CITATION: R. v. Wenham, 2013 ONSC 7431
COURT FILE NO.: 007/13
DATE: 20131203
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
Serge Hamel, Crown Counsel
- and -
MICHAEL WENHAM
Applicant
Dennis W. Fenton, Counsel for the Accused
HEARD: October 21 - 24, 2013
ellies j.
CORRECTED REASONS FOR DECISION
Corrected decision: The text of the original decision was corrected on December 5, 2013 and the description of the correction is appended.
Introduction
[1] Carter Antilla died around midnight on July 30, 2011 as a result of injuries he sustained in a utility task vehicle (“UTV”) accident which occurred on a farm located just outside of New Liskeard.
[2] The Crown alleges that Michael Wenham was the driver of the UTV and that Mr. Antilla died and another passenger was injured as a result of the fact that Mr. Wenham’s ability to drive was impaired and that he had more than 80 milligrams of alcohol in 100 millilitres of his blood. In addition, Mr. Wenham is charged with taking the UTV without the owner’s consent.
[3] In this pretrial motion, the defence seeks to exclude evidence obtained at the scene of the accident, including statements made by Mr. Wenham, observations made of him, and the results of an alcohol screening demand. The defence contends that this evidence was obtained under statutory compulsion, in violation of Mr. Wenham’s right against self-incrimination under s. 7 of the Canadian Charter of Rights and Freedoms.
[4] The defence also seeks to exclude evidence obtained after Mr. Wenham’s arrest, including the results of breath (“Intoxilyzer”) tests administered from and observations made of Mr. Wenham, on the basis that Mr. Wenham was arbitrarily detained at the time that they were provided, that they constituted an unreasonable search or seizure, and that Mr. Wenham was deprived of his right to counsel, in violation of his rights under ss. 8, 9 and 10 of the Charter.
Factual Overview
[5] On the weekend of July 29, 2011 Mr. Wenham, who was 23 at the time, came to New Liskeard along with a co-worker, Jason Shoemaker. They were both employed by a shoe company and were in town to promote their employer’s products in connection with a scavenger hunt being undertaken by a local retailer.
[6] Mr. Wenham and Mr. Shoemaker worked at the store all day Saturday. During the day, they met Mr. Antilla, who, like Mr. Wenham, was an avid skateboarder. After they were finished work, the three of them left in the company van and followed another local resident, Ryan Depres, to his family cottage.
[7] As the cottage was located on an island, the young men were all met at a boat launch by Ryan’s father and were invited to spend the night. In addition to their fishing gear, Mr. Wenham and Mr. Shoemaker brought with them 12 Pabst Blue Ribbon beer, which had been left in the company van after an event in Toronto.
[8] The group arrived at the Despres cottage between 5:15 and 5:30 p.m. Once there, they changed into their bathing suits and went fishing and swimming. Mr. Wenham testified that he consumed “probably” one or two beers, but possibly as many as three or three and a half, while at the cottage. Mr. Shoemaker testified that, in addition to drinking two or three beers himself, he also smoked a marijuana cigarette that was supplied to him by Mr. Antilla. Mr. Wenham did not join him in smoking it.
[9] At some point while they were there, the young men were joined by Jesse McKay, whom Mr. Wenham had seen earlier that day at the store. Ms. McKay had plans to attend a truck rodeo in Quebec later that evening. Eventually, Mr. Wenham, Mr. Shoemaker and Mr. Antilla decided to join her. Ms. McKay told them that they could stay at her (parents) place. Neither Mr. Shoemaker nor Mr. Wenham had ever been to either the Depres cottage or Ms. McKay’s home before.
[10] It was dark when the group left the island. Ms. McKay drove them from the boat launch to her home in her vehicle. According to both Mr. Wenham and Mr. Shoemaker, they stopped to pick up another young lady named Amy (O’Meara) on the way. According to Mr. Wenham, they also stopped at Mr. Antilla’s home before arriving at the McKay residence, which was located at the end of a long driveway, on a farm.
[11] Ms. McKay parked her vehicle outside of her home and went inside with Ms. O’Meara. The men waited outside, talking. Mr. Wenham left the group at one point to relieve himself and ended up near a large barn on the property, where he found a six-wheeled UTV. The UTV had a front bench seat and a cargo holding area behind it. Mr. Wenham got in, started it up, and drove it to the house. When he got there, he heard a female yell at him to “take that back”. Although the evidence varies about where the other two young men were at the time, Mr. Shoemaker and Mr. Antilla got into the UTV and the three of them headed back to the barn. Mr. Shoemaker was sitting in the middle and Mr. Antilla was sitting on the passenger side.
[12] As the vehicle was making a left turn, it toppled onto its side. Immediately afterward, Mr. Wenham shouted out, asking if everyone was okay. Only Mr. Shoemaker answered. Mr. Wenham and Mr. Shoemaker righted the vehicle and discovered Mr. Antilla lying underneath it. Mr. Wenham dialled 911 from his cellphone, while Mr. Shoemaker tried to reassure Mr. Antilla, who was not moving, but was still responding at that point.
[13] The 911 call was recorded and was played during the pretrial hearing. It graphically demonstrates the mayhem that was taking place while Mr. Wenham was on the phone. Neither Mr. Wenham nor Mr. Shoemaker knew where they were. Mr. Shoemaker ran to the house to get that information, while Mr. Wenham tried to scoop dirt from around Mr. Antilla’s mouth and nose. Meanwhile, the operator was using the location of the cell tower to try to locate the scene and had alerted the local OPP detachment. Eventually, Ms. McKay got on the phone and provided the operator with their exact location.
[14] Three cruisers responded within seconds of the call coming in from the communications centre. One of them was driven by Constable Raymond Fortin, who was the first to arrive on the scene. Another was driven by Constable Chris Purdie, who arrived shortly after.
[15] Not surprisingly, recollections of exactly what happened from that point vary somewhat. Generally, the witnesses agree that Mr. Wenham positioned himself at the other end of the barn from the one at which the accident occurred, to await and guide the emergency responders. He first motioned Constable Fortin to where Mr. Antilla was lying. Shortly afterward, Constable Purdie pulled up to where Mr. Wenham was. According to Constable Purdie, he observed blood on Mr. Wenham’s hands. He asked him if he was involved in the accident and if he was the one who had called it in, to which he received affirmative answers. He also asked Mr. Wenham if he was hurt, to which Mr. Wenham responded in the negative. Constable Purdie then asked where the accident had occurred and was directed to the area at the other end of the barn.
[16] According to both Mr. Wenham and Constable Purdie, Mr. Wenham then came up to the area of the accident and a second conversation took place. In it, Constable Purdie asked Mr. Wenham who was driving, to which Mr. Wenham responded that he was. Constable Purdie testified that he then asked Mr. Wenham what happened and was told that the UTV had flipped over because Mr. Wenham did not know the area in which he was driving.
[17] Constable Purdie testified that he and Mr. Wenham were then joined by Mr. Shoemaker, who told him he was a passenger in the UTV. Constable Purdie said that, at the time, he did not think much had happened. There did not appear to be any damage to the vehicle, and according to him, the parties seemed calm. Mr. Shoemaker told him, “That guy really needs medical attention”, to which Constable Purdie responded, “What guy?” It was at that point, according to Constable Purdie, that he was directed to the other side of the UTV, where Mr. Antilla was lying.
[18] When Constable Purdie went to the other side of the vehicle, he saw Mr. Antilla lying on the ground and Constable Fortin standing over him, straddling his torso. Constable Fortin, who testified that he had checked for but found no pulse, shook his head, signifying that Mr. Antilla was dead.
[19] Constable Purdie testified that he then returned to where Mr. Wenham and Mr. Shoemaker were standing. He obtained Mr. Wenham’s identification and also attempted to identify the deceased. He learned that the blood he had seen earlier on Mr. Wenham’s hands was that of Mr. Antilla. Mr. Wenham and Mr. Shoemaker told Constable Purdie about their activities during the day. According to Constable Purdie, during his conversation with Mr. Wenham and Mr. Shoemaker, he detected an odour of alcohol. Although Mr. Wenham had what Constable Purdie described as “shaky” speech, he exhibited no other signs of impairment. Constable Purdie testified that, because he could not be certain from which individual the smell of alcohol was coming, he asked Mr. Wenham if and how much alcohol he had had to drink, to which Mr. Wenham replied, “one or two”.
[20] At 12:19 a.m., Constable Purdie made the standard demand that Mr. Wenham provide a sample of his breath into an approved screening device (“ASD”), with which Mr. Wenham complied. A “fail” was registered which, according to Constable Purdie, meant that Mr. Wenham’s blood alcohol content exceeded 100 milligrams in 100 millilitres of blood. According to Constable Purdie, Mr. Wenham was then arrested for the offence of operating a motor vehicle while his blood alcohol content exceeded 80 milligrams in 100 millilitres, commonly referred to as “over 80”, causing death.
[21] Constable Purdie testified that he then advised Mr. Wenham of his right to counsel under s. 10(b) of the Charter and his right to consult with a free Legal Aid lawyer. Mr. Wenham was placed in the cruiser and Constable Purdie went to get wipes from the ambulance personnel so that Mr. Wenham could clean the blood off of his hands. After assisting the ambulance attendants with Mr. Shoemaker and speaking with his supervisor, who had arrived by that time, Constable Purdie left with Mr. Wenham to attend the OPP detachment, where Mr. Wenham was administered Intoxilyzer tests. At 1:36 a.m., Mr. Wenham provided a first sample. At 2:01 a.m., he provided a second. The readings were 158 and 146 milligrams of alcohol per 100 millilitres of blood, respectively.
Issues
[22] Mr. Wenham contends that he answered Constable Purdie’s questions because he believed that he was obliged by law to do so. As a result, he argues that the answers should be excluded as evidence under s. 24(1) of the Charter, even in support of the ASD demand. If so, then the Intoxilyzer reading must be excluded, because the breath demand was based on the result of the ASD demand. He further contends that the observations that were made of him by Constable Purdie at the scene were made because he was acting in accordance with his legal duty to report the accident and should also, therefore, be excluded.
[23] Mr. Wenham disputes that he was arrested for over 80 causing death. Instead, he submits that he was arrested for impaired operation - an offence for which Mr. Wenham alleges Constable Purdie had insufficient grounds to arrest. He argues that he was detained arbitrarily, that he was deprived of the right to counsel, and that the Intoxilyzer tests constituted an unreasonable search and seizure. He submits that this should also lead to the exclusion of the evidence obtained after his arrest under s. 24(2) of the Charter, including any observations made of Mr. Wenham in that period.
[24] Based on these arguments, I am required to consider the following issues:
(1) Were the statements made by Mr. Wenham at the scene statutorily compelled?
(2) If so, should they be excluded as evidence under s. 24(1) and for what purposes?
(3) Were the observations made of Mr. Wenham at the scene statutorily compelled?
(4) If so, should they be excluded as evidence under s. 24(1) and for what purposes?
(5) Were the Intoxilyzer samples taken and the observations made of Mr. Wenham after his arrest:
(a) Provided at a time when he was arbitrarily detained?
(b) Obtained as a result of an unreasonable search or seizure?
(c) Obtained following a violation of his right to counsel?
(6) If so, should the evidence of the readings and the observations be excluded under s. 24(2) of the Charter?
[25] I have arrived at a decision with respect to the issues under s. 24(1) of the Charter. However, I require the further assistance of counsel with respect to the issues involving s. 24(2). My decision on those issues will be delivered separately.
Analysis
Were the statements made by Mr. Wenham at the scene compelled by statute?
[26] Mr. Wenham gave three important pieces of information at the scene:
(a) He identified himself as the driver of the vehicle;
(b) He provided information as to the manner in which the accident occurred; and
(c) He provided information as to the amount of alcohol he had consumed.
[27] In R. v. White, 1999 CanLII 689 (SCC), [1999] 2 S.C.R. 417, the Supreme Court of Canada held that statements made under compulsion in compliance with the Motor Vehicle Act of B.C. were not admissible in criminal proceedings against the declarant because their admission would violate the principle against self-incrimination enshrined in s. 7 of the Charter. Iacobucci J., writing for the majority, held, at para. 75, that the test:
(I)s 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.
[28] Section 199 of the Highway Traffic Act of Ontario (the “HTA”) requires drivers involved in certain types of accidents to report them to the police. Subsections (1) and (3) provide:
- (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).
(3) A police officer receiving a report of an accident, as required by this section, shall secure from the person making the report, or by other inquiries where necessary, the particulars of the accident, the persons involved, the extent of the personal injuries or property damage, if any, and the other information that may be necessary to complete a written report concerning the accident and shall forward the report to the Registrar within ten days of the accident.
[29] In R. v. Parol, 2011 ONCJ 292, Duncan J. held that White applies only to the making of an accident report, and not to an “ordinary police investigation” (at para. 6). He held, at para. 7, that, in order to fit within White, an accused must establish three things, namely:
That he was in fact compelled by statute to provide a report;
That the statements he made were a “report" within the meaning of the compelling statute; and
That he gave his report in the honest and reasonable belief that he was compelled by the statute to do so.
[30] These three requirements were recently referred to by Hourigan J. (as he then was) in R. v. Bhangal, 2013 ONSC 3156 (see para. 46), who used the Parol framework in his analysis. I propose to do the same. However, in doing so, I would not like to be taken as agreeing that an accused cannot be mistaken as to whether he was, in fact, compelled by statute or that anything more formal than simply advising the police of the accident and answering their questions about it is required to attract the protection against self-incrimination afforded by the decision in White, as I will elaborate upon, below.
[31] The Crown argues that Mr. Wenham has failed to establish all three of the requirements set out in Parol.
Was there a statutory duty to report the accident?
[32] The Crown argues that s. 199 did not apply to private property at the time of this accident and that, therefore, Mr. Wenham has not established that he was compelled by statute to provide the information that he did. In making this submission, the Crown relies on two cases, namely Shah v. Becamon, 2009 ONCA 113, and R. v. Campbell, 2009 ONCJ 157. In both cases, the courts held that a parking lot did not fit within the definition of a “highway” under the HTA. However, in the more recent decision in R. v. Hajivasilis, 2013 ONCA 27, the Court of Appeal held that the comments made in its earlier decision in Shah were obiter and, therefore, not binding. In the result, it held that the duty in s. 199 is not restricted to highways and allowed the Crown’s appeal from the dismissal of a charge of failing to report an accident which occurred on a parking lot. Based on the decision in Hajivasilis, I am unable to agree with the Crown’s submission that Mr. Wenham was not statutorily compelled to report the accident at the time that it occurred.
[33] Alternatively, even if s. 199 did not apply because Hajivasilis had not yet been decided, I would hold that the statements made by Mr. Wenham at the scene were obtained in violation of his right against self-incrimination because of his belief that it did. At paras.75 and 78 of White, Iacobucci J. wrote:
The requirement that the accident report be given on the basis of a subjective belief exists because compulsion, by definition, implies an absence of consent. If a declarant gives an accident report freely, without believing or being influenced by the fact that he or she is required by law to do so, then it cannot be said that the statute is the cause of the declarant's statements. The declarant would then be speaking to police on the basis of motivating factors other than s. 61 of the Motor Vehicle Act.
I would note that the requirement that a driver's honest belief be reasonably held does not necessarily mean that the driver must have had, as a strict matter of law, a statutory duty to report the accident. This point was made by the trial judge, who found that it may be reasonable for a driver to believe that he or she is required to report an accident even where the damage caused by the accident is not sufficient to trigger the duty to report under s. 61 of the Motor Vehicle Act, or where the driver is unaware of the extent of damage caused. Clearly, the existence of a general statutory duty to report accidents is a critical factor in determining the reasonableness of a driver's belief that he or she was required to do so. However, I would not go so far as to say that a driver's belief in the duty to report will be unreasonable simply because, for example, the property damage caused by the accident appeared to total only $500 in value, while the trigger value for the duty to report under the Motor Vehicle Act is $1000 in the case of a motor vehicle other than a motorcycle. The nature and extent of the damage caused by the accident, and the driver's awareness of such damage, will simply be factors for the trial judge to consider in evaluating the reasonableness of the driver's belief.
[34] Thus, even a mistaken belief, provided it is reasonably held, may provide the type of compulsion to which the decision in White is directed. At para. 77, Iacobucci made clear the basis for court’s decision in that case:
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… 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.
[35] Mr. Wenham’s belief that he was required by law to answer the officer’s questions was not unreasonable, especially considering the Court of Appeal’s later comments in Hajivasilis concerning the effect of its earlier decision.
Was the information provided a “report”?
[36] With respect to the second requirement laid out in Parol, namely that the statements must be a report within the meaning of the compelling statute, Duncan J. wrote (at para 7) that:
If the statement cannot reasonably be considered an accident report, as I find below in this case, the defendant’s claimed belief that he thought he was compelled to make it because of an accident reporting statute would not be reasonable – or credible.
[37] The Crown argues that Mr. Wenham has not established that the statements he made were a report. It contends that the statements in this case were made as part of an ordinary police investigation and, therefore, should not be excluded. In my opinion, the statements made by Mr. Wenham meet the second requirement in Parol.
[38] The majority in White referred to two aspects of the reporting requirement, namely (1) notifying the authorities of the fact of an accident, and (2) providing the information required by the investigator. At para. 80, Iacobucci J. wrote:
Section 61(1) requires a driver involved in an accident to report the accident and, in very general terms, to "furnish the information respecting the accident required by the police officer or designated person".
Section 199(1) of the HTA reads similarly.
[39] It is not difficult to understand why the trial judge in Parol dismissed the accused’s application to exclude the statements in issue. The accused in Parol did not call the police following the accident. When they got there, he told them he did not speak English. The issue of the accused’s belief in a legal duty to report arose between the first and the second day of trial, when the accused swore an affidavit (presumably in English) to the effect that he believed he had an obligation to provide the police with the information they were seeking because of his involvement in the accident. The trial judge concluded that neither aspect of the duty to report had been proven. At para. 19 he wrote:
I view this application as an attempt at strained re-casting of what occurred into an ill-fitting mould in order to achieve a desired legal end. I reject that attempt and find that the defendant did not make his statements as a result of any belief in a statutory duty to report an accident.
[40] I find otherwise in this case. Here, it was Mr. Wenham who called 911. While he conceded that he did so initially to obtain help for his injured passenger, once the police arrived and Constable Purdie began to ask him questions, he fulfilled the second aspect of his duty to report. As Iacobbucci wrote in White, at para. 80, the scope of the information an accused like Mr. Wenham must provide in order to fulfill this aspect of the duty to report is determined exclusively by the investigating officer. He wrote:
(t)he discretion to determine what information is necessary to a written accident report is vested exclusively in the police officer taking the report. The driver is largely subject to the will of this officer with respect to determining what constitutes a compelled statement. Provided that the police have offered no indication to the driver that the statutory requirements for the reporting of an accident have been satisfied, it will likely be reasonable for a driver to assume that he or she continues to be subject to a statutory duty to speak to police.
[41] The officer in this case did nothing to indicate to Mr. Wenham the point at which he had finished taking a report and the point at which he had begun his investigation. From Mr. Wenham’s perspective, then, he fulfilled both aspects of the duty to report. Indeed, Constable Purdie testified that he used the information provided by Mr. Wenham to complete the formal report for submission to the Registrar under s. 199.
[42] Therefore, I conclude that what occurred in this case was a “report” within the meaning of White.
Did Mr. Wenham honestly and reasonably believe he was required by law to report the accident?
[43] The Crown urges me to find that Mr. Wenham was not a credible witness and that his evidence that he believed he was required by law to report the accident ought not to be accepted. Crown counsel points to the fact that Mr. Wenham was under the influence of alcohol at the time, that he cannot recall the circumstances surrounding his arrest, that he was frantic because of the events taking place that night, and to contradictions between his evidence and that of Mr. Shoemaker, amongst other things.
[44] I found Mr. Wenham to be a credible witness. He was articulate and appeared to be intelligent. He was candid in giving his evidence. For example, he agreed with Crown counsel that he was going too fast to make the turn that resulted in the UTV flipping and admitted that his main reason for calling 911 was to get medical help for Mr. Antilla. He also admitted that he would feel obligated in any context to speak to a police officer, evidence to which I will return shortly.
[45] As for the effects of alcohol on Mr. Wenham’s evidence, I bear in mind Constable Purdie’s testimony that, apart from the failed ASD, he had no grounds to arrest Mr. Wenham for impaired operation. I also bear in mind the evidence of both Constable Purdie and Constable Pauls that Mr. Wenham appeared to be calm. Constable Pauls testified that most of the people he has arrested or tested for impaired are upset. This evidence does not lead to the conclusion that the effects of alcohol on Mr. Wenham were significant.
[46] It is true that there were some contradictions between the evidence of Mr. Wenham and that of Mr. Shoemaker, but they were not material. For example, they contradicted each other as to whether the beer they brought was in a cooler. Moreover, some contradiction in the evidence is to be expected, even between honest and reliable witnesses. The fact that there is some contradiction undermines the suggestion that the two witnesses have been discussing their evidence.
[47] I accept Mr. Wenham’s evidence on this point. As a result, I find that Mr. Wenham had an honest and reasonably held belief that he was required to provide the information that he did by operation of law. Although he testified that he would feel obligated in any context to speak to the officer, he also testified that he had been involved in another automobile accident about six or seven years before and that, as the driver of the vehicle involved in this accident, he knew he was obliged to report the accident and to speak to the officer about it. The fact that Mr. Wenham felt a general obligation to cooperate with the police does not negate his specific belief in a legal obligation to report the accident in particular.
[48] As a result, Mr. Wenham’s statements meet all three of the requirements set out in Parol.
For what purposes should the statements be excluded?
[49] The court in White held that statements obtained in violation of the s. 7 right against self-incrimination should be excluded under s. 24(1), regardless of the relative importance of the statement (see para. 70). In R. v. Powers, 2006 BCCA 454, another B.C. case, the court held that the ratio in White applied to exclude the accused’s statement that he was the driver as the basis for the ASD demand, and not just to prove the identity of the driver at trial. Powers was applied by our own Court of Appeal in R. v. Soules, 2011 ONCA 429, in which the court held that statutorily compelled statements are not admissible for any purpose, including establishing the grounds necessary to make the ASD demand (see para. 40). Where the results of the ASD form the basis for breath demand, as it did in Soules, the evidence of the Intoxilyzer readings will also not be admissible (Soules, para. 43).
[50] As far as Constable Purdie was aware when he arrived that night, there were three possible drivers of the UTV. Mr. Shoemaker testified that he was asked by a police officer if he was driving, which the evidence indicates was Constable Purdie, to which he answered “no”. That left two other possibilies, namely Mr. Wenham or Mr. Antilla. Constable Purdie did not ask Mr. Shoemaker who was driving. Instead, he asked Mr. Wenham. Therefore, Mr. Wenham’s admission that he was the driver of the UTV was the basis upon which Constable Purdie made the ASD demand. Hence, as in Soules, if that evidence is excluded for all purposes, there is no basis for the demand, and without the results of the ASD, there is no basis for the breath demand and the results of that demand must be excluded, as well.
[51] The Crown argues, however, that even if the statements made by Mr. Wenham were statutorily compelled, they ought not to be excluded for all purposes at trial. It makes three arguments in support of the submission that the statements should be admissible to support the ASD demand made by Constable Purdie.
The Saunders/Smith/Milne line of cases
[52] The Crown submits that Soules conflicts with an earlier line of cases, cited recently by the Supreme Court of Canada in R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3, in which the Ontario Court of Appeal held that compelled evidence is admissible to establish the grounds necessary to make an ASD demand. The issue in Orbanski was whether an accused who is stopped while operating a motor vehicle and asked for information about his alcohol consumption or to perform roadside sobriety tests is entitled first to be advised of his right to counsel under s. 10(b) of the Charter. In holding that he was not, the majority in Orbanski made reference to two cases decided by the Ontario Court of Appeal, namely R. v. Saunders (1988), 1988 CanLII 197 (ON CA), 41 C.C.C. (3d) 532 and R. v. Smith (1996), 1996 CanLII 1074 (ON CA), 105 C.C.C. (3d) 58. In both of these cases, the court held that s. 48 of the HTA permitted a police officer to stop motorists and use various techniques including questioning and the performance of sobriety tests to detect alcohol related driving offences. Although the court found that s. 10(b) was infringed, it also found that the infringement was a reasonable limit justified under s. 1 of the Charter. In R. v. Milne (1996), 1996 CanLII 508 (ON CA), 107 C.C.C. (3d) 118, Moldaver J.A. (as he then was), writing for the court, held that the court’s decision in Saunders, confirmed in Smith, upholding the constitutionality of roadside investigative techniques was affected by the fact that the evidence so obtained could not be used to prove directly elements of the offence at trial (see para. 30). He held that evidence obtained pursuant to s. 48 of the HTA could be used, however, indirectly to justify a demand under s. 254 of the Criminal Code ( see para. 32).
[53] The Crown argues that the court in Soules failed to consider the Saunders/Smith/Milne line of cases and that, therefore, I am free to follow them . I disagree.
[54] The court in Soules did consider the Saunders/Smith/Milne line of cases. It did so when it considered the decision in Orbanski. At para. 37 of Soules, LaForme J.A. wrote:
Indeed, the Crown seems to argue that Powers itself is wrong in not holding that compelled statements at the scene of a collision were admissible for the limited purpose of forming part of a police officer's "reasonable suspicion" to make an ASD demand. Powers, and the decisions in this appeal, it is noted, do not apply the Orbanski/Elias line of cases, in which impugned evidence is admissible for this limited purpose. That is, the evidence is admissible for the limited purpose of establishing reasonable grounds for Constable Bucci to make an ASD demand.
[55] He held, however, that Orbanski and the cases considered in it were distinguishable because they were based on the right to counsel protected by s. 10(b) of the Charter, and not on s. 7. As he pointed out, at para. 44, s. 10(b) rights are limited until detaining officers have formed the grounds necessary to effect an arrest, whereas the s. 7 right against self-incrimination operates throughout. Therefore, he held that the decision in White required that evidence obtained from an accused under statutory compulsion not be used for any purpose (at paras. 40 and 43). I am bound by that decision.
Nedelcu
[56] The Crown also argues that White and Soules have been overruled by the more recent decision of the Supreme Court of Canada in R. v. Nedelcu, 2012 SCC 59, [2012] 3 S.C.R. 311, in which the court held that the protection afforded against the use of previous testimony to incriminate an accused is restricted to evidence that could be used to prove one or more of the essential elements of the offence alleged against the accused in a subsequent proceeding (see paras. 9 and 16). The Crown contends that Nedelcu dictates a different result than that reached in Soules. I am unable to agree.
[57] The statements made by Mr. Wenham meet the definition of “incriminating evidence” set out in Nedelcu, regardless of the use the Crown proposes to make of them. The majority in Nedelcu did not make a distinction between direct and indirect use of evidence in arriving at that definition. As Moldaver J. wrote, at para. 9 :
What then is "incriminating evidence"? The answer, I believe, should be straightforward. In my view, it can only mean evidence given by the witness at the prior proceeding that the Crown could use at the subsequent proceeding, if it were permitted to do so, to prove guilt, i.e. to prove or assist in proving one or more of the essential elements of the offence for which the witness is being tried. (Emphasis added.)
[58] Therefore, evidence may be incriminating even where it is used indirectly to prove guilt.
[59] The prior testimony in Nedelcu is a good example of evidence that could not be used, directly or indirectly, to prove guilt. The accused had testified at his examination for discovery that he had no memory of the accident in question, whereas he gave a detailed account of the events surrounding the accident at trial. Even if the discovery evidence had been admitted for proof of its truth, i.e. if it was used directly, it could not prove an essential element of the offence. Nor could indirect use of the prior testimony, i.e. for impeachment purposes, be used to prove guilt. As Moldaver J. wrote, at para. 23:
While it is true that Mr. Nedelcu's inconsistent discovery evidence might lead the triers of fact to reject his trial testimony, rejection of an accused's testimony does not create evidence for the Crown -- any more than the rejection of an accused's alibi evidence does, absent a finding on independent evidence, that the alibi has been concocted. (Citations omitted.)
[60] The statements made by Mr. Wenham in this case can be used to prove his guilt, even if only indirectly. As I have indicated, his admission that he was the driver was relied upon by Constable Purdie to make the ASD demand, which was then relied upon to make the breath demand. His evidence of alcohol consumption and the manner in which the accident occurred could also be used indirectly to prove his guilt. Although Mr. Wenham admitted consuming only a small amount of alcohol, this admission could be used to help support Constable Purdie’s belief that he smelled alcohol on Mr. Wenham’s breath, as opposed to that of Mr. Shoemaker. It is irrelevant that the Crown might prove the identity of the driver, or the amount of alcohol consumed, by other evidence at trial.
[61] Under Nedelcu, once evidence meets the definition of “incriminating”, it must be excluded for all purposes. At para. 15 of the decision, Moldaver J. wrote:
For present purposes, suffice it to say that if the evidence used to impeach meets the test for "incriminating evidence" as I have defined it, then I am prepared to accept, per Henry, at para. 50, that in practice it may be difficult for triers of fact to work with that distinction. Hence, the Crown should not be able to use it for any purpose at the witness's subsequent trial. (Emphasis added.)
[62] The decision in Nedelcu, therefore, does not dictate any different result than that called for by the decision in White.
Doucet-Boudreau/Bjelland
[63] The Crown advances a further argument against exclusion of the statements of Mr. Wenham for all purposes, based on the fact that the evidence was excluded in White under s. 24(1) of the Charter. That section was considered again by the Supreme Court in Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, and in R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651. In Doucet-Boudreau, the court set out a comprehensive list of factors to be considered when determining whether a remedy under s. 24(1) is “appropriate and just in the circumstances”, including that the remedy be fair to the party against whom the order is made (at para. 57).
[64] In Bjelland, the trial judge relied on s. 24(1) to preclude the Crown from adducing evidence which had not been disclosed in a timely manner, therefore breaching the accused’s right under s. 7 to make full answer and defence. The majority held that the trial judge committed a reversible error and ought to have considered a remedy that was less intrusive to the truth-finding function of the trial. At paras. 19 and 22 of the decision, Rothstein J. wrote:
While the exclusion of evidence will normally be a remedy under s. 24(2), it cannot be ruled out as a remedy under s. 24(1). However, such a remedy will only be available in those cases where a less intrusive remedy cannot be fashioned to safeguard the fairness of the trial process and the integrity of the justice system.
While the accused must receive a fair trial, the trial must be fair from both the perspective of the accused and of society more broadly. In R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562, McLachlin J. (as she then was) provided guidance on what is meant by trial fairness. She stated, at para. 45, that:
At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial must not be confused with the most advantageous trial possible from the accused's point of view: R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at p. 362, per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness for the accused. [Emphasis in the original.]
[65] The Crown argues that excluding the evidence in support of the Intoxilyzer readings would significantly impair its ability to prosecute this case and render the trial unfair. In my view, the decision in White stands for the proposition that, when it comes to statutorily compelled statements, trial fairness requires no less than exclusion of the evidence for all purposes. At para. 89 of White, Iacobucci J. also referred to R. v. Harrer, when he wrote:
Although I agree with the majority position in Harrer, supra, that it may not be necessary to use s. 24(1) in order to exclude evidence whose admission would render the trial unfair, I agree also with McLachlin J.'s finding in that case that s. 24(1) may appropriately be employed as a discrete source of a court's power to exclude such evidence. In the present case, involving an accused who is entitled under s. 7 to use immunity in relation to certain compelled statements in subsequent criminal proceedings, exclusion of the evidence is required. (Emphasis added.)
[66] I believe that this is exactly what the Court of Appeal held in Soules. It is not open to me to hold otherwise. Even if it was, I would not. In my opinion, allowing the Crown to rely on statements that were compelled in order to prove, alone or with other evidence, an essential element of the offence would not result in a trial that preserved basic procedural fairness for the accused.
Were the observations made of Mr. Wenham at the scene compelled evidence?
[67] Constable Purdie testified that he observed Mr. Wenham to exhibit “shaky” speech and that he detected an odour of alcohol in the presence of both Mr. Wenham and Mr. Shoemaker, which lead him to ask Mr. Wenham about his alcohol consumption. Counsel for Mr. Wenham argues that these observations should be excluded as evidence on the same basis as the statements that Mr. Wenham made. I am unable to accept that submission.
[68] I do not believe it can be said that the observations made of Mr. Wenham at the scene were made solely as a result of his duty to report the accident. As I mentioned earlier, Mr. Wenham testified in cross-examination that his main purpose in calling 911 was to get medical help for Mr. Antilla. While that call also fulfilled the first part of his duty to report, the opportunity to make the observations of Mr. Wenham arose as a result of that call and the response by the police to it as part of their normal duties. In Milne, to which I have already made reference, the court held that evidence obtained from an accused by a police officer acting under s. 48 of the HTA could not be used to incriminate the motorist at trial. However, Moldaver, J.A. wrote (at para. 40):
I wish to make it clear that this conclusion applies only to evidence obtained from compelled direct participation by the motorist in roadside tests authorized by s. 48(1) of the HTA, specifically designed to determine impairment or a blood-alcohol level exceeding 80 mg. I am not referring to observations the officer might make of the driver while carrying out other authorized duties. Thus, by way of example, an officer may observe signs of impairment in a driver, such as a strong odour of alcohol, blood-shot and glassy eyes, dilated pupils, slurred speech, unsteadiness of gait upon the driver exiting the vehicle, or other similar signs. These observations would be admissible at trial to prove impairment. (Emphasis added.)
[69] As I mentioned, Milne was a case that dealt with s. 10(b). However, I find the reasoning persuasive, even though the focus in this case is on s. 7. A similar conclusion, based on Milne, was reached by Gauthier J. in R. v. Germain, 2012 ONSC 3928, in the context of s. 199 of the HTA, the section at issue in this case. She held, as I do, that the observations of the officer did not result from any compulsion, coercion or compelled direct participation in the making of the accident report (at para. 35). As such, they are not subject to the use immunity referred to in White and are admissible at trial.
Conclusion
[70] Mr. Wenham’s application to exclude the statements he made at the scene is allowed. They are excluded for all purposes under s. 24(1) of the Charter, including the ASD demand. The evidence of observations made by the police at the scene is not.
Ellies J.
Released: 20131205
Addendum
Correction made on December 5, 2013:
Paragraph 8 was amended to read: Mr. Shoemaker testified that, in addition to drinking two or three beers himself, he also smoked a marijuana cigarette that was supplied to him by Mr. Antilla. Mr. Wenham did not join him in smoking it.
CITATION: R. v. Wenham, 2013 ONSC 7431
COURT FILE NO.: 007/13
DATE: 20131203
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
MICHAEL WENHAM
Applicant
CORRECTED REASONS FOR DECISION
Ellies J.
Released: 20131205