ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
Stephen Treliving
Appellant
Vlatko Karadzic, for the Respondent
J. Brennan Smart, for the Appellant
HEARD: May 7, 2013
Glithero j.
REASONS FOR JUDGMENT
1Mr. Treliving appeals his summary conviction on a charge of operating a motor vehicle with a blood alcohol level exceeding 80 milligrams in 100 millilitres of blood, contrary to s.253 (1)(b) of the Criminal Code, R.S.C. 1985, c. C-46.
2There are two grounds of appeal:
(a) whether the appellant’s admission that he was the operator of the vehicle was statutorily compelled and hence inadmissible;
(b) whether the appellant’s s.10(b) Charter right was infringed.
The Evidence
3The general factual situation is uncontroversial. On April 3, 2011 a vehicle containing the appellant and one other person left the roadway near the on ramp from Highway 8 to Fairway Road in the City of Kitchener, went down an incline, and ended up on its roof.
4A civilian motorist observed the event from the point where the vehicle was coming to rest on its roof. He called the police of his own accord.
5The investigating police officer was situated nearby and heard the sound of the accident and responded, arriving very shortly thereafter.
6When he arrived, the investigating officer, Cst. Valcanoff, approached the appellant and the other male occupant who were standing at the rear of the vehicle arguing. The officer initially asked if there were any injuries and received a negative reply.
7Up to that point, there is little discrepancy as to the material facts.
8As to what happened after the inquiry about injuries, there are some variations within the officer’s evidence in chief, in cross-examination and in his notes.
9Once the appellant had identified himself as the operator of the vehicle, Cst. Valcanoff then asked him for identification, which was produced.
10Thereafter, there was conversation between the appellant and the officer concerning the circumstances of the accident, and the officer made observations of alcohol consumption by the appellant, and the appellant admitted having consumed alcohol.
11The officer concluded that he had reasonable and probable grounds to arrest the appellant for impaired driving, and did so.
12Importantly, it was conceded by the crown at trial that the appellant’s admission that he was the driver of the motor vehicle was the only evidence that could support a reasonable and probable ground to believe that he had been operating the vehicle, and hence that the arrest and the breath demand were lawful.
13Shortly after the arrest, Cst. Valcanoff read the rights to counsel from his notebook, asked the appellant if he understood, and then asked the appellant if he wished to call a lawyer. The appellant responded “Can I call my parents? I don’t know what to say.”
14The officer did not directly respond, but explained options to the appellant, namely that he could phone a lawyer, that a phone book would be provided, or that duty counsel could be arranged and that a free telephone number was available. The appellant did not respond to the officer’s explanation of the available options.
15Shortly thereafter, Cst. Valcanoff and the appellant travelled to the detachment. On route there was casual conversation between the two men, which was found by the trial judge to show a relaxed and non-confrontational relationship between the two.
16The evidence of the officer was that, at the roadside, the appellant never asked to speak to a lawyer or duty counsel, and he made no further request to speak to his parents. The officer’s evidence is also that at no time did the appellant give a reason as to why he wished to call his parents. Specifically, the appellant never linked the request to call his parents with a need or wish to do so in conjunction with obtaining counsel.
17The officer surmised that the request to call his parents reflected a wish on the part of the appellant that his parents would know he was not injured in the accident. The officer never linked it with a need to speak to the parents in conjunction with the exercise of the right to counsel.
18Cst. Valcanoff further testified that at the detachment, the accused was put into an interview room and again was asked whether he wished to call counsel and that in response there was neither a request to speak to counsel, nor to call his parents. Again the available options were explained to the appellant, but he declined to exercise any of them.
19Upon being told of the options, in terms of exercising the right to counsel, the appellant’s response, once in the interview room, was to ask the officer what he would suggest. Cst. Valcanoff indicated he could not make suggestions, but again advised him that he had the right to speak to counsel or he could “hook up” the appellant with duty counsel for free. As the appellant appeared uncertain as to what to do, the officer indicated he would give him time to think about it and left him alone in the room for five minutes and then returned. He again asked the appellant if he wished to call counsel and the appellant answered he still did not know what to do.
20The officer gratuitously provided the appellant with information concerning the standard fine, the loss of licence, and information on whether the charge would proceed, depending on the breath test results, but made clear he could not say what would happen. The appellant indicated that he “wasn’t going to be over”, that he did not wish to speak to a lawyer and he would “go do the test”.
21The officer advised the appellant that if he changed his mind about a lawyer, he was to so advise. He never did.
22In cross-examination, the officer confirmed that once he attended and observed the vehicle upside down on its roof, he was in fact conducting an investigation under the Highway Traffic Act, R. S. O. 1990, c. H.8, and possibly one for dangerous driving.
23The officer acknowledged in his “will state” that the appellant had identified himself as the driver of the vehicle without any inquiry from the officer. At trial, however, the officer insisted that he recalled having made the inquiry even though it was not in his notes.
24The officer further acknowledged that he believed a driver is obligated under the Highway Traffic Act to identify himself and to provide details of an accident.
25In cross-examination, the officer testified that he told the appellant that he could not call his parents because he is an adult, but he could call a lawyer and then the lawyer could call the parents, if that was his wish.
26The officer also testified that had the accused indicated that his request to speak to his parents was for the purpose of assisting him in retaining counsel, then a call to the parents would have been permitted. However, his instructions from superior officers were that it would be an officer who would call the parents to obtain the information about counsel, rather than the appellant being permitted to call his parents himself. The call to the parents would only be made if the appellant, in some way indicated that the wish to speak to his parents was associated with a desire to obtain legal assistance.
27It is important to point out that at the outset of trial, the defence indicated that there was no issue as to the voluntariness of any statements made by the appellant, and expressly waived the need for a voir dire. Given that a s.7 Charter motion based on statutory compulsion was served before trial, and indeed was the main issue at trial, it is evident that the concession that the statements were voluntary did not include a concession that they were not the result of statutory compulsion.
28By agreement between counsel, the crown evidence on the trial was to also apply on the Charter application. By further agreement, at the end of the crown evidence, the appellant was then given the option of whether he wished to testify on the Charter application, which he did.
29In terms of the material facts, the appellant testified that as the officer approached, the appellant went up to him and told him that he was okay and that had been the one driving the vehicle. He testified that he told the officer this information as he had been taught in his driver’s education course that he had to let the officer know who was driving if there had been an accident. The appellant testified that he believed and was taught that there was a legal requirement that he identify himself as the driver and that he did so in this case in fulfillment of that requirement.
30As to the right to counsel, the appellant agreed that when asked if he wished to contact a lawyer, he had requested to call his parents, as he did not know what to say. He explained that his parents had used a lawyer previously, that he did not know the name of the lawyer, and that he wanted to find out that name from his parents and to get his parents’ opinion as to whether that lawyer would be appropriate.
31The appellant testified that when the officer repeated his options, he took that as being an indication that he would not be allowed to call his parents. He never made any further requests to do so, or to call counsel.
32The appellant agreed that the officer was respectful and that the two were comfortable with each other.
33The appellant testified that he had had his licence for three or four months at the time of the accident, and that he had taken driver education before getting his licence and reiterated that he was taught that if involved in an accident, he had to identify himself as the driver. The appellant further agreed in cross-examination that in admitting he was the driver, he also wanted to advise the officer of his belief that he had been cut off by some other driver, which then caused the accident.
34As to the issue of statutory compulsion, the following exchange in cross-examination of the appellant is important:
Q. So, my question is, Mr. Treliving, even if you didn’t have a lawful requirement to report, you would have gone ahead and provided that information to Officer Valcanoff because that’s the kind of person you are?
A. He’s an officer, I’m supposed to.
Q. Even if you didn’t have to, if you weren’t supposed to, you would have gone ahead and offered it anyhow because that’s who you are, that’s the kind of person you are?
A. Not necessarily.
Q. Okay, explain that.
A. Um, if it was a different circumstance?
Q. I’m talking about the exact same circumstance.
A. Yeah, I’d probably end up still……
Q. You’d probably end up still what?
A. Telling him what exactly happened.
35I think it fair to make further references to the cross-examination of the appellant.
36Each time he was asked previously in cross-examination about his willingness to admit to the police officer that he was the driver, he agreed that he respected the law, and that he abided by the law, but he always added that’s what he was trained to do, or that’s what he was required to do, and that is what he was taught.
37The following exchange took place immediately before the portion of the transcript quoted above in paragraph 35:
Q. Okay. And you had no problem coming forward and giving him as much information as possible so that he was most informed as to what happened?
A. Correct.
Q. And that’s something you had no problem in doing, right?
A. No.
Q. And you’d do it again?
A. Hopefully not.
Q. Well, if you found yourself in that situation ...
A. Yes.
Q. ... you’d be just as forthcoming right?
A. Yes.
Q. Even if you weren’t required to do it, it’s something you would do because that’s who you are as a person?
A. Well, I’ve been trained so.
Q. Even if ...
A. Like, I wouldn’t ...
Q. ... you weren’t required to do it, it’s something you would do because that’s who you are as a person?
Objection by Mr. Smart ... (the initial trial transcript did not contain the content of the objection but a separate subsequent transcript reveals the following:)
Mr. Smart: Can you please stop before he---your Honour, I’m going to object to the question. If—a hypothetical question put to the witness because she doesn’t like the answer she’s receiving is not proper and that’s what’s going on here. See---even if we forget what you’re supposed to do, what would you do, that’s the question
The Court: Well, it’s cross-examination. The crown’s allowed some latitude. Go ahead.
38And then follows the previously quoted section.
39After the cross-examination was completed, Mr. Smart sought to re-examine and after asking a question about why Mr. Treliving told the officer that he was the driver, but before the appellant answered, the initial trial transcript indicates that there was a Crown objection. (The subsequent separate transcript contains the following exchange)
Ms. Warne: I don’t know if that’s proper re-examination.
The Court: Well, it’s probably already covered. He’s pretty much indicated because he felt he was trained that way and that’s what he was required to do.
Mr. Smart: I agree, but, you know, I don’t have any……
The Court: I don’t have any doubt about his evidence in that regard.
Mr. Smart: All right. That’s fine, thank you, that’s fine.
40That concluded the evidence on the Charter application.
Findings of Fact
41The learned trial judge made findings of fact, supported by the evidence and available for him to make. He found that the officer asked who was driving the vehicle and that the appellant responded that he was. The learned trial judge found that nothing was said by the officer to the appellant to indicate that he was embarking on the preparation of a report concerning the accident, nor was anything said by the officer to the appellant to indicate that he was required to provide any information.
42The learned trial judge found as a fact that the appellant did not approach the officer and volunteer that he was the driver of the vehicle, but rather so admitted in response to the officer’s question of who was driving.
43The learned trial judge found as a fact that at no time did Cst. Valcanoff complete an “accident report” and that the only “accident report” completed in this matter was by another officer, Cst. Adams, who had had no contact with the appellant.
Analysis at Trial
44The trial judge began his analysis of the alleged Charter breach by correctly observing that the onus of proving a breach was on the appellant to the civil standard.
45The trial court began its consideration of the statutory compulsion issue by reference to the Supreme Court of Canada’s decision in R. v. White (1999), 1999 689 (SCC), 2 S.C.R. 417. There, following a fatal accident, the accused left the scene, but the next day reported the accident to the police and gave the police statements concerning how it had occurred. The evidence was found to be statutorily compelled and its admission offended the principles of self- incrimination as protected by s. 7. The learned trial judge correctly observed that in White, the Supreme Court had set out the test as being a determination of whether at the time the accident was reported by the driver, the driver gave the report on the basis of an honest and reasonably held belief that he or she was required by law to report the accident to the person to whom the report was given. The basis of subjective belief exists because compulsion implies an absence of consent and the requirement that the belief be reasonably held relates to the meaning of compulsion. The onus rests on the accused raising the Charter challenge to establish an infringement of his or her rights on a balance of probabilities. The Supreme Court held that if an accident report is freely given, without belief or influence by the fact that the accused is required by law to provide the police with the information, then it is not statutorily compelled. The Supreme Court also held that the requirement that an accused have an honest belief reasonably held does not necessarily mean that as a matter of law that the duty to report the accident exists, as for example where the quantum of damages is not enough to trigger the reporting requirement.
46The trial judge also considered the case of R. v. Soules, 2011 ONCA 429,[2011] O.J. No. 2500 where the Court of Appeal considered a situation where an accused testified that he had remained at the scene of an accident until the police arrived and answered the officer’s questions because he was required to do so by law. The court found the admissions to be compelled by statute and hence excluded them. In Soules the court was aware of the prosecution argument that the interpretation from White might well cripple the investigation of drinking and driving offences and referred to the Supreme Court’s references in White to steps that might be taken by the police to ameliorate these concerns.
47Next, the trial judge here turned to a decision of the more recent case of R. v. Parol, 2011 ONCJ 292, [2011] O.J. No. 2641, a decision of the Ontario Court of Justice. In that case, it was held that to succeed on the White argument, an applicant must establish to the civil standard that he was in fact compelled by statute to provide a report, that the statements he made were a “report” within the meaning of the compelling statute, and that he gave the report with an honest and reasonable belief he was compelled by the statute to do so.
48In Parol, the court thought the test to be whether the report to the officer could reasonably be considered to be an “accident report”. There, the accused had not called the police to “report the accident” but rather had a discussion with the police once they arrived in which he admitted to being the driver. The trial judge in that case thought it “absurd” to think that the exchange of that nature amounts to the making of an “accident report”. That court also found that the accused did not have an honest and reasonable belief that he was compelled to make the utterances he did. In Parol, the trial judge relied on a distinction flowing from White as between the making of a report pursuant to statute and an ordinary police investigation.
49Based on those observations and the findings of fact made here, the learned trial judge found that it was apparent from the cross-examination of Mr. Treliving that he would have disclosed the fact that he was the driver in any event, regardless of his belief that the law required him to do so. He concluded that the appellant waffled in his evidence as to his training and belief in the legal requirement to identify himself as the driver. He based that observation on the fact that the period of time from the arrival of the officer to the utterance was short; the accused did not seem to be aware of the officer until the officer was coming down the embankment to where the car was; the appellant never asked that the police be called or attempt to call them himself; the officer did not ask him to make a report; and the question about who was driving was an obvious one to ask in the circumstances.
50The trial judge concluded, as a result, that “he might have felt he had an obligation but, in my view, given the rapidity within which the entire event took place and the circumstances under which the utterance was made, it is a stretch to say Mr. Treliving had it foremost in his mind that he was to report to the police because he had been trained to do so” (at para. 92). Next, the trial judge distinguished between the facts here and those in both White and Soules. In White, the accused waited a day to report the matter while in Soules the evidence was that he waited at the scene till the police came, whereas in this case, the incident took place so quickly that they “do not speak of a report with respect to an accident but simply to the initial stages of an investigation to find out what happened”.
51The trial judge found that the exchange between the officer and the appellant was not a report at all, and that the accident report was ultimately completed by another officer, who had had no contact with Mr. Treliving.
52For these reasons, the trial judge found the admission by the appellant that he was the driver was not a report within the meaning of the compelling statute and that his utterance was not made with the honest and reasonable belief that he was compelled by statute to do so.
Analysis on Appeal
53In considering this ground of appeal, I remind myself that S. 822 of the Code makes applicable to summary conviction appeals ss. 683 to 686 with certain exceptions inapplicable here. Section 686 (1) (a) permits this court to allow an appeal if of the opinion that (i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence. Among other cases, the Supreme Court held in R. v Yebes, 1987 17 (SCC), [1987] 2 S. C. R. 168, that in non-jury cases this subsection requires that the appellate court re-examine and to some extent reweigh and consider the effect of the evidence in determining if it reasonably capable of supporting the trial judge’s conclusion.
54I have concluded that the conviction in this case must be set aside for the following reasons.
55The statute giving rise to the compulsion in White was the British Columbia Motor Vehicle Act, R.S.B.C. 1996, c.318 which in section 61 requires the driver or the person in charge of the vehicle to report to a police officer, and further requires the officer receiving the report must make a written report. So that section contemplates there being two mandatory reports—one by the motorist, and one by the police officer. Section 199 of the Ontario Highway Traffic Act contains similar provisions, but with additional features which strengthen the result in Soules and White. Similar to the B.C. legislation, s. 199 requires that the motorist report the accident but also add that it be done “forthwith” and “to the nearest police officer.” (emphasis added). Section 200 in Ontario requires the motorist to remain at or immediately return to the scene of the accident and provide information to any police officer. The effect of the Ontario legislation, in my opinion, is that the motorist cannot lawfully leave the accident scene and must forthwith report to the nearest officer. The appellant could not lawfully leave the scene here, and had to provide what the statute terms to be a report to the nearest officer.
56In my opinion, the appellant had to report what had happened to Cst. Valcanoff when he did, and had to answer the officer’s enquiry as to who was driving. I note that the officer testified that at the time of the conversation he was conducting an investigation under the Highway Traffic Act, and possibly under the Criminal Code.
57Clearly the trial judge was influenced by and followed the decision in Parol. There it was held that the accident involved insufficient damage to trigger the statutory reporting requirement. In this case the only reasonable inference is that the damage here would be sufficient. In Parol, it was held that the remarks of the appellant did not constitute a “report” but rather fell into the category of “ordinary police investigation”. In my opinion, whereas here a person does what he is required to do by law, and that law describes his participation in compliance as a “report”, then the s. 7 requirements are met. Whatever “ordinary police investigation” means, here the officer testified that this was an investigation into the accident and the possible penal consequences.
58The trial judge in Parol made credibility findings which drove the result. As to the statements of principle in the interpretation of the Highway Traffic Act and when it creates a statutory compulsion in contravention of s. 7, I am of the respectful view that Parol should not be followed.
59As indicated above, the trial judge here found that the appellant waffled in his evidence and that it was apparent from his cross-examination that he would have admitted to being the driver, aside from a belief he was required to do so. With respect, I believe that finding to be one which was not fairly available. The only basis available on the transcript for such a finding was a hypothetical question requiring the appellant to pretend that the law is not the law. We are accustomed to the use of hypothetical questions in the examination of expert witnesses, as the hypotheses to be assumed to be true enable us to understand the factual component of the opinion. When it comes to lay witnesses, in my opinion, hypothetical questions ought to be used sparingly and not without care. I can find little authority. In Motaharian v Reid, [1989] O.J. No1947 (Ont. H. C.) it was said that a party, other than an expert, need not answer hypothetical questions. I am unsure as to whether I would go that far. But, I am of the opinion that where an accused gives a reason for doing something, and that reason is that it is required by law, it is then unfair to require him to assume that the law is not the law, and to say what his second choice of action would be, and then convict him on it. There is no point in questioning on an assumption that the law is not what it is. We expect citizens to know the law and to obey it. When they claim under oath to know it and to act in obeyance of it, it is unfair and unhelpful to undermine a Charter right on the basis of a hypothetical rejection of the law, and a required expression of a second choice line of action.
60Here, defence counsel attempted to object to the hypothetical question. In my opinion, his objection would have been helpful, but was given short shrift. Improper or irrelevant questions are not rendered permissible by reference to the wide latitude of cross-examination.
61Defence counsel sought to re-examine on this issue which was central to the case. If the hypothetical question was justified in cross-examination, then clearly the defence was entitled to review the topic in re-examination. He was stopped from doing so. Regrettably, and certainly unintentionally, the trial judge’s words curtailing the intended re-examination likely did more mischief by mistakenly causing defence counsel to think that he was being told that it was unnecessary given the trial judge’s view of the evidence.
62The trial judge relied on the brevity of time between the officer’s arrival and the admission. In my opinion, that does not support the conclusion that there was no belief in a requirement to make the admission to the officer. If anything, in sudden or fast moving circumstances, you would expect a person to act as they have been trained to act.
63It is observed in the reasons that the officer did not ask the appellant to make a report. The Highway Traffic Act does not make a police demand a prerequisite to the motorist’s duty.
64The trial judge concluded that the utterance of the appellant was not a report at all because a different officer ultimately completed the police accident report. With respect, in my opinion, that confuses the dual reporting requirement under s. 199. The motorist must make one report and the officer another. Furthermore, surely the existence of constitutional protection against self-incrimination cannot rest on which police officer chooses to do the paper work, a matter completely beyond the control or knowledge of an accused.
65The appellant was entitled to clear and cogent reasons for the rejection of his sworn evidence. In my opinion, a careful review of the transcript, particularly with reference to a very questionable hypothetical question, the unsuccessful attempts to object to it, and to re-examine on it, and a review of the reasons given lead me to conclude that the conviction was unreasonable in the circumstances of this trial.
The 10 (b) Issue
66On the right to counsel s.10 (b) Charter issue, the trial judge properly observed that the Crown was correct in conceding that the failure of the applicant to respond to the reading of the rights to counsel does not constitute a waiver in the circumstances of this case. The trial judge also agreed that the Crown to have been correct in conceding that the appellant was entitled to contact a third party in order to facilitate his right to counsel.
67The trial judge agreed with the Crown, however, that this appellant had not exercised due diligence in exercising his right to counsel in these circumstances. He agreed that the right to retain and instruct counsel includes an ability to communicate with someone other than a lawyer in order to get assistance in contacting a lawyer.
68The trial judge here, however, agreed that when the appellant did not in any way link the request to call his parents to the issue of obtaining access to counsel, he had not demonstrated due diligence.
69The trial judge took into account the many occasions when the right to counsel had been explained to the accused and he had been given a renewed right to exercise it. He took into account the evidence indicating the accused and the officer to have been on good terms throughout.
70In my opinion, the trial judge correctly stated the relevant legal principles and arrived at a finding which was open to him on the evidence, namely that the appellant had not exercised due diligence in exercising his right to access counsel by failing to advise the police that it was in connection with the right to counsel that he wished to speak to his parents. In my opinion, that was a finding available on the evidence and one that ought not to be disturbed on appeal.
71The trial judge ended up his judgment voicing concern about an issue raised by defence counsel arising out of the evidence of Cst. Valcanoff. Mr. Smart had argued that any Waterloo Regional Police policy prohibiting the right of an accused person to speak to a third party in order to obtain assistance in obtaining counsel was prohibited. The trial judge found that the officer’s evidence didn’t go that far, but rather was simply a recital of what the officer had been told by a supervising officer. With respect, as I see it, the issue is whether or not the police in this region understand that persons entitled to the right to counsel have the right to communicate with a third person for purposes of accessing counsel. Whether it is a written policy or verbal instructions from supervising officers to street officers is a matter of degree, but in either form such police action is unlawful.
Result
72For these reasons, the appeal is allowed, and the conviction is set aside. The issue of credibility should be determined anew, and a new trial is ordered. It is for the Crown to decide if further prosecution is warranted.
C. Stephen Glithero
Released: June 21, 2013
COURT FILE NO.: SCA 7534
DATE: 2013-06-21
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Stephen Treliving
REASONS FOR JUDGMENT
C.S. Glithero J.
Released: June 21, 2013