Court File and Parties

Barrie Court File No.: CR-22-132 Date: 2024-03-14

Ontario Superior Court of Justice

Between: His Majesty The King – and – Vincent Vallee

Counsel: Mary Anne Alexander, for the Crown Rachel Lichtman, for the Applicant

Heard: February 26, 2024

Reasons for Decision on Charter Application

Healey, J.:

Nature of the Application

[1] The Applicant is charged with dangerous operation causing death contrary to s. 320.13(3) of the Criminal Code.

[2] The Applicant seeks a ruling excluding his utterances and a statement taken by Officer Walli at the scene, as well as observations made by the officer of an odour of alcohol originating from the Applicant during their contact inside a police cruiser.

[3] The Applicant seeks to exclude the utterances, statement and observations based on breaches to his section 7, 10(a) and 10(b) rights under the Charter.

[4] The Applicant provided evidence on the voir dire both by affidavit and oral testimony.

[5] Oral rulings were delivered on February 28 and March 1, 2024, with reasons to follow.

Admissions

[6] The following facts are established by admission:

(a) The collision occurred on February 5, 2021, in the Township of Severn, County of Simcoe;

(b) John Bull was the driver of a black GMC Jimmy at the time of the collision;

(c) The Applicant was the driver of the dump truck/commercial motor vehicle at the time of the collision;

(d) John Bull died because of the injuries he sustained in the collision. He was pronounced dead at the scene; and

(e) The Applicant called 911 at 11:46 a.m. on February 5, 2021. This call is conceded to be voluntary and admissible on the voir dire.

Positions of the Parties

[7] The Applicant’s position is that his first utterances to Officer Walli were a compelled statement pursuant to s. 199(1) of the Highway Traffic Act, R.S.O. 1990, c. H. 8 (“HTA”) and cannot be used to further a criminal proceeding without violating his s. 7 rights.

[8] Further, Officer Walli detained him for the joint purpose of a criminal investigation as soon as the two began their interactions, after the officer had confirmed that the Applicant was the driver of the dump truck involved in the accident. Both the utterances and the statement were taken without the Applicant being advised that a criminal investigation was underway, without being advised that he was under detention or the reason for it, and without being advised of his right to counsel nor offered the opportunity to exercise it before being asked to provide information about the accident.

[9] The Applicant also submits that the first observations of alcohol stemmed directly from the taking of the unconstitutional statement, and the second observation was made when the Applicant continued to be detained and his s.10 rights ignored.

[10] In the result, the Applicant submits that it would bring the administration of justice into disrepute to include these items of potential evidence at the trial, and seeks an order for their exclusion under s. 24(2) of the Charter.

[11] The Crown’s position is that the Applicant was never detained throughout the entirety of his presence at the accident scene, and any perception that he had to remain at the scene was not because of anything done by the police. He remained at the scene because he was concerned about Mr. Bull. Further, the interactions of Officer Walli with the Applicant were not pursuant to a criminal investigation, but rather a preliminary investigation into the cause of the accident at a time when the Applicant was not suspected of any criminal wrongdoing. Any comments made by the Applicant were offered up voluntarily through free choice.

[12] The Crown also submits that the Applicant has not met the test to establish that his first utterances were compelled by an honest and reasonably held belief that he was required by law to report the accident.

[13] The Crown relies on the case of R. v. Milne, [1996] O.J. No. 1728 (Ont. C.A.) (“Milne”), and subsequent caselaw of this court that has applied Milne to the effect that signs of impairment such as Officer Walli’s observations are admissible at trial, despite the prohibition against using evidence obtained from compelled participation in roadside tests under the HTA.

[14] Finally, the Crown argues that an application of the factors from R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (“Grant”) points to the inclusion of the utterances, the statement, and the smell of alcohol.

The Evidence

The 911 call

[15] When the Applicant placed the 911 call at 11:46 a.m., it is obvious from the recording that he was distraught and panicking. At the outset, when the 911 operator asked him what his emergency is, his opening statement was: “Hi, um, I just got in an accident. I’m in a dump truck and I, I just, I slid [1] on this corner and this guy’s in the ditch. His car’s wrecked. I think he might be dead. I’m really – oh my God.”

[16] As more questions were asked by the operator, the Applicant stated his fear that the occupant may be dead five more times, and twice he said that the occupant was not moving.

[17] The Applicant provided more information during the call, which went on for over seven minutes. He stated that he was driving a dump truck and identified the location of the accident as the intersection of Quarry Road and St. Amant Road.

[18] He explained again, without being prompted, that he was coming around the corner and the truck was sliding and he (the other driver) was making a turn, and hit the side of his truck.

[19] When asked what the road conditions were like, he said “the corner has got a – it’s a little slick. There’s a bit of grease”.

[20] When asked if the Jimmy was flipped on its side or roof, he again volunteered more information about the mechanism of the accident, stating: “He’s on his side. I’m coming around the bend here… It’s a little slick. Like there’s a bit of residue that’s sort of slick”.

[21] When asked whether he had been injured, he responded that he was fine, but more shaken up. Again, he volunteered “I slipped coming around this corner here and he was coming and just…”

[22] He asked the operator if anyone was on their way, and was told that police, fire and ambulance were coming. The call ended at approximately 11:53 a.m.

[23] When asked by Crown counsel whether he called 911 because it was the right thing to do, he answered “yes, any accident you’re supposed to call 911”. He agreed that he was hoping that the other driver would get help, and everything would be okay.

Before Officer Walli Arrives

[24] The Applicant testified that he waited around his truck after the 911 call ended. When asked why he waited, he stated that he did so because he was involved in a serious accident and so did not think that he could leave. He also stated that he was shocked and had never been in an accident before, so did not know whether he was allowed to leave or had to stay. He was waiting for someone to come to him.

[25] He also testified that another reason that he stayed was that he was genuinely concerned about the other driver. When a paramedic came to ask him if he was hurt, which was before Officer Walli’s arrival, his response was that he was mainly concerned about the other driver.

Officer Walli’s Arrival

[26] Officer Walli arrived on scene at 12:12 p.m. Another officer had arrived before him, as had a firefighter and the EMS supervisor, but Officer Walli was the only officer who had significant interactions with the Applicant.

[27] Officer Walli learned that the other driver was deceased soon after arriving on scene, and before speaking to the Applicant. He observed the dump truck sitting on the shoulder of the road and an individual standing in the vicinity of the dump truck.

[28] He testified that his role was to investigate the cause of the collision by securing the scene, identifying the involved parties and, if possible, taking statements. Because it was a fatal accident, both a technical traffic collision investigator and accident reconstructionists were required to attend the scene. One of the members of that team, Officer Maki, was already on scene.

[29] On cross-examination he agreed that because this was a serious accident, criminal behavior would have to be ruled out. While he was alive to the possibility of criminal charges, it was also possible that the outcome might be charges under the HTA, or no charges at all.

The Utterances

[30] Officer Walli approached the Applicant, walking up to him as he was standing near his truck. The officer was dressed in full police uniform. The Applicant could not recall how long after the 911 call this was, and said that it felt like forever, perhaps an hour. Officer Walli’s arrival on scene did not stand out for him because the officer was “in a sea of cops and people”. Officer Walli recalled that he approached the Applicant within five minutes of his arrival, and there were no other civilians on scene.

[31] Another police officer was with Officer Walli that day, Officer Devine. It was his first day on the job, so he was observing only. There is no evidence about whether he was in uniform. Officer Walli testified that the other officer was close to him when he first interacted with the Applicant. There is no evidence that Officer Devine spoke to the Applicant, other than an innocuous comment later in the sequence of events.

[32] Officer Walli first asked if he was the driver of the truck, and the Applicant confirmed that he was. The officer then asked him for his driving documentation. The Applicant produced his driver’s licence from his wallet, and then went into the dump truck to obtain his other documentation. The officer testified that he walked with the Applicant to the truck, which was about 10 to 20 feet away. The officer remained by the truck while the Applicant retrieved the registration, insurance, safety certificate, daily inspection sheet and a schedule. These were all obtained from a binder within the cab.

[33] The Applicant’s recollection is that the officer then took these documents back to his vehicle, and then returned to ask him another question. This differs from Officer Walli’s recollection, which was that he asked the question “what happened”, right after the Applicant had handed him his documents.

[34] I accept the evidence of Officer Walli over that of the Applicant regarding this sequence of events. The Applicant admitted that his memory is blurry for some of what occurred at the scene. Based on his comments on the 911 call, his evidence that he was shocked, and Officer Walli’s evidence that he appeared to be very upset, I accept that Officer Walli’s memory is better preserved.

[35] Officer Walli testified that in response to that question, the Applicant told him that he was hugging the white line, and the other vehicle was coming head on and crossed the yellow line and they struck. The officer recorded these comments in his notes. The officer also said that he believed that the Applicant also confirmed that he was wearing a seatbelt, and that he was going eastbound at 70 km/hr.

[36] The officer said that this conversation was brief, lasting no more than one minute. The Applicant agreed that it was a short conversation. The officer did not tell him that he was detained.

[37] The Applicant said that he did not think that he could choose not to answer. He believed that had to answer the question because he was in an accident, and was not told that he did not have to answer. He answered simply because the officer had asked him a question, and he agreed that part of being a good citizen is answering questions when asked by the police.

[38] Officer Walli said that he was asking for these details because this was basic information that he needed to complete a collision report for the Ministry of Transportation as required by the HTA, and to get a generic sense of what had happened. When he asked the question “what happened”, he first testified that he was doing so to satisfy his obligations to the Ministry. He also said that once the Applicant had provided him with his documentation, he would have been free to leave the scene even if he had not responded to “what happened.” The officer explained that this was because the technical officers would be investigating the cause of the accident. He reiterated a second time that once the Applicant had provided the documents, as far as the officer was concerned the Applicant had fulfilled his obligations to report the collision.

[39] However, he agreed that he also wanted to investigate, and acknowledged that it was important to rule out criminal behavior. He also said that the Applicant was not a suspect, and he was not conducting a criminal investigation. He agreed that at the time he asked the Applicant what happened, he did not tell him that he was not compelled to answer. Nor did he mention anything about rights to counsel.

[40] Officer Walli testified that criminal liability was not at the forefront of his mind at the time, as his operating guess was that the other driver was at fault. He reached this initial conclusion because of the location of the dump truck and the road and weather conditions. Once the Applicant responded to his question, that belief was reinforced.

[41] After obtaining that information, he placed the documents given to him by the Applicant in his police vehicle and then shifted his attention to trying to identify the deceased driver. He did not tell the Applicant that he could go or that he had to stay. He observed that the Applicant remained pacing at the scene, visibly upset.

[42] The Applicant testified that he still believed that he had to remain at the scene. He may have gone into his truck to get a drink after Officer Walli walked away, but otherwise remained close to his truck.

[43] Eventually Officer Walli gave up trying to identify the driver and returned to the Applicant.

The Statement

[44] At 12:30 p.m., Officer Walli again approached the Applicant. He did so with the express intention of taking a statement from him. He wanted to put in writing, in the Applicant’s own words, that the other driver crossed the line and document the road and weather conditions. He agreed that he was taking the statement to further the investigation but disagreed that he was taking it as part of a criminal investigation.

[45] Before taking the statement he cautioned the Applicant. He testified that it is his practice to caution everyone before taking a statement. He first read from his caution card, “you are not obliged to say anything unless you wish to do so, but whatever you say may be given against you in evidence. Do you understand?”. The Applicant responded that he understood. The officer’s practice is to repeat the caution in less formal language, so he repeated a second time that he did not have to say anything, but simultaneously added that it would be helpful if he gave a statement because he could not ask the other the driver to explain what happened. He confirmed that this was when he communicated to the Applicant that the other driver was dead.

[46] The Applicant asked whether he had to give a statement. The officer acknowledged that he could see that the Applicant was hesitant. In response, he told the Applicant that he did not have to, but he would appreciate it.

[47] The Applicant could not recall whether he learned from Officer Walli that the other driver had died before or after he gave the statement. For the same reasons previously stated, I accept that Officer Walli’s memory is more reliable, and that the Applicant was given this information before he made a formal statement and after inquiring whether he was compelled to provide it.

[48] Once the Applicant agreed, the officer suggested that they go into his cruiser to take the statement, where it was warmer. He permitted the Applicant to sit in the front passenger seat because it was more comfortable than the back and because the officer felt sorry for him. He still believed that the other driver was at fault, based on the Applicant telling him that he was hugging the shoulder.

[49] It is uncontroverted that the Applicant was never advised of his rights to counsel.

[50] The Applicant recalled that when Officer Walli approached him the second time, he returned his licence and documentation. When the officer asked whether he would give a statement, he recalled that the officer told him that he did not have to provide one, and that it could be used against him. He does not recall the officer reading from something but agreed that it is possible that the officer was using legal language. He could not recall asking the officer whether he had to give the statement but did not disagree that he might have asked that.

[51] The Applicant’s affidavit said that he agreed to give the statement. Crown counsel, in pressing him on whether he chose to give it, elicited the answer “I guess I chose to do it”. The Applicant also said “he asked for the statement and I went along with it”.

[52] The statement started at 12:39 p.m. and ended at 12:53 p.m. The officer handwrote the questions and answers, which the Applicant signed when it was done. He was visibly upset. In his statement the Applicant repeated his earlier version of events, that he was hugging the outside of his lane, and the other driver was hugging the centre line when they “clipped”.

[53] It was during this interaction that Officer Walli detected an odour of alcohol in the car. The Applicant was wearing a medical mask, as Covid-19 was still rampant, and the officer attributed the smell to hand sanitizer kept within the vehicle.

[54] Once the statement was taken, Officer Walli asked him to step out of the car, and then Officer Devine got in. The Applicant remained at the side of the road. Then Officer Walli exited the car, and Officer Devine moved to the driver’s seat so that the Applicant could again sit in the passenger seat. The Applicant believes that he re-entered because Officer Walli asked him to get back in. It was at this point that the Applicant recalls learning that it was Officer Devine’s first day on the job, but there is no evidence of further conversation.

[55] I find that the Applicant would not have re-entered the police vehicle on his own initiative, and that he did so at the invitation or direction of one of the two officers.

[56] Officer Walli did not tell him that he had to remain, or that he could leave. The officer’s belief at the time was that the Applicant was free to leave.

[57] The Applicant agreed that up to this point Officer Walli had treated him with respect.

Officer Walli’s Next Request

[58] After leaving the Applicant, Officer Walli spoke to his colleagues about the scene evidence, discussed the Applicant’s statement with them, and concluded that the Applicant may not have been truthful about what happened.

[59] He approached the Applicant again. He recalled that he asked the Applicant to get back in the cruiser to give him another statement, having approached him when the Applicant was again standing on the roadside. He did not tell the Applicant that he was not required to accompany him to the cruiser. Once in the vehicle, Officer Walli cautioned him for obstruct police, and accused him of lying. The Applicant told him that he understood the caution. The officer agreed that he did not tell the Applicant that he was detained, and never told him about his rights to counsel.

[60] No statement was given.

[61] The officer again noted the smell of alcohol, so got closer to the Applicant and detected that it was coming from him when he was speaking. Another officer brought an approved screening device, the demand was read, and a sample provided at 1:29 p.m. The officer then told the Applicant to “get the f*&# out of my car”. He explained that he said this because he was mostly angry with himself for not detecting the odour and proceeding with the alcohol investigation earlier.

[62] Officer Walli testified that the Applicant then got out of his car. His last dealings with the Applicant were at 1:33 p.m., when he served him with a licence suspension, and seized his cell phone. He then told the Applicant to leave the accident scene, at which time the Applicant walked away.

[63] The Applicant has a somewhat different version of events. He said that he was in the vehicle when Officer Walli re-entered. He does not recall Officer Walli accusing him of lying when he returned to the vehicle, although agreed that it was possible, and did not detect any change in the officer’s demeanor. He recalled they were having a casual conversation, with the officer sharing that he also had an AZ licence. He then said that they got back in the car when another officer brought the breathalyzer, and after the breath sample was given, Officer Walli told him to “get the f*&# out of my car”.

[64] Officer Walli did not explain how he communicated to another officer that he needed an approved screening device. Perhaps the Applicant was still in the cruiser when Officer Walli returned, he then had to get out of the vehicle to give direction to another officer to bring the device and so asked the Applicant to step out once again, and then the two re-entered the vehicle and waited for the screening device. The other possibility is that the Applicant had earlier been asked to leave the vehicle, returned to it on Officer Walli’s request and remained there until another officer brought over the screening device. Either version means that the Applicant was given further direction by Officer Walli on two occasions.

[65] After the Applicant got out of the car, he said that three officers stood around him and accused him of lying. They asked for his phone, which he surrendered. The Applicant then left the scene because they directed him to go.

[66] Up to that point, no one told the Applicant that he had to remain at the scene. Up to that point, he assumed that he was not allowed to leave.

Analysis

(1) Whether the Applicant’s utterances were compelled

[67] Section 199 of the HTA imposes a duty on a driver to report an accident to a police officer that results in personal injury or property damage exceeding a prescribed amount, and a corresponding duty on the police officer to gather information about an accident for a written report. The relevant subsections provide:

199. (1) Every person in charge of a motor vehicle . . . 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.

[68] The leading case setting out the test for when a statement is statutorily compelled is R. v. White, [1999] 2 S.C.R. 417 (“White”), at para. 75. The test is “whether, at the time that 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.” If the test is met, the statements cannot be used to incriminate the declarant in subsequent criminal proceedings.

[69] The case before me presents similar circumstances to those in R. v Moussavi, 2016 ONCA 924, [2016] O.J. No. 6316, (“Moussavi”). Like the appellant in Moussavi, the evidence here supports a finding that the defendant had an honest and reasonably held belief that he was required to remain at the scene because this was obviously a serious accident, and that he was obligated to identify himself as the driver and give over his licence and other documents. He also believed that he had to give an explanation in response to the officer’s question because he had been in an accident. He even identified what he believed to be an obligation to call 911.

[70] However, like the trial judge said of the appellant in Moussavi, the Applicant “had a self-serving purpose for speaking to the police and did so in order to offer an exculpatory declaration of his own involvement in the collision”. He had already admitted during the 911 call that he was the operator of the dump truck involved in the collision. Because of the number of times that he offered exculpatory explanations to the 911 operator, there can be no doubt that this was top of mind for the Applicant right from the outset. When Officer Walli asked him what happened, he again did not hesitate to provide an answer that placed fault on the other driver.

[71] He also explained that he answered simply because the officer had asked him a question, and that answering questions from police is part of being a good citizen. None of this equates to the HTA being the cause of his utterances.

[72] I find that it was not his statutory duty that motivated him to respond the officer’s question, but rather his desire to direct blame away from himself. His explanation was not compelled by statute.

(2) Whether the Applicant was detained

[73] In R. v. Lafrance, 2022 SCC 32, [2022] S.C.J. No. 32 (“Lafrance”), the Court was called up to affirm and apply its holdings in Grant and R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692 (“Le”), with respect to determining whether an individual has been detained by the police.

[74] At para. 21, the Court reviewed its jurisprudence as to what constitutes detention:

Detention refers to “a suspension of an individual’s liberty interest by virtue of a significant physical or psychological restraint at the hands of the state” (R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 21; Le, at para. 27). In the heat of the moment, it is not always easy for ordinary citizens, who may be uninformed of their rights or the scope of the police’s powers, to know whether they have a choice to comply with a request by the police. An individual may perceive “a routine interaction with the police as demanding a sense of obligation to comply with every request” (Le, at para. 26, referring to S. Penney, V. Rondinelli and J. Stribopoulos, Criminal Procedure in Canada (2nd ed. 2018), at p. 83). For that reason, this Court has recognized that, “even absent physical restraint by the state, a detention exists in situations where a reasonable person in the accused’s shoes would feel obligated to comply ... and that they are not free to leave” (Le, at para. 26 (emphasis added)). Even so, not every encounter between state and citizen effects a detention (Suberu, at para. 3; Le, at para. 27); no detention is effected, and therefore s. 10(b) rights are not breached, where an individual voluntarily assists the police by, for example, freely agreeing to provide a statement.

[75] At para. 22 of Lafrance, the Grant test for psychological detention was confirmed:

Psychological detention exists where an individual is legally required to comply with a direction or demand by the police, or where “a reasonable person in [that individual’s] position would feel so obligated” and would “conclude that he or she was not free to go” (Grant, at paras. 30-31; Le, at para. 25). It is that latter category which Mr. Lafrance says describes his circumstances. Three factors — identified in Grant and expanded upon in Le — are to be considered and balanced:

1. The circumstances giving rise to the encounter as they would reasonably be perceived by the individual;
2. The nature of the police conduct; and
3. The particular characteristics or circumstances of the individual where relevant (Grant, at para. 44; Le, at para. 31).

[76] In Grant, at para. 25, the Court noted that a person may reasonably believe that he or she has no choice but to submit to a deprivation of his or her liberty even where there has been no formal assertion of police control.

[77] These three leading cases on psychological detention – Grant, Le and Lafrance – call upon the court to look at these factors contextually by examining the entirety of the circumstances.

(i) The circumstances giving rise to the encounter

[78] The focus here is how the circumstances of the encounter would have been perceived by the Applicant (Lafrance, at para. 29).

[79] The Applicant knew when he made the 911 call that he had been involved in a serious accident in which the other driver was either deceased, or not moving because he was seriously injured. He knew that the police were summoned to the scene because of his 911 call. He knew without a doubt that his truck had collided with the other vehicle, and that no other vehicles were involved.

[80] The Applicant had never been in an accident before and did not know whether he was allowed to leave or required to stay. He testified that it was because of the seriousness of this accident that he believed he must remain at the scene until someone approached him. In these circumstances, this was an objectively reasonable belief.

[81] Although he agreed with Crown counsel’s suggestion that he also remained at the scene because he was concerned about the driver’s status, I find that this was not the decisive factor for him. It can be true that he was worried about the other driver and at the same time feel that he was required to stay.

[82] Officer Walli was in uniform, visibly a police officer. As he approached the Applicant for the first time, he was accompanied by another officer. The Applicant did not say that he felt “targeted”. However, there were no other civilians on scene available for questioning. He was more than a bystander who had simply witnessed an event and available to help to fulfil a moral or civic duty.

[83] When Officer Walli asked him initially if he was the driver, he believed that he had to answer the question. When this was followed up by a request for his documentation, he did not hesitate. He surrendered his driver’s licence and documentation as requested.

[84] At this point, the Applicant was more than momentarily held up or fleetingly inconvenienced. Legally, he could not have returned to the truck and driven away without his documentation. While walking away may have been possible, no one in authority told him that he could do so. Even when Officer Walli walked away with his documents, he did not give any direction to the Applicant about whether he could leave or had to stay. The Applicant assumed the latter because he had been in a serious accident, and I find that that was an objectively reasonable belief in the circumstances.

[85] When Officer Walli asked the Applicant what happened after he had surrendered his licence and documents, his belief was that he had to answer because he had been in a serious accident. This all occurred in the same transaction, the question occurring right after the documents were surrendered. In these circumstances it is not likely that the Applicant believed that Officer Walli was offering him assistance or making a “general inquiry”. The question, “what happened”, went straight to the point of asking the Applicant to offer what he knew about how it came to pass that there was a crushed vehicle on its side in the opposite ditch with its driver either deceased or seriously injured. A reasonable person would understand that he was being singled out for investigation. A reasonable person similarly situated would also feel obligated to comply by responding to the question.

[86] I distinguish this situation from that in R v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460 (“Suberu”) in which the officer who approached Mr. Suberu was trying to orient himself to the quickly unfolding situation and attempting to determine whether Mr. Suberu was involved in the matter that the police had been called to investigate. Officer Walli already had two significant pieces of information: this was a fatality, and the Applicant was the driver of the involved dump truck. Asking him “what happened” may have been done to further the investigation, but it was not an innocuous question. While Lafrance directs that investigative purposes are less relevant when reviewing this first factor from Grant, it is again important to note that while the officer may have had a working theory that there was no criminal behavior, he also testified that it was important to rule that out.

[87] The preceding evidence points in favour of finding a detention right from the point that the Applicant had surrendered his documents.

[88] That subjective belief that he was not free to leave the scene, and that he was being singled out for investigation about his part in a serious collision, could only have been reinforced when the officer returned and asked him for a written statement.

[89] No one factor, including a statement by the police that the individual need not speak to them, is determinative of a finding of detention: Lafrance, at para. 36.

[90] Crown counsel submitted that the formal statement was given by the Applicant as a matter of free choice. He was formally cautioned, and then told twice again that he did not have to provide a statement. Crown counsel submitted that if a person “agrees” to do something, they know the options and have weighed them.

[91] I disagree that this describes the Applicant’s state of mind. His affidavit states that at the time that Officer Walli asked him to make a statement he was very upset and confused about what happened, and what was happening, and agreed to provide the statement. In his viva voce testimony, although he stated that he ultimately agreed to give a statement, he also said that he went along with the officer’s request. Officer Walli could tell that he was hesitant. And importantly, the Applicant had just been told that the vehicle’s occupant was deceased – it is hard to conceive of a situation in which one’s decision-making might be more clouded.

[92] What the Applicant could not weigh about his options was the legal jeopardy that he might find himself in by talking. He was never informed of his right to counsel, nor given an opportunity to exercise it.

[93] This was a situation that called upon the officer to consider the Applicant’s right to not self-incriminate and remain silent. He had no idea what the Applicant would say in response to his question. He could not have known that the Applicant would be compromising himself when he answered the question, which is exactly what happened. However, as an experienced officer he should have known that that was a possibility.

[94] There is nothing about the remainder of the interactions between the Applicant and Officer Walli that would have altered the Applicant’s reasonable perception that he was not permitted to leave the scene.

(ii) The nature of the police conduct

[95] Officer Walli first approached the Applicant at approximately 12:17 p.m. and his three main interactions with the Applicant lasted until 1:33 p.m. During that time Officer Walli never told him that he was free to go until the final minute, when a directive was given.

[96] When Officer Walli asked him what happened, the officer gave no indication that the Applicant did not have to answer the question. He asked the question even though, from the officer’s point of view, the Applicant’s obligation to report the accident had ended when he had provided his documents.

[97] When the question was asked, there is no way for the Applicant to have known that the officer’s working theory was that the victim had likely caused the accident.

[98] Additionally, there were other actions taken by the police that would lead a reasonable person in the Applicant’s position to believe that he was not free to leave. Officer Walli walked with the Applicant to his truck and remained there while the Applicant got in to retrieve his paperwork. Officer Devine was with him and remained close to Officer Walli. Officer Walli placed the documents in his cruiser and did not return them to the Applicant until he approached him to get a written statement.

[99] On the second approach made by Officer Walli, he asked him to provide a statement about the accident and was cautioned. There is nothing in the words used by Officer Walli, formally or informally, that told the Applicant that he did not have to remain in the cruiser or on scene. It is one thing for an individual to be told that they do not have to give a statement, it is another thing for them to be told that they are free to leave a scene where it is obvious that there is an active investigation underway. Given what had transpired prior to that, and without knowing or being told that he could leave, there was nothing to give the Applicant the idea that he was free to go.

[100] The officer suggested that they sit in his car; there is no evidence that he told the Applicant that the suggestion was based on the temperature or because he felt sorry for him, as the officer testified. Although allowing people to sit in the front seat of the cruiser was something that he had permitted only a few times in his career, there is no evidence that this was communicated to the Applicant at the time. Again, the officer told the Applicant that the driver was deceased before taking he statement, which could only have reinforced the Applicant’s belief that a criminal investigation was underway, or at least an investigation that compelled him to remain.

[101] After the taking of the statement was completed, the Applicant was directed by police on six or seven further occasions to either get out of, or to enter, the police vehicle. An officer always remained with him while he was in the vehicle.

[102] After he took the statement, Officer Walli noticed that the Applicant remained on scene by his vehicle, but did not think that it was necessary to inform the Applicant that he could leave. No explanation was given for why he concluded it to be unnecessary.

[103] These interactions all point to a finding of detention.

[104] The Applicant’s evidence is that Officer Walli was polite and respectful to him throughout, until the end. While I take into account that this could help to foster a belief in certain circumstances that a person is not detained, in this case this single factor does not outweigh the more compelling evidence of psychological restraint.

(iii) The particular circumstances of the Applicant

[105] The personal circumstances of the Applicant as they may impact the dynamics of the encounter are to be considered (Suberu, at para. 34). All that is known of the Applicant is that he was 35 years old at the time of the accident, held an AZ licence, was driving the involved dump truck, and had never been in an accident before this one.

[106] If “sophistication” can be evaluated by the fact that the Applicant gave a version of events to the 911 operator that he then totally contradicted when speaking to the police only a short time later, I can conclude that the Applicant is not a particularly savvy individual. I also had an opportunity to observe him provide evidence during the voir dire; nothing about those observations would lead me to conclude otherwise. He certainly had no prior experience from an accident to draw upon.

[107] Weighing all three of these Grant factors leads to a finding that the Applicant was psychologically detained from the time that he was asked to surrender his licence and documents, and that detention continued up to the time that he was told to leave the scene and complied with that request. In the context in which the question “what happened” was asked, the line was crossed between general questioning and detention, and that psychological detention continued until he was told to leave. A reasonable person in the Applicant’s position would have concluded that he was not free to go.

(3) Were the Applicant’s section 10 rights infringed?

[108] The breach of both s. 10(a) and (b) is established. The Applicant was never informed of why he was being detained when Officer Walli retained his documents and asked him the first question that would attract legal consequences for the Applicant. Nor did this occur when he was asked to provide a statement. He was only told of a potential charge of obstructing justice when Officer Walli approached a third time to ask him for another statement.

[109] The right to counsel arises immediately upon detention. Officer Walli was required to advise the Applicant that he had the right to speak to a lawyer, and to give him a reasonable opportunity to obtain legal advice if he chose to, before proceeding to elicit incriminating information from him. These rights were never heeded.

(4) Should the evidence be excluded

[110] The burden rests on the Applicant, as it has throughout this application, to show that the admission of the evidence obtained while his rights were infringed would bring the administration of justice into disrepute: Grant, at para. 68. If the Applicant persuades the court that this would be the case, s. 24(2) of the Charter requires that the evidence be excluded from the trial.

[111] As explained in Grant, the s. 24(2) analysis requires the court to consider and balance three lines of inquiry: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits.

(i) The seriousness of the Charter-infringing state conduct

[112] The evidence from Officer Walli was clear that the information that he sought to obtain both on his first and second approach to the Applicant could have been obtained elsewhere. There was a full team of collision experts on scene who were tasked with gathering the evidence of what happened. He testified that the information that he needed to fulfil his own obligation under s. 199(3) of the HTA could have been obtained from the other officers, and that the Applicant was free to go after he had handed him his documents. Infringing the Applicant’s s. 10 rights when the information could have come from other sources increases the seriousness of this breach.

[113] Nor is this a case where the police were compelled to act quickly to prevent the disappearance of evidence. They had the Applicant’s contact information and could have questioned him in the coming days. Officer Walli knew that the Applicant was distressed at the scene, made worse by informing him that the other driver was deceased at the time that he asked for his written statement.

[114] State authorities are required to uphold the rights guaranteed by the Charter (Grant, at para. 73). The act of Officer Walli beginning to question the Applicant without apparently turning his mind to the impact on the Applicant’s rights is a very serious one. This was not an inadvertent or minor violation. White, decided 24 years ago, directs police as follows, at para. 80:

….Accordingly, it will be very important for the police officer who takes an accident report while simultaneously investigating a crime to delineate clearly for the declarant the start and end points of the accident report. For example, it may be useful for the police to tell the driver that they will postpone the taking of an accident report until after they have questioned, or attempted to question, the driver. Alternatively, as discussed above, police may wish to tell the driver that they intend to secure the details of the accident report from sources other than the driver, thus terminating the statutory duty to report.

[115] This guidance was given to ensure that when accident investigations take place, a line is clearly drawn so that the principle against self-incrimination is not inadvertently, or intentionally, violated by state authorities: White, at paras. 58, 64 and 65.

[116] Officer Walli did none of these things, even though he knew at the time that he was engaged in an investigation that could result in criminal charges, and even while he acknowledged that the Applicant had fulfilled his statutory duty under the HTA once his documentation was provided.

[117] Grant was a strong reminder to police officers that the preservation of public confidence in the justice system requires that the police adhere to the Charter in obtaining statements from a detained individual (para. 93). The right against self-incrimination is fundamental to our criminal justice system. The first question that gave rise to the utterances was a serious breach, with the officer never turning his mind to the Charter protections.

[118] And while Officer Walli cautioned the Applicant before he took the statement, he completely disregarded his s. 10 rights. I find that the Applicant could never have “agreed” to give a statement without understanding the repercussions of doing so, which could only have been once he knew of and was given the opportunity to pursue his right to counsel. These considerations increase the seriousness of the breach, along with the fact that the police committed this error while investigating a serious matter.

[119] While recognizing that a person may be psychologically detained may not always be apparent to police, Officer Walli turned a blind eye to the concept of psychological detention, even though it was apparent to him throughout that the Applicant remained at the scene without a request that he do so.

[120] These considerations all pull toward exclusion of the utterance and the statements.

[121] The odour of alcohol was only detected while the Applicant’s s.10 rights were being breached in the cruiser. There is a direct connection between the s.10 breach and obtaining that potential evidence. It is not something that would have been discoverable but for the breach, as was the case in similar circumstances in R. v. Casselman, 2014 ONCJ 48, [2014] O.J. No. 570, where the evidence was admitted.

[122] Crown counsel relies on Milne to support the admission of this evidence. Milne dealt with the question of whether observations of indicia of impairment are admissible even though the evidence compelled by a roadside test authorized by s. 48(1) of the HTA is inadmissible, the answer being “yes”. However, no breach of a Charter-protected right occurred in Milne prior to the evidence being discovered and the evidence of impairment was not “obtained in a manner” that breached a Charter right.

[123] The same conclusion may be drawn about the other cases relied on by Crown counsel, R. v. Avgeropoulos, 2017 ONSC 4626, [2017] O.J. No. 4019, and R. v. Jin, 2018 ONSC 2898, [2018] O.J. No. 2523. Neither presents the same scenario as here, as the indicia of impairment were all detectable in the absence of a Charter breach in those cases.

[124] The fact that the smell of alcohol was not, and would not have been, discoverable until the Applicant was in the cruiser when he was asked for his first and second statements militates toward exclusion.

(ii) The impact of the breach on the Charter-protected interests of the accused

[125] The Applicant’s utterances and statement, while exculpatory on their face, created significant problems for him. As previously stated, they were they inconsistent with how he had described the accident to the 911 operator. And they were inconsistent with the evidence at the scene, leading Officer Walli to confront him with lying and exposing him to a potential charge of obstructing justice.

[126] In Lafrance, there were two breaches of s. 10(b). At para. 97, in addressing this second branch of the Grant test, the Court dealt with the seriousness on the accused’s protected interests as follows:

This case involved two breaches of s. 10(b). While not determinative, I am alive to the Court’s description of the right guaranteed by s. 10(b) as “the single most important organizing principle in criminal law” (R. v. P. (M.B.), [1994] 1 S.C.R. 555, at p. 577). Any breach of this provision “undermines the detainee’s right to make a meaningful and informed choice whether to speak, the related right to silence, and, most fundamentally, the protection against testimonial self-incrimination” (Grant, at para. 95). As the Court of Appeal’s analysis makes plain, those particular consequences were of a serious nature here: “[Mr. Lafrance] was led to confess to killing a person without having an opportunity for a thorough, reflective discussion with a lawyer fully apprised of his jeopardy” (para. 82). I see no basis to diverge from the Court of Appeal’s assessment that this had “a serious impact” on Mr. Lafrance’s Charter rights (para. 82). The second line of Grant supports the view that admitting this evidence would bring the administration of justice into disrepute.

[127] The case before me involves a breach of s. 10 (a) and (b) on two occasions. Those breaches had a serious impact on the Applicant’s rights, leading him to provide inconsistent evidence that put his legal position at significant risk. This very strongly suggests that admission of the utterances and the statement would bring the administration of justice into disrepute.

[128] The smell of alcohol led to the Applicant being further detained to provide a breath sample. While its results are not admissible, the Applicant still experienced further state intrusion into his liberty that, while the officers had reasonable grounds to pursue, would not have come to pass without him being asked to get in the cruiser to give statements.

[129] While the observation of the smell impacts the accused’s Charter interests to a lesser degree than the statements, this factor still favours exclusion due to the seriousness of the breach that permitted the evidence to be discovered.

(iii) Society’s interest in the adjudication of the case on its merits

[130] Exclusion of the utterances and the statements do not end the Crown’s case, nor does the exclusion of the smell of alcohol. Crown counsel conceded this in argument, suggesting that other evidence from the scene will be more determinative.

[131] The reliability of the statements is very much in doubt given their inconsistency with the 911 call. And without more evidence, detecting the smell of alcohol does not mean that the Applicant was driving with a blood alcohol content over the legal limit. No other signs of impairment were observed.

[132] The offence of dangerous driving causing death is a serious offence, but the truth-seeking function of the trial is not enhanced by the admission of this evidence.

[133] On balance, the impact of state misconduct on the reputation of the administration of justice affects society’s interests far more than the impact of exclusion of these items of potential evidence.

[134] When balancing the Grant factors, the cumulative weight of the first two branches of inquiry are to be balanced against the third: Lafrance, at para. 90. As the Court explained, “that is why the third line – which typically pulls towards a finding that admission would not bring the administration of justice into disrepute – will seldom tip the scale in favour of admissibility when the two first lines, taken together, make a strong case for exclusion”, citing Le, at para. 142 and R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 56.

[135] In this case both the first and the second lines of inquiry cumulatively point strongly toward exclusion of the utterance and the statement; less so for the observation of a smell of alcohol but exclusion is still warranted. The third branch of inquiry in no way suggests that this is a case in which the weight of the first two should be overcome in the interests of a trial of the case on its merits. Considering all the circumstances the evidence should all be excluded under s. 24(2).

Madam Justice S.E. Healey Released: March 14, 2024

[1] The transcript of the 911 call uses the word “swayed” instead of “slid”; counsel both agree that the Applicant used the word “slid”. On review of the 911 call, I agree with counsel.