R. v. Tim, 2019 ONSC 935

COURT FILE NO.: 14662/18

DATE: 20190207

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

HOLDEN TIM

Defendant

David Parke, for the Crown

Dean Embry, for the Defendant

HEARD: February 4 and 5, 2019

J. Speyer J.

A. Overview

1In the early morning hours of July 23, 2017, a car crashed on Rossland Road in Oshawa. Passing motorists saw the crash and promptly called 911. Police responded first, followed by the fire department and ambulances.

2The defendant, who was not physically injured in the crash, was required by police to provide a sample of his breath into an approved screening device. The analysis of his breath sample generated a “fail” result, and he was thereafter arrested, taken to the police station, and required to provide a sample of his breath into an approved instrument, in order to measure his blood alcohol concentration. The Crown seeks to introduce the results of the approved instrument test into evidence at the defendant’s trial on charges of dangerous driving causing death, and impaired driving causing death.

3The defence has brought an application to exclude the evidence of the defendant’s blood alcohol concentration. The defence position is that the seizure of the breath sample infringed s. 8 of the Canadian Charter of Rights and Freedoms, because the officer who made the ASD demand lacked reasonable grounds to suspect that the defendant had alcohol in his body and that he operated a motor vehicle within the preceding three hours, as required by s. 254(2) of the Criminal Code, R.S.C. 1985, c. C-46, as amended.

4The Crown is obliged to demonstrate compliance with s. 254(2) of the Criminal Code, and the requirement of s. 8 of the Charter that the seizure was reasonable. In order to discharge its burden, the Crown seeks to lead evidence of conversations between the defendant and Constable Babikian. The officer relied on those conversations to ground his suspicion that the defendant had alcohol in his body and that he operated a motor vehicle. The Crown does not seek to lead this evidence at trial as direct evidence to incriminate the defendant. Rather, the Crown seeks to lead the evidence on this voir dire, to prove the grounds for the officer’s suspicion that the defendant had alcohol in his body and that he operated a motor vehicle, which suspicion permitted him to employ the approved screening device as an investigative tool. The results of the approved screening device test will not become evidence at the trial. The significance of the result of the approved screening device test lies in its role as the basis upon which the officer could then employ the further investigative step of requiring the defendant to provide a sample of his breath into an approved instrument.

5The defence takes the position that those conversations are inadmissible on the voir dire to determine the admissibility of the blood alcohol test results, on the basis that the defendant spoke with the officer because he was statutorily compelled to do so by s. 199 of the Highway Traffic Act, R.S.O. 1990, c. H.8, and thus their admission into evidence would infringe s. 7 of the Charter. The defence relies on the decisions of the Ontario Court of Appeal in R. v. Soules, 2011 ONCA 429, 105 O.R. (3d) 561, leave to appeal refused, [2011] S.C.C.A. No 375, and the Supreme Court of Canada in R. v. White, 1999 CanLII 689 (SCC), [1999] 2 S.C.R. 417.

6The Crown responds that a recent amendment to the Criminal Code, contained in s. 320.31(9) provides a complete answer to the defence position. Section 320.31(9), which came into effect on December 18, 2018, provides:

(9) A statement made by a person to a peace officer, including a statement compelled under a provincial Act, is admissible in evidence for the purpose of justifying a demand made under section 320.27 or 320.28.

The Crown argues that s. 320.31(9) has retrospective effect, such that it applies in this case, where the alleged offence occurred before the Code was amended.

7The defence responds that the amendment does not have retrospective effect, and has also filed a Notice of Constitutional Question, challenging the constitutionality of the new provision, an argument that will be advanced in the event that the court determines that the amendment does have retrospective effect.

8After hearing from counsel as to the order in which the several issues that present themselves should be addressed, I decided that the most logical place to start would be to hear the evidence relating to the defence application to exclude the evidence of the conversations between Constable Babikian and the defendant on the voir dire to determine whether the officer had the requisite grounds to make the approved screening device demand. This approach commended itself to me for two reasons:

(1) It is necessary to make a finding of fact as to whether or not the defendant participated in the conversation with Constable Babikian because he was statutorily compelled to do so, or not. This finding of fact will determine what other issues need to be decided.

(2) In the event that it is necessary to consider the constitutionality of the amendment in this case, the evidence will provide the court with the necessary factual context in which to assess the arguments to be presented.

B. The facts

9The crash, and its immediate aftermath, was witnessed by three occupants of a vehicle that was travelling eastbound on Rossland Road. Aodhan Melly saw a car speeding across Rossland Road. It “cartwheeled”, hit a tree, and landed on its roof. The vehicle he was in pulled over, he ran over to the car, and called 911. He saw a male walk from the driver’s side to the passenger side. He heard a female voice crying from inside the vehicle. He heard the male say that he was sorry repeatedly.

10Meaghan Yeo was in the vehicle with Mr. Melly. She heard him yell that a car was flipping. When she looked, she saw a car upside down on a lawn and driveway. She went with Mr. Melly and Matthew Berry across the road to offer assistance. She described her first impression of the scene as “really scary”. She saw someone she believed was the driver get out and walk around the car to assist a male passenger out of the car. That male left the scene. A girl was still in the car. The driver talked to the girl, and told her “I fucked up – I lost control”. Ms. Yeo became aware that someone was trapped under the car, and proceeded to go under the car because no one was helping that person. She testified that the man was unconscious. The driver told her that the man’s name was Duncan. She checked for, and found, a very faint pulse. She provided that information to Mr. Melly, who in turn passed it onto the 911 operator. While Ms. Yeo did not get the driver’s name, she described him as white, with short dark hair, in his 20’s, and wearing a blue shirt. That description is consistent with the defendant’s appearance in photographs taken of him later that day.

11Mr. Melly and Ms. Yeo were passengers in a vehicle driven by Matthew Berry. Mr. Berry saw a tire roll across the road, his first indication that something was amiss. He then saw a car standing upright with its front end on the ground and the back end in the air. The car then fell on its roof. He pulled over and ran with his friends to the car. He described the scene as “a mess”. One man was out of the vehicle. Mr. Berry heard a female voice screaming and crying. He saw a man crawl out of the passenger side and did not see that man after that. He heard the first man he saw out of the vehicle call to them to call 911. Mr. Berry spoke briefly with that man. He described the exchange as “frantic”.

12I accept the evidence of each of the three young people who testified about what they saw. They were careful not to testify about things they did not know, and to describe what they did recall with as much detail as they could recall. They are unrelated to the people who were in the car that crashed, and have no reason to be anything other than completely honest.

13The first responder to the 911 call was Constable Astrid Morse, a very experienced police officer. She received a radio call to attend at a personal injury motor vehicle collision at 3:13 a.m. She received no information as to the number of vehicles or persons involved. When she arrived at the scene, she saw the car flipped over, and people milling about. She saw a young woman lying on the ground beside the car. There was a man at the back of the car talking to someone in or with the car. She described it as a “very active and busy scene”. It was “very fluid”, and “rapidly moving”. Her first response was to see who needed help. She needed to know that everyone was accounted for. Her job was to make sure people got help, maintain the scene, and speak with witnesses. Her focus was to make sure everybody got the help they needed.

14Constable Morse first went to the young woman, who was injured, and told her not to move and to wait for an ambulance. Constable Morse then went to see what was going on at the back of the car. The defendant, who was crouched down at the back of the car, approached her and they started talking. Constable Morse could not recall who started talking first. The defendant told her that he was the driver, and that his friend was hurt, and under the car. She asked him if he was hurt. Nothing was said during this conversation about how the crash happened. Nothing was said about making a report pursuant to the Highway Traffic Act. Upon hearing that a second person was injured, Constable Morse radioed for two ambulances and other officers to attend. She then went and checked on the man under the car, and noted that he was not conscious.

15Constable Morse then noticed that the fire department had arrived, followed by the paramedics. The officer went to the injured woman, learned that her name was Kennedy Kelly, and told her not to move. She did not question her further about what happened. Constable Morse was concerned only with getting help for her. The firefighters and paramedics proceeded to attend to the injured.

16Constable Morse then went to the defendant. She testified that she wanted to calm him and to keep him busy. She needed to get him away from the scene, where car parts were strewn about. She asked him to get his documents and stand in an area by a marked police cruiser. She did not tell him why she asked him to do that. He was very upset, and told her that he had been speeding and lost control. Constable Morse then approached the witnesses to speak with them. Other officers arrived on the scene. Constable Morse then spoke for a third time to the defendant. He was still “visibly shaken”. He told her that there was a fourth person in the car, named “Jay”, and gave a description of him. Constable Morse then attended to other duties, in the course of which she learned that the man who was trapped under the car had died. When she returned to speak with the defendant a fourth time, he was speaking with Constable Babikian, some distance from where she had last seen him. She had no further dealings with the defendant.

17Constable Morse was cross-examined as to whether she was taking a report of the accident. She was adamant that she was not. She testified that neither she nor the defendant were at the point of doing an accident report. She noted that the defendant, when she encountered him, was with the man under the car and with Ms. Kelly, doing what anyone would do at an accident scene. She wanted to disengage the defendant from the scene. She wanted to get his mind in a better place than it was.

18I find Constable Morse to be a credible and reliable witness. Her evidence was given in a forthright manner and accords in all respects with what common sense demands of a first responder confronted with such a terrible crash scene. She was clearly dedicated to helping the occupants of the crashed car, and preserving the scene, and not at all concerned with the reporting requirements of the Highway Traffic Act.

19Constable Babikian is the officer who made the demand that the defendant provide a sample of his breath into an approved screening device. He was dispatched to a call about a rollover motor vehicle collision. He was given no information about the number of vehicles or people involved. He arrived after the fire department and paramedics had arrived. His role on his arrival was to make sure everyone was safe. When he arrived, the fire department and paramedics were trying to free the man who was trapped under the vehicle.

20Constable Babikian also saw the female who was lying beside the car. She appeared to him to be in shock. The paramedics were attending to her. He saw the defendant standing about 20 metres east of the car, by himself. Constable Babikian went up to him and then spoke with him. No one had told Constable Babikian that the defendant was the driver. The defendant had his driver’s licence in hand. The defendant told him that he was the driver, that he was not injured, and that he wanted to make sure that everyone was okay. Constable Babikian asked him if everyone was accounted for. He told Constable Babikian that there were three people in the car, in addition to himself: his girlfriend Kennedy who was the front seat passenger, his friend Jay who was in the rear passenger seat, and his friend Duncan who was in the rear driver’s side seat. The officer testified that he asked who was in the vehicle because he wanted to make sure everyone was accounted for. He did not ask how the crash happened or why. The officer did not know where Jay was. According to the officer, everything happened “really fast”.

21While dealing with the defendant, Constable Babikian noticed an odour of alcohol coming from his mouth. The defendant told him that he had been drinking, but that he was not drunk by any means, and that he was coming from St. Louis’ Bar and Grill. The officer did not ask how much he had drunk. The officer then made a demand that the defendant provided a sample of his breath into an approved screening device at 3:40 a.m. When the defendant’s sample registered a fail on that device, the officer demanded that he accompany him to the police station to provide a sample of his breath into an approved instrument.

22Constable Babikian testified that he never spoke with the defendant about doing a Highway Traffic Act report, and that he was not thinking about taking such a report. Rather, he was making sure that the people in the vehicle were okay. Later, at the police station, Constable Babikian opened the incident on the police computer system. He testified that the system then generates a report with his name and badge number. The Highway Traffic Act report relating to this crash is in evidence as Exhibit 3. Constable Babikian testified that he did not input most of the information in the report, and that this was done by other officers. He did not prepare the report and did not submit the report to the Registrar as required by s. 199(3) of the Highway Traffic Act.

23I found Constable Babikian to be a credible and reliable witness. Like Constable Morse, he gave his evidence in a forthright manner. He responded to questions asked by Crown counsel and by defence counsel in a similar fashion. His answers describing his thoughts and actions accord with common sense as to what an officer in his position would think and do.

24The defendant testified that he was the driver of the car that crashed. He was 24 years old at the time. In many respects, his evidence is consistent with the evidence of other witnesses. His first memory after the crash is of helping Jay get out of the passenger side. He remembers helping Kennedy get out of the car. He noticed people and told them to call 911. He saw a woman under the car with Duncan, and went under the vehicle too. He thought that Duncan was breathing. He got out, and saw Officer Morse.

25The defendant testified that when he saw the officer, he wanted to make her aware that he was the driver so that he could give her his information. He testified that he knows that the law requires that you give a police officer your information, and that this is something he learned in elementary school and from other knowledge. Although he has not been in another accident, he was with his father when his father was in an accident, and his father called the police.

26The defendant testified in chief that he told the female officer that he was the driver, and that he gave her his licence and insurance. He believes that she asked for this information. In cross-examination, he testified that he remembered that she told him to stand by the cruiser and to get his identification. His evidence in this regard is inconsistent. He said that he spoke with the female officer two or three times and that she told him to wait in an area near a police cruiser. He said that he spoke with a male officer and gave that officer his name and information because of his knowledge of the law.

27The defendant’s evidence in chief was brief and lacking in detail. In cross-examination, he claimed not to recall many of the night’s events that others testified about. He says he does not remember saying “I’m sorry”, and telling Kennedy that “I fucked up. I lost control”. He did acknowledge that in the aftermath of the collision, before the police arrived, that his concern was everybody’s safety. He does not remember the fire department being there and trying to lift the car.

28The defendant confirmed that when Officer Morse arrived, he told her “I’m the driver. There’s someone trapped under the vehicle”. He testified that his concern at that moment was to tell her that someone was hurt. He also testified that, from his perspective, Officer Morse’s concern and focus were to make sure that people are safe.

29When the defendant was standing by the cruiser, he was trying to calm himself down. He was focussed on himself, and whether he was okay mentally. He realized that he could be in serious trouble because he had been drinking, there had been an accident, and someone was hurt. He was concerned with the possible repercussions for himself. He did not see Officer Babikian arrive on scene.

30The defendant testified that his perception was that Officer Babikian was concerned with the safety of all involved in the crash. He recalls that the officer asked him if he needed medical attention. It seemed to the defendant that Officer Babikian’s priority was to see if he needed medical attention, and to figure out what happened. It seemed to the defendant that he was the first person that Officer Babikian came across. The defendant said that he told Officer Babikian his name, and that he was the driver. He also testified that he told Officer Babikian that he’d had something to drink, but was “not drunk by any means”. He denied, when asked by Crown counsel, that he did this to downplay his alcohol consumption.

31The defendant, when cross-examined about undergoing the approved screening device test, testified that he had no memory of being told that he had to provide a sample of his breath into the device, he does not remember blowing into the device, and he does not remember the officer telling him the result. He does remember being placed in handcuffs, which is, he says, when everything really hit him. He “was not a happy person”, felt “shock”, and “very sad”.

32In cross-examination, the defendant testified that during his dealing with the police he was concerned with his friends, and with his own situation.

33While the defendant professed in his evidence in chief to have said things to the police because he believed that the law required him to do so, that evidence was significantly undermined in cross-examination. He subjectively believed that the officers he spoke with were making sure that everyone was safe, and trying to figure out what happened. He was himself concerned first with the safety of everyone in his car, and then, when he knew that everyone was not safe, with his own situation and the repercussions for him. In this regard, his evidence was credible, and I believe him. His evidence about his feelings makes sense, and is consistent with what anyone in his situation would feel. He had just been involved in a horrific car crash, was fortunate to have walked away from it without physical injury, and was aware his friend was seriously injured. I reject his evidence that he told the police that he was the driver because he was compelled to do so by the law. That evidence was completely undermined by his answers in cross-examination, which were considerably more detailed, nuanced, and sensible than his evidence in chief.

34Where the defendant’s evidence conflicts with that of the other witnesses, and in regard to matters where the defendant had no recollection, I accept the evidence of the other witnesses.

35It is apparent to me, viewing the evidence cumulatively, that everyone at the scene – the police, the witnesses, and the defendant – were trying to ensure that the injured were cared for. This could only be achieved if it was known who was in the crashed car, so that all the occupants could be located and assessed. The defendant’s willingness to identify himself as the driver is entirely consistent with him doing so for the purpose of letting the police officers know, quickly, why he was in a position to tell them about that. There was one man unaccounted for, Jay. The defendant’s interactions with Constable Babikian were about that, until the officer smelled alcohol. After that, the defendant’s concern was to persuade the officer that his consumption of alcohol was not significant. That had nothing to do with making a report compelled by statute. The fact that when he spoke to the police, it was about the crash, is unremarkable, and entirely explained by the fact that that is what the police were dealing with as first responders.

C. Analysis

36Where a driver is compelled by statute to make a statement to the police, those statements “are inadmissible in criminal proceedings against the declarant because their admission would violate the principle against self-incrimination”, and would thus infringe s. 7 of the Charter. See: White, at para. 30; Soules, at para. 28.

37Not all statements to police officers who respond to motor vehicle collisions are statutorily compelled. As noted by the Ontario Court of Appeal in R. v. Moussavi, 2016 ONCA 924, at para. 29, there will be cases “where the accused responds freely, entirely unmotivated by any statutory duty”. Obviously, each case will turn on its unique facts. Where a defendant seeks to exclude evidence of such statements, he must establish, on a balance of probabilities, 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.” See: White, at para. 29; Soules, at para. 29; R. v. Roberts, 2018 ONCA 411, at para. 40. The defendant must establish not only that he knew of the legal duty to report an accident, but also that he spoke when he did because he felt compelled by that legal duty to do so. See: Roberts, at para. 56.

38On the entirety of the evidence, I have no doubt that the defendant did not speak with the police because he felt compelled by a legal duty to do so. I have no doubt that his purpose in speaking with the police was to assist the officers to render assistance to all who needed it, and to attempt to manage the possible consequences of his behaviour as he realized what those might be.

39Because the conversations between Constable Babikian and the defendant were not statutorily compelled, it is not necessary to consider whether s. 320.31(9) of the Criminal Code has retrospective effect or, if it does, whether it is constitutionally infirm.

The Honourable Madam Justice J. Speyer