Court File and Parties
Ontario Court of Justice
Date: 2017-11-24
Court File No.: Central East Region: Oshawa Court 16-36851
Between:
Her Majesty the Queen
— and —
Joshua Boyd
Before: Justice Peter C. West
Heard on: November 23, 2017
Reasons for Judgment released on: November 24, 2017
Counsel
Mr. R. Connelly — counsel for the Crown
Mr. N. Baker — counsel for the defendant Joshua Boyd
Ruling on Charter Application
WEST J.:
Introduction
[1] Mr. Boyd is charged with having the care or control of a motor vehicle with more than 80 mg of alcohol in 100 ml of blood on September 25, 2016.
[2] At the commencement of the trial it was suggested and agreed that a voir dire be held to determine the admissibility of statements made by the defendant to the investigating officer at the scene. All other alleged Charter breaches were abandoned by the defence; namely, ss. 8, 9 and 10(b). It was alleged by the defence that statements made by Mr. Boyd to P.C. Hammond were statutorily compelled as a result of the operation of s. 199 of the Ontario Highway Traffic Act. The defence argued any statements made by Mr. Boyd should be excluded pursuant to R. v. Soules, 2011 ONCA 429. The Crown argued there was no statutory compulsion, pursuant to s. 199 of the Ontario HTA, for Mr. Boyd to say anything to P.C. Hammond and his statements should be admitted.
[3] In R. v. White, at para. 81, Iacobucci J. held:
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.
[4] As a result, the defence, bearing the onus to prove on a balance of probabilities the Charter violation, called Mr. Boyd on the voir dire. The Crown then called the arresting officer, P.C. Hammond. At the conclusion of the evidence, counsel made oral submissions respecting their positions.
Factual Background
[5] The factual background of this case is relatively straightforward. Mr. Boyd had been at a wedding with his girlfriend where he had consumed alcohol at the reception. At the completion of the reception, which was held at the Legion in Oshawa, he walked to La Quinta Hotel on King Street East, Oshawa with his girlfriend and the bride and groom. The bride and groom were planning to spend their wedding night at this hotel and had invited Mr. Boyd to come with them to have an alcoholic drink. Mr. Boyd's Kia Spectra was parked in the hotel parking lot, prior to attending the wedding at the Legion.
[6] Unfortunately, an argument developed between Mr. Boyd and the groom in the hotel lobby, which developed into a fist fight. This lasted about 5 minutes until Mr. Boyd and his girlfriend left the hotel and got into Mr. Boyd's motor vehicle. Both Mr. Boyd and his girlfriend were upset by the turn of events and at some point both were crying.
[7] Mr. Boyd began to drive his car from the parking spot and in the process side swiped a motor vehicle that was turning into the parking spot beside the spot that Mr. Boyd was parked in. Mr. Boyd's driver's side came into contact with the driver's side of the other motor vehicle. Mr. Boyd exited his vehicle as did the other driver and they had conversation between the two vehicles. The other driver indicated he was calling the police after they finished talking. Mr. Boyd did not call the police.
[8] At 01:23, P.C. Hammond and his partner, P.C. Mulrooney, were driving eastbound on King Street when they received a dispatch respecting a two-vehicle accident in the private parking lot of the La Quinta Hotel. The complainant also had advised that the male driver of the Kia who struck his vehicle, a van, had been drinking. There was a female passenger in the Kia. P.C. Hammond turned south on Mary Street and entered the entrance to the parking. He observed two men standing between a Kia Spectra and a van and he and his partner exited their police cruiser and walked over to the two men.
[9] Mr. Boyd testified the police arrived 10-20 minutes after the accident. There were two police officers. He did not recall which officer spoke to him. The officer first asked Mr. Boyd if he had been drinking that night. Mr. Boyd told the officer he had been drinking at the Legion and he had two to three beers. Mr. Boyd admitted he had lied to the police officer as he had in fact consumed five beer and two shots of tequila. The officer then asked whether Mr. Boyd was the operator of the Kia, to which Mr. Boyd answered in the affirmative.
[10] Mr. Boyd testified he stayed at the parking lot because he knew he had been involved in an accident and the other driver had called the police. He believed he had to stay there to answer questions by the police. He testified the law tells him that. He testified the police officer did not threaten him but he knew if he did not answer the officer's questions he would be in trouble.
[11] It was Mr. Boyd's evidence initially that after he had told the officer he was drinking and driving, he was arrested. He was taken to one of the police cars and sat in the back seat with the door open and his feet on the ground. He agreed the police officer told him he had to blow into a machine. After he blew into the machine it beeped and he guessed it gave a reading. The officer said he blew over the legal limit. He agreed this was when he had been arrested by the officer. He was handcuffed, searched and put into the back of the police cruiser. He agreed the officer provided his rights. He was taken back to the police station and he provided more breath samples into another machine.
[12] In cross-examination he agreed he was not being honest with the police when he said what he had to drink. He testified the reason he lied was because of the tussle he had with the groom in that this caused him to be flustered. He denied lying to the police officer because he was concerned about drinking and driving.
[13] He testified he was not concerned about the accident, he was concerned about the altercation with the groom. He was not thinking he was being investigated for drinking and driving. He agreed he told the qualified breath technician he had three beer and two glasses of wine. He had watched the video. This was not accurate as he did not recall consuming any wine.
[14] He was not concerned about drinking and driving. He knew the officer was asking him about drinking and driving but he was just answering the questions he was asked. He agreed he and his girlfriend were both crying when the police officer came and spoke to him. He was very emotional because of what had happened between him and the groom. This was why he and his girlfriend were crying.
[15] The officer asked where he had been drinking and Mr. Boyd told him the Legion. He did not tell the officer about the altercation between himself and the groom or that he was leaving the parking lot because of the altercation. He did not tell the officer he was upset over the altercation he had with the groom. Mr. Boyd testified he was not upset about the accident. He testified he felt he was under the influence of alcohol at the time of the accident. He was still feeling the effects of the alcohol at the police station. He agreed his drinking may have affected his memory of what he had to drink at the wedding reception.
[16] Mr. Boyd testified he did not recall being read his right to counsel after being arrested when he was asked about this in cross-examination.
[17] P.C. Hammond testified on the voir dire. He observed the Kia Spectra and saw a male person standing beside the driver's door, with a female person inside the Kia sitting in the driver's seat. He went to the male standing beside the Kia and P.C. Mulrooney spoke to the male standing beside the van.
[18] Mr. Boyd identified himself with a valid Ontario driver's license and he was satisfied with the identification. While talking with Mr. Boyd P.C. Hammond detected an odour of alcohol coming from Mr. Boyd's breath. In cross-examination P.C. Hammond testified he was quite close to Mr. Boyd when he was speaking to him and could smell the alcohol when he spoke. Mr. Boyd's eyes were glazed, which could have been because of the alcohol or because he was crying. The officer asked if he had been drinking and Mr. Boyd told he had two or three beers. As a result of the odour of alcohol on Mr. Boyd's breath and his admission of consuming beer, P.C. Hammond formed the opinion Mr. Boyd had alcohol in his body. At 01:34 he read Mr. Boyd the approved screening device demand from the back of his notebook. Mr. Boyd said he understood the demand.
[19] P.C. Hammond believed Mr. Boyd had care or control of the Kia Spectra as a result of his observations of where Mr. Boyd was standing. He requested P.C. Mulrooney get an ASD and one was brought to the parking lot by P.C. Kelly and Harrison at 01:38. Mr. Boyd provided a breath sample into the ASD, which was calibrated and working properly. This resulted in a fail reading, which P.C. Hammond testified gave him reasonable grounds to arrest Mr. Boyd for over 80 at 01:39. He told Mr. Boyd why he was arresting him and did a pat down search, handcuffed him and placed him into the back seat of the police cruiser. Mr. Boyd was read his right to counsel and advised he understood and did not want to speak to a lawyer.
[20] Mr. Boyd was transported to 17 Division where he was paraded before the Sergeant at 01:57. He was turned over to the Qualified Breath Technician, P.C. Bowler at 02:18 and at 02:49 he was returned to P.C. Hammond. Mr. Boyd was served with the Certificate of Analysis of a Qualified Breath Technician, Exhibit 1, which reflected two truncated breath readings of 160 and 150.
[21] In cross-examination P.C. Hammond testified he knew Mr. Boyd was the driver of the Kia because of his proximity to the driver's door, the information he had received from dispatch as well as Mr. Boyd's admission he was the driver. He agreed he never saw Mr. Boyd behind the wheel of the Kia.
Analysis
[22] Mr. Baker argued all of Mr. Boyd's statements made to P.C. Hammond after the officer arrived on scene should be excluded, as they were compelled by s. 199 of the Ontario HTA and their admission would violate the principle against self-incrimination as protected in s. 7 of the Charter. Mr. Baker argued all of his statements should be excluded pursuant to R. v. White, supra, and R. v. Soules, supra.
[23] 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)
[24] 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)
[25] As I indicated at the outset of these reasons, the onus is on Mr. Boyd to prove on a balance of probabilities that he had an honest and reasonably held belief 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). 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.
[26] Section 199 of the Ontario Highway Traffic Act (the "HTA") requires drivers involved in certain types of accidents to report them to the police:
s. 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).
It is my view there is little distinction between s. 61 of the Motor Vehicle Act of B.C. and s. 199 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.
[27] In R. v. Parol, 2011 ONCJ 292, 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.
[28] In my view it is important to note that the police in White advised Ms. White she had to provide a statement or "report" pursuant to legislation concerning her involvement in the accident. Here P.C. Hammond does not tell Mr. Boyd he has to provide a statement or report as to his involvement in the accident. This is also Mr. Boyd's evidence. In fact, Mr. Boyd testified in chief the first question asked by P.C. Hammond is whether he had been drinking that night. The dispatcher had advised P.C. Hammond the complainant, who called the police concerning the two-car accident, advised that the other driver had been drinking.
[29] 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 defendant must establish three things, namely:
- That he was in fact compelled by statute to provide a report.
- That the statements he made were a "report" within the meaning of the compelling statute.
- 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, Ellies J. and R. v. Bhangal, 2013 ONSC 3156, Hourigan J., (as he then was) (see para. 46).
[30] The first issue to be addressed is whether Mr. Boyd was in fact compelled by statute to provide a report. P.C. Hammond was not asked about his opinion as to whether s. 199 of the Ontario HTA applied to the motor vehicle collision he was investigating involving Mr. Boyd's Kia and the van. If he had been asked and indicated it was his view Mr. Boyd was required by statute to answer his questions there would have been a factual basis to consider the issues raised in White but he was not asked this question.
[31] Further, section 199 provides there is an obligation to make a report of a motor vehicle collision in circumstances where there are personal injuries or property damage between the vehicles that exceeds a certain amount as set by regulation. It is my understanding the regulation under the HTA sets this amount at $5,000. I did not hear any evidence as to any estimate of the damage which resulted from this motor vehicle collision. P.C. Hammond was not asked from his experience what he would have estimated the damage to be. Mr. Boyd did not testify what the repair costs were. The damage was described as a scratch on Mr. Boyd's Kia Spectra and there was no description in the evidence of the damage caused to the van. No photographs of the two cars were filed as exhibits. Mr. Boyd agreed he and his passenger were not injured. There was no evidence the driver of the van was injured. Consequently, based on the evidence led during this voir dire it is my opinion s. 199 had no applicability and Mr. Boyd was in fact not compelled by statute to provide a statement or report concerning the accident.
[32] As a result of this finding Mr. Boyd's statements to P.C. Hammond cannot properly be considered as being compelled by statute.
[33] I also 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 the underlining in the excerpt from White, at para. 75 above) "is not overlooked (see para. 7 in Parol, supra). 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.
[34] Mr. Boyd bears the onus of establishing an infringement of his s. 7 Charter rights. Mr. Boyd did not call the police to report the accident. In his evidence Mr. Boyd did not testify he believed he was required to provide a statement or report to the police because he had been involved in a motor vehicle accident. He testified the other driver called the police and this was why he stayed at the parking lot to await the arrival of the police. He did not provide a report to the police about his involvement in the accident. In fact, according to Mr. Boyd, the officer, P.C. Hammond, only asked him if he had been drinking, whether he was the driver of the Kia and where he had come from and had consumed the drinks. He did not tell the officer he had become involved in an altercation with the groom, a fist fight, in the lobby of the hotel. He did not tell the officer he left the lobby in a rush and went to his vehicle to get away from that situation. He did not tell the officer he was upset because of the altercation he had with the groom when he got into his vehicle to drive away. Mr. Boyd never provided any explanation to the police as to how or why the accident occurred, which one would expect him to provide if he believed he had to provide a report respecting the accident.
[35] Mr. Boyd admitted he lied to the officer as to how much alcohol he had to drink. I do not accept his explanation for lying; namely, he was flustered because of the tussle he had with the groom. He told a different version to the booking Sergeant and a further version to the breath technician. It is my view Mr. Boyd lied about what he had consumed because he was concerned about the fact he was drinking and driving. He testified he was not concerned about the accident and in my view this was why he did not call the police to report he had been involved in an accident. His assertion that he believed he had to answer the officer's questions or he would get into trouble is not credible given his admission he lied about the quantity of alcohol he had consumed that night.
[36] The first question asked by P.C. Hammond of Mr. Boyd was whether he had consumed any alcohol that night. This was as a result of the dispatcher advising that the complainant indicated the other driver had been drinking. It is my view this question demonstrates that P.C. Hammond was investigating a drinking and driving offence when he first arrived on scene. This is reflected in para. 74 of R. v. White where Iacobucci J. talks of the importance of identifying with some certainty "the dividing line between the taking of an accident report … on the one hand, and ordinary police investigation into possible crimes, on the other." The fact of a two-vehicle collision should not preclude a police officer sent to investigate a possible drinking and driving offence, particularly as in this case where the police officer does not advise the motorist they are required by statute to provide a report respecting the accident.
[37] In his evidence in-chief Mr. Boyd testified he was arrested after he admitted to consuming alcohol and driving. He later agreed he was not arrested until after he failed the ASD breath test. He initially testified the officer advised him of his rights after he was arrested yet in cross-examination he testified the officer never told him about the right to counsel and never said anything about a lawyer. He admitted he was feeling the effects of consuming alcohol when he struck the other vehicle and even when he was at the police station. He conceded his memory respecting what he had consumed was affected by the amount of alcohol he had consumed. In my view his difficulty in recollecting the sequence of events was also affected by the quantity of alcohol he had consumed.
[38] For all of the above reasons I do not accept Mr. Boyd's evidence concerning his belief he had to remain at the scene and answer the officer's questions because that is the law and if he did not answer the officer's questions he would get into trouble. I find on the totality of the evidence Mr. Boyd did not provide a report concerning his involvement in what can only be described as a minor accident. I find his claim he believed he was compelled to answer the police officer's questions because of an accident reporting statute is unreasonable and not credible in light of the totality of the evidence.
[39] I agree with Justice Duncan's comment at para. 13 in Parol, supra:
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.
[40] Consequently, Mr. Boyd's admission of being the driver of the Kia is admissible. Further, his admission as to consumption is also admissible. I find R. v. Soules, supra, has no applicability to the facts of this case. The Charter application is therefore dismissed.
Additional Considerations
[41] There are two final areas I want to address concerning the evidence led on this voir dire.
[42] Mr. Boyd is not charged with operate motor vehicle while his blood/alcohol concentration was greater than 80 mg of alcohol in 100 ml of blood, which would require his admission of driving to prove the offence. The charge he is facing is care or control over 80. In all of the circumstances of this case, where P.C. Hammond was advised by dispatch of a collision involving two motor vehicles, a Kia with a male driving and a female passenger and a van, where the complainant, the driver of the van, advised that the driver of the Kia had been drinking, P.C. Hammond arrived in the parking lot within a minute of the dispatch and observed Mr. Boyd standing beside the driver's door of the Kia, with a female passenger inside and a male standing beside the van, it is my view there is an available reasonable inference that Mr. Boyd had care or control of the Kia. This together with P.C. Hammond's evidence of detecting an odour of alcohol coming from Mr. Boyd's breath, while speaking to Mr. Boyd, would provide P.C. Hammond with a reasonable suspicion Mr. Boyd, as the person who had care or control of the Kia, had alcohol in his body such that the officer could make an ASD demand. In those circumstances none of Mr. Boyd's answers to the officer's questions would be necessary. I choose not to deal with this in any detail given my findings above.
[43] Finally, the Crown argued that the decision of the Supreme Court of Canada in R. v. Patterson, 2017 SCC 15, effectively overrules R. v. Soules, supra. The issue is whether a statutorily compelled statement made by an accused to an police officer investigating a drinking and driving offence, while excluded and not admissible to prove the offence beyond a reasonable doubt pursuant to White, should nonetheless be admissible to provide a police officer with reasonable suspicion to make an ASD demand or reasonable grounds to arrest an accused and make a breath demand. Certainly a careful reading of paras. 14 to 25 would seem to suggest this submission has merit, particularly in light of endnote 2, which specifically refers to R. v. Soules. I am not prepared to pass judgment on this submission, particularly where Bill C-46 specifically will legislate that a police officer can use compelled statements in formulating reasonable grounds.
Released: November 24, 2017
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.)