Impaired investigations are apparently catching the attention of the Ontario Court of Appeal lately. In the recent case of R v Rivera, 2011 ONCA 225 [which I blogged about on May 24, 2011, New & Notable: Roadside Statements] the Court of Appeal considered the use of roadside statements in the context of a refusal. In R v Soules, 2011 ONCA 429 [SCA decision 2010 ONSC 1014; trial decision 2009 CarswellOnt 8925 (CJ)] the court considered the issue of what use if any the Crown may make of compelled statements.

Stephen Soules was apparently impaired (blowing 143 and 136) when he slammed into the back end of another vehicle causing a multi-vehicle collision. When the police arrived the respondent identified himself to the police as the driver and admitted to consuming alcohol. The attending officer ultimately formulated a reasonable suspicion and made a demand under section 254(2); after a failure was obtained the respondent was arrested for “over 80”.

At trial the respondent sought to exclude the admission that he was the driver based on an alleged violation of section 7; without this admission the Crown apparently could not prove that the officer had a reasonable suspicion – a finding which was apparently accepted by the trial judge but which is hard to accept [see R v Bush, 2010 ONCA 554].

The trial judge, relying upon R v White, 1999 CanLII 689 (SCC) and R v Powers, 2006 BCCA 454 held that the statements given by the respondent at the roadside were compelled by provincial highway traffic legislation and accordingly were inadmissible pursuant to section 7 of the Charter. The Crown appealed unsuccessfully to the summary conviction appeal court and subsequently appealed to the Ontario Court of Appeal.

LaForme JA, writing for a unanimous court, held dismissed the appeal. LaForme JA offered the following summary of the trial judge’s decision:

The trial judge accepted Mr. Soules’ evidence that he remained at the scene of the collision and answered the questions of Constable Bucci because he understood that he was required by law to do so. He held that the statements were statutorily compelled and inadmissible [para 9].

After analyzing Power and White, LaForme JA agreed with the trial judge that they were determinative; statutorily compelled admissions are not admissible, even for the limited purpose of establishing grounds [para 43].

There are two important points that are worth noting. First, the decision is only about statutorily compelled statements. It does not address, nor should it be interpreted as addressing, the use that can be made of any other evidence gathered by an officer during a roadside investigation.

This is borne out not only by the facts and argument but clearly by comments made by LaForme JA in the ruling. Consider for example the framing of the “key issue”:

The key issue is whether statements compelled under the Highway Traffic Act, R.S.O. 1990, c. H.8 are admissible in a criminal trial. Specifically, are the statements admissible for the purpose of establishing that an officer had grounds to make an approved screening device demand…[para 1].

Similarly, consider the LaForme JA’s rejection of the Crown’s attempt to analogize this situation with “compelled” ASD samples.

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.

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 [paras 41 and 42].

These passages make clear that the issue in the case relates only to compelled statements.

Second, the decision only applies to “statutorily compelled statements” and does not, therefore, limit the use of statements made by an accused during a routine highway traffic stop.

DG Mack

The recent decision of R v Rivera, 2011 ONCA 225, 2011 CarswellOnt 1785, [2011] OJ No 1323 is a particularly notable case which will undoubtedly change the face of refusal and failure trials. The issue considered by the Court of Appeal was whether statements made by an accused, during the course of refusing or failing to comply with a breath demand, are admissible (with or without a voir dire) and if so, what use may be made of them.

The accused in Rivera was stopped at a RIDE check and after forming a reasonable suspicion the attending officer made a demand under section 254(2) of the Code. After 21 failed attempts the accused was charged with failure.

At trial the officer testified that during the course of the 21 attempts the accused was offering several comments including the following: “I only had two glasses of wine”; “I only had one beer”; “I work for you. I work in the office” [referring to the OPP office]; “I work for the OPP. I’ll lose my job, don’t do this to me. I only had one beer. I was just taking myself home.”; “Why are you doing this to me? There are criminals out there.” [paras 10-12].

The accused testified at trial. The accused was convicted. In convicting the accused the trial judge relied on the roadside statements to reject the evidence of the accused [paras 22-31].

On appeal LaForme JA, for the court, tackled the issue of the use of the roadside statements. Citing R v Morrison,2006 CanLII 12722 (ONSC) and R v Bijelic, 2008 CanLII 17654 (ONSC), LaForme JA held that while roadside statements that are part of the actus reus are admissible, they are only admissible for the purpose of proving the actus reus and not for the purpose of attacking the credibility of the accused [paras 66-98].

In so ruling LaForme JA also considered the issue of what is and what is not part of the actus reus of the offence:

...her statements to the effect that she worked for the O.P.P., cannot accurately be characterized as evidence of the actus reus of the offence of refusal in the circumstances. Her various statements about the amount she had to drink could not be taken as indicating that she was refusing or failing to give a breath sample. This is also the case with her statements - "I work for the O.P.P. I'll lose my job" and, "Give me another chance. Don't do this to me. I don't want to lose my job. Why are you doing this to me?" (emphasis added). These statements cannot be said to constitute the gravamen or foundation of the offence of refusal or failure to blow, as contemplated by this court in Stapleton, Hanneson and Ha [para 93].

By way of contrast, LaForme JA noted that the comment, “I don’t care, charge me”, from Bijelic, would properly be considered as part of the actus reus.

With respect, this is perhaps an overly restrictive view of what constitutes the actus reus of the offence. It is worth noting in this regard, that the comment “I work for the O.P.P. I'll lose my job, don't do this to me. I only had one beer. I was just taking myself home." came immediately after the officer had warned the accused (after 10 attempts) that she could be charged criminally.

In considering whether these comments constitute part of the actus reus, it must be kept in mind that the offence can be committed in two ways: failing or refusing. Where an accused fails (as opposed to refuses) to provide a sample - as was the case in Rivera - comments, made by the accused during, and I say, as part of their failed attempts to provide a sample, must be put in context; and even though they may not constitute a "refusal" on their face, they may and likely are nonetheless part of the actus reus.

In fairness, LaForme JA does not draw any bright lines about what will and will not be part of the actus reus, noting that it will be for the trial judge to determine “on the facts of the case whether a particular roadside statement can properly be considered as evidence of the actus reus” [para 94]. On this point, LaForme JA notes that a voir dire may be required to determine what is and what is not part of the actus reus.

While previous rulings in R v Stapleton, 1982 CarswellOnt 62, [1982] OJ No 49 (CA), R v Hanneson, 1989 CarswellOnt 102, [1989] OJ No 1067 had clearly abolished any need for a voir dire on roadside statements in refusal and failure cases, Rivera appears to have ushered in a new era of voir dires on any refusal or failure case.

DG Mack