Statements compelled under provincial highway legislation are not admissible in a criminal trial

R. v. Soules, 2011 ONCA 429, released this morning, holds that compelled statements are not admissible against their maker in a criminal trial:

[40] In Powers, the majority referred to Orbanski/Elias and held that White was determinative of the issue. That is, statutorily compelled statements were not admissible for any purpose including for the purpose of establishing reasonable grounds: Powers at para. 38. It is this portion of Powers that the Crown contends cannot be correct.

[41] To illustrate its view, the Crown notes that a motorist’s compelled participation in an ASD test is admissible to support an officer’s grounds to make a breath demand: R. v. Thomsen, [1988] 1 S.C.R. 640. Therefore, the Crown argues, it must also be the case that compelled statements made at the scene of a collision are admissible when they are being used for the same limited purpose. The Crown points out that in both cases:

· the evidence emanates from the accused;

· they invoke the same level of concern regarding the potential for self-incrimination;

· it is an offence to fail to participate or cooperate with police; and,

· the evidence cannot be used at trial to prove an element of the offence.

[42] I disagree. The Crown’s reliance on Thomsen and other like cases is misplaced, and for a very noteworthy reason: the questioning by police in those cases does not involve compelled answers. In each of them the motorist can refuse to answer if he or she chooses; they are not forcefully enlisted in aid of their own prosecution. For example, in the case of a breath demand made by a police officer pursuant to s. 254(5) of the Criminal Code, the motorist is legally obligated to comply with the demand; nevertheless, s. 7 continues to furnish him or her with the right to choose whether or not to speak with the police – a choice statutory compulsion clearly eradicates. There is absolutely no legal compulsion to speak or provide information in any of the cases cited.

[43] In the result, Powers was correct to hold that White was determinative of the issue. The statutorily compelled admission from Mr. Soules in our case is not admissible for the purpose of establishing grounds for making either the ASD or the breath demand. Indeed, as Iacobucci J. made clear in White at para. 70:

The protection afforded by the principle against self-incrimination does not vary based upon the relative importance of the self-incriminatory information sought to be used. If s. 7 is engaged by the circumstances surrounding the admission into evidence of a compelled statement, the concern with self-incrimination applies in relation to all of the information transmitted in the compelled statement. Section 7 is violated and that is the end of the analysis, subject to issues relating to s. 24(1) of the Charter.

[44] The Crown’s arguments on this issue rely almost exclusively on jurisprudence such as Orbanski/Elias directed at the s. 10(b) Charter right to counsel exemption in drinking and driving cases. However, despite the strong connection between ss. 7 and 10(b) of the Charter, the two are not mutually exclusive. As I believe the above quote from Whiteillustrates, although it is a well established principle that s.10(b) rights are limited until arresting officers have developed reasonable and probable grounds to effect an arrest, the choice of whether or not to remain silent – and thus prevent self-incrimination – nevertheless remains.

[45] The Crown makes the further argument that the distinctions between the British Columbia legislation and the Ontario legislation are important. While the British Columbialegislation expressly prohibits the use of statements compelled by the requirement to report a collision “in a trial or proceeding arising out of the accident”, the Ontario legislation contains no such limitation on the admissibility of this evidence.

[46] In my view, both the trial judge and the summary conviction appeal judge in our case came to the correct result on this point. I would begin with the apt comments of Wein J. inR. v. DaCosta (2001), 156 C.C.C. (3d) 520 (Ont. S.C.) at para. 33:

[It cannot] be realistically said, that anything turns on the distinctions between the British Columbia legislation and the Ontario legislation… notwithstanding that the Ontario legislation is far less specific than the B.C. legislation concerning use immunity.

[47] Use immunity created by a provincial statute cannot extend to proceedings under the Criminal Code, because it would be ultra vires the province to restrict the admissibility of evidence in criminal matters: White at para. 35. As Iacobucci J. explains further in para. 72, the purpose of this type of provincial legislation is not to assist the police in the investigation of specific crimes; rather,

The provinces are entitled to inquire into factual circumstances that may involve the commission of a criminal offence, but their jurisdiction does not extend so far as to trench upon the federal power under s. 91(27) of the Constitution Act, 1867 over the criminal law. [Citation omitted.]

[48] Use immunity therefore is limited to the jurisdiction of the provincial legislature and relates to whether or not there has been compliance with the legislated reporting requirement. Thus, although the Ontario Highway Traffic Act does not have similar use immunity provisions, this simply means that in Ontario the statutorily compelled accident report can be used to prove non-compliance as required by the Highway Traffic Act; nothing more.

[49] Iacobucci J. in White at para. 60 explained that the inclusion of use immunity provisions, like those in British Columbia, in relation to an accident report in subsequent proceedings means an intention to use them to gather information for non-litigious purposes only:

[T]he partnership between the individual driver and the state does not encompass the use of the compelled accident report to incriminate the driver. The fact that the statements in this case are sought to be introduced in criminal rather than regulatory proceedings simply serves to accentuate the fact that the Crown seeks to use the statement for a purpose that was never contemplated as being a component of the regulatory regime.

[50] As a result, this argument respecting the difference between the British Columbia and Ontario language does not assist the Crown.

[51] Before moving to the last argument in this ground of appeal, I will make some brief comments on the Crown’s submission that this interpretation of the law “has the potential to cripple the investigation of drinking and driving offences where a collision has occurred”. The Supreme Court in White essentially disagreed with this concern, Iacobucci J’s observations at para. 64 are instructive:

[T]he possibility is real and serious that permitting the use of compelled accident reports within criminal proceedings might increase the likelihood of abusive conduct by the state. In taking accident reports from drivers, police would have a strong incentive or perhaps an unconscious inclination to overemphasize the extent of the statutory duty to report an accident under the Act, in order to obtain relevant information. The effect of such an overemphasis might be to circumvent or defeat a driver’s s. 7 right to remain silent when under investigation for a criminal offence.

[52] It was accepted in White that the effect of statutory provisions such as those under consideration in this case is to create a logistical difficulty for police. That is, if the desire is to use information acquired from a motorist in criminal proceedings, the information cannot derive from the duty of the motorist mandated by the statutory provisions: para. 65. Iacobucci J. then at para. 80 stressed the importance of the police taking an accident report while simultaneously investigating a crime to describe clearly to the motorist the start and end points of the accident report.

[53] At various places in his reasons Iacobucci J. describes several ways in which police might investigate so as to acquire information independently of the accident report that is subject to use immunity. One, he says, is to inform 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. Second, they might tell the driver that they will postpone the taking of an accident report until after they have questioned him or her. (See paras. 65 and 80.)

[54] Given the above, I think it is an unfounded argument that use immunity arising from the information mandated by provincial legislation such as that in this case has the “potential to cripple the investigation of drinking and driving offences where a collision has occurred”. I turn then to the last argument advanced by the Crown on this ground of appeal: that even if there is a s. 7 infringement, it is justifiable under s. 1 of the Charter.

[55] The Crown does not develop this argument at all in its factum but simply submits that just as in the case of the ASD test, the infringement of s. 7 in the circumstances of this case represents a reasonable limit on that right. It says that “measures aimed at protecting the public from the carnage caused by impaired drivers serve a pressing and substantial objective”. In addition, this argument does not appear to have been raised nor was it addressed in either the trial court or the summary conviction appeal court.

[56] Given that the issue of justification under s. 1 was not raised below and has only superficially been raised on this appeal, I would give no consideration to this argument. I would, however, note that White holds that the admission of Mr. Soules' statement would render the trial unfair; it is therefore unlikely to be seen as a s.1 reasonable limit of a Charter right