the Supreme Court of Canada, had indicated that the concept of detention for the purposes of ss. 9 and 10 of the Charter has been held to cover a broad range of encounters between police officers and members of the public, including stopping suspects for purposes of identification or interview, but that the constitutional rights recognized under ss. 9 and 10 are not engaged by being delayed or kept waiting that involves no significant physical or psychological restraint. > "Detention" has been held to cover, in Canada, a broad range of encounters between police officers and members of the public. Even so, the police cannot be said to "detain", within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be "detained" in the sense of "delayed", or "kept waiting". But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint. … [158] In the case at bar, Cst. Cornea had his conversation and interaction with the defendant on the driveway of the defendant's residence. Moreover, Cst. Cornea had been standing on the driveway with the defendant during their conversation. In addition, the evidence does not indicate that the conversation between them had been lengthy or for a substantial period. The evidence also indicates that Cst. Cornea did not ask the defendant a lot of questions. [159] Moreover, Cst. Cornea had testified that the defendant had not indicated to Cst. Cornea that the defendant did not wish to speak with Cornea. [160] From the circumstances of Cst. Cornea speaking to the defendant on the driveway of the defendant's residence while Cst. Cornea was standing on the driveway, I do not find that the defendant had been physically detained by Cornea. Moreover, Cst. Cornea had not physically touched the defendant, nor did Cornea inform the defendant he had been under arrest or that he would be charged with an offence. As for any psychological detention, the defendant's state of mind cannot be determined for the time Cst. Cornea had been speaking with the defendant, since the defendant did not testify in the voir dire. As such, there is no evidence upon which it can be concluded that the defendant had been under any form of psychological detention. Moreover, the evidence does not show that the investigative questioning by Cst. Cornea of the defendant had been for an inordinate amount of time. [161] Therefore, I do not find that the defendant had been detained by Cst. Cornea, and as such, Cst. Cornea did not have to give read the defendant his right to counsel or to caution him on the right to silence, for the purposes of s. 9 and 10 of the Charter, before questioning the defendant. ##### (iv) Did Cst. Cornea have reasonable and probable grounds to believe the defendant had committed an offence, which would necessitate Cst. Cornea having to give the defendant a police caution to inform the defendant of his right to silence? [162] However, even though the defendant had not been detained by Cst. Cornea, so as to engage the defendant's Charter rights under s. 9 and 10, if the primary purpose of Cst. Cornea's dealings with the defendant had been to collect evidence of penal or regulatory liability then any statements from the defendant that had been obtained by Cst. Cornea under s. 199(3) of the Highway Traffic Act would result in the infringement of the defendant's right to silence, especially if the defendant had not been cautioned and informed of his right to silence or informed that his statements may be used as evidence in a penal proceeding. Consequently, if the defendant's statements had been given to Cst. Cornea after the "Rubicon" had been crossed, when the statements were no longer being gathered for the primary purpose of an accident investigation, but being obtained as evidence of an offence, then their relationship would have crystallized into an adversarial one at that point. In other words, once Cst. Cornea's primary purpose in collecting information from the defendant crosses from the accident investigation stage to one of collecting evidence of penal or regulatory liability, an adversarial relationship between the individual and the state crystallizes and the defendant's right to silence is engaged. And, if Cst. Cornea fails to caution the defendant about the defendant's right to silence after the Rubicon has been crossed by informing the defendant that any statements made by the defendant from that point on could be used in a subsequent proceeding, then in those circumstances the defendant's statements that would have been obtained after that point would have been derived from the lack of an operating mind under the broad conception of voluntariness, which would then render them involuntary. Or those particular statements could be excluded for violating the principle against self-incrimination under s. 7. Or if those conscripted statements were to be admitted into the trial then their use could render the trial unfair, which would also make them inadmissible. [163] Now, as to whether Cst. Cornea had been only collecting information for an accident investigation or for evidence of penal or regulatory liability, Cst. Cornea had testified that when he arrived at the defendant's residence, Cornea did not have the intention to charge the defendant with an offence and that Cornea had been there to investigate the alleged accident that had involved the defendant's motor vehicle at the Esso gas station. [164] Furthermore, at the time when Cst. Cornea had arrived at the defendant's residence, there were several possibilities of what could have occurred between the defendant's vehicle and the Ruta vehicle at the Esso gas station, what the nature of the conversation between the driver of the defendant's vehicle and Marek Ruta could have been about, and whether a collision had actually occurred between the vehicles in question. [165] Moreover, before Cst. Cornea arrived at the defendant's residence, the only evidence at that point which suggests that the driver of the defendant's vehicle may have committed an offence had come from Marek Ruta's version of the events, that the Ruta vehicle had been struck by the defendant's vehicle; that there had been in excess of $1000 damage to the Ruta vehicle; that the driver of the defendant's vehicle had exited the defendant's vehicle to look at the two vehicles in question, but then refused to provide Marek Ruta with his driver's license and insurance slip and had denied that the defendant's vehicle had collided with the Ruta vehicle, and then drove away; as well as Cst. Cornea's testimony that he had observed paint damage on the front driver's side bumper of the Ruta vehicle that he estimated to be in excess of $1000; and that Marek Ruta had provided Cst. Cornea with the license plate number for the defendant's vehicle, as the vehicle that had struck the Ruta vehicle. [166] However, without evidence of who had been actually driving the defendant's vehicle at the Esso gas station, confirmation that the defendant's vehicle had actually collided with the Ruta vehicle, whether there had been any damage to the defendant's vehicle as a result of the alleged collision, whether the driver of the defendant's vehicle had been aware of the alleged collision with the Ruta vehicle, whether the driver of the defendant's vehicle had a conversation with Marek Ruta, and information from the driver of the defendant's vehicle about the nature and content of any conversation between the driver of the defendant's vehicle and Marek Ruta, Cst. Cornea would not have had reasonable and probable grounds to believe that the defendant had committed an offence. [167] Therefore, until Cst. Cornea knew it had been the defendant who had been actually driving the defendant's vehicle at the Esso gas station and had obtained evidence of whether the defendant had any knowledge or awareness of the alleged collision or incident at the Esso gas station, Cst. Cornea would not objectively had reasonable and probable grounds to believe that the defendant had committed an offence in relation to his investigation. At most, before Cst. Cornea had approached the defendant, Cst. Cornea would have only had a suspicion of the defendant's involvement in the alleged collision based on Cst. Cornea noticing that the defendant's appearance had matched the description of the driver involved in striking the Ruta vehicle, which had been provided by Marek Ruta to Cst. Cornea. [168] Accordingly, based on the evidence that has been adduced, Cst. Cornea did not objectively have reasonable and probable grounds to believe that the defendant had committed an offence before Cst. Cornea began speaking with the defendant, and it had only been after the defendant had admitted to being the driver of the defendant's vehicle at the Esso gas station and had informed Cst. Cornea that he did not provide any information to Marek Ruta because Ruta had wanted money, that Cst. Cornea would have objectively had the reasonable and probable grounds to believe that the defendant had committed an offence. And, since Cst. Cornea would not have objectively had reasonable and probable grounds to believe the defendant had committed an offence until the defendant had indicated to Cst. Cornea that the defendant had been aware of the allegation about his vehicle colliding with the Ruta vehicle and had confirmed that Marek Ruta requested from the defendant, the defendant's driver's license and insurance document, then Cst. Cornea had not been required to caution the defendant of the right to silence. [169] Ergo, there had not been an adversarial relationship between the state and the defendant at the time the defendant made the statements to Cst. Cornea, as Cornea did not have, on an objective basis, reasonable and probable grounds to believe that an offence had been committed by the defendant. Therefore, Cst. Cornea's primary purpose had not been gathering evidence of penal or regulatory liability before the statements had been obtained from the defendant, but had been for the primary purpose of gathering information for an accident investigation and for an accident report, which had been for fulfilling the public goal of highway safety. The search for truth in these circumstances would also outweigh the individual right against state compulsion. Although the defendant would be subject to a term of imprisonment, if he were convicted of committing the offence of under s. 200(1)(c) for the offence of "failing to supply name and address", generally a custodial sentence is not imposed as a sentence for committing this type of regulatory offence, unless there are exceptional or aggravating circumstances. On the other hand, the defendant was not subject to a term of imprisonment for the offence of "failing to report an accident under s. 199(1). And, since the "failing to supply name and address" charge had been dismissed in this motion of no evidence, then the possibility of imprisonment for the defendant upon conviction for the failing to report an accident charge under s. 199(1) is non-existent. ##### (v) Does The Defendant's Statement Given In Response To Cst. Cornea's Inquiry Into Who Had Been Driving Or Operating The Defendant's Motor Vehicle, Which Had been Identified As the Vehicle That Had Been Involved In A Collision With The Ruta Vehicle At The Esso Gas Station, A Statement That Has To Be Determined For Voluntariness In A Voir Dire? [170] It should be noted that not all statements made by an accused person to an enforcement official is deemed to be a confession or admission against interest, which requires the court to conduct a voir dire and test the utterance or statement for voluntariness. In [R. v. Jarecsni, [2008] O.J. No. 4565 (QL) (O.C.J.)](https://www.canlii.org/en/on/oncj/doc/2008/2008canlii4565/2008canlii4565.html), at paras. 5 to 7, Pockele J. acknowledged that there is a body of law that recognizes that when police officers arrive at a scene of a crime or investigation they are entitled to ask certain questions such as"Who are you? Who lives here? Who was driving? Where were you going? Did anybody see this crime? Can anybody tell me anything about this?", and that the answers to these types of questions do not require that a voir dire be conducted for determining the voluntariness of those answers given to these sorts of questions asked by police officers. Moreover, Pockele J. recognized that the police officer had not yet decided that she was going to lay a criminal charge or a charge under the Provincial Offences Act, nor had the police officer been trying to ensnare someone into admitting their identity for the purposes of charging them, since identifying oneself is merely identification and is not the same as providing a written statement to the police concerning involvement in a crime: > … Generally, a statement made by an accused to a person in authority is only admissible if freely and voluntarily made. Decisions that are involuntary are unreliable and inadmissible. More so it is well established in criminal law that a person charged with a criminal offence upon being arrested has the right to remain silent. So, to be admissible a statement made against interest by an accused to a person in authority must be made without fear, prejudice or hope of advantage. And a process is usually undertaken called a voir dire; a hearing within the trial to determine if that has been done. While that is the general principle the realities of modern life and day-to-day law enforcement has resulted in the courts making decisions that not every comment coming out of the mouth of an individual who is ultimately charged with an offence is deemed to be a confession or admission against interest which requires the court to test whether it was voluntary. > > There is a vast body of law that requires people to identify themselves to police officers. There is a vast body of law that indicates that when a police officer arrives at the scene of the crime or an investigation they are entitled to ask. "Who are you? Who lives here? Who was driving? Where were you going? Did anybody see this crime? Can anybody tell me anything about this?" Questions of that sort. None of these answers require that a voir dire be entered into to determine voluntariness. > > On the evidence I have before me …, it is clear to me that when she attended at the particular residence where there were concerns about noise problems that she had not decided that she was going to lay a criminal charge, or a charge under the Provincial Offences Act. That she was not trying to ensnare someone into admitting their identity for the purposes of charging them. In her words: "I attended the address and spoke with two of the residents that were home who actually advised or represented that they resided there." This is not the sort of pre-charge or pre-detention questioning which is - violates any principles of voluntariness. Identifying oneself is not the same as providing a written statement to the police concerning involvement in a crime. It is merely identification. … . [171] Furthermore, in [R. v. Parol, 2011 ONCJ 292](https://www.canlii.org/en/on/oncj/doc/2011/2011oncj292/2011oncj292.html), at footnote no. 4, Duncan J. commented that ordinary police questioning does not engage issues of self-incrimination; that a police officer is at liberty, and indeed is obliged, in the execution of lawful duties, to ask questions of anyone including a suspect, and that such questioning is an entirely appropriate exercise by the police of their investigatory function; and that the police are empowered to question anyone to obtain information concerning a suspected offence: > Ordinary police questioning does not engage issues of self incrimination. A police officer is at liberty, and indeed is obliged, in the execution of lawful duties, to ask questions of anyone including a suspect. Such questioning is an entirely appropriate exercise by the police of their investigatory function. The police are empowered to question anyone to obtain information concerning a suspected offence. But the police have no power to force the person to answer and must let the person be on his way if he refuses to respond. R. v. Esposito (1985), 24 C.C.C. (3d) 88 (Ont. C.A.); R. v. Van Wyk, [1999] O.J. No. 3515 (S.C.J.) Absent detention, police questioning does not give rise to any constitutional issue. In particular, the right to silence is NOT violated when a suspect makes pre-detention or pre-arrest inculpatory statements, provided that no official coercion or inducements are made: R. v. Hicks (1988), 42 C.C.C. (3d) 394 (Ont. C.A.), affirmed (1990), 54 C.C.C. (3d) 575 (S.C.C.). See also pre- White decision: R. v. Smith (1996), 105 C.C.C. (3d) 58 (Ont. C.A.) re drivers and compelled surrender of information to police. [172] In addition, Cst. Cornea had testified that when he first approached the defendant at the defendant's residence, Cst. Cornea did not have the intention to charge the defendant, as he had been there to conduct an investigation into an alleged motor vehicle collision, as he had been required to do under s. 199(3). Moreover, s. 199(3) required Cst. Cornea to determine the drivers of the vehicle involved in the alleged accident and to gather information for an accident report that he had been required to prepare under s. 199(3). Cst. Cornea also testified that the defendant had identified himself to Cst. Cornea with his driver's license and then answered Cst. Cornea's inquiry into who had been operating or driving the Grand Caravan motor vehicle at the Esso station, in which the defendant had admitted that he had been the driver at that time, but then stated to Cst. Cornea that the defendant did not hit the Ruta motor vehicle and that he did not provide his name and address to Marek Ruta because Ruta had wanted money and that he also did not believe that he had to provide his name and address to the other driver. In short, the defendant's responses to Cst. Cornea's inquiry had been to the sort of questions that Cst. Cornea had been legally obligated to obtain under s. 199(3) as part of an investigation into an alleged motor vehicle accident and the sort of questions made by enforcement officials that are mentioned by Pockele J. in [R. v. Jarecsni](https://www.canlii.org/en/on/oncj/doc/2008/2008canlii4565/2008canlii4565.html), which are the types of responses or statements from the accused to those types of questions that are not required to be tested by a court for voluntariness. [173] Accordingly, the defendant's response to Cst. Cornea's inquiry about who had been driving the defendant's vehicle at the Esso gas station and details about the alleged accident are not the sort of utterances or statements that are necessarily required to be tested for voluntariness, since Cst. Cornea had been conducting an alleged accident investigation in which he is entitled to pose those particular questions in respect to who the driver of the vehicle involved had been and the circumstances surrounding the alleged collision. ##### (vi) Does Cst. Cornea's Failure To Record The Defendant's Statement Verbatim Create Reasonable Doubt In The Voluntariness of The Defendant's Statement? [174] The defence argues that since the defendant's utterances or statements made to Cst. Cornea had not been recorded by Cst. Cornea in verbatim form, but in summary form, then the defendant's utterances or statements should not be found to be voluntary or admissible. [175] This issue about recording an accused's statement verbatim had arisen In [R. v. Harris (2012), 104 W.C.B. (2d) 480, 2012 ONSC 6465](https://www.canlii.org/en/on/onsc/doc/2012/2012onsc6465/2012onsc6465.html), in which Ferguson J. had to considered whether the accused's statement to a police officer had been voluntary to be admissible into a criminal trial. At paras. 5 and 13 to 17, Ferguson J. noted that although the standard of notekeeping by police officers is not one of absolute perfection, a high degree of detail is nevertheless required. He also inferred from the circumstances in that case that the notekeeping police officer had chosen to keep a poor record in her interactions with the accused, and as a consequence, concluded that he had been left with a reasonable doubt as to how this statement came to be and why the accused had come to the station to co-operate fully with the police, without counsel and without exercising any of his rights, which he had based on there not being a full, complete, and reliable record as to what was actually said: > The Ontario Court of Appeal in R. v. Moore-McFarlane supra and R. v. Ahmed (2002), 170 C.C.C. (3d) 27 explained that the prosecution must establish the voluntariness of the statement made. The court observed that the completeness, accuracy and reliability of the record of the discussions are important to the inquiry into and the scrutiny of the circumstances that surround the taking of the statement. To discharge the burden, the Crown must introduce a complete, accurate and reliable account of the circumstances leading up to and including the taking of the statement. > > Despite Detective MacNeil's testimony that her notes are complete I do not accept that evidence. There is not a complete and reliable record before the court. Detective MacNeil repeatedly told the court that it was impossible to keep a verbatim record. She did, however, acknowledge that this was required insofar as possible. She also managed to take detailed and copious notes while monitoring the interview of the respondent. I find that her note keeping appears to have been selective. > > Although the standard of note keeping is not absolute perfection a high degree of detail is required. The issue of missing notes also arose in this case. > > Detective MacNeil's notes leave out the following: > > -- the details of her voice mail message to Harris; > -- the duration of that message; > -- the details of Harris' voice mail message to her; > -- the duration of that message; > -- the details of the five minute telephone conversation with Harris > -- an entire phone call with Jamie and a voice mail message to Jamie > -- no notes of the conversation between herself and Detective Sabo outside the interview room between 1214 and 1229 > > Detective MacNeil's notes are not verbatim and contain the "generality" of what was said - the "gist" of what was said with Harris. On the other hand, she concedes that her notes pertaining to her discussion with a witness (Rebecca Forbes) were detailed. It makes no sense that statements to and from a suspect are summarized to get the gist of the discussion but that a conversation with a witness is significantly more detailed. The inference I draw is that Detective MacNeil chose to create a poor record when dealing with her interactions with Harris. The missing notations of messages is also very troubling as they include two voice mail messages involving Harris, and a call with his partner and a voice mail message. Credibility is front and centre here. The comments made in R. v. Relleve, supra are applicable. > > In the absence of a full, complete and reliable record as to what was actually said, I am left with a reasonable doubt as to how this statement came to be and why Harris came to the station to co-operate fully with the police, without counsel and without exercising any of his rights. [176] However, from the evidence adduced in the case at bar, the conversation between the defendant and Cst. Cornea does not appear to have been lengthy, nor does the nature of the questions that would have been posed by Cst. Cornea to the defendant for an accident investigation that allegedly involved the defendant's vehicle appear to be difficult or complex. Equally, responses to inquiries such as to who the driver of the defendant's vehicle had been at the Esso gas station at a particular time, whether the defendant had been aware of a collision occurring that may have involved the defendant's vehicle earlier at the Esso gas station, and what had been the nature of any conversation between the defendant and the other driver involved in the alleged collision, would have not have attracted lengthy responses from the defendant. [177] Consequently, I do not find that there is evidence in the record that would suggest that Cst. Cornea had deliberately kept a poor record of the conversation between himself and the defendant, nor is there evidence that would raise concerns about the reliability or voluntariness of the defendant's statements that would result from Cst. Cornea having recorded some of the defendant's responses in summary form. In short, there is no evidence that suggests that the defendant's statements were not voluntary, nor is there evidence that would objectively raise serious concerns about the voluntariness of the defendant's statements. --- ## 7. RULING [178] In the voir dire on voluntariness, I had ruled that the defendant's statements made to Cst. Cornea on June 19, 2013, had been proven by the prosecution to be voluntary beyond a reasonable doubt, and as such, admissible in the trial proper. Furthermore, the defendant had made those statements to Cst. Cornea, when Cst. Cornea had been conducting an investigation into a possible motor vehicle collision, in which motorists, such as the defendant, who become involved in a motor vehicle accident where there are injuries or property damage that apparently exceeds $1000, are statutorily-compelled under s. 199(1) of the Highway Traffic Act to report that accident to the nearest police officer and to provide information to that police officer that would be required by that officer to complete an accident report. Therefore, if the defendant had been providing those statements to Cst. Cornea under the statutory compulsion to report an accident under s. 199(1), then those statements would be voluntary, as long as the defendant had been providing the information to Cst. Cornea under the belief that he had to provide such information in reporting the accident and that Cst. Cornea's primary purpose in questioning the defendant had been for gathering information for an accident investigation under s. 199(3) and not primarily for the purpose of obtaining evidence of penal liability or for an offence: [R. v. White](https://www.canlii.org/en/ca/scc/doc/1999/1999canlii689/1999canlii689.html), [R. v. Fitzpatrick](https://www.canlii.org/en/ca/scc/doc/1995/1995canlii44/1995canlii44.html), and [R. v. Jarvis, 2002 SCC 73](https://www.canlii.org/en/ca/scc/doc/2002/2002scc73/2002scc73.html). [179] However, since the defendant did not testify in the voir dire, there is no evidence that indicates whether the defendant had been under a belief that he had been providing information to Cst. Cornea that corresponds with the defendant's obligation to report an accident under s. 199(1). Moreover, the evidence also does not indicate that the defendant had voluntarily approached Cst. Cornea or any other police officer to report the alleged accident that had occurred between the defendant's motor vehicle and the Ruta vehicle. On the other hand, if the reporting requirement under s. 199(1) had been engaged, then the defendant would have been legally compelled to furnish Cst. Cornea with information concerning the accident as would be required by Cst. Cornea under s. 199(3) to complete an accident report. [180] And, in respect to the defendant's awareness or knowledge of whether an accident had occurred at the Esso gas station, the evidence indicates that the defendant had exited his vehicle at the gas station after Marek Ruta's brother had sounded the horn on the Ruta vehicle and then looked at the vehicles to see if there had been any damage to the two vehicles. This was then followed with Marek Ruta requesting from the defendant the defendant's driver's license and insurance information, in which the defendant had replied"I did not hit you – I did not hit you". This evidence of the defendant's interaction with Marek Ruta and Ruta's request for the defendant's license and insurance information, and the defendant's denial that he had hit the Ruta vehicle, could reasonably infer that the defendant had been aware of the alleged collision or alleged contact between the two vehicles. In addition, the defendant's statement to Ruta that he did not hit the Ruta vehicle is also evidence of the defendant's state of mind and an inference of the defendant's awareness of a possible collision between the two vehicles. Furthermore, the defendant's statement to Cst. Cornea that the defendant did not give the other driver his name and insurance information because the other driver had wanted money would also be evidence of the defendant's awareness of the alleged accident that had involved the defendant's vehicle. [181] In addition, when Cst. Cornea started his questioning of the defendant, the evidence indicates that Cst. Cornea had been conducting an investigation under s. 199(3) of the Highway Traffic Act of an alleged motor vehicle accident that had occurred earlier at the Esso gas station, in which Cst. Cornea had been legally required to determine whether an accident had occurred, and if there were an accident, then to determine who the drivers were that had been involved in the accident and to also obtain the details about the accident from the drivers involved. [182] Also, as part of Cst. Cornea's legal obligation under s. 199(3) to obtain details or particulars about the alleged accident, Cst. Cornea had been entitled to ask the defendant whether the defendant had been the driver of the vehicle involved in the accident. More important, a voir dire was not necessarily required to be conducted in order to determine the voluntariness of the defendant's response to that inquiry. This reasoning was adopted in [R. v. Jarecsni, [2008] O.J. No. 4565 (QL) (O.C.J.)](https://www.canlii.org/en/on/oncj/doc/2008/2008canlii4565/2008canlii4565.html), at paras. 5 to 7, where Pockele J. held that this type or line of questioning concerning whether the defendant had been the driver involved in an accident did not require a voir dire to be conducted for determining the voluntariness of the accused motorist's response to that inquiry, since police officers were permitted to ask these sorts of questions as part of their investigative function. [183] Furthermore, there is also evidence from Cst. Cornea's testimony that Cst. Cornea did not have the intention to charge the defendant when Cornea had first approached the defendant at the defendant's residence, since Cst. Cornea had been still investigating the alleged accident. The evidence also does not indicate that Cst. Cornea would have objectively had reasonable and probable grounds to believe that an offence had been committed by the defendant prior to Cst. Cornea questioning the defendant, since Cst. Cornea had not been able to obtain a videotape of the alleged collision at the Esso gas station and had only obtained Marek Ruta's version of the circumstances surrounding the collision that supposedly involved the defendant. In addition, the evidence indicates that the defendant had not been detained by Cst. Cornea, nor had the defendant been under arrest, when the defendant's utterances or statements were made to Cst. Cornea, so as to trigger the requirement for Cst. Cornea to read the defendant his right to counsel or to verbally caution the defendant on the right to silence. [184] In addition, the evidence adduced by the prosecution at this stage indicates that Cst. Cornea's primary purpose in questioning the defendant had been for gathering information for an accident investigation and not for an offence. As such, there was no adversarial relationship between the state and the defendant when Cst. Cornea began his questioning of the defendant. [185] On the other hand, the evidence indicates that it had been only after the defendant had informed Cst. Cornea that he had been the driver of the defendant's vehicle at the time in question and then made the exculpatory statement to Cst. Cornea that he did not hit the Ruta vehicle, nor had he provided his name and address to Marek Ruta because Ruta had wanted money, and that the defendant also did not believe that he had to provide his name and address to Ruta, that Cst. Cornea would have objectively had at that point reasonable and probable grounds to believe that an offence had been committed by the defendant. Accordingly, since the "Rubicon" had not been crossed prior to Cst. Cornea commencing his questioning of the defendant, then Cst. Cornea did not have to caution the defendant on the right to silence before he began his questioning of the defendant for an accident investigation. [186] In addition, on the issue of Cst. Cornea only summarizing the defendant's utterances or statements and not recording them verbatim in his notes, the law does not require perfection in note-taking, as held by Ferguson J. in [R. v. Harris (2012), 104 W.C.B. (2d) 480, 2012 ONSC 6465](https://www.canlii.org/en/on/onsc/doc/2012/2012onsc6465/2012onsc6465.html), at paras. 13 to 17. Moreover, there has been no evidence adduced in respect to the circumstances surrounding the interaction between Cst. Cornea and the defendant while they were on the driveway of the defendant's residence that would raise a serious concern about the defendant's statements not being voluntarily given, or that Cst. Cornea had deliberately kept poor records of the conversation between him and the defendant. Moreover, Cst. Cornea's primary purpose in questioning the defendant had been for the investigation of the alleged motor vehicle accident involving the defendant's motor vehicle and not to gather evidence of an offence. Additionally, questions posed by Cst. Cornea in regards to the motor vehicle collision investigation of whether the defendant had been the driver of a motor vehicle at a particular time and location would only require a relatively short answer or response to be made by the defendant. Also, the other answers provided by the defendant and summarized by Cst. Cornea in his notes about the defendant stating that he did not hit the Ruta vehicle, that the defendant had not provided his name and address to Marek Ruta because Ruta had wanted money, and that the defendant did not believe that he had to report the accident to the police, also do not raise concerns about the voluntariness of the defendant's statements. [187] On the issue of whether there is evidence that there had been a motor vehicle collision between the defendant's vehicle and the Ruta vehicle, I find there is admissible evidence that there had been a collision based on Marek Ruta's testimony that the defendant's vehicle had backed into his father's vehicle at the Esso gas station and based on Cst. Cornea's testimony that he had observed fresh paint scratches and damage on the front bumper of the Ruta vehicle and fresh paint scratches and damage to the rear bumper of the defendant's vehicle. [188] And, in respect to the defence motion of no evidence in respect to the ground that the Esso gas station is not a highway in regards to the charge of failing to supply the defendant's name and address to the other driver under s. 200(1)(c), the motion is granted in respect to this charge. Section 200(1)(c) only requires the defendant, who had allegedly collided with the Ruta vehicle on the property of the Esso gas station, to supply his name and address to the other driver if the alleged accident had occurred "on a highway". For this charge, there is no evidence in the record which indicates that the collision had specifically occurred in an area of the Esso gas station that had been clearly set apart or distinguished from other areas of the Esso gas station, so as to be primarily used for the passage of motor vehicles by the general public, which would then categorize that area as a "highway" within the meaning of s. 1(1) of the Highway Traffic Act. Moreover, there is no other provision, by implication or otherwise, under the Highway Traffic Act that requires the defendant to supply his name and address to Marek Ruta under s. 200(1)(c). Therefore, since there is no evidence that the collision had occurred on a highway as defined under s. 1 of the Highway Traffic Act and as required for the application of s. 200(1)(c), then the requirement under s. 200(1)(c) for the defendant to supply his name and address to Marek Ruta does not apply to the defendant. [189] Furthermore, in respect to the contention that there is no evidence of property damage resulting from the alleged accident that exceeds $1000 in respect to the charge of failing to report an accident under s. 199(1), I find that there is admissible evidence that the specific damage to either vehicle had been for more than $1000. This evidence that the damage to each of the two vehicles, respectively, had exceeded the value of $1000 had come from Marek Ruta and Cst. Cornea's observations and testimony. In Ruta's testimony, Ruta had testified that the damage to the Ruta vehicle had been worth $1000, and that this value had been come from Ruta's father who had gone to a body shop for that estimate, but that Ruta did not have any bills or receipts to submit that would confirm that estimate on the value of the damage to the Ruta vehicle. [190] As for Cst. Cornea's testimony on the value of the damage to either vehicle being more than $1000 in value, Cst. Cornea had based his opinion on the value of the damage on his own personal experience from being involved in an accident in which he had to obtain estimates from autobody shops to repair the damage to his own vehicle, and from his experience as a police officer that he had gained from investigating over 100 motor vehicles accidents, and from working at a collision-reporting centre where he had compared written estimates from autobody shops brought in by motorists involved in accidents with the damage that he had observed on the motor vehicles involved in those accidents. Although Cst. Cornea had not been qualified as an expert witness on estimating the monetary value of damage to motor vehicles involved in accidents, s. 199(1) only required the defendant to report an accident if the "apparent property damage" exceeds $1000. Hence, Cst. Cornea's opinion that the paint scratches or damage to the defendant's and to the Ruta motor vehicles had been damage that had respectively exceeded $1000 in value does not outrightly appear to be an unreasonable evaluation, especially when he explained that the damaged bumper on the respective vehicles would have to be entirely repainted in order to repair the damage. Moreover, this type of opinion based on Cst. Cornea's observations and experience is not the type of opinion that required the opinion of an expert witness with specialized knowledge, training, or education, but the type of opinion that an ordinary witness with Cst. Cornea's experience could make. Therefore, Cst. Cornea had the experiential capacity to make an opinion on the value of the damage to the vehicles in question, and as such, Cst. Cornea's opinion would be admissible evidence that the apparent property damage resulting from the alleged accident would have exceeded $1000. Consequently, as there is admissible evidence of the property damage resulting from the alleged accident apparently exceeding $1000, the defence motion of no evidence in respect to the failing to report an accident charge under s. 199(1) is dismissed. [191] In sum, the defence motion of no evidence is granted in respect to the first charge of "failing to supply name and address" contrary to s. 200(1)(c), but in respect to the second charge of "failing to report an accident" contrary to s. 199(1), the motion of no evidence is dismissed, as there is evidence in the record upon which a properly instructed jury could rationally conclude that the accused is guilty beyond a reasonable doubt. --- Dated at the City of Mississauga on August 15, 2014. ____________________________ QUON J.P. Ontario Court of Justice