R. v. Rosenfeld Date:, 2011 BCPC 3

Citation: R. v. Rosenfeld Date: 20110111 2011 BCPC 0003 File No: 176914 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J. M. H. ROSENFELD RULING ON VOIR DIRE OF THE HONOURABLE JUDGE H. H. FIELD Counsel for the Crown: C. Pike Counsel for the Defendant: M. Foster Place of Hearing: Surrey, B.C. Date of Hearing: October 5, 2010 Date of Judgment: January 11, 2011 Introduction [ 1 ] Mr. Rosenfeld is charged with impaired driving and driving with a blood alcohol concentration of greater than .08 contrary to Section 253(1) (

a) and Section 253(1)(

b) of the Criminal Code , respectively. The charges arise out of a motor vehicle accident that occurred on June 13, 2009, in Surrey, BC. [ 2 ] The Defendant alleges a breach of the protection against self-incrimination guaranteed by

Section 7 of the Charter of Rights and Freedoms .

At the outset of the trial, at the request of both counsel, the court entered a voir dire to determine the admissibility of his statement to police at the scene, “that he was the driver of a motor vehicle involved in the accident.” The evidence was necessary to establish reasonable grounds for the investigating constable’s demand of a breath sample under Section 254(2) of the Criminal Code . [ 3 ] At the beginning of the voir dire , counsel for both the Crown and defence agreed that the only material question before the court was whether the Defendant’s self-identification to the investigating constable would be admissible at trial.

If it were, both counsel agreed the breath samples would be admissible; conversely, if it were not, the breath sample would be presumptively inadmissible. Factual Background [ 4 ] On June 13, 2009, two vehicles collided at the intersection of 96 th Ave. and 148 th Street in the City of Surrey, BC. One of the vehicles, a white Ford Ranger, BC licence AW 7197, was owned by and licensed to Jason Rosenfeld. [ 5 ] At approximately 8:20 p.m., RCMP Constable Dobernigg, who was not dispatched to the accident, followed a fire truck to the intersection.

Upon his arrival he surveyed the accident scene and observed a group of approximately 10-12 onlookers standing on the northeast corner of the intersection. A fire-fighter told the officer that one of the drivers had been taken to hospital by ambulance. [ 6 ] Constable Dobernigg approached the group and asked, of no one in particular, “Did anyone see what happened, or was anyone involved in the collision?” Mr. Rosenfeld immediately raised his hand. He was asked how he was involved and stated he was the driver of the white Ford Ranger. At no time did he say he was the registered owner of this vehicle.

[7] After speaking with Mr. Rosenfeld for a short time and making some observations, Constable Dobernigg formed the opinion thathe had reasonable grounds to suspect that he had alcohol in his body and had, in the preceding three hours, operated a motor vehicle. Asa result, he demanded a road-side breath sample pursuant to Section 254(2)(

b) of the Criminal Code. [8] Mr. Rosenfeld complied and the instrument registered ‘fail’. Constable Dobernigg relied on this failure to make a formalbreathalyser demand under Section 254(3) and arrested him for impaired driving and driving with a blood-alcohol concentration inexcess of .08. Evidence [9] Under direct examination, the Defendant advised that he answered Cst.

Dobernigg’s questions because he “believed by law “ thathe was required “to answer any questions” that were asked of him by a police officer, and had he not, he would have faced negativerepercussions related to his auto insurance. [10] He testified he felt he had to respond. “My understanding was to tell the police that I was the owner of the motor vehicle, thedriver of the vehicle and any other questions asked.” [11] He stated that this disclosure requirement was common knowledge.

He also came to know of it from a passage contained at page152 of ICBC’s motorcycle licensing handbook, Road Sense for Riders. [12] Under cross-examination, Mr. Rosenfeld agreed that at the time of the accident, he understood his reporting obligations to bethose he had earlier read in Road Sense for Riders, that he had to report an accident to police if there were injury or death, or if damageswere greater than $1,000, in the case of a car. [13] Cst. Dobernigg never told Mr.

Rosenfeld that he may not provide any information to him, or that he need not provide any otherinformation other than he was the driver. [14] The Defendant also acknowledged that the legal responsibilities described on page 152 were similar to those enumerated inSection 67 of the Motor Vehicle Act. He testified, however, that at the time of the accident he was unaware that

Section 67 had beenrepealed July, 2008, but that he believed the damage caused by the accident was more than what was set out at page 152. [15] He acknowledged that he never read the Motor Vehicle Act and had never heard of

Section 67 or 84, and that his commonknowledge was “picked up on the way”. [16] He agreed that he was never asked if he was the registered owner nor was the subject brought up. Positions of the Parties [17] The Defence submits that the Defendant’s road-side admission was statutorily compelled by

Section 84 of the Motor Vehicle Actand was self-incriminatory; therefore, its admission at trial would violate the principles of fundamental justice. For this proposition, theDefence relies upon R. v. White, (SCC), [1999] 2 S.C.R. 417, and R. v. Powers, 2006 BCCA 454, leave to appealrefused, [2006] S.C.C.A. No. 452. [18] Although both White and Powers concerned statements to police statutorily compelled by

Section 67 of the Motor Vehicle Act, aprovision that was repealed by the legislature in July 2008, the Defence maintains that in the circumstances of this case,

Section 84 of theMotor Vehicle Act produced a similar effect. The principles that underlie the Court’s decision are equally applicable to statements madeunder

Section 84 of the Motor Vehicle Act. Legislation Section 84(1) of the MVA provides: Duty to give information 84

(1) If a peace officer has reason to believe that a motor vehicle has been involved in an accident or in a contravention of this Act, theCommercial Transport Act or the Transportation Act, the regulations under any of these Acts, the bylaws of a municipality or the laws ofa treaty first nation, and so informs the owner or a person in the motor vehicle, it is the duty of the owner or person, as the case may be,if required by the peace officer, to give all information it is in his or her power to give relating to the identification of the driver of themotor vehicle at the relevant time or during the relevant period.

(2) If the owner or other person fails to comply with subsection (12) or gives information that he or she knows to be false, or does notbelieve to be true, he or she commits offences against this Act. First Issue: Erroneous belief in a statutory compulsion: In the circumstances of this case was there an honest and reasonablyheld belief in a statutory compulsion? [19] The Defence takes the position that the Defendant only admitted to being the driver of one of the accident vehicles because of anhonest and reasonably held belief that he was required by law,

Section 84 of the Motor Vehicle Act, to answer the investigatingconstable’s question and identify himself as owner and driver. [20] He testified his belief was based upon both common sense and the reading of a Safety Manuel published by ICBC, one and halfyears before this incident. The information came from page 152 of the Manuel which was similar to

Section 67 of the Motor VehicleAct. The

Section was repealed at the time he read the manuel. [21] Though Mr. Rosenfeld believed a statutory compulsion existed, upon considering the facts of this case, it is abundantly clear

from the evidence that Mr. Rosenfeld mistakenly and erroneously was operating within the scope of the then repealed

Section 67 of the Motor Vehicle Act , not

Section 84 dealing with owners responsibilities, when required by officers to provide information as to who the driver was. He agreed that certain sections of

Section 67 of the Motor Vehicle Act were exactly what was contained on page 152 of the manual. [ 22 ] Mr. Rosenfeld did not know of

Section 84 of the Motor Vehicle Act nor did he believe he was specifically compelled by that section. He never responded to the officer’s inquiry “that he was the owner of the motor vehicle involved in the accident. [ 23 ] Unlike White , supra , there was no general statutory duty for Mr. Rosenfeld, as the driver or the owner, to report the accident to the Constable Dobernigg, notwithstanding he thought there was because of the damage to the vehicle.

A factor to consider in determining the reasonableness of a driver’s belief that he or she was required to do so: White at para. 78 . [ 24 ] As was stated in White at para 77 : “The requirement that the declarant’s honest belief be reasonably held also relates to the meaning of compulsion. The principle against self incrimination is concerned with preventing the abuse of state power. It is not concerned with preventing unreasonable perceptions that state power exists.

There is no risk of true oppression of the individual where the state acts fairly and in accordance with the law, but the individual unreasonably perceives otherwise.” [ 25 ] In this case the Constable Dobernigg acted under a general duty to investigate. He acted fairly. His intent, conduct and words directed at the crowd were to obtain ‘knowledge’ regarding the accident. The officer never engaged the Motor Vehicle Act when speaking with the group. Nothing was directed to the driver or owner in regard to the taking of an accident report, or requirement that the owner provide information.

The innocuous routine police conduct and inquiry directed to the group was not a police investigation that engaged any penal consequences. [ 26 ] After reviewing all of the evidence, I cannot conclude that Mr. Rosenfeld had an honest and reasonably held belief as to an existing statutory compulsion. His erroneous belief regarding a statutory compulsion to the repealed

Section 67 does not create a statutory compulsion under

Section 84. His belief was unreasonable, based on a non-existent obligation of a driver involved in an accident. [ 27 ] One cannot transfer one’s general belief of a statutory compulsion to report an accident as a driver to a specific compulsion to report an accident as an owner. [ 28 ] Having come to these conclusions, Mr. Rosenfeld’s application to exclude evidence identifying him as a driver is dismissed.

Section 7 is not engaged. Additional Submissions: Has Mr. Rosenfeld Established a Breach of

Section 7 of the Charter ? [ 29 ] Mr. Rosenfeld bears the burden of proof, on a balance of probabilities, that a breach of his Charter rights has occurred. [ 30 ] In this case he must establish that the incriminating statements were provided due to compulsion under

Section 84 of the Motor Vehicle Act . This provision sets out various requirements that must be met in order to create an obligation of an owner of a vehicle to provide information. [ 31 ] Mr. Rosenfeld submits that even though he was unaware of

Section 84 of the Motor Vehicle Act , the law nevertheless placed upon him, as the owner of a vehicle involved in an accident, a specific statutory duty to identify the driver of his vehicle, himself, to police. Legislation [ 32 ] Under

Section 67 of the Motor Vehicle Act , a driver involved in a motor vehicle accident was required to provide specific information about the accident to a police officer: 67(1) If a vehicle driven or operated on a highway, either directly or indirectly, causes death or injury to a person or damage to property causing aggregate damage apparently exceeding $1,000, the person driving or in charge of the vehicle must (

a) Report the accident to a police officer or person designated by the Insurance Corporation of British Columbia to receive those reports, and (

b) Furnish the information respecting the accident required by the police officer or designated person. [ 33 ] The

section also placed additional duties upon the police officer or person who receives the accident report, 67(8) The person receiving a report under this

section must secure from the person making it, or by other inquiries if necessary, the particulars of the accident, the persons involved, the extent of the personal injury or property damage and other information necessary to complete a written report of the accident, and must forward that written report to the Insurance Corporation of British Columbia within 10 days after being advised of the accident. [ 34 ] The above noted sections were repealed in July, 2008. [ 35 ]

Section 84 of the Motor Vehicle Act , sets out the following various requirements or pre-conditions that must be met in order to create an obligation on the owner of a vehicle to provide information to the officer: 1. The officer must have reason to believe the motor vehicle has been in an accident.

2. The officer must inform the owner of this belief. 3. The officer must require the owner to provide the information. 4. It is the duty of the owner, if required by police officer, to give all the information it is to identify the driver of the motor vehicle atthe material time.

(2) If the owner or other person fails to comply with subsection (1), or gives information that he or she knows to be false or does notbelieve to be true, he or she commits an offence against this Act. [36] The Crown concedes Constable Dobernigg had reason to believe the motor vehicle had been in an accident. [37] With respect to the second criteria, there is no indication that the officer “informed” Mr. Rosenfeld that the white Ford had beeninvolved in the accident, and that he was the registered owner of the vehicle. This was a necessary precondition pursuant to

Section 84of the Motor Vehicle Act. [38] The officer was unaware of Mr. Rosenfeld’s status. There was nothing in the evidence, including that of Mr. Rosenfeld, wherethe officer required the accused to provide information as to whom the driver was. It follows that no duty on the owner arose in thecircumstances of this case. The words, “and so informs” and “if required by a Police Officer” , to have meaning desires a formalrequirement, conduct or act by the officer before the duty to provide information arises. [39] The words in

Section 84 of the Motor Vehicle Act are inconsistent with the positive statutory compulsion imposed on the driver,pursuant to the now repealed

Section 67. [40] In conclusion, the actions of the officer did not compel the statement. The words and preconditions contained in

Section 84 of theMotor Vehicle were not strictly complied with in order to establish a statutory compulsion to respond. There is no

Section 7 Charter-breach. [41] Earlier I concluded that Mr. Rosenfeld did not hold a reasonably held belief that a statutory compulsion existed, nor that astatutory compulsion did exist given the specific facts of this case. [42] If I am wrong in the above conclusion, then it is necessary to contextually analyze the following four factors to determinewhether

section 7 has been breached (see R. v. Rice, 2009 BCCA 569). [43] In Jarvis (2002 2002 SCC 73 , 3 SCR 757), at pp. 32-33, the Court again emphasized that the introduction in a criminalproceeding of statutorily compelled information did not necessarily violate the self-incrimination right in

Section 7 and that a

Section 7self-incrimination claim required a balancing of the competing interests in the specific context of each case. The “on the ground”assessment of the

Section 7 self-incrimination claim must begin with the specific facts of this case. [44] The following cases illustrate circumstances where

Section 7 was not engaged. [45] Statutorily, compelled statements under Customs Act regarding routine questioning and searches at border did not attract Charterrelief. The questioning by border personnel was not considered either coercion nor adversarial. R. v. Jones, OCA C42243. [46] In R. v. Fitzpatrick, (SCC), 1995, 102 CCC 3rd 144, the Supreme Court of Canada held that it was not abusivefor the State to prosecute over-fishing on the basis of true reports required to be completed. The Court concluded there was no confusionbetween duty to report and right to remain silent, as was in White. [47] In R. v.

Rice, 2009 BCCA 569, a conservation officer stopped the defendant for a hunter check and asked who shot the moose. Itwas held that the questioning did not engage Rice’s

Section 7 rights. Though Rice was under statutory compulsion to answer, thequestion did not cross the line into a criminal investigation. The question related to the obtaining information about compliance with theAct. [48] These cases illustrate circumstances where questioning of a person did not engage a more intrusive form of inquiry and did notcross into a criminal investigation. FACTORS TO CONSIDER 1. Existence of State Coercion [49] White, supra, found this to be a neutral factor.

Though the matter of reporting should not be perceived as being coercive, therewas a concern with protecting human freedom that undermines the principle of self-incrimination. This was not the case with Mr.Rosenfeld. He was not required to report, a different requirement than the law under the now repealed

Section 67. [50] The officer approached a group on the roadway, with no knowledge of whether the driver or owner of one of the vehicles was inthe group. The officer’s only communication with the Defendant, prior to Mr. Rosenfeld identifying himself, was to ask how he wasinvolved. This occurred after Mr. Rosenfeld voluntarily put up his hand. The officer at that time did not know whether he was awitness, passenger, owner or driver of the white Ranger. In these circumstances the action and conduct of the police officer were notcoercive. 2. Adversarial Relationship Between State and the Accused [51] The White decision concluded that the provincial legislation under

Section 67 of the Motor Vehicle Act placed the responsibilityfor taking accident reports by the police, potentially adversarial, considering the dual function of the police. Often the person receiving

the report is simultaneously investigating a crime, creating a confusion between duty to report and right to remain silent. This concern did not arise in Mr. Rosenfeld’s case as

Section 67 had been repealed and

Section 84 does not place the responsibility on the driver to report. The words used by the officer were not made in an atmosphere that demanded a response as to who was directly involved in the accident, nor was the inquiry directed toward a criminal investigation. Unreliable Confession [ 52 ] Highly unlikely considering the innocuous communication that the statement would be unreliable. 3. Abuse of Power [ 53 ] The Court in White was concerned with the duty to report and right to remain silent. There was a potential for the police to overemphasize the extent of the statutory duty.

There is no longer that danger, as there is no longer a duty to report. The officer in these circumstances, unaware of how the accident happened, was never dispatched to the scene. His incidental remarks were within the scope of his general duty to inquire, to obtain knowledge, but not directed to who was the driver or owner of the white Ranger. [ 54 ] The nature of Cst. Dobenigg’s inquiry did not have, as its predominant purpose, the determining penal liability. He was simply carrying out general duties of a police officer. ( See R. v. Rice , p. 45.). [ 55 ] Applying the four factors to Mr.

Rosenfeld’s case, the officer’s communication at the scene did not engage Mr. Rosenfeld’s Charter of Rights ,

Section 7 was not breached. [ 56 ] During submissions, Counsel for Mr. Rosenfeld relies on a recent decision, R. v. Fraser , March 25, 2010, unreported, Victoria 14361, in support of his submissions. [ 57 ] In Fraser , the investigating constable came upon the scene of the accident and was asked to find the drivers of two of the vehicles involved in the accident. He came upon Mr. Fraser sitting by himself on a concrete retaining wall by the side of the highway.

Although what the officer first said to the accused was a matter of some debate during the trial, the Honourable Judge Higginbotham found as a fact that he asked the accused whether he was the driver of one of the accident vehicles.

By replying yes, the accused set in motion the chain of events leading to a charge of impaired driving (para. 8). [ 58 ] Judge Higginbotham concluded that Sec. 84(1) of the Motor Vehicle Act requires an owner-driver of a vehicle involved in an accident to answer questions specifically put to him concerning the accident by a peace officer (para. 7). [ 59 ] This case is distinguishable from the case at bar as Constable Dobernigg did not “require” Mr. Rosenfeld to answer his questions.

In Fraser , the investigating constable was questioning only one person who was very likely involved in the accident rather than a group of 10-12 onlookers in the present circumstances. [ 60 ] I do not agree with submissions made by Mr. Foster that the officer asked if he was involved, and then whether he was the driver. That finding of fact was not made in Fraser . [ 61 ] Nor do I agree with Mr. Foster that the thrust of the officer’s questions was identical to Fraser . The only evidence in the Fraser inquiry was to ask “if he was the driver”, is different from “informing the owner”, an explicit requirement in

Section 84. The facts in this case disclose no more than an inquiry devoid of any compulsion. Mr. Foster’s

interpretation of

Section 84 would render meaningless, the words “required” to provide, within the Section. [ 62 ] In this case, the facts do not support a finding that the pre-conditions for the creation of a statutory duty were met under

Section 84. ________________________________ The Honourable Judge H. H. Field Provincial Court of British Columbia