BARRIE COURT FILE NO.: CR-18-122-00AP
DATE: 20210527
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
– and –
ROBERT WHITEHOUSE
Defendant/Respondent
J. Armenise, for the Crown/Appellant
D. Lent, for the Defendant/Respondent
HEARD: February 22, 2021
Dawe J.
[1] In December 2015 Robert Whitehouse was charged with impaired driving and “over 80”. The Crown elected to proceed summarily, and Mr. Whitehouse was tried in the Ontario Court of Justice in Barrie by Mr. Justice G. Krelove between October 2016 and September 2018.
[2] The charges arose after a Barrie police officer, PC Mellish, responded to a 911 call from a passerby and found a car in a roadside ditch. Mr. Whitehouse came out to the car from a bar across the street and admitted when questioned that he had been the driver. He proceeded to blow a fail on an approved screening device and was then arrested and taken to the police station, where he provided compelled breath samples and made further statements admitting he had been the driver.
[3] The trial judge found that Mr. Whitehouse’s statement to PC Mellish at the roadside admitting to being the driver had been made under statutory compulsion and accordingly could not be used either to support the officer’s ASD demand or as evidence in the trial proper. He concluded further that without this initial statement PC Mellish would not have had grounds to make the ASD demand, and proceeded to exclude the breath sample evidence and Mr. Whitehouse’s subsequent statements at the police station under s. 24(2). The trial judge concluded that the remaining admissible evidence was insufficient to establish Mr. Whitehouse’s guilt on either count, and dismissed both charges.
[4] The Crown appeals from the acquittals on four main bases. Specifically, the Crown argues that the trial judge erred:
i) By permitting Mr. Whitehouse to testify on the Charter voir dire without having to also testify in the trial proper;
ii) By unreasonably accepting Mr. Whitehouse’s testimony that his statement at the roadside was made under statutory compulsion;
iii) By giving inadequate reasons for his conclusions that Mr. Whitehouse’s initial statement was statutorily compelled, that without this statement PC Mellish did not have sufficient grounds to make an ASD demand, and that the evidence that remained once the evidence obtained by the police at the station was excluded did not support a finding of guilt; and
iv) By excluding the breath sample evidence and Mr. Whitehouse’s statements at the police station under s. 24(2).
[5] As I will now explain, I would not give effect to any of these grounds. I would accordingly dismiss the Crown’s appeal and affirm the trial judge’s not guilty verdicts.
I. Facts and procedural history
A. The evidence at trial
1. Geoff Deon’s evidence
[6] On the night of December 6, 2015 between around 9:45 p.m. and 10:00 p.m. an off-duty paramedic named Geoff Deon was driving home with his family in Barrie when he noticed a car in the ditch on the south side of the T-intersection where Prince William Way meets Mapleview Drive East. He saw a man pacing up and down at the side of the road and stopped to see if anyone needed help, identifying himself as a paramedic. The man did not seem hurt and told Mr. Deon he did not need any assistance. He explained further to Mr. Deon that he had missed the stop sign and driven off the road because his car windows had been fogged up, that he was now going to be late for work, and that another man with a pickup truck parked nearby was going to use chains to try to pull the car out of the ditch. The man then went over to the car in the ditch and opened the driver’s door.
[7] Mr. Deon noticed that the man’s eyes were bloodshot and that he was slurring his words, and also thought that his behaviour in pacing up and down on the shoulder of the road “seemed a little odd”. Accordingly, after he left the scene he called 911 to report a possible impaired driving accident. He told the 911 operator that the man he had spoken to at the roadside was around 5’10” tall, of medium build with short brown hair, and wearing blue jeans and a dark jacket. In cross-examination at trial Mr. Deon agreed that if the man had been balding he would have included this detail in his description. Mr. Whitehouse is taller and heavier than Mr. Deon’s description, and is mostly bald.
[8] At trial, Mr. Deon testified that he did not think he would recognize the man who he spoke with at the roadside if he were to see him again, and he did not identify Mr. Whitehouse in the courtroom.
2. Police evidence
[9] PC Mike Mellish responded to the dispatcher’s call that went out after Mr. Deon’s 911 call. The dispatcher did not give him any information about the description of the driver of the car.
[10] PC Mellish arrived at the intersection at 10:04 p.m. and found the car in the ditch, but saw nobody else around. He went to look inside the car to make sure there was nobody injured inside, and noticed the smell of alcohol in the interior. He also tried to phone Mr. Deon to get more information but was unable to reach him.
[11] At this point PC Mellish saw a man approaching on foot from a shopping plaza across the road on the north side of Mapleview Drive, and it occurred to him that this man might be the driver of the car in the ditch. The man, who turned out to be Mr. Whitehouse, told PC Mellish that he was the driver of the car in the ditch and had gone across the road to call for a tow truck to have it pulled out. PC Mellish could not recall whether he said anything before Mr. Whitehouse made this admission, but as discussed further below the trial judge found as fact that Mr. Whitehouse made this statement in response to questions put to him by the officer.
[12] PC Mellish testified that Mr. Whitehouse had explained further that he had been in a hurry to get his work shift in Toronto at 11:00 p.m. and had slid through the intersection. PC Mellish smelled alcohol on Mr. Whitehouse’s breath, and when asked if he had been drinking Mr. Whitehouse replied that had had about twelve beers earlier in the afternoon before going to sleep.
[13] PC Mellish concluded that he had a reasonable suspicion that Mr. Whitehouse had alcohol in his body and had recently been driving a motor vehicle, and proceeded to make an ASD demand. After Mr. Whitehouse blew a fail PC Mellish arrested him and made a breath demand. He then drove Mr. Whitehouse to the station where he later provided breath samples. Mr. Whitehouse also made statements to the breath technician in which he acknowledged having been the driver of the car in the ditch.
[14] PC Mellish described Mr. Whitehouse as around 6 feet tall and weighing approximately 220 pounds, and wearing jeans and a black jacket over a red shirt and a black baseball cap.
3. Mr. Whitehouse’s voir dire testimony
[15] Mr. Whitehouse gave evidence on the Charter voir dire only. As discussed below, the trial judge’s decision to permit him to do so is the subject of the Crown’s main ground of appeal.
[16] Mr. Whitehouse testified that he was now 49 years old and had been driving since he was a teenager. He explained that on the evening in question he had been going to Toronto for his night shift at the factory where he worked as a labourer. He was driving a rental car because his own vehicle had been in an accident. Mr. Whitehouse drove south on Prince William Way towards Mapleview Drive intending to make a right turn at the T-intersection, but he hit a patch of ice and was unable to stop because the tires on the rental “weren’t very good”. The car slid across Mapleview Drive and went into the ditch on the south side of the road.
[17] A short while later a man in a pickup truck stopped and offered to try to pull the car out of the ditch, but after further consideration this man decided that the equipment he had with him was inadequate so he went home to get something better. After the man left Mr. Whitehouse went to a convenience store in the shopping plaza across the street to try to get a phone number for a tow truck. The clerk could not help but suggested that Mr. Whitehouse try a bar in the same shopping plaza.
[18] When Mr. Whitehouse came out of the convenience store the man with the pickup truck had returned, so he went back across the street and they both tried unsuccessfully to pull the car out of the ditch. Mr. Whitehouse recalled that at some point another man stopped and asked if he needed help, but that Mr. Whitehouse said that he was okay, that he “slid through the intersection and went into a ditch”, and that “someone’s helping me out”. He could not recall giving this man any further details about the accident.
[19] Mr. Whitehouse and the man with the pickup truck eventually abandoned their efforts to pull the car out of the ditch. Mr. Whitehouse then went to the bar in the shopping plaza, where he got the number for a tow truck company and used the bar’s phone to make the call because he was not getting a signal on his own cell phone. He decided to wait in the bar until the tow truck arrived. However, after a few minutes the bartender told him that she could see the lights of a police car outside.
[20] Mr. Whitehouse left the bar and went back across the street. A uniformed officer (PC Mellish) was standing near the car in the ditch, and Mr. Whitehouse explained:
[W]hen I got close he was – he said is this your car? Are you driving this car? And I said it’s not my car, it’s a rental but yes, I’m driving – I was driving the car and I slid into the ditch. I told him what happened and how it – that a guy was trying to help me out. He was gone at that point now, and I just, I tried to stop at the stop sign and I just slid right through and right into the ditch.
[21] Mr. Whitehouse explained further that his understanding from the driving courses he had taken as a teenager was that:
[I]f you get in an accident … it’s your obligation to let the … police officers, any paramedics and stuff like this … give them information that they need to know about the accident, who was involved in it and such things like that.
He testified that he answered PC Mellish’s questions:
Because it’s my due diligence. I’m not – it’s my obligation to, as – you know, if you get in an accident, that’s one thing they taught you in driver’s ed, plus my experience in driving over the years. I knew that also but I’ve had accidents before. So I tell them what happened, like you’re supposed to do, right?
B. Procedural history and rulings
[22] Mr. Whitehouse’s trial took place over multiple non-contiguous days spread out over two years, between October 18, 2016 and September 18, 2018.
[23] Before the trial began the Crown had indicated that it would be seeking to adduce the statements Mr. Whitehouse had made to PC Mellish at the roadside and to other officers at the station, and would accordingly be applying to have these statements ruled voluntary. The defence had also brought a Charter application seeking to have these statements and the breath test results excluded from evidence on ss. 7 and 8 Charter grounds.
[24] On the first day of trial there was a lengthy colloquy between counsel and the trial judge about whether the trial would proceed in a “blended” manner in which witnesses would simultaneously give evidence for the purpose of the voluntariness and Charter voir dires and the trial proper. The defence argued that doing this would be more efficient and would save time, and after some initial resistance Crown counsel eventually agreed to proceed in this way.
[25] After the trial began in October 2016 it continued intermittently over several more days in March and June, 2017 but did not finish. When the trial resumed again on August 1, 2017 a new dispute arose as to whether the trial judge should hear submissions and rule on the Crown’s voluntariness application before the defence’s Charter applications were heard and argued. The Crown wanted to have all of the applications heard and decided together, but defence counsel indicated that he would prefer to have a ruling on voluntariness before deciding whether to call evidence on the Charter application. The trial judge concluded that there would be no prejudice to the Crown from proceeding in this way, and began hearing argument on the voluntariness issue. The argument did not finish that day and the parties returned on October 23, 2017 to complete their submissions on voluntariness. The trial judge reserved his decision and on December 20, 2017 ruled that Mr. Whitehouse’s statements were voluntary.[^1] However, he noted that at this point he had only heard from the Crown’s witnesses and that:
There is no evidence before me that the statements made by the defendant were compelled by statute or otherwise.
[26] Following this ruling, defence counsel advised that Mr. Whitehouse would now be testifying on the s. 7 Charter voir dire only. This led to further dispute in which the Crown argued that because the parties had agreed to conduct the trial in a “blended” manner when the trial began, Mr. Whitehouse should not have the option of testifying only on his Charter application, but should have to choose between either testifying both on his Charter application and in the trial proper or not testifying at all. Defence counsel responded that he had never agreed to this, explaining that when he had first proposed for trial to be conducted in a blended manner he had meant this to apply only to the Crown’s case.
[27] The trial judge accepted the defence position and ruled that Mr. Whitehouse could testify on the Charter voir dire only. Since this ruling is central to the Crown’s main ground of appeal, I will discuss the parties’ arguments and the trial judge’s reasons in greater detail later in my judgment.
[28] Mr. Whitehouse then testified on the s. 7 Charter voir dire, giving the evidence I have summarized above at paras. [15] to [21]. Counsel then began making their submissions on both the Charter issues and the trial proper, which were eventually completed after two additional court days in March 2018.
[29] The trial judge reserved his judgment until September 18, 2018, at which time he concluded that Mr. Whitehouse’s initial statements to PC Mellish had been made under statutory compulsion and accordingly had to be excluded to avoid a violation of Mr. Whitehouse’s s. 7 Charter rights: see R. v. White, 1999 CanLII 689 (SCC), [1999] 2 SCR 417. He explained:
I am satisfied on a balance of probabilities that Mr. Whitehouse provided these initial responses to Constable Mellish because he felt compelled by a legal obligation to do so. He subjectively believed that he was required to do so. Even though it was initially not his intention to call the police, once he saw the police were on scene, his training and his belief about the need to report kicked in.
He walked over the Constable Mellish without hesitation for the purpose of reporting details of the accident to the police. Mr. Whitehouse’s belief that he had this obligation to report was an honest one that was reasonably held. I disagree with the Crown’s submission that the defendant just wanted to talk to the officer and was not operating on the basis of an obligation to talk.
I am satisfied that the referenced statements from Mr. Whitehouse made to Constable Mellish are not admissible pursuant to a combination of section 7 and section 24(1) of the Charter.
[30] The trial judge also accepted that without Mr. Whitehouse’s statement admitting to driving the car into the ditch PC Mellish would have had no grounds to make the ASD demand, and that without the ASD fail result the officer would have had no grounds to arrest Mr. Whitehouse and make the breath demand. The trial judge accordingly found breaches of Mr. Whitehouse’s s. 8 Charter rights and concluded that on balance the breath sample evidence and Mr. Whitehouse’s post-arrest statements should be excluded under s. 24(2) of the Charter.
[31] After excluding Mr. Whitehouse’s statements and the breath sample evidence from the trial proper, the trial judge found that the remaining admissible evidence did not establish that Mr. Whitehouse had been in care or control of the car in the ditch, that he had had a blood alcohol level over the legal limit, or that his ability to drive had been impaired by alcohol. He accordingly dismissed both the impaired driving and over 80 charges.
II. Analysis
A. General principles
[32] Crown appeals in summary conviction cases are not limited to grounds alleging an error of law, as they are in indictable matters. However, trial judges’ findings of fact are entitled to significant appellate deference, and should not be interfered with “unless it can be established that the trial judge made a ‘palpable and overriding error’”: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235 at para. 10. A palpable error is one that can be “plainly seen”: Housen, supra at paras. 5-6.
[33] Moreover, in order to have an acquittal set aside and a new trial ordered the Crown must do more than establish that there has been some procedural irregularity or legal error. Rather, as Fish J. observed in R. v. Graveline, 2006 SCC 16, [2006] 1 SCR 609 at para. 14:
It has been long established … that an appeal by the Attorney General cannot succeed on an abstract or purely hypothetical possibility that the accused would have been convicted but for the error of law. Something more must be shown. It is the duty of the Crown in order to obtain a new trial to satisfy the appellate court that the error (or errors) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal.
B. Did the trial judge err by permitting Mr. Whitehouse to testify only on the Charter voir dire?
[34] Criminal defendants have the right under s. 11(c) of the Charter “not to be compelled to be a witness in proceedings against that person in respect of the offence”, as well as the right under s. 13 “not to have any incriminating evidence” they give when testifying in any proceedings “used to incriminate [them] in any other proceedings”. They can ordinarily choose to testify on a Charter voir dire without waiving their right not to testify in the trial proper, and if they choose to testify only on a voir dire their testimony cannot be used as evidence in the trial itself, “because a voir dire is an ‘other proceeding’ within the meaning of s. 13”: R. v. Darrach, 2000 SCC 46, [2000] 2 SCR 443 at para. 66.
[35] In this case, however, the Crown contends that Mr. Whitehouse waived his right to testify only on the Charter voir dire when his counsel proposed on the first day that the trial be conducted in a blended fashion. The Crown relies a summary conviction appeal decision of this Court, R. v. Clarke, 2009 CanLII 18218 (Ont. S.C.J.), where MacLeod-Beliveau J. concluded that the trial judge in that case had not erred by holding the defendant to his pre-trial agreement to have his evidence apply to both the voir dire and the trial proper, stating (at para. 10):
I am satisfied that both parties consented to the blended voir dire/trial. There was clear, unequivocal consent to proceed on this basis. Once this basis of proceeding was established and agreed to by counsel, it would have been improper of the trial judge to change the conduct of the proceedings to permit the appellant to testify solely on the voir dire and not on the trial proper
The Crown argues that the trial judge in Mr. Whitehouse’s case was obliged to treat Clarke as a “binding appellate decision” that compelled him to reach the same conclusion in the circumstances here.
[36] I would not give effect to this ground of appeal for three main reasons. First, the trial judge distinguished Clarke on the basis that Mr. Whitehouse, unlike the defendant in Clarke, had not agreed to conduct the entire trial, including the defence case, in a blended manner. He explained:
For the purposes of this ruling, I am prepared to accept [defence counsel’s] submissions that when he agreed to a blended trial on behalf of the defendant, he understood this to mean that the Crown would call all of their evidence, which could be used for both the trial and Charter purposes and then the defendant, Mr. Whitehouse, would have the right to himself as a witness to give evidence on the Charter issues only or on both the Charter and trial issues.
The trial judge’s assessment of what the defence in this case had meant to agree to, while not a finding of fact per se, is still entitled to considerable appellate deference. I am not persuaded that the trial judge made any palpable and overriding error when he found that Mr. Whitehouse’s lawyer had never meant to waive his client’s Charter-protected right to testify only on the voir dire and not in the trial proper.
[37] Indeed, I would go further. I think the trial judge’s conclusion was the only sensible interpretation of defence counsel’s position, having regard to what were the live issues in this trial. It was clear from the outset that the defence was seeking to have Mr. Whitehouse’s admission to PC Mellish that he had been driving the car excluded on the basis that he had spoken under statutory compulsion. In this context it would have made absolutely no sense for Mr. Whitehouse to ever agree to testify in the trial proper, since doing so would have enabled the Crown to elicit this same factual admission from him directly. It would also have made no sense for him to waive his Charter-protected right to testify only on the voir dire merely in exchange for the Crown agreeing to call its own case in a blended manner, since the resulting trial efficiencies benefited the Crown as much as the defence. To adopt what the Ontario Court of Appeal said in a different context in R. v. Quinton, 2021 ONCA 44 at para. 69, such an agreement would have been “more of an unconditional surrender than it was a deal”.
[38] Second, I do not think that the trial judge was bound by MacLeod-Beliveau J.’s comments in Clarke on which the Crown relies. Statements by appellate courts only bind lower courts when they are central to an appellate decision. As Doherty J.A. explained in R. v. Prokofiew, 2010 ONCA 423 at para. 20:
A legal pronouncement that is integral to the result or the analysis that underlies the determination of the matter in any particular case will be binding. Obiter that is incidental or collateral to that analysis should not be regarded as binding, although it will obviously remain persuasive.
[39] The issue in Clarke was whether the defendant could object for the first time on appeal to the trial judge’s decision to hold him to his pre-trial agreement to testify both on the voir dire and at trial. In her decision dismissing the defendant’s appeal, MacLeod-Beliveau J. held that the trial judge “did not err in law” because defence counsel never “withdrew his consent to the blended hearing”, and that the accused could not object “for the first time on appeal” (at para. 11). Her further comment that “it would have been improper of the trial judge to change the conduct of the proceedings to permit the appellant to testify solely on the voir dire and not on the trial proper” was in my view non-binding obiter dicta, since it was directed at a purely hypothetical situation that did not actually arise in the case. The question of what would have happened if the defendant in Clarke had “withdrawn his consent” to the fully blended hearing was not before MacLeod-Beliveau J., and her comment that in this situation it “would have been improper” for the trial judge not to enforce the agreement was not “integral to the result or the analysis that underlies the determination of the matter in [the] particular case”: Prokofiew, supra at para. 20. Her comment was accordingly obiter, and did not bind the trial judge in the case at bar.
[40] Third, whether or not MacLeod-Beliveau J.’s comment in Clarke was obiter, it is not binding on me. As a matter of judicial comity, I should nevertheless follow it unless there is a cogent reason not to do so. As Strathy J. (as he then was) noted in R. v. Scarlett, 2013 ONSC 562 at para. 43, a previous decision by another Superior Court judge “should be followed unless the subsequent judge is satisfied that it was plainly wrong”.
[41] I express no view one way or the other as to whether Clarke was rightly decided on its particular facts. However, if the decision is taken to establish the broader proposition that a binding pre-trial commitment to testify can be made by a criminal defendant before the Crown has presented its own case, I think such a conclusion would be “plainly wrong”.
[42] The “case to meet principle” has been recognized to be both a component of the s. 11(d) Charter right to make full answer and defence and one of the s. 7 principles of fundamental justice. As Lamer C.J.C. explained in R. v. P.(M.B.), 1994 CanLII 125 (SCC), [1994] 1 SCR 555 at p. 577 (dissenting in the result, but not on this issue), one implication of this principle is:
… that an accused is under no obligation to respond until the state has succeeded in making out a prima facie case against him or her. In other words, until the Crown establishes that there is a “case to meet”, an accused is not compellable in a general sense (as opposed to the narrow, testimonial sense) and need not answer the allegations against him or her.
[43] Requiring a defendant to make an irrevocable decision to testify before the Crown has presented its own case would fly in the face of this principle. It would also undermine the defendant’s ss. 11(c) and 13 Charter rights to require a defendant to make such a commitment as a condition of being permitted to testify in support of his or her own Charter application. For both of these reasons, I do not think a defendant’s pre-trial agreement to testify in a “blended” manner for the purposes of both a voir dire and the trial proper can properly be enforced if the defendant later changes his or her mind and chooses not to testify in the trial proper.
[44] It is unnecessary for me to consider this last point further, since the trial judge in this case found that the defence in this case had never made any such agreement. As I have explained, I think this was a case-specific determination he was entitled to make, and I see no reason to interfere with it. This conclusion is sufficient on its own to dispose of this ground of appeal.
[45] I would also note that the Crown suffered no discernible prejudice from the way in which this trial was conducted. If the Charter and voluntariness voir dires had all been kept separate both from one another and from the trial proper, Mr. Whitehouse would have born the burden of establishing that admitting his statements at trial would violate his s. 7 Charter rights. However, the Crown would still have born the burden of establishing that his statements were voluntary and of demonstrating that the warrantless seizure of his breath samples did not violate his s. 8 Charter rights: see R. v. Haas, 2005 CanLII 26440 (Ont. C.A.). Since the Crown had to call the police witnesses in relation to the issues on which it bore the burden in any event, the prosecution was not disadvantaged by these witnesses giving their blended testimony before Mr. Whitehouse testified on the Charter voir dire only. At the end of the day, the Crown was able to call all the witnesses it wanted to call and to fully argue all of the issues that needed to be argued. The Crown had no right to force Mr. Whitehouse to testify on the trial proper and cannot point to his exercise of his Charter-protected right to decline to do so as a form of prejudice.
C. Did the trial judge err in finding that Mr. Whitehouse’s statement to PC Mellish was statutorily compelled?
[46] In its factum, the Crown takes issue with the trial judge’s conclusion that Mr. Whitehouse’s statement to PC Mellish was statutorily compelled. Ms. Armenise did not address this ground in her oral argument but indicated that she was relying on her written submissions.
[47] The Crown acknowledges that the trial judge correctly instructed himself on the law and “made findings of credibility with respect to [Mr. Whitehouse] that would otherwise be entitled to deference on appellate review”. However, the Crown maintains that he nevertheless “erred in his application of the law to the facts”, and that his acceptance of Mr. Whitehouse’s testimony as credible “cannot be reasonably supported by the evidence”.
[48] When the Crown appeals from an acquittal based on a finding at trial that the accused’s statement was made under statutory compulsion, an appellate court must consider whether there was evidence on which the trial judge could reasonably find that the accused “honestly and reasonably believed she was required to report the accident”: R. v. White, supra, at para. 93. In this case, the trial judge accepted Mr. Whitehouse’s evidence that he spoke to PC Mellish because he believed he was obliged by law to do so. I do not agree with the Crown that Mr. Whitehouse’s admission that he also told several other people about the accident before speaking to PC Mellish made it unreasonable for the trial judge to accept his explanation about why he made his statement to the officer. The other people Mr. Whitehouse spoke to were not police officers, and the potential legal consequences of speaking to them were obviously very different from the potential consequences of speaking to PC Mellish. The trial judge was in my view entitled to accept Mr. Whitehouse’s explanation for why he spoke to PC Mellish specifically, and I am not satisfied that his reasons disclose any palpable and overriding error that would permit me to interfere with his findings of fact on this issue.
[49] I also do not accept the Crown’s further argument that Mr. Whitehouse could not have reasonably believed that he was required to report the accident to PC Mellish because he acknowledged that he was unsure how badly the rental car had been damaged in the accident. As Iacobucci J. noted in White, supra at para. 78:
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.
Again, I do not think the trial judge made any palpable and overriding errors when assessing these factors that would justify my interfering with his factual conclusions.
[50] Finally, I do not agree with the Crown that it was unreasonable for the trial judge to accept Mr. Whitehouse’s testimony because “his evidence was replete with uncertainty, guessing and attempts to fill obvious gaps in his evidence”. The trial judge had the advantage of seeing and hearing Mr. Whitehouse testify and was particularly well-positioned to consider and weigh any potential frailties his evidence. I see no basis for me to second-guess his assessment of Mr. Whitehouse’s credibility and reliability. In this regard, I should note that the Crown’s reliance on R. v. Saunders, [2004] O.J. No. 472 (S.C.J.) is misplaced, since in Saunders the summary conviction appeal court deferred to the trial judge’s conclusion that the defendant’s evidence in that case was not credible. I must adopt the same posture of appellate deference in relation to the trial judge’s conclusion in this case that Mr. Whitehouse was a credible witness.
D. Did the trial judge fail to give adequate reasons?
[51] The Crown’s third ground of appeal challenges the adequacy of the trial judge’s reasons in relation to three specific issues, discussed further below. As McLachlin C.J.C. explained in R. v. R.E.M., 2008 SCC 51, [2008] 3 SCR at paras. 16-17:
[C]ourts of appeal considering the sufficiency of reasons should read them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered
These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did. The object is not to show how the judge arrived at his or her conclusion, in a “watch me think” fashion. It is rather to show why the judge made that decision. [Italics in original, citations omitted].
[52] The Crown’s first complaint is that the trial judge failed to adequately explain the contradiction between his initial ruling that Mr. Whitehouse’s statement to PC Mellish was voluntary and his later conclusion that Mr. Whitehouse honestly and reasonably believed that he was statutorily compelled to speak to the officer. I agree with the Crown that the two holdings are contradictory insofar as a statement made under statutory compulsion cannot be said to have been “freely and voluntarily made.”[^2] However, I think that it is clear from the record as a whole why the trial judge reached different conclusions at different points in the trial. When he gave his voluntariness ruling Mr. Whitehouse had not yet testified, and the trial judge expressly observed that there was “no evidence before [him] that the statements made by the defendant were compelled by statute”. Mr. Whitehouse then filled this gap by testifying on his s. 7 Charter application, and the trial judge accepted his evidence. In short, the trial judge decided the voluntariness and s. 7 Charter issues differently because the evidence before him had changed.
[53] Second, Crown counsel argues that the trial judge failed to properly grapple with evidence that she contends could have supported a finding that PC Mellish still had reasonable grounds to make an ASD demand even once Mr. Whitehouse’s statement admitting to being the driver was excluded from consideration, as it had to be once the trial judge found it was statutorily compelled (see R. v. Soules, 2011 ONCA 429). In her factum, Ms. Armenise argued that even without Mr. Whitehouse’s statement PC Mellish still had grounds to make an ASD demand based on:
…the unexplained vehicle collision, the odour of alcohol on the vehicle and then on the breath of the accused, [and] the fact that [Mr. Whitehouse] approached the officer near the vehicle …
During oral argument she added to this list Mr. Deon’s description to the 911 dispatcher of the man who he spoke to at the roadside.
[54] Dealing with this last point first, the Crown’s reliance on Mr. Deon’s evidence as supporting PC Mellish’s ASD demand is misplaced. Leaving aside the question of whether Mr. Deon’s description of the man actually resembled Mr. Whitehouse, PC Mellish testified that he did not receive any description of the driver from the police dispatcher, and did not speak to Mr. Deon himself until the next day. Whether PC Mellish had reasonable grounds for making the ASD demand must be assessed based solely on what he knew at the time, not on the basis of information he may have obtained afterwards.
[55] In order to make an ASD demand under what was then s. 254(1) of the Criminal Code, PC Mellish had to have reasonable grounds to suspect that Mr. Whitehouse had been operating a motor vehicle within the past three hours and that he had alcohol in his system. I agree with the Crown that on all the evidence PC Mellish had reasonable grounds to suspect that the driver of the car in the ditch, whoever he or she was, had recently been drinking, based both on the fact of the accident and the odour of alcohol PC Mellish noted inside the car. I also agree that once PC Mellish smelled alcohol on Mr. Whitehouse’s breath this gave him reasonable grounds to suspect that Mr. Whitehouse had himself been drinking.
[56] However, PC Mellish testified that while it occurred to him that there was a “possibility” that Mr. Whitehouse might be the driver when he first saw him approaching from the plaza across the street, he only concluded that he had grounds to make the ASD demand after Mr. Whitehouse admitted that he was the driver of the car.
[57] The problem the Crown faces on appeal is that Crown counsel at trial did not argue that PC Mellish still had reasonable grounds make the ASD demand even if Mr. Whitehouse’s statement were excluded from consideration pursuant to Soules, supra. Rather, he argued only that Mr. Whitehouse’s statement had not been statutorily compelled, and argued in the alternative that Soules had been overtaken by the Supreme Court of Canada’s subsequent decision in R. v. Paterson, 2017 SCC 15 and should not be followed.[^3] The adequacy of the trial judge’s reasons must be assessed in this context. In my view he cannot be faulted for not expressly addressing an argument that the Crown had not made.
[58] Third, the Crown submits that the trial judge failed to adequately explain his conclusion that the evidence that remained after Mr. Whitehouse’s statements to the police and the breath samples were excluded did not support a finding of guilt on the impaired driving charge. Specifically, the Crown argues that the trial judge erred by not explaining why he could not draw the conclusion that Mr. Whitehouse had been driving the car in the ditch and had been impaired based on Mr. Deon’s evidence and the fact of the accident itself.
[59] Again, the problem the Crown faces on appeal is that Crown counsel did not make this argument at trial. Crown counsel at trial did urge the trial judge to conclude that the man Mr. Deon spoke to at the scene was Mr. Whitehouse. However, he based this argument on the similarities between what this man had told Mr. Deon and Mr. Whitehouse’s own subsequent statements to the breath technician, which Crown counsel argued should be admitted into evidence even if his statement to PC Mellish at the roadside was excluded. Crown counsel at trial did not argue that Mr. Deon’s description of the driver would be sufficient on its own to support a conviction even if the trial judge excluded Mr. Whitehouse’s statement to the breath technician, as he ultimately did. In my view, the trial judge again cannot be faulted for not expressly addressing in his reasons an argument that the Crown had not made at trial and advanced for the first time on appeal.
[60] In any event, when the trial judge’s reasons are read in the context of this case I think it is clear why he did not rely on Mr. Deon’s evidence alone to find Mr. Whitehouse guilty. Mr. Deon’s description of the man he spoke to at the scene was contrary in several respects to Mr. Whitehouse’s actual appearance, and he was unable to identify Mr. Whitehouse in the courtroom as the man he had spoken to at the accident scene. In my view, once all of the other evidence relied on by the Crown was excluded it would not have been reasonable for the trial judge to rely solely on Mr. Deon’s testimony to find Mr. Whitehouse guilty, and the Crown at trial did not suggest otherwise.
E. Did the trial judge err by excluding the breath sample evidence?
[61] The Crown’s final ground of appeal, which it advanced only in writing, is that the trial judge erred by excluding the breath sample evidence under s. 24(2) of the Charter. The Crown recognizes that the trial judge properly instructed himself on the legal framework established by the Supreme Court of Canada in R. v. Grant, 2009 SCC 34, [2009] 2 S.C.R. 353, and acknowledges that he also expressly considered the Ontario Court of Appeal’s decision in R. v. Jennings, 2018 ONCA 260 addressing the application of the Grant framework to breath sample evidence specifically. However, the Crown argues that the trial judge “incorrectly applied the principles in Grant and Jennings” by not considering only “the intrusiveness of the breath sample procedure itself” when assessing the impact of the Charter breaches on Mr. Whitehouse’s protected interests.
[62] It is well-settled that “[a] trial judge’s decision to admit or exclude evidence under s. 24(2) is entitled to deference on appeal, absent an error in principle, palpable and overriding factual error, or an unreasonable determination”: R. v. McGuffie, 2016 ONCA 365. In this case, the trial judge found as fact that PC Mellish had “immediately questioned [Mr. Whitehouse] to determine if he was the driver”, and had based his subsequent investigation on what “he knew or should have known was a compelled answer”. He found that this exacerbated the seriousness of the Charter-infringing state conduct under the first branch of Grant and concluded that the first Grant factor “strongly favours exclusion”. I see no errors in the trial judge’s analysis that would permit me to interfere with this conclusion on appeal.
[63] With respect to the second branch of Grant, the trial judge distinguished Jennings, supra, on the basis that in this case the officer had “knowingly made use of a compelled response from Mr. Whitehouse as a shortcut in his drinking and driving investigation”. In my view, the trial judge was correct to conclude that this was a relevant consideration when assessing the impact of the Charter breaches on Mr. Whitehouse’s protected interests. Indeed, it is well-settled that s. 7 of the Charter protects defendants from having their statutorily compelled statements used against them either directly or indirectly. In this case, the breath samples seized from Mr. Whitehouse can be seen as a form of derivative evidence, the admission of which would have caused an infringement of his s. 7 Charter rights. I think the trial judge was entitled to treat this as increasing the impact of the breach on Mr. Whitehouse’s protected Charter interests for the purposes of the second stage of the Grant analysis.
[64] My conclusion that the trial judge made no errors in his s. 24(2) Charter reasons that would disentitle his decision from the usual appellate deference is sufficient to dispose of this ground of appeal. However, I would go further and observe that it is also questionable whether resorting to s. 24(2) was even necessary in this case. The Supreme Court of Canada has held that people who are statutorily compelled to speak are entitled to claim both use immunity and derivative use immunity in any subsequent penal proceedings. Use immunity prevents the compelled statements themselves from being admitted as evidence against the speaker, while derivative use immunity prevents the use of evidence the police have obtained as a result of the compelled statement, unless the Crown can show that the police would have found this same evidence independently: see, e.g., British Columbia Securities Commission v. Branch, 1995 CanLII 142, [1995] 2 SCR 3. Significantly, the anticipatory exclusion of derivative evidence to prevent a s. 7 Charter violation, which can be done either at common law or pursuant to s. 24(1) of the Charter (see White, supra at para. 89), is not subject to the case-specific balancing of factors that informs a decision to admit or exclude evidence under s. 24(2).
[65] Neither of the parties nor the trial judge framed the exclusionary issue in this case as a request to exclude derivative evidence in order to prevent a future s. 7 Charter breach. However, on the trial judge’s findings of fact it seems clear that he would have concluded that the breath sample evidence and Mr. Whitehouse’s statements at the police station were derivative of his initial compelled statement at the roadside, and that the Crown had not demonstrated that the police would have obtained this same evidence independently. The Supreme Court of Canada’s s. 7 self-incrimination jurisprudence accordingly obliged him to exclude this evidence either under s. 24(1) or at common law, because admitting otherwise undiscoverable derivative evidence at trial would cause a violation of Mr. Whitehouse’s s. 7 Charter rights.
[66] While I am not satisfied in any case that the trial judge made any reversible errors in his s. 24(2) analysis, the prospect that at a new trial the same evidence might have to be excluded under s. 24(1) tends to suggest that any errors the trial judge might have made when balancing the s. 24(2) factors cannot “reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal”: R. v. Graveline, supra.
III. Disposition
[67] In the result, I would dismiss the Crown’s appeal and affirm Mr. Whitehouse’s acquittals.
The Honourable Justice Dawe
Released: May 27, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ROBERT WHITEHOUSE
REASONS FOR JUDGMENT
The Honourable Justice Dawe
Released: May 27, 2021
[^1]: Relying on R. v. Orbanski, 2005 SCC 37, he also held that Mr. Whitehouse’s responses to PC Mellish’s questions about his drinking were “admissible only for grounds and not for the truth of [their] contents”. The Crown takes no issue with this conclusion.
[^2]: See, e.g., R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 at para. 26.
[^3]: In fairness, I should note that Crown counsel at trial made this submission several months before the Ontario Court of Appeal released its decision in R. v. Roberts, 2018 ONCA 411, in which it held (at para. 48) that “Paterson cannot … be taken to have overruled Soules” and that “the Soules decision remains binding law in Ontario unless and until it is properly brought before this court for its reconsideration or is overruled by the Supreme Court”.