R v Newsham, 2018 ABQB 1013

Court of Queen’s Bench of Alberta Citation: R v Newsham, 2018 ABQB 1013 Date: 20181212 Docket: 161081658Q1 Registry: Red Deer Between: Her Majesty the Queen Applicant/Crown - and - Daniel Wayne Newsham Respondent/Accused _______________________________________________________ Memorandum of Decision on Voir Dire of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ I. Introduction [ 1 ] Daniel Wayne Newsham, the Accused, is charged with unlawfully killing Stanley Robert Dick, thereby committing manslaughter contrary to s 236(

b) of the Criminal Code of Canada . Mr. Newsham is alleged to have caused Mr. Dick’s death in a motor vehicle accident. [ 2 ] The Crown seeks to introduce two statements given by Mr. Newsham to Cst. Ashley Heffernan of the Royal Canadian Mounted Police following the accident. Mr. Newsham argues that the two statements are inadmissible as they were compelled statements given pursuant to s 71 of the Traffic Safety Act of Alberta and their admission into evidence would violate his s 7 Charter

rights. He argues in the alternative that if this Court finds that the statements were not given pursuant to the Act, then his s 10(

b) Charterrights were violated. II. Background [3] On August 14, 2016, Daniel Wayne Newsham was driving his vehicle in Delburne, Alberta, when he noticed a suspiciousvehicle in the area. Karl Raniseth was riding as a passenger in the vehicle driven by Mr. Newsham. [4] Mr. Newsham began following the suspicious vehicle, a black Dodge Dakota, and contacted Ashley Heffernan, a constablewith the RCMP stationed in Three Hills, Alberta. He provided a description of the vehicle and the driver, as well as the license platenumber. Cst. Heffernan advised Mr.

Newsham to stop following the vehicle and she would notify other neighbouring RCMPdetachments. [5] Cst. Heffernan was later contacted by Emergency Medical Services regarding a single vehicle rollover collision on Highway42, several minutes west of the Village of Lousana, Alberta. On her arrival at the scene around 12:06 am on August 15, 2017, she notedthe presence of a body on the highway, emergency vehicles, a silver pickup truck in the ditch, emergency medical personnel as well asMr. Newsham and Mr. Raniseth. The silver truck was not the one described by Mr. Newsham in his earlier telephone call with her.

Thebody was that of Stanley Robert Dick (the deceased), who had been driving the silver truck. [6] Cst. Heffernan stated that Mr. Newsham appeared upset and seemed to be in state of shock. There was some initialdiscussion between Cst. Heffernan and Mr. Newsham. He told her that he wished he had listened to her and stopped following the truck,and she responded that that was the reason she instructed him to stop. She then asked Mr. Newsham to give a written statement. She tookhim to her police vehicle and placed him in the backseat, together with Mr. Raniseth. Cst.

Heffernan testified that, at that time, shebelieved Mr. Newsham had information relevant to the accident and that she was obtaining the statement pursuant to s 71 of the TrafficSafety Act, RSA 2000, c. T-6 (“the Act”). [7] Mr. Newsham did not tell Cst. Heffernan that his vehicle had come into contact with the silver truck. In his writtenstatement, he simply stated that the driver “lost control of the truck and it rolled over the highway.” [8] Cst. Heffernan believed that Mr. Newsham had seen what had happened with the silver truck, but had no reason to believethat his vehicle had been in contact with the truck.

While sitting in the back of the police vehicle completing the written collisionstatement, Mr. Newsham said something like “I was not involved in an accident”; this statement was made in the presence of MrRaniseth, but not Cst. Heffernan or any other officer. [9] After Mr. Newsham and Mr. Raniseth completed the written collision reports, they got out of the back of the police vehicleand took the forms to Cst. Heffernan. She then contacted her Sergeant, who thought it best to then take an audio statement from Mr.Newsham. Cst. Heffernan took Mr.

Newsham back to the police vehicle and again placed him in the backseat. The back door was shut. [10] Mr. Newsham gave a statement which was audio and video recorded. [11] In his statement, Mr. Newsham stated that he had been following the Dodge Dakota after seeing it in Delburne. At one point,he followed it to a farmyard where it collided with a fuel tank. The driver jumped out of the Dakota and got into a silver pickup truck,bumped into Mr Newsham’s vehicle while backing up and drove out of the farmyard. As it left the farm, the truck also collided with anSUV. Mr.

Newsham continued to follow the silver truck until it entered Highway 42. [12] The silver truck continued along Highway 42, followed by Mr. Newsham, until it ultimately went down into the ditch on oneside and then rolled across the highway into the opposite ditch. Mr. Newsham did not indicate that his vehicle had any contact with thesilver truck immediately prior to that vehicle losing control. [13] Mr. Newsham testified in the voir dire. He confirmed Cst. Heffernan’s evidence that she said something like “I need you tofill this out” before Mr.

Newsham completed the written collision statement and that she asked him to return to the back of the policevehicle afterwards as she wanted more information. Mr. Newsham testified to his understanding that he was required to give thesestatements as a result of being involved in an accident. He also admitted that the two vehicles had come into contact with each othershortly before the silver truck rolled. III. The Law [14] The Traffic Safety Act provides: 71(1) A driver of a vehicle involved in an accident shall, in the form and manner prescribed by regulation, provide a report of theaccident to (

a) a peace officer having jurisdiction where the accident occurred . . . [15] In R v White, (SCC), [1999] 2 SCR 417, the Supreme Court of Canada considered the admissibility ofstatements given under a similar provision in the Motor Vehicle Act of British Columbia.

Iacobucci J referred to the general propositionthat statements made under compulsion of motor vehicle legislation are inadmissible in criminal proceedings against the declarantbecause their admission would violate the principle against self-incrimination, a principle of fundamental justice under s 7 of theCharter. [16] If s 7 is engaged by the circumstances surrounding the compelled statement, then the concern with self-incrimination applies

in relation to all of the information contained in the compelled statement (White at para 70). However, not every statement made by anindividual involved in an accident will necessarily violate s 7. The issue for the Court to consider is whether, at the time that the reportwas given by the driver of the vehicle, the driver had “an honest and reasonably held belief that he or she was required by law to reportthe accident to the person to whom the report was given” (White at para 75). The requirement of a subjective belief necessarily impliesan absence of consent.

However, if the report is given freely, without believing in a legal requirement to do so, then the statement maybe motivated by factors other than the obligation under the Traffic Safety Act (White at para 76). [17] The accused bears the burden of establishing on a balance of probabilities that he made the statement on the basis of an honestand reasonably held belief that he was required by law to do so (R v Roberts, 2018 ONCA 411). [18] Numerous cases were cited to me where these provisions were analyzed in the context of the particular facts of those cases.The general principles, however, are uniform.

The question of whether a statement or report made by an accused to a police office afteran accident was statutorily compelled is a question of fact to be determined based on the particular circumstances of each case (seeRoberts at para 56; R v Moussavi, 2016 ONCA 924 at para 29). IV. Analysis [19] Cst. Heffernan testified that she said something like “I need you to fill this out” to Mr. Newsham before he completed thewritten collision statement. She later asked him to return to the back of the vehicle to answer some questions.

She took these statementsbelieving that she was doing so pursuant to s 71 of the Traffic Safety Act. That is, she was taking those statements from Mr. Newshambelieving that he was the driver of a vehicle involved in an accident. At that time, she did not understand that there had been contactbetween Mr. Newsham’s vehicle and the silver truck. [20] Mr. Newsham testified that he believed that he was obliged by law to give the statements to Cst. Heffernan. He admitted thathe did not disclose the contact between his vehicle and the silver truck.

He stated that he had not been trying to absolve himself ofresponsibility. Instead, everything happened so fast that, at the time he made the statements, he was not sure of his involvement. [21] In analyzing this issue, I must answer the following questions: A. Was Mr. Newsham involved in the accident? B. Did Mr. Newsham have an honest and reasonably held belief he was required to make the statements? C. Did Mr. Newsham make the statements because of any other motivation? [22] I address each one in turn. A. Mr. Newsham was involved in the accident [23] Mr. Newsham was involved in the accident.

I believe he was involved in any one of three ways. [24] First, as Mr. Newsham acknowledged in his testimony at the voir dire, his vehicle did have contact with the deceased’svehicle. He was therefore directly involved. [25] As explained below, even in the event that Mr. Newsham’s vehicle did not have contact with the silver truck or that he did notbelieve it had contact, his requirement to report still existed. I note again that Cst. Heffernan believed Mr. Newsham was involved in anaccident though she understood that there was no contact between the vehicles. [26] Second, Mr.

Newsham was involved in the series of events that led to the accident. I do not believe that the use of the word“involved” in s 71 of the Act necessarily connotes “contact”. A vehicle can be involved in an accident without having been in contactwith another vehicle that was damaged or otherwise involved in the accident. For example, where two vehicles are street racing and oneof them loses control and collides with a lamppost, the other vehicle must be considered to have contributed, and therefore beeninvolved, in the collision (see R v Hannam (1986), (AB KB), 86 AR 151 (QB)).

As another example, where onevehicle forces a second vehicle off the road, causing the second vehicle to collide with a lamppost, the first must be considered to havecaused, and therefore been involved, in the collision. In either case, there was no contact between the vehicles but it is clear that theuntouched vehicles were directly involved in the collisions. In this case, Mr. Newsham was following the truck driven by Mr. Dick andwas doing so in a manner which may have contributed to the accident. [27] Ultimately, I am satisfied that Mr.

Newsham’s driving was sufficiently connected to the accident to have triggered thereporting requirement under the Act. He had been following Mr. Dick, he witnessed the accident, and he was present at the scene of theaccident. He was in close proximity to the accident, in terms of both time and place. [28] Third, Mr. Newsham was an eyewitness and, in that capacity, may also be seen to be involved in the accident. [29]

Section 69 of the Act reads as follows:

(1) Where an accident in which a vehicle is involved occurs on a highway, the driver or other person in charge of any vehicle that wasdirectly or indirectly involved in the accident shall (

a) remain at the scene of the accident . . . [30] The words “directly or indirectly” in s 69 make it clear that contact between the vehicles is not a necessary prerequisite to theobligations of the driver of a vehicle. While s 71 does not qualify the word “involved” in the same way, it also does not restrict or narrow

the

interpretation of “involved”. In my view, the word “involved” must still be interpreted in a broad and purposeful manner, recognizingthat the reporting requirement in s 71 of the Act not only facilitates the proper investigation of an accident and a possible crime, but alsopermits the compilation of road safety information and accident statistics for the benefit of all citizens (s 73). In this case, Mr. Newshamwas following the deceased’s vehicle at the time of the accident and witnessed it.

In my view, an eyewitness who has direct knowledgerelevant to an accident is “involved” in the accident for the purpose of s 71 of the Act. Mr. Newsham was an eyewitness with directknowledge. B. Mr. Newsham had an honest and reasonably held belief that he was required to make the statements [31] Mr. Newsham testified to his belief that he had a legal obligation to provide a report of the accident to Cst. Heffernan, a peaceofficer having jurisdiction where the accident occurred.

I believe he had a subjective and reasonably held belief in that obligation. [32] In this context, I note that drivers are deemed to be aware of their responsibilities on the road (White at para 55). Also, when adriver is approached by a police officer at an accident scene, there is a “context of pronounced psychological and emotional pressure” onthe driver to provide a statement (White at para 58).

It should also be remembered that driving is a licensed activity and this supports theassumption that drivers have been educated as to their duties and responsibilities, including the fact that they are subject to a statutoryduty to report the details of an accident: R v DaCosta (2001), (ON SC), 156 CCC (3d) 520 (OntSC). Finally, thereis “almost an inference to be drawn” that any driver who is present at the scene of an accident and is approached by a police officerrecognizes the statutory duty to provide a report or statement to that officer: see R v Rolph, [2002] OJ No 3591 at para 7 (CtJ). C. Mr.

Newsham did not make the statements because of any other motivation [33] The Crown argues that insofar as Mr.

Newsham’s statements regarding the accident were inaccurate and did not disclose thathe was involved, then he could not have had “an honest and reasonably held belief that he . . . was required by law to report theaccident”. [34] The Crown is correct that where a driver makes a statement to the police motivated not by statutory compulsion, but rather byself-interest or motive to provide exculpatory information about his role in an accident, then the statement will be admissible against him(see Moussavi; R v Guenther, 2016 ONCA 572, leave to appeal refused, (SCC). [35] However, there is no evidence that Mr.

Newsham’s statements were self-serving or deliberately intended to mislead thepolice. I accept his evidence that, when he was first asked to provide those statements, he was unsure of his involvement and, as Cst.Heffernan confirmed in her testimony, he was upset and in a state of shock. I also accept Mr. Newsham’s testimony that he made thestatements solely based on his belief that he was required to do so by law, and not by any other motivation. V. Conclusion [36] Mr. Newsham provided a written collision report and subsequent audio/video recorded statement to Cst.

Ashley Heffernanfollowing the accident that resulted in the death of Stanley Dick. He testified that he believed he was obliged by law to do so. I amsatisfied on a balance of probabilities that he made this report and statement on the basis of an honest and reasonably held belief that hewas required by law to do so. [37] The introduction of the collision report and recorded statement into evidence in this trial would violate Mr. Newsham’s s 7Charter right against self-incrimination. [38] Given this conclusion, it is unnecessary for me to discuss Mr. Newsham’s argument respecting his s 10(

b) rights. Heard on the 10th day of December, 2018. Dated at the City of Red Deer, Alberta this 12th day of December, 2018. Eric F. Macklin J.C.Q.B.A. Appearances: Bruce Ritter and Brittany Ashmore Balfour Der for the Crown for the Accused