ONTARIO COURT OF JUSTICE

(TORONTO REGION)

DATE: August 1, 2018

HER MAJESTY THE QUEEN Respondent

- And –

KWESI ELLIS Applicant

Ruling on Admissibility of Compelled Statement under Section 199 of the Highway Traffic Act

Heard: 13, 25 June 2018; Judgment: 1 August 2018

(153 paras)

Counsel for Applicant: Steven Safieh

Counsel for Respondent: Marnie Goldenberg

Libman J:

INTRODUCTION

[1] The defendant in this case is charged with three counts of dangerous driving and three counts of failing to remain at the scene of an accident, all arising out of a motor vehicle collision between a tractor trailer and group of motorcyclists on 23 July 2016 at about 3:30am. The accident occurred on Highway 401, in the eastbound express lanes, near Allen Road, in the City of Toronto.

[2] One of the motorcycle drivers was killed and two others were injured. More particularly, then, the accused is charged with one count of dangerous driving causing death, two counts of dangerous driving causing bodily harm, one count of failing to remain at the scene of an accident where death occurred to another person, and two counts of failing to remain at the scene of an accident where bodily harm occurred to another person.

[3] The trial in this matter is scheduled to commence in March of 2019. The trial judge has not yet been assigned. However, as a way of focusing and streamlining the trial proceedings, the parties have agreed that I rule on the admissibility of the defendant's statements given at the accident scene as a pre-trial motion, much like the issue of unreasonable delay is adjudicated as a pre-trial motion in advance of trial.

[4] In a post-Jordan world, innovative approaches so as to maximum time to trial and trial proceedings themselves are to be encouraged. Accordingly, I have agreed to rule on the admissibility of the statements as a pre-trial motion. I commend the parties for approaching the matter in this manner, including agreeing to be bound by this ruling at trial, whether I am the trial judge or not.

[5] Of course, ultimately the conduct of the trial, including evidentiary rulings, is up to the presiding trial judge. Circumstances sometimes arise where a ruling – whether by the trial judge or other judicial officer – merits reconsideration. The power of a trial judge to reconsider rulings made within the trial by another judge has recently been affirmed by the Ontario Court of Appeal in R v R.V., 2018 ONCA 547 at para. 98.

[6] I make this observation for a number of reasons. To begin, I have been informed that defence counsel has been retained for this motion only, but not the trial proceedings themselves. Accordingly, the defendant may find himself with different legal representation, or none at all, at the trial proceedings, in which case any issues determined in advance may potentially require re-examination.

[7] In addition, the matter before me is predicated upon a very sparse record. Very few of the details leading up to the actual motor vehicle collision, including the driving conduct of any of the parties, has been led into the evidence. The Agreed Statement of Fact, which I will refer to shortly, is four sentences in length. I have additionally heard evidence from two police officers who were involved in taking the defendant's statements at the accident scene, as well as the defendant who also gave evidence before me on the voir dire. What precise role, though, the defendant or any other of the motorcyclists played leading up to the accident, or the truck driver for that matter, occupies a small portion of the evidence adduced on the ruling I am asked to make.

[8] Most significantly however, it seems to me, is the position Crown counsel takes before me in seeking to adduce the defendant's statements into evidence at his trial. It is her primary position that the defendant was not involved in an accident, thereby removing his immunity from a statutorily-compelled statement under s.199 of the Highway Traffic Act, R.S.O. 1990, c.H.8, being tendered into evidence at his trial for Criminal Code offences. At the same time, however, the counts against the defendant on which she is proceeding to trial include his failing to remain at the scene of (the same) accident in which he was involved, thereby triggering his legal liability for the commission of the fail to remain offence. This apparent contradiction in the Crown's position as to whether or not the defendant was involved in an accident does not have to be resolved for present purposes; however, it will occupy an important part of the trial proper and may well require a re-consideration of the evidence before me, including this ruling.

[9] With these initial observations in mind, let me turn to the factual backdrop illuminating the legal issue I am asked to resolve.

EVIDENCE ON PRE-TRIAL MOTION

Agreed Statement of Fact

[10] An Agreed Statement of Fact (Exhibit 1) has been adduced into the evidence. It reads in its entirety:

1. On July 23, 2016, at approximately 3:34a.m., a group of approximately 9 motorcycles were travelling on highway 401 in the City of Toronto.

2. Two motorcyclists (Brandon Rees and Melissa Chircop) operating a Suzuki and a Kawasaki were involved in a collision resulting in their motorcycles impacting the left and right shoulders, respectively, causing the riders of those motorcycles to be ejected and sustaining injuries.

3. A Volvo tractor trailer impacted a Honda motorcycle following the initial collision which resulted in the rider, Mario Bustello, [1] being ejected and struck by the Volvo tractor trailer causing his death.

4. Mr. Ellis was arrested on March 28, 2017.

Video Clips and Photographs

[11] On consent, six minutes of video clips were played (Exhibit 2) and pictures taken from these clips (Exhibit 3) were marked into evidence. These show a number of motorcycles riding on the highway at a distance. According to the Crown, the front riders are performing "wheelies" or stunt driving.

Evidence of Constable Jamieson

[12] Two Ontario Provincial Police Officers, Constables Jamieson and Jung, attended the accident scene on the morning in question. Officer Jamieson arrived on location at 4:40a.m. He was in full uniform at the time. He observed a deceased male on the roadway, and several motorcycles that were on the ground, having come in contact with something in the area of Highway 401, east of Allen Road. The accident scene was substantial in length. While walking along the eastbound express lanes, he observed three motorcyclists stopped on the left shoulder of the westbound collector lanes, on the other side of the concrete barrier. Concerned that they would cross over the highway to his location, the officer approached them. He had a brief conversation with the group, whom he described as three males with full helmets on.

[13] According to Constable Jamieson, this group of males told him that they had been in the area of the crash at the time and were near the motorcycles in the collision. They returned to see what happened. The officer testified that when he asked the males what occurred, they had a very short conversation, for approximately 30 seconds. He was able to ascertain that they were there, a crash happened, and they had information as to what took place.

[14] The officer did not want to remain in the location where he was speaking to the motorcycle riders for very long as he did not consider it safe, and it was also a distraction for traffic travelling in the other direction. As a result, he had the three males identify themselves with their Ontario drivers' licences and took down their last names. He also wrote in his notes the last names of the three motorcyclists, one of whom was Mr. Ellis who was riding a black Kawasaki, with the licence plate 5f7b7. Another was Mr. Kong, who was riding a black Yamaha, licence plate 7a6jj; the third motorcycle was a black Suzuki, licence plate 63097, the last name of the rider he was unable to make out from his notes but was four letters starting with "L". None of the motorcyclists took their helmets off as they were talking to the officer.

[15] Constable Jamieson testified that he had not noticed the three men arrive on scene beforehand. He spoke to them at about 4:56a.m., or about 15 minutes after the time of his arrival. He talked to the motorcyclists within minutes of seeing them, although he could not say how long they were before doing so. There was no one else on the highway nearby; nor did any other officer speak to them.

[16] Once the officer had noted the names and plates of the three motorcyclists, he told them that it was not safe for them to remain in their location, and that they should exit the highway and wait until they were contacted to provide their statements to the police. Mr. Kong gave him his cell phone number and asked the officer to call him. It was the estimation of the witness that the total period of time he was with the men was less than two minutes.

[17] At 5:31a.m., Constable Jamieson telephoned Mr. Kong, or this may have been the time that the three men returned to the scene together. In any event, he introduced them to another officer as potential witnesses as to what happened, and then resumed investigating the collision. He had no further dealings with the men after this time.

[18] In cross-examination, the witness stated that he was unable to hear anything that the men were saying when he first approached them. When they handed him their drivers' licences he was also watching traffic at the same time. He was simply able to ascertain through his questions that all three were riding in the group of motorcyclists when the crash occurred. As a motorcycle rider himself, the officer stated that he knew from experience that not all riders in a group might know each other or have come from the same place together. However, riding in a pack of other motorcycles gives greater visibility to others. It was therefore his impression that the three men were in the area with the others at the time of the collision, continued on, and then came back to the accident location.

[19] Constable Jamieson added that he did not learn any further details about what happened from these men, as he did not ask them anything else. He did not suspect them of criminal involvement and did not read them rights to counsel as a result. He approached them initially out of concerns for their safety; he did not recall any details of speaking to them over the phone after they left. Upon their returning, he did not talk to them further, apart from pointing out who they were to another police officer.

[20] In re-examination, the officer did not recall which of the three men stated they were riding in the area at the time of the crash. It was simply the consensus of the three riders to this effect.

Evidence of Constable Jung

[21] Constable Jung was the officer who ultimately spoke to the defendant when he returned to the accident scene and took the written statement that is the subject of these proceedings. He was in full uniform on the day in question when he was dispatched to attend the location. He initially observed a tractor trailer with a motorcycle wedged underneath it. There were a lot of fluids on the roadway, and witnesses yelling out that there were more bodies.

[22] At 3:48a.m., the officer observed another scene nearby, with lots of flashing lights. The three eastbound express lanes of the highway were blocked by two trucks. A body was a few feet away. Constable Jung later noticed a female in dark clothing with a helmet who was on the right shoulder grabbing her left shin. An officer was attending to her. This was at 3:55a.m. Subsequently, the witness was directed to control the scene until other officers took over. He did this until 4:50a.m. At that time, he was instructed to obtain witness statements from all bystanders and provide traffic control.

[23] The defendant and a couple of other motorcycle riders arrived on scene at 6:30a.m. Constable Jung spoke to him at this time. He obtained his driver's licence and interviewed him at the accident location. The statement concluded at 7:00a.m. Mr. Ellis appeared to be tired during the interview.

[24] In terms of the manner in which the statement was taken, the officer explained that typically before writing anything down, he asks the person to think about what happened verbally so that he can get an understanding of the events, and then go into details. Constable Jung advises the party that he will then write out the statement verbatim.

[25] The statement provided by Mr. Ellis to Constable Jung is on a document entitled, "Interview Report". It is Exhibit 4 in these proceedings. It is in question and answer form and reads as follows:

Q: Can you tell me what happened?

A: Probably around 11PM (Fri. Jul. 22/2016) we met at Kennedy commons (Mario, myself and couple of his other friends) and went to Mississauga, the Tim Hortons near Dixie and 401 and we just hung out there for about an hour or two. And then we were on our way back to Kennedy commons and that's when the accident happened.

Q: Can you explain how the accident occurred? Did you see the collision?

A: I was in the far left lane, 401 eastbound express by Allen Rd. And I saw out of nowhere, a truck run over Mario.

Q: How fast were you guys riding?

A: About 120km/hr, maybe not even between 100 – 120 km/hr.

Q: What lane was Mario in and the truck?

A: Both in the middle lane. But I'm 100%.

Q: What did you observe during the collision?

A: I heard the truck hit the back of the motorcycle, sound from the impact. I saw debris or pieces of the motorcycle "explode" from the impact. Then I saw his body come out of the tires. The body tumbled out of the back bottom of the truck.

Q: Where were you in relation to this? How far were you from Mario?

A: I was in the left lane and he was a couple of car lengths ahead of me, in the middle land.

Q: How do you know Mario?

A: Just an acquaintance through riding. I have known him for a couple of weeks 2/3 weeks.

Q: After the body came out of the truck what did you?

A: I couldn't believe what was happening, I was or think I was in shock, I just kept going. Then I just kinda stop at Don Mills and Sheppard area by a gas station and trying to process what had just happened. So then we came back here.

Q: So you said Mario had a couple of friends with him can you describe them?

A: Maybe 2/3 of them, 2 guys, I don't even know them or how they looked like. No description.

Q: Why do you think the collision occurred?

A: In my opinion there is 3 possibilities:

1. Did on purpose.

2. He was drunk/under the influence.

3. Was sleeping/distracted.

Q: Did you want to add anything else?

A: Not right now, I cannot even think right now.

[26] The statement was signed by the defendant. It was completed at 7:00a.m. and dated July 23, 2016. Constable Jung commented that he read out each question and answer to Mr. Ellis, who had a good command of English. The defendant did not complain of any injuries or illness; there were no threats or promises to induce his statement. He first spoke to him at 6:30a.m. When asked how the defendant appeared to be throughout their interactions, Constable Jung described him as cooperative and seemed to be in shock.

[27] In cross-examination, the officer acknowledged that he directed the defendant throughout the interview. Constable Jung was in full uniform and told Mr. Ellis that he was going to take a statement from him. The defendant, in turn, was compliant with him.

[28] Constable Jung agreed that when he asked the defendant why he thought the collision occurred he was asking for his opinion, and the defendant's answer was responsive to this question. There were no follow-up questions by the officer, such as why the defendant thought the tractor trailer operator might be drunk or napping.

Evidence of the Defendant

[29] Mr. Ellis also testified on the voir dire proceedings. He is 39 years old and a native of Guyana. He came to Canada in 1986 with his mother and is now a Canadian citizen. He is the father of two boys. After graduating high school, he went on to become self-employed teaching martial arts.

[30] The defendant was asked to describe what he was doing on the evening of Friday, July 22, 2016. He stated that after coming home from work he hung out with his kids and then decided to go out for a ride as it was a nice night. He called two of his friends, Mitchell Lees and Travis Kong, to see if they wanted to go with him; Mauro had left him a message as well, to see if he was going riding that night. They subsequently arranged to meet up at Kennedy Commons, at Tim Horton's, this being in Scarborough at Kennedy and Highway 401. Everyone arrived between 9 and 10p.m.

[31] Each of the men arrived on their own motorcycles. The defendant knew Travis and Mitchell for about one year by that point; he knew Mauro for three to four weeks. They were all bike and car enthusiasts and would discuss their interest in the motorcycle community. This is what they were doing on the evening in question. Toward 10p.m. the group decided to ride to Mississauga and meet another group of riders who were there. Some of Mauro's friends joined them and they made their way there together.

[32] Mr. Ellis testified that the group rode directly to the meeting location, which was in the area of Dixie and Steeles. They met up at another Tim Horton's. They stayed there for between two to three hours. It was then time to return to Scarborough and Mr. Ellis was going home. By the time the group set off, there were about 10 to 11 riders, everyone being on their own motorcycles.

[33] The defendant was asked to describe the manner in which the group rode on the highway when returning to Scarborough. He explained that any time he rides in a group there is a staggered formation as that is the safest way to drive. It makes the riders more visible to cars and prevents cars from trying to squeeze in between motorcycles. The formation is typically within one lane, but sometimes goes into a second lane.

[34] On the evening in question, all 10 or so of the motorcycles were riding in this staggered formation. Mr. Ellis was in front of the group. The riders were in two lanes of the highway, the fast and middle ones, in such formation. Behind the defendant to his left was Travis Kong; to his right in the middle lane was Mauro. To Mauro's left behind him was Mitchell Lees. They were all riding in staggered formation.

[35] The group was riding in this manner when the accident occurred. When asked to describe what happened at that point of the accident, he testified that he remembered just looking to his right and seeing an 18-wheeler accelerate to the back of Mauro. This was about a metre away from where he was in the middle lane. The defendant saw his head "snap back" and the bike "explode". Mauro was "sucked" under the truck. After that he saw the truck continue to accelerate and Mauro "flopped out" through the back tires of the truck.

[36] Mr. Ellis estimated that he was driving at about 95 or 100 kilometres per hour at that time. The truck did not stop or apply its brakes after Mauro came out; there were sparks flying as it dragged the motorcycle under its front bumper. The defendant started to slow down and noticed that Mr. Lees was in the slow lane to his right. He had changed lanes seconds before the accident. According to the defendant, he was "freaking out". He had no idea what was happening. His heart started "racing". He could not believe what he just saw. He and Mitchell looked at each other. Then Mitchell accelerated and took off. He did not know what was going on and instinctively followed him.

[37] As the defendant was following Mr. Lees, he saw the next exit coming up, which was Leslie Street. He pointed to the exit, and the two started to get off. Travis followed them as well. According to the witness, everybody started "freaking out" at the traffic light. They were distraught and yelling about what happened and asked whether it was possible Mauro was dead. They pulled over at a nearby Esso gas station on the corner. Mr. Ellis was familiar with it, as his home was about two minutes away.

[38] Mr. Ellis stated that neither he nor his friends had ever been in a situation like this before. They were generally "calm, relaxed" guys. He had never seen them act this way before. When they got to the Esso station, everyone was still behaving the same way. The defendant's heart was "racing" and his hands "shaking". Mitchell and Travis were both pacing; the latter put his hands on his head which was in between his knees. They all got off their bikes. The defendant was not sure how long they stayed there – it could have been 10 minutes or an hour. They were all "completely in shock".

[39] According to the defendant, while he and his friends were trying to make sense of what they saw, they eventually settled down. He told them that they had to return to the scene of the accident. However, the others were reluctant to do so. Mr. Ellis told them that they were required to file a report with the police as they saw what happened, and if they did not do so they could get into "trouble." The others kept arguing about going back. As a result, the defendant told them he was going back, with or without them. As he started getting back on his bike, the others did as well.

[40] The defendant was asked by his counsel why he thought he had to report the accident. He replied that this was due to his knowledge of being in accidents in general as he himself had been in a few accidents and knew what he was required to do, namely, report an accident to the police. Mr. Ellis explained that he had been involved in three or four accidents. The first time was when he and his friends were hit by a drunk driver and his car flipped over. He was about 19 or 20 years old at the time. After the accident he told the police whatever information they wanted.

[41] After his first accident, the defendant was stopped at a red light when he was rear-ended from behind. He was 25 years old or so at the time. He was not injured but as he was not sure what to do he called 911 and said he was not certain if he was required to call the police. The operator told him he must call the police if there was serious injury or damage over $1,000. As a result, he did go in to file a report with the police.

[42] There was another accident a few years afterwards, in 2009, when he and his wife were going to school to pick up their children. A woman ran a red light and "t-boned" their car. The defendant's wife was the driver; he was in the passenger seat. A tow truck came to the scene and he and his wife spoke to the police. In doing so he was reporting an accident to the police where there had been serious bodily harm or $1,000 in damage.

[43] With respect to the accident on July 23, 2016, the defendant stated that after he told his friends he was going back to the scene of the accident, they all started to head back on Highway 401 westbound. He was not sure of the time, but it was early, around 4:00a.m. by this point. Traffic was "pretty busy" due to the accident, he assumed. The collision occurred around Avenue Road. They pulled up to where the fire trucks were stopped, but that was on the eastbound side of the highway and they were on the westbound lanes, on the shoulder. All three of the group were together at this point.

[44] When asked what happened next, the defendant testified that he saw a police officer in uniform in the eastbound lanes. He waved at him in order to get his attention. The officer looked at them and waved for them to move along. Mr. Ellis tried to tell him that they were involved in the accident. However, it did not appear that the officer could hear him as he was about 100 feet away. When he realized what they were trying to tell him, he did come over to them. This was Constable Jamieson, although he did not identify himself at the time.

[45] The officer asked if they were involved in an accident. The defendant told him that they were riding in the group earlier and came back to give their reports. Constable Jamieson asked to see some identification and wrote down their plates; he also said it was unsafe for them to stay there and asked for a cell phone number. Travis gave him his number. The officer then told them to go somewhere and wait until they were contacted to come fill out their reports. As a result, they left the scene and went to a Tim Horton's at Keele and Wilson waiting for the police to call them.

[46] Mr. Ellis was not sure how long they waited at the Tim's. It seemed to be "forever". He thought there was no way Mauro could have survived the collision given what he witnessed. Eventually Travis received a phone call from an officer who said that they had to return to the accident scene to fill out their reports, as no one was able to come there. Consequently, they made their way back to the scene of the accident.

[47] Upon their arrival, the defendant pulled over and told a police officer that they were there to file their reports. They were directed to go onto the shoulder. It took about 30 minutes to get there due to the stopped traffic. An officer approached them and told them to wait there for someone to take their statements. It was Constable Jung who spoke to the defendant; his friends went with other officers. Jung told him he was going to take his statement and to speak slowly. He also said that he would ask questions and the defendant should answer them as best as he could. The statement that he took, and which was read out in court, was in this format.

[48] As for the reasons for providing such a statement to Constable Jung, the defendant testified he went back to the accident scene to give a report as he was involved in an accident. When asked to explain why he believed he was involved in an accident, he stated that he was "right there" in the group of riders and someone in the group was run over. In his mind, it was as if he was in a van filled with guys that got hit, and although he did not himself get hurt, he would be involved in the incident as well.

[49] In cross-examination, the defendant stated that he knew the other riders such as Mauro and Brandon Rees through the bike community. He was ahead of them in the fast lane at the time of the collision. He was ahead of Mr. Kong; Mauro and Mitchell were in the middle lane almost adjacent to him. He was only aware of the location of riders who were at the front near him. At the time of the impact Mauro was adjacent to him, to his right.

[50] Mr. Ellis was referred to his written statement to the police that is the subject of these proceedings. He stated that he answered the questions he was asked truthfully. In it he said that Mauro was ahead of him. He explained that at the time of impact Mauro was a half bike lane in front of him. Thus, when he said Mauro was adjacent to him, he meant that he was in the lane beside him. Crown counsel also asked the defendant about the video footage that was previously played in court. He was unable to identify himself in it.

[51] At the time of impact the defendant moved "spots" on the highway. He continued riding and saw Mr. Lees in the right lane. When asked why he did not stop, he replied that it was not safe to do so at that location. He was in disbelief as to what happened and did not have time to "process" it. He did notice his friend take off and followed behind him, getting off at Leslie Street. He was unable to exit at Yonge Street as he was in the express lanes, and the next exit was Leslie.

[52] As the three men were at the traffic light, everyone was yelling and "freaking out". It was a "very frantic" situation. The defendant was the one who pointed out the nearby gas station as the light changed and they had to move. The defendant did not meet anyone there or make any telephone calls. He agreed that he did not call 911. When asked if he thought to go to a police station, he answered that he was not thinking of anything: he was trying to calm himself down while his friends were all "freaking out". His "first instinct" was to get back to the accident scene and this is what he told his friends, otherwise they would get in trouble for not reporting.

[53] It took them about 30 to 40 minutes to return. He was not sure about the time frame, or if the collision was just before Avenue Road or Yonge Street on the highway. He was not in the "right frame of mind" at the time. He could not recall how fast they were travelling as he was focused on getting back there to talk to the police officers. He could have been travelling 10 kilometres per hour at the time, he was not sure. His mind was on going back and telling the police what happened.

[54] When the defendant spoke to Constable Jung, he was not sure if the collision was the truck driver's fault. However, when the officer asked him the question about how the accident happened, the first thing that came into his mind was that Mauro was hit from behind due to the driving conduct of the truck driver. Although Mr. Ellis thought he told Constable Jung he saw the truck hit Mauro, he said in his statement that he heard the truck hit him. He also agreed he did not say anything about the truck accelerating at the time. According to the defendant, he was looking in the direction of the collision at the time and was mentally and physically exhausted at the time he answered the questions he was asked about what happened. He did not see what happened to Melissa or Brandon and did not tell Constable Jung about any other collisions or noises he heard. He did not know why he told the officer that he heard the truck hit Mauro. However, he did watch the truck run over Mauro. He heard and saw this. This was just the wording that he used at the time. The defendant agreed he was not injured, nor was his bike impacted. He was not in the same lane as Mauro at the time of impact. He was on his way home, the plan being to return to Scarborough and take the exit for his house.

[55] When asked why he considered himself to be a witness to the accident, he stated that they had all been riding together, as if they had been in the same van together. He concluded that he had therefore been involved in an accident, as opposed to just being a witness in which case he would not feel required to report it. When he was in a collision in his wife's car, he was a passenger in the car and reported the accident, as he was not just a witness.

[56] According to Mr. Ellis, when the group left Mississauga, there was no discussion as to where everyone would ride in the formation. Everyone knew that they were heading to Kennedy Commons. The defendant said that he would take the Leslie exit and head home, telling the others that he would see them later.

[57] Upon returning to the accident scene, the defendant stated that Constable Jamieson was the first police officer he saw. He did not try to talk to anyone else. He was the closest officer to him. Mr. Ellis could tell that the officer did not understand why the men were there. He tried to explain that they were part of the accident. As the collision occurred at 3:34a.m, and the defendant spoke to the officer at 4:56a.m., there had been an interval of 90 minutes until his return. Mr. Ellis agreed he was not on the shoulder of the highway for an hour waiting to speak to Constable Jamieson.

[58] The defendant was asked to explain his understanding of his obligation to report an accident when he was either involved in one or suffered damage in excess of $1,000. He answered that this is what the 911 operator told him when he was involved in a motor vehicle collision. He also heard the same thing in driving school, although not in such specific detail. He was aware that if he was involved in an accident he was obliged to report it and to do so immediately. In his frame of mind on the day in question, he did not think to do this to the closest police officer who could take the report. Although it took him approximately 90 minutes to return to the accident location and report the accident, the defendant commented that he was amazed they all made it back safely as they were all "freaking out" and no one was in their "right state of mind." He acknowledged that he did not contact the police prior to going back to the scene of the accident. Once he could think clearly, he told the others they had to return to the scene to file a report. He was aware that he could report an accident by calling 911 but thought instead he should go back in person. After speaking to Constable Jung, he left and went home.

[59] Mauro, the deceased, was friends with Mr. Lees. He did not think he could have survived the impact. However, he was having trouble processing what he had seen. When asked whether he wanted to make sure that the truck driver was found to be at fault, he answered that he wanted to make sure that he did what he was required to do, and let the police decide what to do. He did not think at the time of giving his statement if the truck driver was at fault or not. He did not mention to Constable Jung that the motorcycles were riding in formation as they did not discuss the formation of the group.

[60] It was suggested to Mr. Ellis that as his good friend had been killed in a motor vehicle collision that day he wanted to make sure that he told the police that the truck driver hit him. His response was that he had only known Mauro for three weeks and his motivation was solely to make sure that he reported an accident based on what he saw so that he did not get in trouble. Who was responsible was up to the police, he added.

[61] It was further put to him that he did not feel he was part of the cause of the collision. To this he replied that he did not feel he was the cause of it, but he was a part of it as they were all riding together. All of the motorcycles were in close proximity to each other. The 9 to 10 riders were spread out within two lanes of the highway. The consensus was that the group would ride in formation in the fast and middle lanes, but the defendant did not know what exits they would take while doing so.

POSITION OF THE PARTIES

Position of the Defendant

[62] It is submitted by the defence that Mr. Ellis provided a statutorily compelled statement to the police when he returned to the accident scene as required by s.199 of the Highway Traffic Act. As a result, it cannot be tendered into evidence against him at his trial for Criminal Code driving offences, in accordance with the controlling authority of the Supreme Court of Canada's decision in R v White, [1999] 2 S.C.R. 417, and that of the Ontario Court of Appeal in R v Soules, 2011 ONCA 429, leave to appeal refused, [2011] S.C.C.A. No. 375 (QL), which precludes the use of such evidence on account of the principles of fundamental justice and protection against self-incrimination under the Charter of Rights and Freedoms.

[63] In the view of the defence, the statements provided by the defendant to Constables Jamieson and Jung are properly excluded from the proceedings as Mr. Ellis was talking to the officers as more than a mere witness to the events. The former learned that he was part of the group of motorcyclists involved in the accident and told the men that they would be contacted to give their statements. The defendant, in turn, had returned to the scene to speak to the police as he believed he was obliged to report the accident. Constable Jamieson had taken Mr. Kong's cell phone number and subsequently requested that he and the others, including Mr. Ellis, return to the accident scene to provide their statements, which in fact they all did. With respect to the defendant's statement to Constable Jung, it was in question and answer form. Mr. Ellis indicated that a member of his group had been run over by a large truck. There was no suggestion by the officer that he was merely an observer to the events.

[64] The accused's testimony, in turn, indicated that he was not only present, but very close to the deceased when he was struck and run over by the tractor trailer. He saw his bike explode and his friend's body emerge from the wheels of the vehicle. He was in shock immediately afterward, and after collecting his thoughts explained his reasoning for returning to the accident scene, even though he lived only minutes away from the Esso gas station where he pulled off the highway. His coming back in person to the scene of the accident supports his belief, argues the defence, that he was required to return there. Indeed, he returned a second time to the accident scene when directed to do so by the police. The defendant's conduct was also consistent with his previous experiences in being involved in accidents and reporting them to the police.

[65] With respect to the contents of his statement, defence counsel observes that the defendant only expressed his opinion about the truck driver's role in the collision when he was asked this question by Constable Jung. Accordingly, he was not providing self-serving evidence, but instead answered a direct question put to him. There was no follow-up question by the officer about this, nor did the defendant volunteer any additional information about the cause of the accident or seek to have the truck driver charged. Further, the defendant did not bear any animus to the truck driver but was speaking as a member of the group of motorcyclists who were indirectly involved in the accident. In short, this was not a statement which was given for a self-serving motive or attempt to curry favour with the police. Neither did the defendant seek to provide an exculpatory declaration of his own involvement.

[66] It is submitted by the defence that Mr. Ellis' indirect involvement in the accident is therefore sufficient to trigger the recording obligation and application of s.199 of the Highway Traffic Act, such that his statement to the police is not admissible in criminal trial proceedings against him. There is no requirement in law, or common sense, argues Mr. Safieh, that involvement in an accident requires the party to be the direct or sole cause of the accident. Indeed, the wording of the statute reads ".. directly or indirectly involved in an accident". Closeness in proximity in time and place is thus sufficient, as the civil authorities such as Seetal v Quiroz (2009), 97 O.R. (3d) 780 (S.C.J.) demonstrate. The defendant's honest and reasonably held belief that he was involved in accident, and thereby obliged to report it to the authorities, is made out in the circumstances of the case.

[67] Finally, as for the accident having to be reported in a forthwith manner under the provision, it is asserted that there is not an immediacy requirement. Instead, consistent with the manner in which the term "forthwith" is interpreted in the Criminal Code drinking and driving provisions, this term means as soon as reasonably practicable, or within a reasonable time having regard to all the relevant circumstances. Counsel cites the Ontario Court of Appeal decision in R v Quansah, 2012 ONCA 123, in support of this proposition. Hence, at the time Mr. Ellis provided his statement about the accident to Constable Jung a few hours after the time of the collision, it is asserted that he did so in accordance with the forthwith requirement in s.199, in view of his being in shock and processing his observations immediately after the collision, stopping and talking to his friends about what happened, and telling them that he was going to return to the accident scene which in fact he did.

Position of the Crown

[68] Crown counsel puts forward three arguments in support of her position that Mr. Ellis' statement at the accident scene should be admitted into evidence at his trial for dangerous driving and failing to remain at the scene. To begin, it is her contention that Mr. Ellis was only a witness to an accident, and not a party involved in one, the result of which is that there was no statutory compulsion motivating his providing a statement to the authorities. She notes in this regard that his evidence is not that he was physically involved in the collision, and his description to the police as to his location at the time of the impact supports this view. As such, he could not have reasonably believed that he was involved in the accident in which the tractor trailer collided with the motorcycle operated by his friend, Mauro. In fact, he was unable to provide the location of most of the riders at the time of the actual crash, thereby supporting the Crown's view that Mr. Ellis was essentially a witness to what happened.

[69] Involvement in an accident, it is submitted, requires not only proximity in place and time, according to Seetal v Quiroz, but participation between a person and an event or activity. And unlike that case, the Crown observes, the defendant's motorcycle was not struck, nor did it come in contact with anyone else. No reasonable person, in such circumstances, would believe that they were involved in the accident between the tractor trailer and deceased motorcyclist. Accordingly, even if the defendant believed he should provide a statement to the police about the accident, it was not done so on the basis of his belief that he was actually involved in it. In short, while the defendant was aware of the obligation of a person involved in an accident to report it, he was not himself involved in one.

[70] The second prong of the Crown's argument is that the defendant's statement was not given in a forthwith manner, as required by s.199 of the Highway Traffic Act. She submits that there was almost a 90 minute interval from the time of the collision at 3:34a.m to the defendant's return to the accident scene at 4:56a.m., when he was approached by Constable Jamieson. During this period, he did not call the police or 911, as he had done in previous accidents, or attend the closest police station to report the accident. In these circumstances, it cannot be said that the "forthwith" requirement in s.199 has been satisfied. That is, the defendant failed to take "no more than the time reasonably necessary for the prompt performance of the steps contemplated" by the Highway Traffic Act provision: R v Quansah at para. 52.

[71] Lastly, it is argued by Ms. Goldenberg that the defendant's motivation to speak to the police about the accident was not due to statutory compulsion in any event, but rather to divert attention from himself. He provided, in essence, an exculpatory account of his conduct, and failed to mention important details such as the group's riding formation on the highway. Relying on the authority of recent cases such as R v Moussavi, 2016 ONCA 924 and R v Roberts, 2018 ONCA 411, Crown counsel submits that statements that are given at the accident scene by an accused who freely identifies oneself as the driver for the self-serving purpose of providing an exculpatory account of the collision are not the equivalent of statutorily compelled statements which are rendered inadmissible at the accused's trial for criminal offences. Moreover, the defendant's testimony that he was not thinking clearly at the time he gave his statement is in keeping, she argues, with a person who is not giving a credible account of the circumstances about the accident being related to the police.

[72] In short, the position of the Crown is that the defendant has failed to satisfy the onus on him to establish he provided a statement about the accident 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: R v Roberts, para 40. Citing R v Guenter, 2016 ONCA 572 at para. 56, the questions that were posed to Mr. Ellis, submits the Crown, were thus not part of any "compelled direct participation" in an accident investigation of his involvement, and should not therefore be excluded from the evidence at his trial.

ANALYSIS

Statutorily Compelled Statements Generally under s.199 of the Highway Traffic Act

[73] In Ontario, the obligation to report accidents to the police is set out under s.199(1) of the Highway Traffic Act. It states:

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).

[74] The monetary amount established by the regulation for the purposes of s.199(1) is currently $2,000: R.R.O. 1990, Reg 596, s.11.

[75] Under subsection (3), the police officer receiving such an accident report, in turn, is required to obtain from the person making the report the particulars of the accident, the persons involved, the extent of personal injuries or property damage, if any, and any other information necessary for completing a written report about the accident. The report is to be forwarded to the Registrar of Motor Vehicles within ten days of the accident.

[76] While driving a motor vehicle may be viewed as a voluntary activity, it is not "freely undertaken" in the same manner as other regulated industries, since for many driving "is often a necessity of life": R v White, para 55, per Iacobucci J. Moreover, in the context of mandating on drivers the requirement of reporting accidents to the police, very often the police officer who receives the accident report is "simultaneously investigating a possible crime, in relation to which the driver is a suspect": White, para. 58.

[77] The utterances of a driver shortly after an accident have been held to be exactly the type of communication that the principle against self-incrimination is designed to protect. The fact that driving is a licensed activity supports the assumption that most drivers have been educated as to their duties and responsibilities, including the requirement that they are subject to a statutory duty to report the details of an accident: R v DaCosta (2001), 156 C.C.C, (3d) 520 (Ont. S.C.J.). Indeed, there is "almost an inference to be drawn" that any driver approached by a police officer recognizes the statutory requirements concerning reporting an accident: see R v Rolph, [2002] O.J. No. 3591 (QL) (C.J.) at para. 7.

[78] There is a public interest in individuals having to report accidents under the Highway Traffic Act, and the regulatory objective of road safety is enhanced by setting out a mechanism under s.199 of acquiring relevant information promptly for the public benefit and interest in highway safety. The use of inculpatory information from those compelled reports to prosecute those who do not report promptly "encourages compliance": R v Colquhoun, [2002] O.J. No. 349 (QL) (C.J.).

[79] In a recent case, R v Roberts, the Ontario Court of Appeal applied the White decision, and described the standard of proof on a defendant seeking to come within the ambit of s.199 as "the burden of establishing on the balance of probabilities, among other things, that she gave the report on the basis of an honest and reasonably held belief that .. she was required by law to report the accident to the person to whom the report was given".

[80] Justice Paciocco, on behalf of the unanimous Court in Roberts, went on to comment at para. 56:

"… where statutory compulsion is claimed, the issue is not simply whether the driver who has spoken knows of the legal duty to report an accident. The issue is whether the reason the driver spoke when they did was because they felt compelled by a legal obligation to do so."

[81] Lastly, it is to be observed that there is both a subjective and objective element to the s.199 reporting provision.

[82] The requirement that the accident report be provided on the basis of a subjective belief by the person reporting the accident reflects the fact that compulsion implies absence of consent. However, if the person gives an accident report freely, without believing that he or she is required by the law to do so, then it cannot be concluded that the statute is the cause of the party's statements to the authorities: White, para. 76.

[83] As for the requirement that the person's honest belief be reasonably held, it has been stated that unreasonable perceptions that state power exists is not properly the subject of the principle against self-incrimination. There is, in other words, no risk of oppression of the individual where the state acts fairly, and according to the law, but the person unreasonably perceives otherwise: White, para. 77.

[84] With these observations as to the approach to be taken to interpreting s.199 of the Highway Traffic Act generally, and the reporting requirement in particular, let me turn to the legal arguments raised by the parties in this case. I find it most convenient to frame the issues as follows:

1. Was the Defendant "involved" in an accident within the meaning of s.199 of the Highway Traffic Act?

2. Has the Defendant established on the balance of probabilities that he believed he was required to report the accident?

3. Was the Defendant's statement to the police about the accident motivated by self-interest instead of statutory compulsion?

4. Was the Defendant's statement to the police about the accident provided "forthwith" as required by s.199?

Was the Defendant "involved" in an accident within the meaning of s.199 of the Highway Traffic Act?

[85] The threshold issue requiring resolution in this case is whether the defendant was involved in an accident on the evening in question. If not, it is unnecessary to consider whether he reported the accident in accordance with s.199, as the provision would not therefore be applicable. On the other hand, if he was, in fact, so involved in an accident, then his reasons for believing he was required to report it, and whether this was out of statutory compulsion, or otherwise, becomes a live question, as does whether the statement was given in a forthwith manner as required by the provision.

[86] In commencing the analysis of this issue, the wording of the s.199 provision is instructive. It contains the phrase "… directly or indirectly involved in an accident." Thus, involvement in an accident is qualified, importantly, by the words "directly" and "indirectly". These modifying words connote, it seems to me, a broad, and not narrow, relationship to involvement in the accident, as opposed to a sole or direct causal connection.

[87] The Highway Traffic Act employs similar language in the fail to remain at the scene of an accident offence under s.200. It reads, in part, "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 …"

[88] On the other hand, the duty to report property damage under s.201 uses different terms, namely, "Every person who, as a result of an accident or otherwise, operates or drives a vehicle .. upon a highway and thereby damages …"

[89] The Criminal Code offence of failing to remain at the scene of an accident, in turn, is worded differently. It states in s.252 that "every person commits an offence, who has the care, control or charge of a vehicle .. that is involved in an accident …"

[90] The use of the phrase "directly or indirectly" modifying involvement in an accident under s.199 is therefore significant. It signals the intention of the drafters to make the reporting requirement under this provision apply to driving conduct that comprises some role, but not necessarily an exclusive one, in relation to the accident. Consistent with the purpose of the provision to promote the purpose of highway safety generally, and reporting of motor vehicle accidents in particular, the legislation is thus designed to broadly capture driving conduct associated with motor vehicle accidents.

[91] It is my respectful opinion that this broad approach to the interpretation of the term "involvement" under s.199 of the Highway Traffic Act is supported by the caselaw. For instance, in Seetal v Quiroz, a case where the insured party had not been directly responsible for the injuries suffered by the victim, Justice Perell considered the term "involvement" in a provision pursuant to the Insurance Act, R.S.O. 1990, c.I.8. Section 268(2) (iii) of that Act refers to "a person who is involved in an accident involving the insured vehicle."

[92] The facts were that Ms. Seetal was in a crosswalk, where she was crossing the street on a green light. She was struck by Mr. Quiroz, an uninsured driver, who drove through the red light at the intersection at a high rate of speed. After hitting Ms. Seetal and carrying her on its hood, the Quiroz vehicle struck a taxi, which was operated by Mr. Bali. The taxicab, in turn, was waiting to make a left turn within the turning lane. Ms. Seetal was still on the hood when the two cars collided, and subsequently thrown to the ground.

[93] Although Mr. Quiroz did not have insurance, the owner of the taxicab driven by Mr. Bali, who was not at fault for the accident, did have an automobile insurance policy that included coverage for accidents involving uninsured drivers and automobiles. As a result, one of the issues in the case was whether the driver of the taxicab could be considered "a person who is involved in an accident involving the insured automobile."

[94] Perell J. commenced his analysis by noting that the fact that a person was not negligent did not mean one was not involved in an accident involving the person's insured vehicle. It was ultimately his conclusion that a person who is involved in an accident included "a person against whom an individual injured in that accident might reasonably be considered as having a cause of action" (para. 25). As the driver of the taxi, Mr. Bali, was such an individual, the insurer of the taxicab was liable to provide uninsured motorist coverage.

[95] In reaching this determination, Justice Perell stated the following at paras. 41 and 42:

'Involved in an accident' and 'accident involving the insured vehicle' are not defined terms, but even before seeking the assistance of dictionaries and the case law, one immediately senses that the nature of 'involvement' is somewhat vague and very dependent of the particular facts of the particular case. Intuitively, one senses that involvement depends upon some proximity in place and time and participation between a person and an event or activity.

Being fact-based, involvement or non-involvement will be easy to determine in some cases but not in others. For example, one would not hesitate in concluding that Mr. Quiroz Jr. was involved in Ms. Seetal's accident because he caused it. One would also not hesitate to conclude that if Mr. Bali's vehicle had been struck several blocks distant from Jane St and Driftwood Ave. during Mr. Quiroz's flight from the scene that this would not be involvement in Ms. Seetal's accident but a separate accident involving Mr. Bali's vehicle. However, the case at bar is more difficult because although Mr. Bali's vehicle was not the cause of the accident, nevertheless, it was at least in very close proximity in time and place.

[96] The Court made reference in its analysis to two Criminal Code failing to remain at the scene of the cases in aid of its interpretation of the term "involvement." As noted previously, the Code provision includes the words "involved in an accident".

[97] In the first decision, R v Hannam (1986), 86. A.R. 151 (Q.B.), two persons including the accused were racing their vehicles on the street. The accused crashed into a pole when she lost control of her vehicle; the other party did not stop. The Court rejected the defendant's argument that her vehicle was not involved in an accident because there was no contact between her vehicle and the one that crashed. O'Leary J. stated in this regard at para.14:

… the word 'involved' does not import any element of cause or contribution to a particular accident. A person may be involved in an accident without causing it or contributing to its cause.

[98] The second case referred to by Perell J was Justice Durno's decision in R v Robson, [2004] O.T.C. 25 (S.C.J.), also a fail to remain case. The accused had backed his van out of his driveway when a cyclist was approaching on his bicycle. The latter had to brake to avoid hitting the van. The two then got into an argument while they were travelling next to each other. When the accused shifted his van to the right, he pushed the cyclist into the curb and ran over the rear of the bike before driving away. In these circumstances the Court was satisfied that the accused had been involved in an accident even though there was no contact between the van and the bike. The accused was found to be aware that he had forced the victim off his bike and was therefore involved in an accident.

[99] These cases are consistent with other fail to remain cases where it has been held that there is no requirement for the Criminal Code offence that there be actual contact or a collision between the respective motor vehicles for an accident to occur: see, for example, R v Mihalick (1991), 28 M.V.R. (2d) 114 (B.C.C.A.), leave to appeal refused (1991), 30 M.V.R. (2d) 41 (S.C.C.); R v Atwood (1996), 22 M.V.R. (3d) 137 (P.E.I.S.C.); R v Sagevicius (1999), 40 M.V.R. (3d) 192 (O.C.J.) at para. 72, aff'd (2001), 10 M.V.R. (4th) 144 (S.C.J.).

[100] Justice Perell also made reference to the plain or ordinary meaning of the word "involve" having regard to its definition in various dictionaries. For example, the Oxford Dictionary defines this term as: "1. Cause (a person or thing) to participate or share the experience or effect (in a situation, activity, etc.); 2. Imply, entail, make necessary; 3. Implicate (a person in a charge, crime, etc.); 4. Include or affect in its operations; 5. concerned or interested; 6. complicated in thought or form."

[101] Having regard, then, to the circumstances of the case, the governing case-law and the ordinary meaning of the word "involve", the Court went on to find that the driving conduct of the taxi driver Mr. Bali and his vehicle came "within the temporal, spatial and participatory factors sufficient to conclude that there was involvement in Ms. Seetal's accident, notwithstanding that Mr. Bali was not a cause or a contributing cause to the accident" (para. 56).

[102] In the result, the Court concluded that "a person who is involved in an accident involving the insured vehicle" includes a person who caused or contributed to the accident (para. 57).

[103] Seetal v Quiroz was applied in another Insurance Act case, Trieu v Harrison, 2013 ONSC 5738. There a mirror on the defendant's van struck the plaintiff in the head as he was about to board a streetcar that was stopped at an intersection with its doors open. The driver of the van had failed to stop for the streetcar; the party who was injured did not have insurance. The issue was whether the streetcar was "involved in the incident".

[104] Wilson J. held that the streetcar was sufficiently involved in the incident. The relevant factors for consideration were stated at para. 18 to include: whether there is contact between the vehicles; the physical proximity of the vehicles; the time interval between the relevant actions of the two vehicles; the possibility of a causal relationship between the actions of one vehicle and the subsequent actions of another vehicle; and whether it is foreseeable that the actions of one vehicle might directly cause harm or injury to another vehicle and its occupants.

[105] Finally, in considering the interpretation and meaning of the phrase "… directly or indirectly involved in an accident" in s.199, it is important to note that unlike the cases above, which are either civil or criminal in nature, the Highway Traffic Act is a public welfare statute setting out the rules and responsibilities of those who operate vehicles on the streets and highways of the province. As such it should be interpreted in accordance with the principles of statutory interpretation normally given to such public welfare legislation, that is, in a broad and purposeful manner so as to give effect to its objectives. As Doherty J.A. observed in R v Raham, 2010 ONCA 206 at para.33, "The Highway Traffic Act is public welfare legislation designed to protect those who use the roads of the province."

[106] Indeed, in Ontario, the Legislation Act, 2006, S.O. 2006, c.21, s.64, mandates such an interpretation to statutes such as the Highway Traffic Act:

An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.

[107] Turning then to the facts of the case, I have noted the sparseness of the evidentiary record with respect to the actual circumstances leading up to the accident. There is, for example, no accident reconstruction report tendered into the evidence, much less any eye-witness description of the driving conduct of the principal parties, such as the deceased, the accused, other motorcyclists, and the truck driver, apart from the defendant's own testimony on the voir dire.

[108] On the other hand, it can be taken from the counts in the information that that the defendant's driving conduct is alleged to have been dangerous, and that this manner of driving caused death and bodily harm to the three named victims. In addition, it is alleged that the defendant failed to remain at the accident scene and render assistance to these same three victims of his alleged dangerous driving.

[109] It is not immediately apparent to me how the defendant can be said to have not been involved in an accident, such that he was not required to report it, but that he was involved in the same accident, such that he failed to remain at it.

[110] However, I am satisfied, in any event, that based on the record before me, the defendant's driving conduct was sufficiently connected to the accident, or "directly or indirectly involved in the accident" in the words of s.199, to have triggered the reporting requirement under it. He was, after all, immediately in the vicinity of the accident at the time it happened, and riding in close proximity and formation to the victims, and the vehicle that struck at least one of them (the deceased). At a minimum, then, there has been established, to my satisfaction, indirect, if not direct, participation or involvement by the defendant in the motor vehicle accident in question.

[111] To borrow from the wording in Seetal v Quiroz, I am satisfied that there are "temporal, spatial and participatory factors" sufficient to conclude that there was involvement by the defendant in the accident that took place in the early morning hours of July 23, 2016 on the highway. Put another way, there is some proximity in place, time and participation between the defendant and the event or activity in issue. In short, the defendant's driving conduct contributed to the accident.

[112] The precise role that the defendant's motorcycle played in the scenario, and whether he was engaged in, or a party to, stunt driving, must remain a matter for another day. At that juncture it can be determined, on all of the evidence, whether it amounted to a marked departure from the standard of care that a reasonable person would observe in the situation of the accused: see R v Hundal, [1993] 1 S.C.R. 867; R v Beatty, 2008 SCC 5; R v Roy, 2012 SCC 26.

[113] For present purposes, however, I am satisfied that the defendant's driving conduct, whatever its exact parameters, was such that he was "directly or indirectly involved in an accident" within the meaning of s.199 of the Highway Traffic Act. As a result, he was required, in law, to report it, and subject to penalty if he failed to do so.

Has the Defendant established on the balance of probabilities that he believed he was required to report the accident?

[114] Having determined that the defendant was involved in an accident, the remaining issues may be dealt with shortly since their resolution is primarily fact-driven on the evidence before me.

[115] It is the defendant's burden to establish, on the balance of probabilities, that he gave his report to the police on the basis of an honest and reasonably held belief that he was required by law to report the accident to the officers in question: Roberts, para. 40.

[116] I am satisfied on the evidence before me that Mr. Ellis held a subjective belief that he was required to report the accident to the police, and that his belief was an honest and reasonable one in all of the circumstances. I also accept that it was objectively reasonable for him to have had this belief.

[117] With respect to his stated reasons for believing he was required to report the accident, the defendant described his previous experiences in reporting motor vehicle accidents, including when the car he was driving was struck by another car, and the time the car in which he was a passenger was hit. Thus, his own subjective experiences included his reporting accidents when he was neither the driver of a vehicle involved in an accident nor the party responsible for the collision. It is also supportive of his belief that he would get in trouble if he did not report the accident in question. In addition, the defendant was an experienced motorcyclist, and familiar with safety issues such as riding in a staggered formation on the highway to prevent accidents with nearby vehicles.

[118] Moreover, his actions on the evening in question evidence an awareness on his part of his legal obligation to report the accident. Having taken the first exit off the highway immediately following the accident and stopping at a nearby gas station not far from his home, where he spoke to two of the other motorcycle riders in the group, Mr. Lees and Kong, the three men then made their way back to the accident scene. When they arrived, they spoke to Constable Jamieson who took down their information and told them to wait in a safe area until they were contacted to give their statements. Upon being asked to come back when the police phoned them, they all returned, again to the accident scene, and each provided statements to the police.

[119] As noted by Iacobucci J in R v White at para. 78, the "nature and extent of the damage caused by the accident" and the driver's "awareness of such damage" are relevant factors in evaluating the reasonableness of the driver's belief. Such factors were clearly applicable here so far as the defendant was concerned.

[120] In these circumstances, I consider that the defendant's actions are supportive of his explanation as to the basis of his belief for returning to the accident scene. Stated shortly, he was in close proximity to one of the motorcyclists in his group whom he observed get run over by a tractor trailer, followed by his lifeless body emerging from its wheels onto the highway. Upon exiting the highway at the first place to do so, he subsequently returned to that same location where he stopped and spoke to the first police officer that he saw, and identified himself, along with his two fellow motorcyclists.

[121] I am therefore satisfied, on the balance of probabilities, that Mr. Ellis reasonably believed, subjectively, that he was required to report the accident, and that his belief was honestly held.

[122] With respect to whether the defendant's belief that he was required to report the accident was objectively reasonable, I am of the respectful opinion that it was. He had, after all, witnessed one of the members of his motorcycle group be run over and killed by another vehicle. The evidence is that the defendant was at the lead of the formation of the group; the deceased was a very short distance from him. When Mr. Ellis returned to the accident scene, he was accompanied by two other motorcycle riders in the group, who also identified themselves to the police and agreed to wait and give their statements, which in fact they all did. The reporting conduct of these two other riders is supportive of what a reasonable person would observe in the accused's circumstances, namely, a determination to inform the police about the accident. Thus, there appears to be nothing unreasonable about what the defendant, and his two fellow riders for that matter, perceived.

[123] In these circumstances, it is my view that there has been established, on the balance of probabilities, that it was also objectively reasonable for the defendant to have believed that he was obliged to provide a report to the police about the accident.

[124] I am therefore satisfied that the defendant has met the evidentiary burden on him that he honestly and reasonably believed he was required by law to report the accident to the police, and that this was the reason he spoke to Constables Jamieson and Jung in this regard.

Was the Defendant's statement to the police about the accident motivated by self-interest instead of statutory compulsion?

[125] While a person may be aware of their legal obligation to report an accident to the police, they may nonetheless be motivated to do so not by statutory compulsion under s.199, but by self-interest or motive to provide the authorities with exculpatory information about their role in the accident. When this is the case, the immunity provided by s.199 does not apply, and the statement will be admissible against the defendant in criminal proceedings since the declarant is speaking to the police on the basis of "motivating factors" other than those under the legislation: see R v White, para. 76.

[126] An example of this type of non-compelled statement is illustrated in the Moussavi decision, relied upon by the Crown. In that case, the defendant had been involved in an accident where his vehicle rear-ended another vehicle on the highway. There was serious damage to the other vehicle and its driver; the accused, however, was not injured. The police arrived on the scene and commenced their investigation, during which time they detected alcohol on the accused's breath and he admitted that he had been drinking.

[127] The trial judge's decision that the defendant's admission to the police that he was the driver of the car that was involved in the accident was not statutorily compelled was upheld on appeal. It was noted in this regard that the defendant had admitted to others at the scene that he was the driver, and he was "anxious" to state his position about the collision to the police. Thus, nothing changed when the police arrived.

[128] Speaking for the Court, MacPherson J.A. commented at para. 29:

Whether a roadside statement made by an accused to a police officer about an accident is statutorily compelled is a question of fact to be determined based on the particular circumstances of each case. There will be instances where the accused will in fact be speaking based on a subjective and reasonably held belief that he or she must do so. But there will be other cases where the accused responds freely, entirely unmotivated by any statutory duty. In the latter case, the statements are not protected by the use immunity provided by s.7 of the Charter.

[129] In the result, while the defendant believed that he was required to report the accident, he was not influenced by this fact. That is, the Highway Traffic Act did not cause him to answer the police questions. His admission to the police that he was the driver of the motor vehicle involved in the collision was therefore given freely, and not due to statutory compulsion.

[130] Roberts is a similar case. The accused, who was a psychologist, was involved in an accident after leaving a restaurant where she had been drinking heavily. She spoke to the police officers who arrived on scene to investigate, and later at the police station. Her evidence that she gave these statements out of statutory compulsion was rejected by the trial judge. This ruling was upheld on appeal.

[131] In finding that the defendant's statements were not motivated by the Highway Traffic Act s.199 provision, the trial judge ruled that the reason she chose to speak was to "curry favour" with the police by impressing them with her status as a police college instructor. She mentioned this "repeatedly and persistently." The trial judge's conclusion, in these circumstances, was that the defendant's "engagement with the police was motivated not by a sense of legal obligation, but by a desire to influence their course of conduct by impressing them with her role as a police instructor" (para. 56). Justice Paciocco was accordingly satisfied that the trial judge had "ample reason" for rejecting the defendant's statutory compulsion claim on the balance of probabilities.

[132] The facts in the instant case are markedly different than Moussavi and Roberts. To begin, the defendant spoke only to the two police officers he encountered during the investigation. His initial statement to Constable Jamieson was solely to identify himself as being in the group involved in the accident; his statement to Constable Jung was responsively given, in question and answer form. Significantly, it seems to me, when the defendant was asked if there was anything he wished to add at the conclusion of his written statement, he declined to do so. Indeed, he told the officer it was difficult for him to think of what to say when asked if there was any additional information he wished to give.

[133] To the extent that the defendant said anything to Constable Jung that appeared to implicate the truck driver's role in the accident, it is important to note that this was in direct response to a question asked by the officer. Constable Jung acknowledged that he was seeking to have the defendant express his opinion about the truck driver's driving conduct. There were no follow-up questions by the officer, and the defendant did not expand on his opinion when he had an opportunity to do so at the conclusion of the statement or volunteer any additional details.

[134] Constable Jung also described the defendant as being cooperative but tired when he gave his statement. Mr. Ellis testified that he was still in shock. Constable Jung thought he was in shock as well. In any event, the defendant was hardly speaking in a repeated and persistent manner as in the Moussavi and Roberts cases. There was nothing gratuitous, in other words, that he stated either in terms of downplaying his own involvement or embellishing that of the driver who ran over the deceased. It certainly did not appear that when he spoke to the police he was "anxious to state his position" (Moussavi, para. 28) or "curry favour" (Roberts, para. 41), so as to influence their course of conduct.

[135] Lastly, it should be observed that at the time the defendant was providing his statement to Constable Jung, two other fellow riders, to his knowledge, were also being interviewed by the police, and thus potentially providing information about the defendant's driving conduct at the time the police were asking the defendant about his own version of the events. Nevertheless, the defendant chose to answer only the questions he was asked about the accident by the police and declined to state anything further. Hence, the fact that he did not expressly mention the group was riding in formation, when he was not asked about this, does not impugn, in my opinion, his reasons or motive for speaking to the police, given that he did describe his location relative to the other riders. Moreover, the pattern of motorcycles riding in formation on the highway is well-known and commonly done for safety purposes, as Constable Jamieson, who is also an experienced motorcyclist, testified.

[136] Accordingly, while the defendant's statement may well be viewed as being exculpatory in nature, I am satisfied that it was not given to the police for any reasons apart from his statutory duty to do so under s.199 of the Highway Traffic Act. Indeed, the provision does not preclude exculpatory statements from its protection, so long as they are given due to compulsion for a legal obligation, and not motivated by other factors. I conclude that it was the former, and not the latter, that resulted in the defendant speaking to the police. As such, he provided a statutorily compelled statement to the police within the ambit of s.199.

Was the Defendant's statement to the police about the accident provided "forthwith" as required by s.199?

[137] Finally, it is a condition precedent to the operation of the immunity protection contained in s.199 of the Highway Traffic Act that the statement reporting the accident is made "forthwith" to the nearest police officer.

[138] The term "forthwith" is contained in a number of Criminal Code drinking and driving provisions, such as s.254(2) governing the demand for breath samples into approved screening devices (ASD). In this context the term has been interpreted as meaning "within a reasonable time": R v McGillivray, [1971] 3 O.R. 452 (C.A.).

[139] In R v Quansah, the Court of Appeal held that the analysis of the forthwith or immediacy requirement in s.254(2) must always be done contextually. This is so as courts must bear in mind Parliament's intention to strike a balance between the public interest in eradicating impaired driving and the need to safeguard individual rights under the Charter of Rights and Freedoms.

[140] With respect to the term "forthwith" in the provision, the Court observed at paras. 47 and 48:

'forthwith' connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s.254(2).

.. the immediacy requirement must take into account all the circumstances. These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.

[141] The phrase "forthwith" in reporting accidents to the police in s.199, and like provincial statutes, has received a similar flexible and contextual analysis. For example, in R v Pearson (1960), 32 W.W.R. 457 (Sask. Mag. Ct.) at para.16, it was held that the duty to report an accident "forthwith" means "within a reasonable time having regard to all the circumstances of the case". In that instance, a delay of six hours in reporting the accident on a Sunday where no one was injured, and the only damage was to the driver's own vehicle, was found to be reasonable.

[142] Likewise, in R v Bell (1968), 64 W.W.R. 668 (Sask. Q.B.), the Court found that an accident that was reported seven hours later satisfied the "forthwith" requirement where it occurred on a construction project off the highway and several miles from the nearest town. This decision was cited with approval by the Ontario Court of Appeal in R v McGillivray in its interpretation of "forthwith" under s.254(2) of the Criminal Code.

[143] Section 199 of the Ontario Highway Traffic Act was considered in R v Bakker (1986), 41 M.V.R. 190 (Ont. Prov. Ct.), a case where the accused's vehicle had gone into a ditch where it suffered extensive damage. This occurred at 12:30a.m. Subsequently, the accused returned to the inn where he was staying; however, the telephone lines had been cut off for the night. He then returned to the accident scene the next morning at 9:00a.m. and called the police to report the accident at 9:30a.m. A conviction for failing to report the accident "forthwith" was imposed.

[144] On appeal, the Court found that the defendant was required to determine the apparent extent of the damage before departing from the scene at night, and if it was not possible to phone the police until the following morning due to the telephone lines being cut off, then he was obliged to call as soon as the lines were available in the morning or within a short time thereafter. Consequently, the defendant's conviction for failing to report the accident "forthwith" was upheld.

[145] Another Ontario court, applying Bakker, described the test under s.199 as requiring consideration of whether there was a "reasonable opportunity" to report the accident: see R v Colquhoun, para. 43.

[146] Turning, then, to the facts of the case at bar to determine whether the defendant reported the accident to the police in the requisite "forthwith" manner, the relevant time periods may be summarized as follows:

• 3:34a.m. time of accident
• 4:40a.m. Constable Jamieson arrives on the accident scene
• 4:56a.m. Constable Jamieson speaks to three motorcyclists on the shoulder of the highway, including the defendant
• 5:31a.m. Constable Jamieson either calls Mr. Kong to return to the scene with the two others, or this is time they return to the scene
• 6:30a.m. Constable Jung speaks to the defendant and takes his written statement
• 7:00a.m. defendant's statement to Constable Jung concludes

[147] Applying the "forthwith" requirement under s.199 to these facts, I am satisfied that the defendant reported the accident within a reasonable time by presenting himself to Constable Jamieson at the accident scene in the manner I have set out above. In coming to this determination, it is important to note that Mr. Ellis had witnessed, in very close proximity to himself, one of the members of his motorcycle group being run over by a tractor trailer and his body ejected from underneath its wheels. This was followed by his exiting the highway with two of his fellow riders at the nearest location, collecting their thoughts and processing what they had seen, and then returning directly to the scene to report the accident. The resulting interval from the accident, to the defendant's contacting Constable Jamieson to report it, is approximately one hour and twenty-two minutes, that is, 82 minutes. Indeed, the defendant's attendance on the scene to report the accident to the police was likely less than 80 minutes after it happened, since the defendant and the other two riders were at the scene for several minutes before they got Constable Jamieson's attention and he walked over to speak to them.

[148] In my respectful view, a period of just over 80 minutes, in these circumstances, to return to the accident scene and speak to the police comes within the definition of "forthwith" as that term is understood under s.199. Such a reporting period constitutes, in other words, a reasonable time having regard to all the circumstances of the case. This encompasses an assessment of both the mental state that the defendant was in, having witnessed the death of his friend in the subject accident and being in obvious shock, as well as the physical time it took for the three men to ride back on the highway in traffic that was impacted by the accident. It is also to be recalled that the defendant's decision and time to return to the point of impact, and thus the overall reporting time period, involved his speaking to the two other men, who also reported the accident to the police, but first discussed among themselves how to go about doing so.

[149] The question, at the end of the day, is not whether the accused reported the accident at the earliest possible opportunity or moment, or whether he could have reported it quicker by some other means, such as by borrowing his friend's cell phone at the gas station or continuing home and calling the police from there. Hindsight bias should play no role in this determination. Instead, a contextual approach, having regard to all of the circumstances of the case, must be considered. Thus, an interval of 80 minutes may be forthwith in one case, but not another.

[150] In the instant case, the manner of reporting the accident resulted in the accused (and his two fellow riders) giving their written statements to the police, and not merely an oral report, within three hours of the accident. This overall time interval between the time of the accident and the accused's written account of it supports, in my opinion, the initial reporting of it, within approximately 80 minutes, being done in a forthwith manner. Indeed, this is a significantly shorter period of time, by several hours, in contrast to the cases discussed above where the forthwith requirement was found to have been met.

CONCLUSION

[151] For the reasons I have stated, I am satisfied that the defendant was "involved" in an accident within the meaning of that term under s.199 of the Highway Traffic Act of Ontario. I further find that he has satisfied the requirement, on the balance of probabilities, that he honestly and reasonably believed he was obliged to report the accident to the police and he did so out of statutory compulsion, and for no other reason. In addition, this statement was provided to the authorities in a forthwith manner, as the provision requires.

[152] Consequently, Mr. Ellis' statements to Constables Jamieson and Jung at the accident scene are not admissible in the criminal trial proceedings against him due to his right to be protected against self-incrimination.

[153] I wish to express, finally, my gratitude to counsel for the very high quality of their oral submissions and written materials.

R. Libman J.

1 August 2018

[1] The deceased's name in the information is given as Mauro Bustelo, not Mario Bustello as in the Agreed Statement of Fact. The issue of amendment, if required, has not been addressed before me.