Court File and Parties

Ontario Court of Justice

Date: November 3, 2015

Court File No.: Brampton 14-8160

Between:

Her Majesty the Queen

— and —

Slaven Gandzi

Before: Justice D.F. McLeod

Heard: March 2015

Reasons for Judgment Released: November 3, 2015

Counsel:

• Michaud, counsel for the Crown
• B. Starkman, counsel for the defendant Gandzi

D.F. McLEOD J.:

Charge

[1] Mr. Gandzi is charged with one count of having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, did operate a motor vehicle contrary to section 253(1)(b) of the Criminal Code of Canada.

Relevant Factual Overview

[2] On the day in question, Mr. Brathwaite was stopped at a light when he noticed a motorcycle negotiating a curb at a speed that, in his estimation, was too fast for the turn. From his vantage point Mr. Brathwaite noticed that the driver of the motorcycle did not brake or lean into the turn. In his words, the driver "got shot out of the turn" which caused the driver to fall. What further precipitated Mr. Brathwaite's interest/observations was the fact that the driver was not wearing any protective clothing but rather shorts and a t-shirt.

[3] At 6:30 a.m., PC McNaughton received a radio call with respect to a motor vehicle collision involving personal injury. At 6:34 a.m. PC McNaughton arrived on the scene.

[4] Upon her arrival, the officer observed a motorcycle with damage to one side that was being propped up with the aid of a kickstand. Mr. Gandzi was the only person standing in the area of the motorcycle. PC McNaughton testified that Mr. Gandzi was wearing black shorts and a cut off shirt. PC McNaughton was also able to observe abrasions to Mr. Gandzi's shoulder.

[5] The officer testified that it is her practice after attending an accident to ask the proposed driver if he or she is okay. This was the question that began the conversation between her and Mr. Gandzi. During his response to her inquiry, the officer detected an odour of alcohol emanating from the driver's breath.

[6] The officer did not make a record in her notebook with respect to the question that she asked of Mr. Gandzi, however she does recall that his answer was "okay." Irrespective of his answer, PC McNaughton felt it necessary to make arrangements for an ambulance to attend.

[7] An ambulance arrived at the scene a short time later. During this time the officer formed the suspicion that Mr. Gandzi had alcohol in his body.

Legal Issues

Applicant's Position on Section 7 Charter Application — Right to Remain Silent

[8] In summary, the applicant alleges that the statements he made to Officer McNaughton at the scene of the incident were statutorily compelled and cannot be used to establish reasonable and probable grounds for an arrest. The applicant relies primarily on R. v. Soules, 2011 ONCA 429, 273 C.C.C. (3d) 496 and R. v. White, [1999] 2 S.C.R. 417 in support of his position.

[9] As stated in R. v. White, statements to a police officer concerning a motor vehicle accident, under compulsion of a provincial Motor Vehicle Act, are inadmissible in criminal proceedings as a violation of the right to remain silent. The police officer can simultaneously be investigating a possible crime where the driver is a suspect. The test for compulsion is whether the driver gave the report on the basis of an honest and reasonably held belief that she/he was required by law to report the accident to the person to whom the report was given. The onus is on the applicant to establish on a balance of probabilities that the statement was compelled.

The Law

[10] In R. v. Parol, 2011 ONCJ 292, 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; and
3. That he gave his report in the honest and reasonable belief that he was compelled by the statute to do so.

Who Bears the Onus?

[11] 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."

[12] 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, 156 C.C.C. (3d) 520. 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.

Was the Statement Compelled?

[13] In R. v. White, [1999] 2 S.C.R. 417, 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 para. 75, that the test:

(I)s whether, at the time 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.

[14] Section 199 of the Highway Traffic Act of Ontario (the "HTA") requires drivers involved in certain types of accidents to report them to the police. Subsections (1) and (3) provide:

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).

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.

Did Mr. Gandzi Feel Compelled by Statute to Provide a Report?

[15] The declarant's belief that he is compelled to speak must be both honest and reasonable. This is an essential component of the balancing that occurs under Section 7 of the Charter. The fact that driving is a licensed activity supports the assumption that most drivers have been educated as to their duties and responsibilities and therefore will have at least a vague notion that they are subject to a statutory duty to report the details of an accident. Therefore, as indicated by Iacobucci J. at paragraph 80 of White:

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

[16] It is now well established in law based on the Supreme Court of Canada decision in R. v. White, [1999] S.C.J. No. 28, and the Ontario Court of Appeal decision R. v. Sewells, 2011 ONCA 429, [2011] O.J. No. 2500, that provided an accused establishes, on the balance of probability standard, that he had an honest and reasonably held belief that he was required in law to report the details of an accident to a police officer, the answers provided cannot subsequently be utilized in aid of his subsequent prosecution. R. v. Pichelli, [2013] O.J. No. 3178.

[17] In these circumstances, as indicated by Justice Iacobucci in White, at paragraph 65 and 80 of that decision, the police are obligated to inform the driver that they intend to secure the details of the accident from sources other than the driver, thereby ending the duty to report. Alternatively, the police may wish to postpone the taking of the accident report until after the questioning of the driver has taken place, and then only after a caution has been given. R. v. Pichelli, [2013] O.J. No. 3178 – para. 21.

[18] Thus, even a mistaken belief, provided it is reasonably held, may provide the type of compulsion to which the decision in White is directed. At para. 77, Iacobucci J. made clear the basis for the court's decision in that case:

The requirement that the declarant's honest belief be reasonably held also relates to the meaning of compulsion. The principle against self-incrimination is concerned with preventing the abuse of state power. It is not concerned with preventing unreasonable perceptions that state power exists. There is no risk of true oppression of the individual where the state acts fairly and in accordance with the law, but the individual unreasonably perceives otherwise ... The requirement that an honest belief be reasonably held is an essential component of the balancing that occurs under s. 7. The application of the principle against self-incrimination begins, and the societal interest in the effective investigation and prosecution of crime is subordinated, at the moment when a driver speaks on the basis of a reasonable and honest belief that he or she is required by law to do so.

Was the Information Provided a "Report"?

[19] With respect to the second requirement laid out in Parol, namely that the statements must be a report within the meaning of the compelling statute, Duncan J. wrote (at para 7) that:

If the statement cannot reasonably be considered an accident report, as I find below in this case, the defendant's claimed belief that he thought he was compelled to make it because of an accident reporting statute would not be reasonable - or credible.

[20] The crown argues that Mr. Wenham has not established that the statements he made were a report. It contends that the statements in this case were made as part of an ordinary police investigation and, therefore, should not be excluded. In my opinion, the statements made by Mr. Wenham meet the second requirement in Parol.

[21] The majority in White referred to two aspects of the reporting requirement, namely (1) notifying the authorities of the fact of an accident, and (2) providing the information required by the investigator. At para. 80, Iacobucci J. wrote:

Section 61(1) requires a driver involved in an accident to report the accident and, in very general terms, to "furnish the information respecting the accident required by the police officer or designated person."

[22] PC McNaughton testified that when she arrived on the scene she did not anticipate that this incident was a result of impaired driving. However, during the process of speaking about the collision (amongst other things) with Mr. Gandzi she detected what she believed to be alcohol emanating from his breath.

[23] The evidence of PC McNaughton was that she requested that Mr. Gandzi provide his licence for the purposes of preparing her "report." During their initial interaction Mr. Gandzi was asked how the accident occurred, all in this court's estimation for the purposes of preparing the police report.

[24] In my opinion the statements and information gathering done by PC McNaughton fulfill the second requirement of the test in Parol.

Did Mr. Gandzi Honestly and Reasonably Believe He Was Required by Law to Report the Accident?

[25] The crown urges me to find that Mr. Gandzi was not a credible witness and that his evidence that he believed he was required by law to report the accident ought not to be accepted. Defence contends the polar opposite and suggests that Mr. Gandzi's belief was reasonably held.

[26] Mr. Gandzi testified that he was aware that he had to report damages in the event that any damages were over $1000. He was asked again in cross-examination to explain the nature of his thinking.

[27] Mr. Gandzi first advised the court that he asked and then was informed of the requirement to report. Mr. Gandzi further advised that this information was provided to him through the experiences of his friends as well as the media.

[28] In an attempt to unpack Mr. Gandzi's assertions, crown counsel asked for more specificity with respect to his comments. Mr. Gandzi was unable to advise the court as to the newspaper or newspapers he read in order to garner the information, and he was also unable to furnish to the court any of the names of his friends from whom he derived the Highway Traffic Act information. The general assertion from Mr. Gandzi was that he was able to attain this information; however, he could not provide one shred of information as to how, when, or by whom such information was transmitted to him outside of bald generalizations. In fact, when asked if he knew what the Highway Traffic Act is, his response was "I don't believe I do."

Conclusion

[29] I found Mr. Gandzi's evidence around his knowledge of the Act and how he was able to be in possession of the HTA information not credible. His inability to provide general detail with respect to any of his assertions does not provide this court with any comfort as to his knowledge of the HTA and its impact on what he believes was a "compelled" statement.

[30] Mr. Gandzi has not discharged his onus and as such his statements to the officer at the roadside will not be excluded and this court finds no breach of any of Mr. Gandzi's rights.

Released: November 3, 2015

Signed: "Justice D.F. McLeod"