Court Information
Ontario Court of Justice
Date: October 19, 2018
Court File No.: Brampton 17-4590
Parties
Between:
Her Majesty the Queen
— And —
Carlos Segovia
Before: Justice S. Caponecchia
Heard: September 26, 27, 2018
Reasons for Judgment Released: October 19, 2018
Counsel
For the Crown: H. Rim
For the Accused Carlos Segovia: M. Buchler
Introduction
[1] Mr. Segovia is charged with "over 80" and impaired operation of a motor vehicle. Both charges were laid in the early morning hours of April 9, 2017.
[2] The Crown called Sgt. Drummond and PC Metharol. They were both dispatched to the scene of an accident in Brampton. A vehicle registered in Mr. Segovia's father's name was abandoned. It had struck a fire hydrant. A light standard and hydro wires were affected. The car was smoking. There were several individuals at the scene.
[3] Mr. Segovia testified on a voir dire only, to determine the admissibility of three sets of utterances he made to police. The defence submits that all of Mr. Segovia's utterances are inadmissible because they were taken in violation of s. 7. The defence seeks exclusions of all the statements pursuant to s. 24(1) of the Charter and relies on the Supreme Court of Canada decisions in R. v. White [1999] 2 S.C.J. 417 and the Ontario Court of Appeal decision in R. v. Soules 2011 ONCA 429 (leave to appeal refused [2011] S.C.C.A. No. 375).
[4] Mr. Segovia's breath readings were 168 mg of alcohol per 100ml blood at 6:43 a.m. and 155 mg per 100ml of blood at 7:06 a.m.
[5] If the utterances are excluded, there is insufficient evidence to prove Mr. Segovia was the driver of the motor vehicle.
The Three Sets of Statements
[6] On the voir dire Mr. Segovia testified that he was at home drinking and left to get something to eat. He was on his way home after finding the pizza store closed. He collided with a fire hydrant while driving on a bend in the road. He crashed his car not far from his family residence. He said he panicked and fled to his nearby home on foot. He woke his brother, confided in him about what happened and decided he had to return to the scene. His brother accompanied him to make sure everything went alright. Mr. Segovia testified that he returned to the scene because he thought he had a legal obligation to report the accident given all the damage he caused. He did not call the police from home because he did not want to wake or upset his mother, who was suffering from stage 4 cancer.
1. To Sgt. Drummond
[7] When Mr. Segovia re-attended the scene of the accident with his brother he walked up to Sgt. Drummond. Sgt. Drummond asked if the car belonged to him. Mr. Segovia answered "Yes I was driving." Sgt. Drummond asked if he was injured, Mr. Segovia said "Not really" but complained of a sore stomach. Mr. Segovia was asked if anyone else was in the car with him, he answered "no."
[8] Sgt. Drummond made certain observations and formed the opinion Mr. Segovia's ability to operate a motor vehicle was impaired by the consumption of alcohol and arrested him at 5:31 a.m.
[9] Mr. Segovia does not dispute he made these remarks to Sgt. Drummond. He testified that he answered the officer's questions because he knew he was legally required to report the accident to police given the amount of damage he caused.
[10] The Crown accepts the defence has established these utterances were made based on the defendant's honest and reasonably held belief that he was required to report the accident to the police. The Crown does seek to rely on these utterances to prove the offence.
2. To PC Metharol
[11] Sgt. Drummond turned Mr. Segovia over to PC Metharol. After a brief pat down search, PC Metharol read Mr. Segovia his rights to counsel and silence between 5:37 a.m. and 5:42 a.m. Mr. Segovia indicated he understood and wanted to speak with his lawyer, Randal Baran. At the scene and while stopped at a traffic light on the way to the station, Mr. Segovia made some additional comments.
[12] At the scene PC Metharol testified that Mr. Segovia told him his brother was not in the car at the time of the accident and mentioned he had gone home to wake his brother up because he lives close by. The officer also learned that "he" was worried about his mom and brother. The officer was told that "he" had gone to Domino's to get pizza. Mr. Segovia's brother was milling about at the scene when these statements were made. The officer could not recall what, if any information, he got from Mr. Segovia's brother. The officer's position was that he did not record the comments he attributed to Mr. Segovia verbatim.
[13] On the drive to the police station they were stopped at a stop light. At 5:56 a.m. Mr. Segovia twice remarked that he had made the worst mistake of his life. He also asked PC Metharol if he had to take the bus from now on. Officer Metharol did not testify as to what, if anything, he said in response.
[14] Mr. Segovia position is that he was talking to himself in the back of the cruiser when he made these comments. He explained that he was self-assessing. He was overwhelmed with everything going on in his life at the time.
3. To the Breath Technician
[15] At the station Mr. Segovia spoke to his lawyer of choice between 6:08 a.m. and 6:13 a.m. He was escorted into a breath room and reminded of his right to silence. He proceeded to answer all the questions posed of him by the breath technician. Mr. Segovia testified that his lawyer advised him that he was required to provide breath samples and answer questions about the accident.
[16] Mr. Segovia's position is he answered the breath technician's questions because they related to how the accident happened and he believed it was his duty to provide the details. No officer had explained to him that any obligation to report had come to an end.
Analysis
[17] The Crown's position is that the defence has not established on a balance of probabilities that the utterances to PC Metharol and the breath technician were made because Mr. Segovia had an honest and reasonably held belief that he had a duty to report. According to the Crown, even if Mr. Segovia honestly held the belief, it was not reasonable because he had already complied with his duty by answering Sgt. Drummond's questions and had been told he had a right to silence twice, by PC Metharol and again by the breath technician.
(a) Utterances to PC Metharol
[18] The officer's testimony regarding how the utterances he attributed to Mr. Segovia unfolded before they departed the scene was not at all clear to me. He had to have his memory refreshed by the Crown. I am unsure whether the comments he attributed to Mr. Segovia at the scene were made in response to question the officer posed to Mr. Segovia, or if the information was volunteered without prompting. Nor could PC Metharol recall what information he got, if any, from Mr. Segovia's brother who was lingering by the cruiser. I am also troubled by the fact that it appears the officer engaged Mr. Segovia in conversation about the accident after Mr. Segovia indicated he wanted to speak to a lawyer.
[19] I am not confident Mr. Segovia made all the utterances attributed to him by the Crown before leaving the scene. Even if I were, I am satisfied on a balance of probabilities that Mr. Segovia gave the information he did to PC Metharol for the same reason he answered Sgt. Drummond's question. Namely, he continued to be operating under an honest and reasonably held belief that he had to furnish police with details about the accident. I come to this conclusion because Mr. Segovia was asked very few questions by Sgt. Drummond and I find that it was reasonable for him to think more details were needed to fulfil his duty to report.
[20] I take a different view with respect to the utterance Mr. Segovia acknowledges he made at 5:56 a.m. while they were stopped at a traffic light. Mr. Segovia testified, and I accept, that he was talking to himself and "self-assessing" how he had got in the position he was in. His reason for saying what he did had nothing to do with a duty to report. Therefore, I am not satisfied on balance of probabilities that Mr. Segovia made the utterances he did at the stop light as part of a duty to report.
[21] I have considered Mr. Buchler's submission pertaining to para. 66 of White where in the Supreme Court states:
Spontaneous utterances of a driver, occurring very shortly after an accident, are exactly the type of communication that the principle against self-incrimination is designed to protect. They are a personal narrative of events, emotions and decisions that are extremely revealing of the declarant's personality, opinions, thoughts and state of mind…I would note that, while it is well established that there is reduced expectation of privacy in a vehicle generally, compared to the expectation of privacy in a dwelling house, this fact is largely irrelevant to the analysis here. The question in this case involves the expectation of privacy that a declarant has in a confession….
[22] Mr. Segovia's remarks at 5:56 a.m. were not made shortly after the accident. Mr. Segovia had gone home and come back to the scene with his brother. His utterances were made some 25 minutes after he first told Sgt. Drummond that he was the driver of the motor vehicle. Mr. Segovia did not enjoy a right to privacy to any remarks he makes out loud while seated in the back seat of a police cruiser. I am satisfied his utterances were not made in response to any questions posed by the officer and Mr. Segovia had been provided his right to silence before they departed the scene and he indicated he understood.
(b) Statements Made to the Breath Technician
[23] Mr. Segovia testified that he answered the questions posed by the breath technician because he continued to operate under the belief that is was his duty to furnish police with the details regarding how the accident happened. By the narrowest of margins, I am satisfied this is the case on a balance of probabilities for the following reasons.
[24] Firstly, I found Mr. Segovia to be a credible, candid and a forthright witness overall. He did not disagree or take issue with the evidence of the police. He did not attempt to downplay his actions on the evening in question.
[25] The only part of Mr. Segovia's evidence that did not ring true was when he was asked why he did not use a landline at his family home to call police. He testified that he had no clue if there was a landline. I do not accept that he had no knowledge as to whether there was a land line at his family home. That said, I do accept that he did not want the police to come to his house in the middle of the night and upset his ill mother. I also accept that his house was a short walk from the accident and he reasonably expected to find the police at the scene when he returned.
[26] Second, no officer advised Mr. Segovia that his obligation to report had been satisfied. Sgt. Drummond assigned PC Metharol to take over the criminal investigation by taking custody of Mr. Segovia. Unbeknownst to Mr. Segovia, Sgt. Drummond assigned a different officer with the responsibility of looking after the motor vehicle accident report.
[27] In White the Supreme Court stated:
… provided the police have offered no indication to the driver that the statutory requirement for the reporting of an accident had been satisfied, it will likely be reasonable for the driver to assume that he or she continue to be subject to a statutory duty to speak. [1]
[28] As was reiterated in Soules it is important for the police taking an accident report while simultaneously investigating a crime to describe clearly to the motorist the start and end points of the accident report. [2]
[29] Thirdly, I accept Mr. Segovia's evidence that his lawyer told him he was legally obliged to provide samples of his breath and answer questions about the accident. I find that the advice he received from Mr. Baran informed his decision to answer questions in the breath room.
[30] Mr. Buchler took the position that Mr. Baran gave Mr. Segovia correct legal advice. I can foresee another court disagreeing with Mr. Buchler's position. However I cannot fairly do so on the record before me because the details of the four minute conversation between Mr. Baran and Mr. Segovia were not explored in cross-examination by the Crown. [3] I have no evidence before me as to what information Mr. Baran was told by his client or the police and therefore I am not in a position to make a finding as to the soundness of the advice in this case.
[31] In making his point, Mr. Buckler relied on para. 16 of White which states:
… If the respondent's lawyer acted appropriate in advising her, as the Court should assume he did, he would have told the respondent that she was required by law to answer the officer's questions pursuant to the Motor Vehicle Act, notwithstanding her right to silence.
[32] The legal advice endorsed in White was in the context of police attending for the express purpose of collecting an accident report. In White, the last statement Ms. White gave after she spoke to her lawyer and indicated her wish to remain silent was excluded because the police insisted that notwithstanding her right to silence she remained under a legal obligation to answer their questions pursuant to the provincial traffic act and told her it would not be used against her.
[33] The excluded statements in Soules were at the roadside, not in the breath room.
[34] It is my view that Mr. Segovia was within his rights to have declined to answer all the questions posed in the breath room, especially regarding his alcohol consumption. Counsel who leave their client with the impression they are legally obliged to answer a breath technician's questions because they were in an accident are doing their client a disservice.
Conclusion
[35] In 1999 the Supreme Court in White signalled the effect of the statutory provisions such as those under consideration in this case and the logistical difficulty they create for police investigation a criminal offence. In 2011 the Ontario Court of Appeal in Soules acknowledged the difficulty. Since then, it has been incumbent on police to gather evidence from sources other than an accused in a criminal proceeding separate and apart from information derived from a motorist with a duty to report an accident pursuant to the Highway Traffic Act. In this case, I heard evidence that there were multiple people at the scene and the person who called police refused to provide a statement. PC Meyer was assigned to take a statement from Mr. Segovia's brother. Mr. Segovia's brother was not called, nor were any other witnesses.
[36] In White J. Iacobucci described several ways in which police might investigate to acquire information independently of the accident report that is subject to use immunity. One way was to inform the driver that they intend to secure the details of the accident report from sources other than the driver, thus terminating the statutory duty to report. Another suggestion was that police might tell the driver that they will postpone the taking of an accident report until after they have questioned him or her. [4] I have no evidence that either option was averted to in this case.
[37] I have ruled that the only admissible utterances made by Mr. Segovia were his remarks to himself while stopped at an intersection in the back of the cruiser. He said "this was the worst mistake of his life" (twice). He also asked PC Metharol if he had to take the bus from now on. I cannot use Mr. Segovia's voir dire testimony to decide guilt or innocence in this trial.
[38] Mr. Segovia's admissible utterances do not rule out his brother, who was present at the scene, as being the driver of the motor vehicle. Mr. Segovia's statements also do not rule out his father, the registered owner of the car, who lived within walking distance of the abandoned vehicle. There were multiple other people at the scene. In short, based on the admissible evidence and lack of evidence in this case, the Crown has not discharged their onus of establishing the identity of the driver of the motor vehicle beyond a reasonable doubt. [5]
[39] In light of my findings, the admissibly of the breath samples is academic and I decline to decide the merits of the Crown's 24(2) argument.
[40] Mr. Segovia is found not guilty.
Released: October 19, 2018
Signed: Justice S. Caponecchia
Footnotes
[1] R. v. White [1999] 2 S.C.J. 417, para. 80.
[2] R. v. Soules 2011 ONCA 429, para. 52.
[3] Solicitor client privilege was waived.
[4] R. v. White [1999] 2 S.C.J. 417, para. 65, 80.
[5] Nor do the utterances establish when the driving or accident took place. The only evidence was that someone called the police and the police were dispatched at 5:29 a.m. Therefore, even if the admissible utterances proved Mr. Segovia was the driver of the motor vehicle, there is still no admissible evidence as to the time of the accident from which the presumption of identity could be applied.