SECTION 10(B) - RIGHT TO COUNSEL SHOULD HAVE BEEN PROVIDED BEFORE ROADSIDE TAPED STATEMENT - EVIDENCE NOT EXCLUDED

The charges arose from a May 17, 2008 motor vehicle accident in Delta in which the vehicle Ms. Berner was operating drove into a car parked on the shoulder of the road and then struck a woman and a child standing nearby.  The child was killed, the woman seriously injured and the occupants of the parked car escaped with relatively minor injuries.

Ms. Berner, the driver, was the only person on the scene to be taken to the police car to await medical care.  While in the vehicle the officer told Ms. Berner that she would be taking a recorded statement from her.  The officer took out her recorder and began her interview while standing outside the passenger door to the vehicle.  The trial judge considered the questions the officer asked to be “of a general nature”.  They were, in the sense that the officer was attempting to find out what had caused the accident.  However, the officer began her interview with Ms. Berner by identifying the file number attached to the investigation and then asked Ms. Berner to tell her what had happened while she recorded the conversation.  It seems to me that if the trial judge had asked what a reasonable person in Ms. Berner’s position would make of the situation, he would have reached the conclusion that the reasonable person would believe that he or she was required to co-operate with the police and answer the questions. In my view the trial judge erred in failing to conclude that Ms. Berner was detained while she was questioned by the officer.  The detention was not one of short duration as described in Orbanski; Elias.  Thus Ms. Berner ought to have been advised of her right to counsel under s. 10(b) of the Charter before her tape recorded statement was taken by the officer.

The police officer’s actions were carried out in good faith. While the officer did not say so, her duties required her to try to establish the cause of the accident.  The officer used the statement in the same way she would have used visible physical signs of impairment, as part of the basis for her suspicion that Ms. Berner had alcohol in her body which resulted in the roadside demand. The impact on the Charter-protected rights of the accused cannot be said to be great. Ms. Berner’s statement provided one of the bases for the roadside demand.  In the Court's view the vindication of the Charter violation through the exclusion of the evidence would exact too great a toll on the truth-seeking goal of the criminal trial.  R. v. Berner, 2012 BCCA 466