Court File and Parties

Ontario Court of Justice

Date: 2016-03-18

Court File No.: Simcoe 15-632

Between:

Her Majesty the Queen

— AND —

Benjamin Whitside

Before: Justice Kevin A. Sherwood

Heard on: December 17, 2015

Reasons for Judgment released on: March 18, 2016

Counsel:

• Ms. Lynette Fritzley — counsel for the Crown
• Mr. Michael McArthur — counsel for the defendant Benjamin Whitside

SHERWOOD J.:

[1]

Benjamin Whitside is charged with the offences of impaired driving and driving over .08. These charges stem from events that occurred in the early morning hours of August 14, 2015. On these charges the Crown has proceeded summarily.

[2]

The accused Mr. Whitside has brought a Charter application contending that the statement made by him at the roadside to the investigating officer should be excluded from evidence in the trial on the basis that the statement was compelled under the Ontario Highway Traffic Act and accordingly, based on the reasoning of the Supreme Court of Canada in R. v. White, [1999] 2 S.C.R. 417, the admission of this statement in evidence in this criminal proceeding would violate Mr. Whitside's right against self-incrimination as protected under section 7 of the Canadian Charter of Rights and Freedoms.

[3]

It is further argued that based on the reasoning of the Ontario Court of Appeal in R. v. Soules, [2011] 105 O.R. (3d) 561, 2011 ONCA 429, that if the statement of Mr. Whitside is excluded it cannot be used or considered in the grounds for the officer in making the subsequent demand for the provision of breath samples, which in turn would lead to the exclusion of the results from the breath samples subsequently obtained by the breath technician.

[4]

It is the Crown's contention that the relevant statement made by Mr. Whitside at the roadside was not made pursuant to any honestly held, reasonable belief on Mr. Whitside's behalf that he was compelled by law to make such statement and accordingly the statement ought to properly be admissible in his trial.

[5]

Prior to commencing the voir dire counsel agreed that the outcome of the trial will be determined by the outcome of the voir dire. If the accused's utterance at the roadside is excluded as having been statutorily compelled and thus a violation of the accused's right against self-incrimination, then the Crown's case falls as there would not be sufficient evidence to establish that Mr. Whitside was the driver of the vehicle, the officer would therefore not have had sufficient grounds to make the breath demand, and the results of the breath sample analysis would also be inadmissible. Conversely, if the accused's utterance at the roadside is not excluded, the defense concedes that the Crown would be able to prove its case to the requisite standard of proof beyond a reasonable doubt.

[6]

The only evidence provided on the voir dire was the testimony of the applicant Benjamin Whitside, which can be summarized as follows:

[7]

On the evening of August 13, 2015 the applicant had been at his parents' home where he also resides. In the early morning hours on August 14, 2015 he decided to take, without his parents' knowledge or consent, a van, owned and used in his father's business, and drive to Simcoe, a distance which was estimated to be approximately 10 miles. He brought his dog with him. There was no one else in the van.

[8]

As he was driving on Highway 24, at or near its intersection with Thompson Road, he fell asleep and then woke up as the van was heading towards trees to the left of the road. He turned the wheel to the right but could not recover control of vehicle and it went into the ditch, hitting a tree and causing extensive damage to the vehicle. The applicant was injured in the collision - his right eye was swollen and bleeding.

[9]

The applicant and his dog got out of the vehicle. This occurred in a rural area and the applicant did not see any residences nearby. He did not have a cell phone with him, so he could not call anyone. He then noticed that his dog was gone. He began calling out for the dog and walking up the roadway looking for her. He saw the dog in the field on the opposite side of the road. He went into the field and retrieved the dog. As he was holding the dog and bringing her back to the van he saw the activated emergency lights on top of a police car that had arrived at the scene. The applicant saw OPP Constable Harbottle by the car, approached her and said "I did something really bad. I shouldn't be driving." This is the statement that is the subject matter of the voir dire. The applicant thinks that he may also have said that he had been drinking, but is unsure of that. The applicant says the officer then asked him some questions and that he responded to those questions. He did not in his evidence indicate what those questions were or what his responses were. In any event, the key piece of evidence for the Crown's case is his acknowledgment that he had been driving.

[10]

An ambulance then arrived, the applicant was asked if he wanted to go to the hospital, and when he said that he did he was taken to the hospital where he received medical attention. After the applicant had received medical attention, he was afforded an opportunity to speak with counsel and he did. A breathalyzer had been brought to the hospital, and after speaking with counsel, the applicant provided samples of his breath. He was then taken to the OPP detachment by PC Harbottle and there provided an audio/video recorded statement.

Legal Framework

[11]

Section 7 of the Charter provides:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[12]

It has been expressly found that these rights under section 7 include, as a principle of fundamental justice, protection against self-incrimination: see R. v. White, supra, at para. 40.

[13]

Section 24 of the Charter provides:

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceeding would bring the administration of justice into disrepute.

[14]

The two leading decisions with respect to the issue at hand are R. v. White, supra and R. v. Soules, supra.

[15]

In R. v. White, Ms. White was involved in an accident which she reported to the police the next day by telephone. A police officer then attended at her home and she provided the officer with her version of the accident. Ms. White was charged with failing to stop at the scene of an accident, contrary to section 252(1)(a) of the Criminal Code. At trial the Crown sought to adduce evidence of the conversations that Ms. White had with the police, elements of which linked her to the accident. On a voir dire Ms. White stated that she knew that she was under a duty to report the accident and felt that she was under a duty to speak to the officer about the accident. The trial judge, even though he found Ms. White's statements to the voluntary, allowed a defense motion as to an infringement of the s.7, right against self-incrimination, excluded the statements under section 24(1) of the Charter, and dismissed the charge on the basis that the Crown had adduced no evidence as to the identity of the person driving the vehicle involved in the accident. The B.C. Court of Appeal dismissed a Crown appeal, and the crown then appealed to the Supreme Court of Canada.

[16]

Justice Iacobucci gave the decision for the 6:1 majority of the court and held that pursuant to the s. 7 protection against self-incrimination statements made under statutory compulsion are inadmissible in criminal proceedings against the declarant because their admission would violate the principle against self-incrimination.

[17]

In addressing the applicability of this protection Justice Iacobucci at paras. 74, 75 and 76 states:

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….

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.

76 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.

[18]

At para. 81 Justice Iacobucci places the onus of proving whether the report was made pursuant to a statutory duty, upon the accused:

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.

[19]

Whether a statement was compelled in that sense is an issue of fact. In White the court accepted the trial judge's finding that the accused's statements to the police, although voluntary, were made under compulsion of the provincial motor vehicle legislation. As such the statements infringed her s. 7 Charter rights and under s. 24(1) were excluded.

[20]

In R. v. Soules, supra, the Ontario Court of Appeal adopted the reasoning in R. v. White. Accepting the trial judge's finding that statements provided by the accused to the police were statutorily compelled, because the accused remained at the scene of the collision and answered the questions of the officer because he understood that he was required by law to do so, the Ontario Court of Appeal upheld the trial decision that the statements were inadmissible pursuant to R. v. White. In that case the Crown was prohibited from utilizing the "statutorily compelled admissions" for the purpose of establishing grounds for the making of either the approved screening demand or the s. 254(3) breath demand.

[21]

In R. v. Parol, 2011 ONCJ 292, [2011] O.J. No. 2641 Justice Duncan states at para. 7:

[T]he defendant must establish three things to come within the protection of White:

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.

Accordingly, the absence of "a 'report' within the meaning of the compelling statute" would be fatal to the application.

[22]

R. v. Parol has been distinguished on this point: see R. v. Bhangal (2013), 46 M.V.R. (6th) 78 (Ont. S.C.J.); R. v. Wenham, 2013 ONSC 7431, [2013] O.J. No. 5535, and as Justice Glithero in R. v. Treliving, [2013] O.J. No. 2894 (Ont. S.C.J.) concluded at para. 58:

As to the statements of principle in the interpretation of the Highway Traffic Act and when it creates a statutory compulsion in contravention of s. 7, I am of the respectful view that Parol should not be followed.

Accordingly, a failure of the accused to formalize or complete a "report" is not fatal to an application under s.7 for the exclusion of a statutorily compelled statement. See R. v Pita, [2013] O.J. No. 5974, at para. 51.

[23]

As stated by Justice Green in R. v. Pita, supra at paras. 52 and 53:

52 Situations, although rare, may occur where an officer investigating an accident testifies to a suspected driver volunteering that he is only answering the officer's questions because of "the law". One can also conceive of situations where an officer cautions a suspect about his or her legal obligation under the HTA before a roadside interrogation. In most circumstances, however, satisfaction of the legal burden effectively requires a defendant to take the stand, testify to his or her belief as to the legal obligation that compelled their self-incriminatory "report" to the police, and have the honesty and reasonableness of their belief tested by the Crown through cross-examination.

53 No magical incantation or detailed appreciation of the legislation is necessary to invoke s. 7 in these circumstances. As said by Wein J. in R. v. DaCosta (2011), 156 C.C.C. (3d) 520 (Ont. S.C.J.), at para. 17:

… The obligation by statute to report involvement in a motor vehicle accident is a well-known obligation even if the average citizen does not know all the precise details of the statutory requirement. Drivers in general know that they have to report an accident and that they have to "talk to the police" about it.

[24]

In Pita Justice Green in rejecting the defendant's application to exclude her statement, held at para. 54:

… An abstract sense of duty or mis-appreciation of one's obligations in the face of an officer's questions does not establish a s. 7 claim in the circumstances. The defendant never drew a nexus between her personal sense of obligation and the appropriate external legal driver so as to come within the White doctrine. In the end, I do not know whether she acted out of altruism, generalized compliance with police authority, a sense of moral obligation or civic duty or, as the Charter jurisprudence commands, a legal compulsion to report the accident. The defendant, at simplest, has not met that burden necessary to attract the s. 7 protection she claims.

Analysis

[25]

In Ontario, section 199(1) of the Highway Traffic Act provides:

199 (1) Every person in charge of a motor vehicle or streetcar 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).

The information required under subsection (3) includes the particulars of the accident, the persons involved, and the extent of personal injuries or property damage, if any. The applicable regulations (R.R.O. 1990, Regulation 596) prescribes the amount of property damage for the purpose of subsection 199(1) of the HTA to be $2,000.00.

[26]

Given the injuries sustained by Mr. Whitside, and likely given the extent of the damage to the motor vehicle, although no monetary amount was quantified in the evidence, it is clear that by virtue of section 199(1) of the Highway Traffic Act that Mr. Whitside had a statutory duty to report this accident to the nearest police officer. PC Harbottle clearly would have been the nearest police officer.

[27]

At issue then is whether the applicant, when he commented to officer Harbottle "I did something really bad. I shouldn't be driving." did so on the basis of an honest and reasonably held belief that he was required by law to report the accident to the person to whom the report was given.

[28]

As noted, the only evidence provided on the voir dire was that of the applicant. What I must consider then is whether the evidence draws a sufficient nexus between Mr. Whitside's personal sense of obligation and the appropriate external legal driver, i.e. the compelling statute, so as to come within the doctrine enunciated by the Supreme Court of Canada in R. v. White, supra.

[29]

In R. v. Pita, supra, it was noted that Ms. Pita in her evidence said, in effect only that she felt she "had to" return to the scene and, once there, felt obliged to answer questions put to her by a police officer. Justice Green notes that Crown counsel did not ask questions of the defendant with respect to that aspect of her evidence. Justice Green found that the defendant's answering the questions of the police officer because she felt she "had to" was not sufficient to support her s. 7 application.

[30]

Mr. Whitside was questioned both in his examination in chief, and extensively in cross-examination about his reasons for returning to the vehicle and about why he made an utterance to officer Harbottle disclosing that he had been driving. Crown counsel asked these same questions in a number of different ways seeking to commit the applicant to a response that he did so out of a sense of moral obligation as opposed to a statutory or legal obligation. With respect to returning the vehicle the applicant agreed, that whether the officer was there or not, he would have returned to the vehicle anyways as he believed that some passing motorist would have stopped to assist him. With respect to the questions about why he made his comment to the police officer Mr. Whitside provided many different answers including the following:

"I thought I was obligated to"

"It's like what happens now in life besides whether I'm a good guy or bad guy and I like to try and be a good guy"

"It's what you do. The police are there to help you"

"I said to her what I had done, because in a situation that's, it's, something's wrong and this entire structure is to help people and to make the world a better place and you can't go against a structure in any way"

"I'm pretty sure, you really have to say that to officers. To tell them the truth. Like I just swore by, you know, it's the truth, the whole idea's the truth"

"In the emergency situation, the faster you get things out of the way and be honest, the better"

"So they could do their jobs"

"To help them help me. It's a system"

"I came up. I told them what I thought they needed to for the assistance they're looking at especially considering it's like is there anyone else hurt or anything like that"

"I came up and I told her what was going on"

In response to that answer he was asked: "And that was because you felt that it was the right thing to do?" His response to that was a question: "It's not the legal thing to do?"

Further responses included:

"In an emergency situation, I would tell them what they need to know"

"That's the system. That's the system"

"Because we're like ants in a giant, you know, ant hill and what serves the hill …"

"So that even without government, there's still a hill of ants and we're all just making, there's food and we're looking after each other and we're doing the system and it's about the system. It's what gets us all fed and safe"

Following that response he was asked: "It's not about sort of punishment and law and punishment and everything, it's about being good to other human beings because you would want them to be good to you?" To which he replied: "Well, that's Karma, yeah"

Question: "So is that sort of what you are getting at?"

Answer: "No, not at all"

His responses continued:

"I helped her do her, to do her job in my mind of just that was my legal responsibility or, or whatever you want to call it, it's your responsibility. It's a responsibility. It's a responsibility"

"I really thought it was my legal responsibility"

"Well, I had done something illegal. And I thought that it made sense legally to go and do it. It was more of an implication there of what I was thinking of because what you're asking me is what I was thinking"

"And what I was thinking was in legal terms"

"Well that I should go over there, that I had broken the law"

"Um, everything had gotten away from me and I needed to go over there and tell them what I've done wrong"

"Well, there's a vehicle there, there's a vehicle there in the ditch and it's smashed. They're going to look for somebody and it's, they need to know. And I need to do what was legal, especially considering I hadn't"

"And I immediately told her everything she needed to know"

He was then asked: "And that's because that was the right thing to do?"

Answer: "The law is the right thing to do"

Question: "Okay, what law?"

Answer: "Don't put anyone in danger"

[31]

The utterance made by the applicant was made immediately upon his approaching the officer and was not made in response to any question or interrogation of the officer. It was clearly made voluntarily by the applicant.

[32]

Although it is clear that the accused does not need to demonstrate all precise details of the statutory obligation that compels a self-incriminatory report, they must be able to articulate that they were acting with some knowledge that there was a law requiring them to do so and/or that there were potential legal consequences for failing to do so. See R. v. Treliving, supra.

[33]

If the applicant made his comment to the officer because he felt that morally it was the right thing to do, as opposed to believing that he was compelled by law to do so, then he would not be afforded the protection under s. 7 against self-incrimination.

[34]

Mr. Whitside does not articulate or describe there being, to his knowledge or belief at that time, a law or statute that required him to report to the police as he did.

[35]

If the applicant was fulfilling a statutory obligation to report information to the police it might have been expected that he would provide that information more factually, for example, stating "I was the driver" as opposed to his comment "I did something really bad. I shouldn't be driving" which is more morally attuned.

[36]

When the applicant, in his evidence was talking about what is legal, it seems that he was referring to making right what he had done that was not legal or right, i.e. driving impaired and driving without a license, as opposed to fulfilling some specific statutory obligation to report to the police and provide particulars of the accident.

Conclusion

[37]

In the circumstances of this case, while Mr. Whitside may have had a statutory duty under the provisions of the Highway Traffic Act to report this accident, his evidence does not establish that he turned his mind to that obligation. The wide-ranging answers that he provided in his evidence lead me to conclude that he was motivated by a philosophy of moral responsibility to do what was right and perhaps some sense of honour to atone for his transgression. I find that the applicant has not on a balance of probabilities established that when he made his utterance to Constable Harbottle at the scene that he had an honest and reasonably held belief that he was required by law to report to the officer that he was the driver of the motor vehicle. Accordingly, there is no basis for excluding the evidence of that statement under s. 24(1) of the Charter or otherwise.

[38]

With the admission of the of the applicant's statement into evidence it was conceded that all elements of the offenses charged have been proven beyond a reasonable doubt. The accused is therefore found guilty of the offence of driving over .08. The offence of impaired driving is stayed.

Released: March 18, 2016

Signed: "Justice Kevin A. Sherwood"