Another issue from Winlow -- roadside statements by motorists are never voluntary? Roadside statements by motorists are never admissible?

After I read York (Regional Municipality) v. Winlow, 2009 ONCA 643, released today, there was something that troubled me. Now, pushing midnight I realize what that something was.

As part of the Court's reasoning the Court noted, with approval, roadside plea negotiations with the peace officer charging the motorist. The Court suggests that "systemically" this roadside negotiation is a useful and efficient practice.

Of course, that means that, since such a practice exists, whenever a motorist is stopped the discussions with the peace officer take place in circumstances where the motorist has reason to expect "hope of favour" -- a better deal.

Perhaps such "hope of favour" applies to any roadside stop -- including dangerous driving or impaired driving? After all, if a practice of roadside plea negotiations exists why would an accused mentally limit it to HTA matters?

Regardless that means roadside discussions, at least for HTA matters (and perhaps others), are not voluntary.

And that means, because of the confession rule, statements made by an accused stopped at roadside are never admissible.

Quite a significant point!

See the relevant passage below:

[61]         I do not consider it inappropriate when a police officer uses discretion to charge a driver with speeding at a rate less than the actual rate over the speed limit.  In a sense it is a form of plea bargaining.  Normally, the prosecutor engages in plea bargaining with the defence.  If a police officer charged a person with speeding 30 km per hour over the speed limit, and the prosecutor said that the charge would be reduced by 15 km if the person pleaded guilty, no one could seriously object.  Plea bargaining by the prosecution and the defence is as essential to the effective working of the provincial regulatory system as it is to the effective working of the criminal justice system.

[62]         In this case, the police officer, not the prosecutor, initiated the plea bargaining.  Many offending drivers no doubt welcome receiving this "break" from the officer, without having to go to court to obtain it.  Systemically, many cases can be disposed of without using valuable court time and resources.  Indeed, I expect that the large number of speeding charges, the heavy volume of traffic cases before justices of the peace, and the desirability of finding an efficient way to deal with many of these cases has prompted the practice now before this court.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

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