Court File and Parties

Court File No.: 13-07150: Central East Region-Newmarket Date: 2014-11-05 Ontario Court of Justice

Between: Her Majesty the Queen — and — Bhibhisham Amrit

Before: Justice Peter C. West

Evidence on Voir Dire heard: August 7, 2014 and September 25, 2014

Ruling on Charter Application released: November 5, 2014

Counsel:

• Ms. S. Kumaresan for the Crown
• Mr. R. Motee for the accused

WEST J.:

Introduction

[1] The defendant is charged with operating a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood on September 15, 2013.

[2] At the commencement of the trial Mr. Motee requested that a voir dire be held to determine the admissibility of statements made by the defendant to the investigating officer at the scene. It was agreed the investigating officer would be called by the Crown on the voir dire and that his evidence would apply on the trial if the application was dismissed. Mr. Amrit also testified on the voir dire.

[3] The position of the defence is that any statements made by Mr. Amrit at the side of the road to the investigating officer should not be admitted as they were made pursuant to compliance with the compulsory accident reporting provisions in the Highway Traffic Act having regard to the arguments advanced in R. v. White, [1999] 2 S.C.R. 417 (S.C.C.). It is argued that the admissions made by Mr. Amrit at the roadside fall within this exclusionary rule. The defence contends that this evidence was obtained under statutory compulsion, in violation of Mr. Amrit's right against self-incrimination under s. 7 of the Canadian Charter of Rights and Freedoms. It is further argued that if the admissions are excluded they cannot be used or considered as grounds for the officer forming a reasonable suspicion that Mr. Amrit had been operating a motor vehicle in the preceding three hours and had alcohol in his body, which would then lead to the officer making a demand for Mr. Amrit to provide a sample of his breath into an approved screening device. In turn, this would lead to the exclusion of the two breath samples obtained by the breath technician at the police station.

[4] It is the Crown's position that Mr. Amrit was not compelled to make any statements at the roadside. The police officer advised him about the in-car camera, which was video-taping and audio recording anything said by Mr. Amrit. He further cautioned Mr. Amrit that anything he said could be used as evidence in court. Ultimately the officer advised Mr. Amrit there was no obligation for Mr. Amrit to say anything to the officer. It is the Crown's position the officer acted fairly throughout the investigation and Mr. Amrit chose to provide a statement to the officer. Therefore, the statements made by Mr. Amrit are admissible.

Factual Background

[5] P.C. Steven Horner was dispatched to Jane Street, north of King Side Road, because of a 911 call concerning a car in a ditch and an individual standing at the side of the road needing assistance. The officer had an in-car camera which recorded all of his interactions respecting his investigation. When the officer arrived on scene at 00:49, he discovered an unoccupied car facing east, with its back wheels in a ditch on the west side of Jane Street and its front wheels on the gravel shoulder. There was no one standing near the car.

[6] At 00:52:27, a van, driving northbound on Jane Street, stopped on the east shoulder, opposite the car in the ditch and Mr. Amrit exited the passenger seat and approached the officer at 00:52:48. The initial conversation, as recorded by the in-car camera and lapel microphone worn by the officer, is as follows:

Officer: Hi there, is this your car?

Amrit: Yeah, hello.

Officer: Were you driving?

Amrit: I was backing out from here and boom. [inaudible] I get lost [inaudible] I'm yeah, I'm [inaudible]

Officer: You, you were backing out from there?

Amrit: Oh, you're [inaudible] Um, I think I backed – yeah, backed – backed – backed too far, yeah, this side. Yeah, [inaudible].

Officer: When – when did this happen?

Amrit: Right now.

Officer: You were backing out from there?

Amrit: No, no, I was – I was lost.

Officer: Uh, uh

Amrit: Turn around.

Officer: Uh, uh.

Amrit: But that's okay, I can go back that way, and I came back, and I went too far.

Officer: Really, okay I'm going to caution you, sir, okay?

Amrit: Uh, huh.

Officer: Caution you that you're on video and audio recording right now and anything you say may be used as evidence in court, do you understand that?

Amrit: Uh, huh.

Officer: Okay, you understand that I'm a police officer?

Amrit: Exactly.

Officer: You're telling me that you were backing out from across the road?

Amrit: Yeah.

Officer: Okay, I'm going to tell you that I don't believe that that's true. All right, how much had you had to drink tonight?

Amrit: I went to a wedding and I had two beer.

Officer: Two beer?

Amrit: Yeah.

Officer: I see.

[7] The first caution was given at approximately 00:53:47 according to the video. P.C. Horner testified he smelled the odour of alcohol coming from Mr. Amrit's breath while he was talking to him and this was why he asked Mr. Amrit how much he had been drinking that night. P.C. Horner indicated in his notes he believed Mr. Amrit was attempting to mask the odour of alcohol by chewing gum. The officer continued to question Mr. Amrit about how the car ended up in the ditch and pointed out some tires marks which caused the officer to believe the car had slid into the ditch as opposed to backing into the ditch. Mr. Amrit was adamant he had pulled into a driveway directly across from where the car was in the ditch and he had backed up too far and went into the ditch.

[8] At 00:57:00, P.C. Horner contacted dispatch using his portable radio and requested information concerning Mr. Amrit. P.C. Horner then had the following conversation with Mr. Amrit:

Officer: Okay sir, were you alone?

Amrit: Yes sir.

Officer: And where were you coming from?

Amrit: Ah Brampton, I was at a wedding.

Officer: And where were you headed?

Amrit: For some reason, you know, I'm [unintelligible] and I pass, so I try to turn back from here and the back go down, that's about it, boom.

Officer: Okay.

Amrit: And just slip into the hole.

Officer: Yeah.

Amrit: And what did I do. I run up to the light, I knock on the door here and nobody answers.

Officer: Um-huh.

Amrit: And I come here. My other family and my wife are still at the wedding and I had to come home, you know, I want to go home.

2nd Officer: Were you at the wedding?

Amrit: I went to the wedding. I went to the wedding, I had two beers then I feel I like to come home. Now car in, the car is over here, but I didn't realize that backing up, backing up [inaudible] right in there.

Officer: You said that was a half hour ago?

Amrit: Yeah, it just happen. I'm getting nervous too, my wife is going to be pissed at me.

Officer: I don't doubt.

Amrit: And you're telling me, when can I go?

Officer: You understand what I told you, that everything is being audio and video recorded?

Amrit: Sure.

Officer: And our conversation can be used as evidence in court. And you know what that means?

Amrit: Thank you sir.

Officer: Right?

Amrit: Yes.

[9] The second caution was given by the officer at approximately 01:00:20. The second officer was his Acting Sergeant and she arrived on scene at around 00:58:49 because P.C. Horner was alone. P.C. Horner testified after the second caution he was trying to assess Mr. Amrit's level of impairment, if any. He asked for Mr. Amrit's driver's license and observed Mr. Amrit walking around. Mr. Amrit had an accent and had no difficulty understanding P.C. Horner's questions. P.C. Horner testified he never observed any indicia of impairment and did not believe Mr. Amrit was impaired. The conversation continued:

Officer: Okay. So, have you had anything to drink since you backed into the…

Amrit: No, no, no, no. Just walk up here, walk up here. Nothing to drink.

Officer: Nothing to drink at all. So do you understand at this point you've told me that you've been drinking and I'm investigating…

Amrit: I have two beer, at the wedding.

Officer: …that fact, all right?

Amrit: At the wedding, at the wedding.

Officer: At the wedding and about how long ago was that?

Amrit: That was about four o'clock.

Officer: Four o'clock.

Amrit: It was around that time.

Officer: Two beer at four o'clock.

Amrit: Yes, I would say yes.

Officer: Okay. Do you understand that you are under no obligation to say anything to me at this point?

Amrit: Thank you.

Officer: You're saying you had a couple of beer at –

Amrit: Four o'clock.

Officer: – at four o'clock, okay and you've had nothing to drink since –

Amrit: Since then.

Officer: – backing since then?

Amrit: Yeah.

Officer: So, certainly nothing since backing into, ah –

Amrit: No.

Officer: – since backing into the ditch?

Amrit: No, I just know this happened.

Officer: All right.

Amrit: I'm not going to lie to you.

Officer: Okay, I'm not going to lie to you either. I'm going to read something back to you now.

Amrit: Sure.

[10] At 01:01:02, P.C. Horner advised Mr. Amrit that he was under no obligation to say anything to the officer and Mr. Amrit said "Thank you." After asking if Mr. Amrit had nothing to drink after backing his car into the ditch, P.C. Horner read Mr. Amrit an approved screening device demand.

[11] P.C. Horner testified when he advised Mr. Amrit there was no obligation to say anything in answer to his questions, he was starting to investigate a drinking and driving offence. P.C. Horner testified there was no other reason to believe Mr. Amrit was the driver other than his admissions. When P.C. Horner first spoke to Mr. Amrit, he admitted he was the driver and that he backed his car into the ditch. Mr. Amrit also advised P.C. Horner he backed his car into the ditch about a half hour prior to his arriving back at the scene in the van. The Crown seeks to have these statements ruled admissible. The defence argues the statements of Mr. Amrit to the officer were compelled by statute, specifically ss. 199 and 200 of the Ontario Highway Traffic Act.

The Law Respecting Statutorily Compelled Statements

[12] In R. v. White, supra, the Supreme Court of Canada held that statements made under compulsion in compliance with the Motor Vehicle Act of B.C. were not admissible in criminal proceedings against the declarant because their admission would violate the principle against self-incrimination enshrined in s. 7 of the Charter. Iacobucci J., writing for the majority, held, at paras. 74 and 75, that:

74 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?

75 ... In my view, the test for compulsion under s. 61(1) of the Motor Vehicle Act is whether, at the time that the accident was reported by the driver, the driver gave the report on the basis of an honest and reasonably held belief that he or she was required by law to report the accident to the person to whom the report was given. (Emphasis and underlining added)

[13] In the passage above, Justice Iacobucci poses the question "When will a driver's answers to police questioning cease to be protected by the use-immunity provided by s. 7 of the Charter?" In para. 76 he answers this question as follows:

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 Vehicles Act. (Emphasis added)

[14] In R. v. Manley, [2007] O.J. No. 5103, (Ont. C.J.), Wake J. held:

In determining whether or not an accident report was made pursuant to a statutory duty it is important for a trial judge to be mindful of which party bears the onus of proof. Iacobucci, J. places that onus clearly on the accused. At paragraph 81 he states:

The accused who raises a Charter challenge to the admissibility of evidence bears the onus of establishing an infringement of his or her Charter rights. Thus, where an accused seeks to argue that the admission of a statement into evidence will violate the principle against self-incrimination under s. 7 because he or she was compelled to make the statement by the terms of a provincial statute, it is the accused who must establish on the balance of probabilities that the statement was compelled.

[15] Consequently, the onus is upon the defendant to prove on a balance of probabilities that he had an honest and reasonably held belief that he had to provide information to the police and that he made the statements because of that belief. Statements may be excluded where the court finds that the defendant was influenced by as little as a generalized, non-specific understanding of a driver's responsibilities to report the details of an accident under the Highway Traffic Act: R. v. DaCosta (2001), 156 C.C.C. (3d) 520 (Ont. S.C.J.). However, the defendant's knowledge of the nature and extent of any damages or injuries that might trigger a statutory duty to report are factors in determining the reasonableness of the defendant's belief that he was compelled by law to inculpate himself: White, supra, at para. 78.

[16] Sections 199 and 200 of the Ontario Highway Traffic Act (the "HTA") require drivers involved in certain types of accidents to report them to the police:

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). R.S.O. 1990, c. H.8, s. 199(1); 2002, c. 17, Sched. F, Table.

Officer may direct person to report accident at another location

(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). 1997, c. 12, s. 15; 2002, c. 17, Sched. F, Table.

Where person unable to report

(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. R.S.O. 1990, c. H.8, s. 199(2).

Duty of police officer

(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. R.S.O. 1990, c. H.8, s. 199(3).

Report of police officer

(4) The report of a police officer under subsection (3) shall be in the form that is approved by the Minister. R.S.O. 1990, c. H.8, s. 199(4).

Regulations as to amount of property damage

(5) The Lieutenant Governor in Council may make regulations prescribing the amount of property damage for the purposes of subsection (1). R.S.O. 1990, c. H.8, s. 199(5).

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. R.S.O. 1990, c. H.8, s. 200(1); 1997, c. 12, s. 16.

It is my view there is little distinction between s. 61 of the Motor Vehicle Act of B.C. and ss. 199 and 200 of the Ontario Highway Traffic Act as both statutory schemes require motorists to report an accident where the damages are over a certain amount or there are personal injuries involved.

[17] In R. v. Parol, 2011 ONCJ 292, [2011] O.J. No. 2641, Justice Duncan set out the facts in White, supra, as follows in para. 5:

The facts and legal context of the White case are important. A man changing his tire at night on a highway was struck and killed by a passing vehicle that did not stop. The next day Ms. White called the police station to report that she had been involved in an accident which she described and which coincided with the fatality. Police attended at her home and ultimately obtained a statement from her. The police repeatedly told White that the statement was in furtherance of preparation of the report that she was obliged by provincial legislation to complete. They told her that it could not be used against her, as the statute provided. [1] However the defendant was later charged with hit and run under the Code and the Crown attempted to rely on the statements to prove White's identity as the driver. It was in this specific context that the Supreme Court of Canada held that use of the statements in the report to incriminate the defendant in a criminal case would violate section 7 of the Charter.

[18] In R. v. Parol, supra, Duncan J. held that White applies only to the making of an accident report, and not to an "ordinary police investigation" (at para. 6). He held, at para. 7, that, in order to fit within White, an accused must establish three things, namely:

1. That he was in fact compelled by statute to provide a report.
2. That the statements he made were a 'report" within the meaning of the compelling statute.
3. That he gave his report in the honest and reasonable belief that he was compelled by the statute to do so.

This interpretation of White has been adopted in two Ontario Superior Court judgments, R. v. Wenham, 2013 ONSC 7431, [2013] O.J. No. 5535, Ellies J. and R. v. Bhangal, 2013 ONSC 3156, Hourigan J., (see para. 46).

[19] I agree with Justice Duncan's analysis which separates points 2 and 3 to ensure "that the basic requirement that the communication be a "report of an accident" (see underlining in quote from White above)" is not overlooked (see para. 7 in Parol). If the statements made by the defendant to the investigating officer cannot reasonably be viewed as an accident report then the defendant's claim of believing he was compelled to make it because of an accident reporting statute is unreasonable and not credible.

[20] Further, in R. v. Soules (2011), 2011 ONCA 429, 273 C.C.C. (3d) 496, at paras. 25-44, the Ontario Court of Appeal held the ratio in R. v. White provided that where a court finds a section 7 Charter breach, the Crown is prohibited from utilizing any "statutorily compelled admissions" to found a s. 254(3) breath demand. Such statements, said the Court, are "not admissible for the purpose of establishing grounds for making either the A[pproved] S[creening] D[emand] or the breath demand" under s. 254.

Was the defendant making a "report" within the meaning of s. 199 of the HTA?

[21] As can be seen from s. 199, there is a requirement to make a "report" to the police where there is personal injury or damage over an amount set by the regulations (currently over $5000). In this case there were no injuries sustained as a result of Mr. Amrit backing up into the ditch. Mr. Amrit further testified there was no damage to his vehicle as a result of his backing up too far and having his rear tires go into the ditch on the east side of Jane Street.

[22] In his evidence-in-chief, Mr. Amrit testified he was approached by the officer and asked if it was his car in the ditch, to which he replied it was. It was his evidence he answered the officer's questions because that is "the law of Canada." It was his belief he had to remain at the scene of the accident and tell the police what happened. He had been involved in an accident 20 years previously with two other drivers and he and the other two drivers were required to provide statements to the police officer who investigated the accident. It was his belief he had to provide a statement to the officer because of that experience.

[23] In cross-examination, Mr. Amrit agreed he left the area where his car went into the ditch as there was no one around. He maintained he did not leave the scene of the accident, although he did walk south on Jane Street to King Side Road where he stopped a "guy" in a van, who offered to drive him back to his car. He was "looking for help". A reasonable inference, based on Mr. Amrit's explanation for why he left the scene of the accident, was that he was looking for someone to assist him in extricating his car from the ditch. Neither counsel asked him if this was the help he was looking for. He agreed he did not call the police or call 911 to report the accident, nor did he ask the "guy" in the van to drive him to a police station so he could report the accident there.

[24] Mr. Amrit testified there was no damage to his car as a result of backing into the ditch. He knew, at the time, he did not have any obligation to report the accident to the police as the damage was not greater than $5000. It was his belief he did not have to attend a police station or call the police to report the accident.

[25] When he was questioned further about answering the questions posed by P.C. Horner, Mr. Amrit testified he answered the questions because it was a police officer and because of his previous experience. He agreed the officer cautioned him that everything he said was being video and audio recorded and could be used in court. Mr. Amrit testified on several occasions he felt the caution meant he had to "act normal with the officer, don't misbehave." When the officer mentioned "what [he] said could be used in court" Mr. Amrit testified he wondered, why was he being charged. He just answered the questions the officer asked.

[26] Mr. Amrit testified he was confused by the cautions but he never expressed his confusion to the officer and he did not ask the officer for clarification. Mr. Amrit did not feel threatened by P.C. Horner and the officer was not rude or aggressive towards him. He agreed the officer told him during the third caution he was under no obligation to say anything to the officer. It was Mr. Amrit's evidence he "understood in his own way" he was under no obligation to answer questions" of the officer. He respected the officer. He agreed it was his choice to answer the officer's questions.

[27] In re-examination Mr. Amrit testified he did not believe he had to report the accident to the police as the car was okay and no one was hurt. He believed the third caution was the officer telling him to act normal and not to misbehave and because the officer kept asking questions he believed he had to answer.

[28] In contrast to White, P.C. Horner never told Mr. Amrit there was a requirement for Mr. Amrit to provide an explanation for how the accident occurred. In the first two cautions P.C. Horner advised Mr. Amrit everything he said was being video and audio recorded and could be used as evidence in court.

[29] I agree with Justice Duncan, the obvious natural question when Mr. Amrit returned to the scene in a van was for the officer to ask if it was Mr. Amrit's car and whether he was the driver. As Justice Duncan held at para. 13:

It seems to me that it would be a stretch beyond the breaking point to consider this exchange as the making of a report within the meaning of the statute. It does not fit the ordinary meaning of the word or the concept of reporting. The Court in White made the distinction between the making of a report pursuant to statute and "ordinary police investigation". Nothing could be more ordinary and natural than a police officer arriving at the scene of an accident and asking who was driving. If the exchange in issue here is considered a "report" then the "dividing line" drawn by the Court in White would be completely obliterated.

[30] In the instant case Mr. Amrit knew he did not have any obligation to report his car going into the ditch because there was no damage and no one was hurt. His actions after the accident confirm this; he left the scene and he did not call 911 or attend a police station to make a "report" of his car going into a ditch. I find Mr. Amrit's answers to the officer's questions were not because of any statutory compulsion under s. 199 of the HTA; rather, he wanted the officer to know he had misjudged backing up out of the driveway across from where he went into the ditch. Mr. Amrit knew he was under no compulsion or obligation to provide a "report" and he answered the questions out of "respect for the officer" and because he wanted to appear "normal" and "not misbehave" when he was dealing with P.C. Horner. His belief, in my view, was insufficient to meet the burden necessary to attract the s. 7 protection in White. In the end, I do not know whether Mr. Amrit "acted out of altruism, generalized compliance with police authority, a sense of moral obligation or civic duty" (see R. v. Pita, [2013] O.J. No. 5974 (Ont. C.J., Green J.) at para. 54). What I do know from his evidence is he did not believe he had any obligation to report his car going into a ditch.

[31] I further find it was Mr. Amrit's choice, based on his own testimony, to answer the officer's questions simply because he believed he should co-operate with the police and not because of any statutory obligation to "report". As found by Justice Duncan in R. v. Parol, supra, at para. 18:

Respect for, or even fear of police may have contributed to his co-operation, but that is not the same thing as answering questions in order to comply with a known or suspected statutory obligation to report: R. v. Manley, supra, at paras. 38-40.

[32] Mr. Amrit's contention during his examination-in-chief that he answered the officer's questions because he was required to because it was "the law of Canada" is not believable in light of his cross-examination. I find his knowledge there were no damages or injuries that might trigger a statutory duty to report the accident to the police demonstrates the unreasonableness of his initial assertion that he was compelled by law to inculpate himself (see White, supra, at para. 78). For the above reasons I do not accept the evidence of Mr. Amrit.

[33] In light of my findings, the s. 7 Charter application to exclude Mr. Amrit's statements to P.C. Horner must fail. The defence has not demonstrated on a balance of probabilities that Mr. Amrit's statements to P.C. Horner at the roadside were made pursuant to the compulsion of the provincial statute - i.e. that they were accident reports and believed to be so by the defendant at the time he made them.

Released: November 5, 2014

Signed: "Justice Peter C. West"

Footnote

[1] This immunity would not extend to criminal proceedings, the province having no authority in that area. It does not appear that the police in White were aware of that or if they were, that they conveyed the distinction to White. The Ontario statute does not contain a use-immunity provision. (Footnote provided by Justice Duncan in Parol, supra.)