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.

PROHIBITIONS - POWER TO MAKE CONSECUTIVE ORDERS

Prior to the amendments of the Criminal Code in 2008, courts did not have the power to impose consecutive prohibition orders. Section 295(2.1) now gives courts the power to make a prohibition order consecutive to any other prohibition that is in effect at the time of sentencing. The section does not appear to give the court the authority to make a prohibition order consecutive to another prohibition order made during the same sentencing hearing.

REFUSAL - DOES THE CROWN HAVE TO PROVE POLICE WERE IN A POSITION TO TAKE AN ASD SAMPLE FORTHWITH?

The officer made an ASD demand and the accused immediately refused. The officer testified that he did not have an ASD with him and had the accused agreed to provide a sample, he would have had to wait for one to arrive. The accused argued that since the officer was not in a position to take the sample forthwith, it was not a valid demand. The Court of Appeal did not agree and in doing so, effectively overruled some earlier cases that supported the defence's argument. The Court held that the offence is made out when the accused unambiguously refuses. There is no obligation on the Crown to then demonstrate that the sample could have been taken forthwith. Questions of whether the instrument was available, and if not available, how long it would have taken to arrive, are irrelevant. R. v. Degiorigo, 2011 ONCA 527

SECTION 9 - CAN POLICE STOP A VEHICLE SIMPLY TO SEE WHAT THE DRIVER IS UP TO

The officer saw the accused pulling out of a car dealerships parking lot. Because there had previously been a number of residential break-ins in the community the officer decided to stop the accused to see what he was up to. The officer was candid that the stop was not for any purpose under the Highway Traffic Act. There was no suspicion or even a hunch of a connection to any recent or current investigation of an offence. The only reason for the stop was to determine what he had been doing at that place at that time of night. Since the stop was arbitrary, the breath samples were excluded. R. v. Henderson, 2011 ONSC 2392

REFUSAL - AREAS OF CROSS-EXAMINATION

According to one defence lawyer, when his client is charged with failing to provide a suitable sample, depending on the type of road side screening device that is being used, some of the areas that he will cross-examine the police officer on are:

• inadequate training
• all the error codes the instrument can produce
• loose mouthpiece
• blocked vent hole - hand was positioned over it
• what sounds did the officer hear
• make officer stick to his notes - each time the officer expands beyond the notes, argue that it undermines the officer's credibility and also argue lack of full disclosure