REASONABLE GROUNDS - ARE STATEMENTS COMPELLED UNDER PROVINCIAL LEGISLATION ADMISSIBLE TO ESTABLISH GROUNDS

Some provincial legislation compels drivers involved in car accidents to report information to police. Since the driver is forced to provide the information, the courts have held that it violates the driver's right to silence to admit the statements.

In Soules, police arrived at the accident scene and asked who the driver was and Soules admitted that he was. Based on the admission of driving and other grounds, the officer proceeded with an ASD demand.

The accused testified that he remained at the scene and told the officer he was the driver because he believed he was legally required to do so and he was right.

The court held that the accused's admission to driving was inadmissible for all purposes, including the limited purpose of establishing the officer's grounds to make the ASD demand. The Court followed an earlier ruling by the British Columbia Court of Appeal in R. v. Powers, 2006 BCCA 454, leave to appeal dismissed 2007 CanLII 12847 (SCC). In that case, the court held that an admission at an accident scene could not be used to establish that the officer had the necessary grounds to make a breath demand. The court found that the driver, honestly believed he was compelled by statute to make the admission. R. v. Soules, 2011 ONCA 429

In response to Powers, the police in British Columbia were issued warning cards that were read to suspects at accident scenes. The cards informed the suspects that the questions were not being asked pursuant to an accident report and therefore they were not compelled by law to answer the questions. The provincial legislation in British Columbia has since been amended removing the need for a person to report to a police officer and thereby dispensing with the need for the additional warning.

It is important to note that not all provinces (like BC) have the same duty to report as Ontario, thus limiting the application of Soules. Leave to appeal the Soules decision has also been filed with the Supreme Court of Canada. We may not have heard the last of this issue.

In R. v. Parol, 2011 ONCJ 292, the court set out the three things an accused must establish before the statements will be ruled inadmissible under Soules:

1. That he was in fact compelled by statute to provide a report.

2. That the statements he made were a 'report" within the meaning of the compelling statute.(Soules - suggests the definition of report is pretty broadly defined).

3. That he gave his report in the honest and reasonable belief that he was compelled by the statute to do so.