Court Information

Court File No.: Hamilton 4760 - 7830806B Date: 2018-12-14 Ontario Court of Justice

Between: Her Majesty the Queen — AND — Monique Vaughan

Ruling on Voir Dire

Before: Justice of the Peace Kenneth W. Dechert

Voir Dire heard on: April 30, 2018 and September 19, 2018

Reasons for Ruling on Voir Dire released on: December 14, 2018

Hamilton Provincial Offences Court

Counsel

For the prosecution: E. Radoslav

For the defendant Monique Vaughan: D. Brereton (paralegal)

Statutes, Regulations and Rules Cited

• Canadian Charter of Rights and Freedoms, being Part 1 of the Constitution Act, 1982, section 7 and subsection 24(1)
• Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, section 109
• Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, subsections 144(18), 199(1) and 199(3)

Cases Cited

• Regina v. Jones, [1994] 2 S.C.R. 229
• Regina v. Marshall, [1961] S.C.R. 123
• Regina v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3
• Regina v. Slopek, [1974] O.J. No. 826 (Ont. C.A.)
• Regina v. T. (S.G.), 2010 SCC 20, [2010] S.C.J. No. 20
• Regina v. White, [1999] 2 S.C.R. 417
• Regina v. Whittle, 92 C.C.C. (3d) 11
• Walker v. The King, [1939] S.C.R. 214

Judgment

K.W. DECHERT, J.P. (orally):

INTRODUCTION

[1] Under Certificate of Offence no. 4760-7830806B, the defendant Monique Vaughan stands charged that she on the 28th day of July, 2017, at John St. South/Young Street, in the City of Hamilton, did commit the offence of "Red Light – Fail to Stop", contrary to subsection 144(18) of the Highway Traffic Act.

[2] During these trial proceedings, the City of Hamilton was represented by prosecutor Ms. E. Radoslav. The defendant was represented by her paralegal representative, Mr. D. Brereton.

[3] The trial of this proceeding commenced before me on the 30th day of April, 2018 when, upon arraignment, the defendant entered a plea of not guilty to the charge. On that date I received the testimony of the prosecution's first witness, Mr. Roldan Manabat, and part of the testimony of the prosecution's second witness, Police Officer Michael Hoyle, a member of the Hamilton Police Service. Based upon the testimony of those two witnesses, it was apparent that the subject charge was laid against the defendant as a driver of a vehicle which had allegedly collided with another vehicle at the said intersection.

[4] Officer Hoyle testified that on July 28th, 2017, at approximately 11:04 p.m., he was dispatched to the intersection of John St. South and Young St., in the City of Hamilton to investigate a motor vehicle collision. He stated that upon his arrival at the intersection, he noticed two damaged vehicles parked in the parking lot of the variety store, located on the south-west corner of the said intersection.

[5] Officer Hoyle testified that upon arriving at the scene, he first inquired as to whether anyone was injured as a result of the apparent collision. Once he determined that no one was injured, he started his investigation into the collision. In doing so, he was able to identify the drivers of both vehicles involved and proceeded to take statements from them.

[6] Officer Hoyle stated that the defendant identified herself by producing a valid Ontario driver's licence. He advised that the licence contained a photograph, which he compared to the visage of the defendant before him. He advised that the photograph resembled the female person who produced the driver's licence and he was, therefore, satisfied that he was speaking with Monique Vaughan of "3 Canary Court".

[7] As stated above, Officer Hoyle advised that he took a statement from the defendant. The prosecutor then sought leave to embark on a voir dire to determine the admissibility of this statement, for the truth of its contents, as an admission. I then suspended Officer Hoyle's testimony during the trial proper and embarked upon a voir dire.

[8] Officer Hoyle testified during the voir dire on April 30th, 2018, after which time the trial was adjourned to September 19th, 2018, for continuation.

[9] On September 19th, the prosecution called Police Constable Chelsea Draker of the Hamilton Police Service as its final witness on this voir dire. Constable Draker finished her testimony on the voir dire at that time. The defendant's representative did not call any evidence on the voir dire. The evidentiary phase of the voir dire was then completed.

[10] I then received the final submissions of the parties on the voir dire. Ms. Radoslav submitted that the totality of the evidence tendered during the voir dire established, beyond a reasonable doubt, that the statement made by Ms. Vaughan to Police Officer Hoyle, was given voluntarily, and should therefore be received into evidence for the truth of its contents as an admission (an exception to the exclusionary hearsay evidence rule).

[11] On the other hand, Mr. Brereton argued that the totality of the evidence proffered during the voir dire failed to establish the issue of the voluntariness of the alleged statement, beyond a reasonable doubt. He alternatively submitted that if I decide that the prosecution had met its evidential burden on this voir dire, then the statement should be excluded from the evidence in this proceeding, on the basis that it was statutorily compelled by the provisions of the Highway Traffic Act and that its admission into evidence would, therefore, violate the common-law principle against self-incrimination.

[12] In making this alternative submission, Mr. Brereton acknowledged that he had not made the appropriate application for a remedy for this alleged breach of the provisions of section 7 of the Canadian Charter of Rights and Freedoms, ("the Charter"), under subsection 24(1) of the Charter, as required by section 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended. He submitted, however, that his application to exclude the alleged statement was based upon the common-law duty of a trial court to exclude evidence that would render the trial unfair and that he was not seeking a "Charter" remedy. He argued that the admission of the defendant's compelled statement under the provisions of subsections 199(1) and 199(3) of the Highway Traffic Act, would violate the common-law principle against self-incrimination and would, therefore, negatively affect the fairness of the defendant's trial.

[13] Upon receiving the oral submissions of both representatives, I determined that the issues were sufficiently complex to require written submissions pertaining to these issues. The trial proceedings were then adjourned to December 14th, 2018 for continuation, to allow adequate time to the parties to prepare their written submissions, including the provision of case-law to support their respective positions.

[14] In this regard, I acknowledge receiving the following written submissions from the parties:

1. Ms. Radoslav's submissions and case-brief, dated October 12th, 2018, which now has been marked as exhibit #1;
2. Mr. Brereton's submissions and case-brief which I acknowledge receiving on or about November 2nd, 2018, which now has been marked as exhibit #2;
3. Ms. Radoslav's reply submissions dated November 12th, 2018, which now has been marked as exhibit #3.

[15] In rendering my decision herein, on this voir dire, I have considered the evidence received by me during the course of this voir dire; the testimony of Police Officer Michael Hoyle of April 30th, 2018, the testimony of Police Constable Chelsea Draker of September 19th, 2018, the oral submissions made by both Ms. Radoslav and Mr. Brereton on September 19th, 2018 and the contents of the three exhibits stated above.

THE EVIDENCE ON THE VOIR DIRE

(i) The Testimony of Police Officer Michael Hoyle

[16] Officer Hoyle testified that on July 28th, 2017, he took a statement from Monique Vaughan regarding the apparent motor vehicle collision. He advised that it was a handwritten statement, which was initially written by Ms. Vaughan followed by "further questions" which he entered on the statement form.

[17] Officer Hoyle stated that at the time that he was taking the statement, he was dressed in his police "patrol uniform". He advised that his partner, Police Constable Chelsea Draker, was with him at the scene of the collision.

[18] Officer Hoyle testified that he took the statement from Ms. Vaughan while standing beside her and her vehicle parked in the said variety store parking lot. He stated that in receiving Ms. Vaughan's statement, he did not make any promises or inducements to her, threaten her, or touch her.

[19] Officer Hoyle went on to testify that at the time that he received the written statement from Ms. Vaughan, she was coherent and she was not suffering from any injury or impairment. He stated that the defendant's statement was taken in the English language, that there were no issues pertaining to her understanding of the language and that her responses to Officer Hoyle's questions appeared to fit the questions.

[20] Officer Hoyle testified that Ms. Vaughan was never placed under arrest and that he had not made any decision as to what "charges" to lay prior to taking Ms. Vaughan's statement. When Officer Hoyle was asked by the prosecutor if the defendant was free to leave if she wished, the officer responded "Yes", once she gave the information she had to give under the Highway Traffic Act. He then advised that Ms. Vaughan gave that information to Officer Draker at the "start of the statement", prior to time that he took the actual statement from her.

[21] Officer Hoyle testified that at the time that Ms. Vaughan was writing her statement, Officer Draker was in her police car, out of earshot of his conversation with Ms. Vaughan, "doing up the accident report". Officer Hoyle stated that he does not believe that Officer Draker engaged in any interactions with the defendant, other than receiving the initial information to complete the particulars of the accident report.

[22] During cross-examination, Officer Hoyle acknowledged that at the time of his conversation with Ms. Vaughan, he was in the process of "investigating a collision". As part of that investigation he took a statement from Ms. Vaughan. When the defendant's representative asked him why he took that statement, the officer responded: "[t]o try to figure out what happened in the accident and it is the policy of the police. We have to take statements". The officer then agreed with the representative's suggestion that by taking the statement from Ms. Vaughan, "she was reporting a collision" to him.

[23] When Officer Hoyle was asked by the representative whether the defendant could face any charges if she didn't provide any information to him, he replied "probably not". He went on to say that he didn't believe that there was a charge that he could lay if Ms. Vaughan decided against providing any information relative to the alleged collision, and that if she didn't provide any information he would have to "go with other avenues to figure out what happened in the accident". When the representative asked him if he didn't believe that the defendant was required "to give a statement by law at an accident", the officer simply replied "I'm not sure. I don't know if there's a charge or not. I've never laid it".

[24] In completing his testimony during cross-examination, Officer Hoyle stated that he did not "ever caution" Ms. Vaughan with respect to speaking to him about the collision.

(ii) The Testimony of Police Constable Chelsea Draker

[25] As indicated above, Constable Draker testified during the continuation of the subject voir dire, on September 19th, 2018.

[26] Officer Draker testified that on the evening in question, she was dressed in police uniform and responded to investigate a motor vehicle collision which allegedly had taken place at the relevant location. She stated that when she arrived at the scene of the collision, she observed both damaged vehicles parked in a parking lot, off of the roadway where "the accident" took place.

[27] Officer Draker was then assigned to the task of preparing "the motor vehicle collision report". In doing so she made note of all individuals at the scene. She testified, however, that she doesn't recall any of her "colleagues" conversing with any persons at the scene at that time. She went on to state that she didn't recall any other police officer taking a statement from Ms. Vaughan, but that she did receive some basic information about Ms. Vaughan from her "partner" to assist her in filling in the blanks on the collision report.

[28] When the prosecutor suggested to the officer that she was not aware of where statements were taken or given by individuals, Constable Draker responded as follows:

The statements would have been taken on scene because they were given to me after they were completed to add to the MVC report. Because after completing this, at the end of a shift we have to sign it and put it in the sergeant's mail slot and they have to approve all the documents that were taken on scene.

[29] The constable then stated that any statements that were taken from individuals would be "paper-clipped" to the "single page report" that she would have filled out.

[30] While Constable Draker confirmed that the statements would have been taken from individuals at the scene, she stated that she was never in earshot of any conversation that her "colleague" would have had with Ms. Vaughan during the taking of her statement. In that regard, the constable stated that at that time, she was in her police vehicle "completing the paperwork". When Ms. Radoslav asked the constable if she had "any personal interactions with Ms. Vaughan on the scene", the officer responded "not that I can recall".

[31] During her testimony-in-chief during the voir dire, Constable Draker advised that she did make some observations of Ms. Vaughan at the scene. She advised that at the relevant time, Ms. Vaughan did not show any signs of impairment by an intoxicant nor did it appear that she was suffering from any type of injury that could have impaired her abilities. In completing her testimony in chief, Constable Draker advised that no one was taken from the scene of the collision by ambulance. She went on to confirm that Ms. Vaughan was never placed under arrest.

[32] During cross-examination, Constable Draker confirmed that she could not recall having any direct interaction with Ms. Vaughan. In that regard, she acknowledged that she did not overhear the statement that was taken from Ms. Vaughan and that she was not privy to any conversations which took place between the officer and Ms. Vaughan. She further acknowledged that she was not able to testify as to whether Ms. Vaughan was ever detained, whether she was advised of her rights to counsel or if a caution was ever given to her.

[33] Officer Draker advised that she received documents from her partner apparently containing statements obtained by him as part of his investigation. She testified, however, that she never confirmed the document containing the statement with the person after she received it from her partner to attach to the motor vehicle collision report.

[34] In response to Mr. Brereton's final question as to where, at the scene, the statements were taken, Constable Draker stated that "it would have been in the parking lot where all the vehicles were". She could not recall whether or not the statement was taken either inside Ms. Vaughan vehicle or inside the police officer's cruiser.

RELEVANT STATUTORY PROVISIONS

[35] The provisions of subsections 199(1) and 199(3) of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, hereinafter referred to as "the H.T.A.", are relevant to this issues on this voir dire. Those subsections read as follows:

s. 199(1) Every person in charge of a motor vehicle or street car who is directly or indirectly involved in an accident shall, if the accident results in personal injuries or in damage to property apparently exceeding an amount prescribed by regulation, report the accident forthwith to the nearest police officer and furnish him or her with the information concerning the accident as may be required by the officer under subsection (3).

s. 199(3) A police officer receiving a report of an accident, as required by this section, shall secure from the person making the report, or by other inquiries where necessary, the particulars of the accident, the persons involved, the extent of the personal injuries or property damage, if any, and the other information as may be necessary to complete a written report concerning the accident and shall forward the report to the Registrar within ten days of the accident.

THE ISSUES

[36] The two issues to be resolved on this voir dire are as follows:

1. Whether or not the prosecution has proven, beyond a reasonable doubt, that the statements made by Ms. Vaughan to Officer Hoyle at the material time, were made voluntarily?

2. If the statements were made voluntarily, whether or not Ms. Vaughan has established on a balance of probabilities, that they were compelled by statute, thereby violating the common law principle against self-incrimination.

[37] If the prosecution cannot prove the primary issue of the voluntariness of the defendant's alleged statements, beyond a reasonable doubt, then the statements may not be admitted into evidence in this proceeding as an admission. On the other hand, if the prosecution is able to prove that the statements were made by the defendant voluntarily, Supreme Court of Canada jurisprudence supports the proposition that a voluntary statement made by an accused/defendant is not rendered involuntary simply because it is statutorily compelled.

[38] As stated above, the defendant through her representative, is seeking an order excluding her alleged statements, on the basis that it violates the common law principle against self-incrimination, now embodied in section 7 of the Charter. Mr. Brereton cannot seek an order to exclude the statement under subsection 24(1) of the Charter because he failed to make the appropriate application for such a remedy, required by the rules prescribed by section 109 of the Courts of Justice Act, supra.

[39] He has, however, made an oral application to exclude Ms. Vaughan's statement on the basis that the common law principle against self-incrimination has been violated by the prosecution and on the basis of the common law duty of the trial judge to exclude evidence whose admission would render the trial unfair. The defendant bears the onus of establishing, on a balance of probabilities that the statements were made under circumstances of statutory compulsion. If she cannot meet that onus, she will not succeed in her application to exclude the statements, based upon the common-law principle that the admission of such statutorily-compelled evidence would render the trial unfair.

[40] I will now examine each of these issues in the context of the evidence which I have received during this voir dire and the relevant jurisprudence.

ANALYSIS

(i) Whether or not the prosecution has proven, beyond a reasonable doubt, that the statements made by Ms. Vaughan to Officer Hoyle at the material time, were made voluntarily?

(A) The Law

[41] A statement made by an accused person to a person in authority and tendered through the testimony of the person in authority, is admissible as evidence in a criminal or quasi-criminal proceeding, if it was made voluntarily. The prosecution bears the onus of establishing the voluntariness of the statement, to the standard of proof beyond a reasonable doubt. If the prosecution fails to meet this evidentiary burden, then the statement will not be admitted into evidence in the proceeding (see Regina v. T. (S.G.), 2010 SCC 20, [2010] S.C.J. No. 20).

[42] In his decision in Regina v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, Iacobucci J. identified four factors which must be considered when determining whether the prosecution has met its burden of proving the voluntariness of a statement made by an accused person to a person in authority. Those factors are:

1. Threats, promises or inducements – that is whether the statement was made as a result of "fear or prejudice or hope of advantage". As stated in paragraph 57 of Oickle, "the most important consideration in all cases is to look for a quid pro quo offer from interrogators, regardless of whether it comes in the form of a threat or promise";

2. Oppression – that is whether the statement was made by the accused in circumstances created by the persons in authority, which could reasonably be characterized as oppressive. In paragraph 60 of Oickle, Mr. Justice Iacobucci referenced the following factors which, in his view, could create an atmosphere of oppression: "depriving the suspect of food, clothing, water, sleep or medical attention; denying access to counsel; and excessively aggressive, intimidating questioning for a prolonged period of time";

3. Operating mind – that is whether at the time of the statement, the accused possessed sufficient cognitive ability to understand what he/she is saying and that the statement could be used against him or her. In that regard, in paragraph 63 of Oickle, Iacobucci J. adopted the reasoning of Sopinka J. in the case of Regina v. Whittle (1994), 92 C.C.C. (3d) 11, in explaining that "the operating mind requirement 'does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment'";

4. Police trickery – that is whether in obtaining a statement or a confession from an accused, persons in authority engaged in tactics which undermined the integrity of the criminal justice system.

[43] It should also be noted that the Supreme Court of Canada has endorsed the proposition that a statutorily compelled statement is not, by that reason alone, an involuntary statement. In that regard, in his concurring judgment in the matter of Regina v. Marshall, [1961] S.C.R. 123, at page 5, Cartwright J. stated as follows:

It has long been settled that statements made under compulsion of a statute are not by that reason alone rendered inadmissible in criminal proceedings against the person making them; it is sufficient on this point to refer to Walker v. The King, [1939] S.C.R. 214 at 217. …

[44] In his decision in Regina v. Slopek, [1974] O.J. No. 826 (Ont. C.A.), at paragraph 5, Mr. Justice Martin followed the aforesaid proposition of law, stating as follows:

The law in Ontario, however, has taken a different course. The law has, of course, been settled since the case of Walker v. The King, [1939] S.C.R. 214, that the fact that a statement is made under the compulsion of statute does not render the statement involuntary; that the term 'voluntary' in relation to statements made by an accused to a person in authority is issued in a special sense, namely in a sense that the statement has not been obtained by promises or threats. …

(B) Application of the Law to the Facts of this Case

[45] The only evidence tendered during this voir dire was the testimony of prosecution witnesses, Police Officer Michael Hoyle and Police Constable Chelsea Draker. During her testimony, Constable Draker acknowledged that she had no direct interaction with Ms. Vaughan at any time leading up to or at the time of her alleged statements to Officer Hoyle.

[46] On the other hand, Officer Hoyle had direct interaction with the defendant immediately before and during the time that she made the alleged oral and written statements to him. Officer Hoyle testified that in receiving the statements, he did not make any promises or inducements to her or threaten her. There is, therefore, no evidence before me which objectively establishes that the subject statements were related to fear of prejudice or hope of advantage in the mind of Ms. Vaughan.

[47] In respect of the factor of whether the statement was made by the defendant under oppressive circumstances, I am of the view that there is no evidence before me which objectively establishes this factor.

[48] I acknowledge that Ms. Vaughan's statements were made in a parking lot, while she was standing beside her vehicle, shortly after the time she had been involved in a motor vehicle collision. It is understandable that this would be an emotional time for her, however, I am of the view that the evidence before me in this voir dire does not permit me to objectively infer that the statements were made in an atmosphere of oppression, as that phrase was illustrated by the Supreme Court of Canada in Oickle.

[49] I note that Officer Hoyle testified that at the time of taking Ms. Vaughan's statements, he was in the process of investigating a motor vehicle collision. He advised that once he identified Ms. Vaughan as being one of the parties involved in the collision, he entered into a conversation with her in an attempt to further his investigation of the collision. The officer stated that he did not touch Ms. Vaughan at any time, that she was never placed under arrest, and at the time of receiving the subject statements, he had not made any decision as to what "charges" would be laid. He acknowledged, however, that he did not caution Ms. Vaughan prior to asking her to make a statement pertaining to the circumstances of the collision.

[50] There is no evidence before me that Ms. Vaughan was subjected to aggressive or intimidating questioning for a long period of time from Officer Hoyle or from any other police officer, prior to the time that she made the alleged statements. She was not under arrest and there is no evidence that she was denied the opportunity to walk away from the officer and refuse to make the statements. In short, based upon the evidence before me there is no evidence upon which I could conclude that the circumstances surrounding the reception of Ms. Vaughan's statements by Officer Hoyle, were so oppressive as to overcome her will and render those statements unreliable. There is insufficient evidence before me to conclude that Ms. Vaughan's statements were made in oppressive conditions as those conditions are defined in Oickle.

[51] The next factor which I must consider is whether or not Ms. Vaughan's statements were made by her with an "operating mind".

[52] In this regard, the prosecution need only prove that at the time of the statement, the defendant had sufficient cognitive ability to understand what she was saying to Officer Hoyle and that she was speaking to a police officer who could use her statements to her detriment. The law does not require that the prosecution prove that an accused was cautioned prior to making the statement, in order for the statement to be considered as being made by a person with an operating mind.

[53] In this regard, both Officer Hoyle and Officer Draker testified that based upon their observations, prior to the time of the statements, Ms. Vaughan did not appear to be suffering from any injury or impairment. Officer Draker testified that the defendant did not appear to be impaired by an intoxicant at the relevant time.

[54] Furthermore, Officer Hoyle testified that he interviewed the defendant in the English language and there were no language issues. He went on to note that at that time, Ms. Vaughan was coherent and that her responses to his questions appeared to fit the questions.

[55] There is no evidence before me to suggest that at the time of making her statements, Ms. Vaughan was suffering from any form of cognitive impairment that would have affected her ability to understand what she was actually saying to Officer Hoyle and which would affect her understanding that she was making the statements to a police officer who could use them to her detriment. There is no evidence that she was suffering from an injury or impaired by an intoxicant which would affect the reliability of her statements at the time. I am able to draw a reasonable inference from the evidence received on this voir dire that at the time of her written and oral statements to Officer Hoyle, Ms. Vaughan had an operating mind, as that term is defined in Oickle.

[56] Finally, there is no evidence before me that Officer Hoyle engaged in trickery to obtain the statement. The officer testified that at the time of the statement, he was conducting his required duties as a police officer to investigate a motor vehicle collision. He was dressed in his police patrol uniform at the time.

[57] Officer Hoyle advised that at the relevant time, he had not decided as to what charges would be laid and that he took the statement from the defendant in order to help him "try to figure out what happened in the accident". When Officer Hoyle was asked whether the defendant could have faced any charges if she refused to provide a statement to him relative to the collision, Officer Hoyle advised "probably not" noting that if she declined to provide him with the requested statement, he would have to explore "other avenues" to determine the circumstances of the alleged collision.

[58] The evidence before me shows that Officer Hoyle conducted his investigative duties at the relevant time in a professional manner. He did not attempt to distort the purpose of his attendance at the scene; to investigate the particulars of the collision, and he did not engage in strategies to deceive Ms. Vaughan with respect to his role in the police investigation. There is no evidence before me which suggests that in taking the statements from Ms. Vaughan at the material time, that either Officer Hoyle or Officer Draker engaged in strategies of trickery, designed to mislead Ms. Vaughan as to their role in the investigation and as to why they were requesting a statement from her.

[59] In conclusion, after considering the totality of the evidence received by me during this voir dire, and applying that evidence to the factors that are relevant to the issue of the voluntariness of an accused's statement to a person in authority, I am of the view that the prosecution has proven, beyond a reasonable doubt, that the statements allegedly made by Ms. Vaughan to Police Officer Hoyle at the material time, were made voluntarily. In reaching that finding, I have determined that the evidence adduced by both Officer Hoyle and by Officer Draker to be credible, in that their testimony is both internally and externally consistent. Additionally, the strength of their respective testimony relative to the primary issue of the voluntariness of the subject statements has not been diminished through cross-examination.

[60] The totality of the evidence proffered by the prosecution during this voir dire covers all of the necessary elements of the voluntariness inquiry and therefore establishes a permissive prima facie case that the defendant's statements were made voluntarily. There is no evidence before me which contradicts the prosecution evidence during this voir dire. Accordingly, the prosecution's permissive prima facie case on the subject issue is elevated to a presumptive prima facie case, equivalent to proof beyond a reasonable doubt. The prosecution has, therefore, met its burden of proof on this threshold issue. The totality of the evidence on this voir dire has objectively established, beyond a reasonable doubt, that Ms. Vaughan's written and oral statements at the material time were made by her voluntarily.

(ii) Whether or not Ms. Vaughan has established, on a balance of probabilities, that the statements that she made to Officer Hoyle at the material time were compelled by statute, thereby violating the common law principle against self-incrimination?

(A) The Law

[61] The leading case pertaining to the issue of the exclusion of self-incriminating evidence obtained through statutory compulsion, is the Supreme Court of Canada decision in Regina v. White, [1999] 2 S.C.R. 417. In that decision, Mr. Justice Iacobucci, writing for the majority, found that it was open to a court to exclude evidence which violated either the Charter or the common-law principles against self-incrimination. In such circumstances, the onus of proof would rest on the accused to prove the violation, including the fact that the self-incriminating statement was compelled by statute.

[62] In paragraph 40 of White, supra, Iacobucci J., stated "that there exists, in Canadian law, a principle against self-incrimination that is a principle of fundamental justice under section 7 of the Charter". In defining the principle against self-incrimination, the said jurist adopted the definition stated by Lamer C.J. in the case of Regina v. Jones, [1994] 2 S.C.R. 229, as follows:

The principle against self-incrimination, in its broadest form, can be expressed in the following manner: …the individual is sovereign and… proper rules of battle between government and individual require that the individual … not be conscripted by his opponent to defeat himself… .

Any state action that coerces an individual to furnish evidence against him-or herself in a proceeding in which the individual and the state are adversaries violates the principle against self-incrimination. Coercion, it should be noted, means the denial of free and informed consent.

[63] In this proceeding, Mr. Brereton submits that Ms. Vaughan was coerced by operation of subsections 199(1) and 199(3) of the H.T.A. to provide the subject statements to Officer Hoyle at the material time. He states that subsection 199(1) compels an individual who is involved in a motor vehicle accident to report the accident forthwith to the nearest police officer and furnish the officer with information concerning the accident, as required under subsection 199(3). There is no question that the provisions of those subsections compel any person who is directly or indirectly involved in an accident to make a statement to a police officer; an agent of the state, pertaining to the accident.

[64] As indicated above, Regina v. White stands for the proposition that statements made by an accused person which are compelled by statute and thereby violating the principle against self-incrimination, may be excluded in a criminal proceeding, either under s. 24(1) of the Charter or pursuant to the common law duty of a trial judge to exclude evidence whose admission would render the trial unfair.

[65] White also stands for the proposition that it is up to an accused to prove that a statement was made under statutory compulsion. The accused must prove that the accident report or statement was made to the police on the basis of "an honest and reasonably held belief that he or she was required by law to report the accident to the person to whom the report was given" (White at paragraph 75).

[66] In paragraphs 76 and 77 of his decision in White, Mr. Justice Iacobucci elaborates on the need for an honest and reasonably-held belief by the accused that he/she is required by law to report an accident, as follows:

The requirement that that the accident report be given on the basis of a subjective belief exists because compulsion, by definition, implies an absence of consent. If a declarant gives an accident report freely, without believing or being influenced by the fact that he is required by law to do so, then it cannot be said that the statute is the cause of the declarant's statements. The declarant would then be speaking to police on the basis of the motivating factors other than s. 61 of the Motor Vehicle Act.

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

[67] At paragraph 81 of his decision in White, Mr. Justice Iacobucci deals with the issue of who bears the onus to prove that the self-incriminating statement was compelled by statute. He found that the burden in this regard rested on the accused, on a balance of probabilities, and in doing so firmly rejected the proposition that it was the responsibility of the Crown to establish that an accident report containing compelled statements was not made pursuant to a statutory duty.

[68] Accordingly, it is clear that if an accused person wishes to obtain an order excluding a statutorily compelled statement on the basis that the admission of the statement in a proceeding would violate the common-law principle against self-incrimination and thereby render the trial unfair, he/she must prove on a balance of probabilities that the statement was statutorily compelled. Specifically, the accused bears the burden of showing that he/she gave the accident report to the police on the basis of his/her honest and reasonably-held belief that he or she was required by law to report the accident to the police.

(B) Application of the Law to the Facts of this Case

[69] It is clear that the combined provisions of subsections 199(1) and 199(3) of the H.T.A., places a duty upon a potential accused to provide a self-incriminating statement relating to a motor vehicle collision, to the police as agent of the state. The admission of that statutorily compelled statement in a criminal or possibly a quasi-criminal proceeding, would violate the principle against self-incrimination, which prevents the state from coercing individuals to provide evidence against themselves in proceedings in which the state and individuals are adversaries.

[70] In this case, the representative for the defendant submits that the oral and written statements made by his client to Officer Hoyle at the material time, were statutorily compelled. He therefore argues that his client was coerced into making those statements, that they were not made consensually, and that accordingly the statements should be excluded from the evidence in the subject proceeding pursuant to a trial judge's common law duty to exclude evidence which, if admitted, would render the trial unfair.

[71] The representative for the defendant has not, however, established an evidentiary foundation for his submission in this regard. There is no evidence before me during this voir dire which establishes, on a balance of probabilities, that at the time that she made the subject statements, Ms. Vaughan had an honest and reasonably-held belief that she was required by law to make the statements.

[72] While the prosecution bears the onus of proving that the statements that Ms. Vaughan made to the police officer were voluntary, beyond a reasonable doubt, the legal burden of proving that the statements were statutorily compelled rests on the defendant, on a balance of probabilities. If the defendant is not able to meet this burden, then the voluntary statements will be considered to be non-statutorily compelled, and admitted into evidence.

[73] In my view, there is no evidence before me on this voir dire, which shows, on a balance of probabilities, that at the material time Ms. Vaughan honestly and reasonably believed that she was required by law to make the statements that she did to Officer Hoyle. I am not able to draw a reasonable inference from the totality of the evidence that it is more probable than not that in reporting the collision to Officer Hoyle, Ms. Vaughan was doing so on the basis of her subjective and reasonably-held belief that she was required by the H.T.A., to report the accident forthwith.

[74] Ms. Vaughan has failed to meet her burden of proof in respect of this discrete issue. She has not, therefore, established on balance of probabilities, that the admission of the statements into evidence in this proceeding would violate the common-law principle against self-incrimination. I am not, therefore, persuaded that the admission of the alleged statements into evidence would render the trial unfair.

CONCLUSION

[75] Based upon the evidence which I have received during the course of this voir dire, I find that the prosecution has proven, beyond a reasonable doubt, that the written and oral statements made by Ms. Vaughan to Police Officer Michael Hoyle in the evening of July 28th, 2017, were made voluntarily. Additionally, I find that the fact that Ms. Vaughan was required by the provisions of subsection 199(1) of the H.T.A. to report the collision to a police officer forthwith does not, by that reason alone, render the statement involuntary.

[76] Furthermore, I acknowledge that if the defendant made the subject statements on the basis of her honest and reasonable belief that she was required to do so by law, then the admission of the statements into evidence in this proceeding would violate the common-law principle against self-incrimination. However, as stated above, the defendant has not met her onus of persuasion in this regard.

[77] She has not shown, on a balance of probabilities, that at the time that she made the subject statements that she honestly and reasonably believed that she was compelled by the H.T.A. to report the circumstances of the motor vehicle collision to a police officer. There is no evidence before me to establish what motivated Ms. Vaughan to speak with Officer Hoyle at the material time.

[78] Ms. Vaughan has failed to prove that she made the statements to the police officer on the basis of her subjective and reasonable belief that she was compelled by statute to do so. She has not, therefore, established that the principle against self-incrimination has been violated.

[79] I therefore find that Ms. Vaughan made the statements voluntarily and that she has not established cause to exclude them on the basis of a violation of the principle against self-incrimination. The subject written and oral statements are therefore found to be admissible and may be received into evidence for the truth of their contents, as an exception to the hearsay evidence rule.

Released: December 14, 2018

Signed: "Justice of the Peace Kenneth W. Dechert"