R v Korduner, 2022 ABKB 790

Court of King’s Bench of Alberta Citation: R v Korduner, 2022 ABKB 790 Date: 20221125 Docket: 190427104S1 Registry: Calgary Between: His Majesty the King Appellant/Crown - and - Megan Rae Korduner Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice G.A. Campbell _______________________________________________________ [ 1 ] The Crown appeals the acquittals of the respondent, Megan Korduner (the Respondent) of charges of impaired operation of a conveyance and refusing a breath demand contrary to sections 320.14(1) (

a) and 320.15(1) of the Criminal Code . The Crown seeks a new trial. Background Facts [ 2 ] In the early morning hours of March 22, 2019, a uniformed Calgary police officer (the Officer) was dispatched to the scene

of a motor vehicle accident. At the accident scene, the Officer observed two vehicles with significant front-end damage and airbagsdeployed. Fire personnel and an ambulance were already present. A firefighter advised the Officer that one of the drivers was in the backof the ambulance. [3] The Officer located the Respondent in the ambulance receiving treatment for airbag dust in her eyes. She was crying andappeared emotional and confused. [4] The Officer's interaction with the Respondent in the ambulance was captured on his body-worn camera.

After brieflychecking on the Respondent's condition, in an exchange with the Officer asking her what happened, the Respondent stated that she was"in a lot of trouble" and was "drunk". [5] On the basis of the Respondent's statements, the Officer placed the Respondent under arrest for impaired operation of amotor vehicle, read her the s 10(

b) Charter right to counsel and the police caution and made a formal breath demand. The Respondentrefused the breath demand. The charges resulted. [6] During the trial, a voir dire was held to address the admissibility of statements made by the Respondent to the Officer in theambulance. [7] The Respondent relied on the decision of the Supreme Court of Canada in R v White, (SCC), [1999] 2 SCR417. The Respondent contended that her statements were compelled statements made during the course of a Traffic Safety Act, RSA2000, c T-6 (TSA) investigation.

Applying White, the Respondent argued that her statements made under compulsion of provinciallegislation offended the principle against self-incrimination protected by

section 7 of the Charter and could not be used against her in anysubsequent criminal proceeding. [8] The Crown argued that the Respondent was not a credible witness and that her statements were made, not because she feltcompelled by law, the TSA, but because she was motivated by other purposes such as appealing to the Officer's sympathy or wallowingin self-pity. [9] The Respondent testified that she obtained her driver's licence when she was 21 years old and had taken a driver's educationcourse through AMA at the time.

She learned, during the AMA course, that if she was involved in an accident and police attended at thescene, she had a duty to report the accident. This reporting would require her to answer any questions from police about the accident. [10] The Respondent's evidence was that she provided the information to the Officer because she knew that she was "supposed toanswer police officer questions when he asks me at the scene of an accident" from her knowledge of traffic safety laws she learned fromthe AMA driver's course.

When asked what she thought to be the purpose of the Officer's question, "Can you tell me what happened",she testified "[H]e was asking me to identify myself as the driver of the vehicle that was in the accident and to let me [sic] know how Ibecame, how I came to be driving that way". The Respondent testified that she stated "I'm in trouble" because she was at fault in theaccident.

She testified that when the Officer asked her why she was in trouble, she answered she was "drunk" because she was required toanswer any questions the Officer had about the accident. [11] The Respondent agreed in cross-examination that the Officer never asked if she had been drinking and driving and had notmentioned an accident report for her to complete. During cross-examination, the Respondent testified that she told the Officer she wasdrunk, "because of the questions he was asking me made me feel that he wanted the information.

That everything that was happening inthe accident and why I was driving the way that I was [...] So I was answering any questions that he may have asked of me." TheRespondent believed it was relevant as to how and why the accident had occurred and she was required to answer any questions policemay have about the accident. [12] When asked in cross-examination whether stating "I'm in a lot of trouble" was made to assist the Officer in completing anaccident report, the Respondent explained, "it was just a statement" and "people say a lot of things when they're upset".

She testified thather comment, "This is not good for me" was "just me speaking out loud" and "being emotional". [13] The Respondent testified that she had been involved in two prior vehicle accidents in her life, both minor and in both instancesshe later provided a written statement to police. She indicated that she did this because "It's the law". Findings at Trial [14] The Provincial Court Judge (PCJ) considered s 71 of the TSA and applicable case law. [15] The PCJ considered the Supreme Court's decision in White as the applicable law.

The PCJ found that the statutory regimegoverning accident reports under the British Columbia (BC) Motor Vehicles Act at issue in White to be similar to the regime under s 71of the TSA. [16] The PCJ also relied on three different provincial appellate court decisions, including one from our Court of Appeal. Each ofthe three appellate courts rejected the Crown's urgings in those cases for a more limited

interpretation of the White decision: R v Powers,2006 BCCA 454; R v Soules, 2011 ONCA 429 and R v Porter, 2015 ABCA 279. All three appellate courts concluded that the Whitedecision that statements compelled under provincial legislation are inadmissible in criminal proceedings to incriminate the declarantremained good and binding law. [17] The PCJ relied on the Alberta provincial court decision in R v Velandia, 2012 ABPC 347, to conclude that the White useimmunity applies equally to any statements, written or oral, given to police at an accident scene regardless of the form in which theywere made.

The PCJ accepted the reasoning in Velandia that to hold use immunity under White to be only applicable to statements madeto police in the specific legislated form would effectively neutralize the s 7 Charter protection against self-incrimination for statutorily

compelled information. [ 18 ] With respect to the events in issue, the PCJ accepted that the Respondent made the verbal statements to the Officer in the ambulance in an honest and reasonable belief that she was required by law, the TSA , to answer the Officer's questions. The PCJ noted that while the Respondent was being treated by a paramedic in the ambulance, the Officer, who was in uniform, entered the ambulance and began asking the Respondent questions. He first asked as to the Respondent's well-being. The Officer then asked the Respondent "Can you tell me what happened?".

The Officer's further questioning of the Respondent flowed from what the Respondent was telling him and involved accident-related questions. The PCJ found that the total conversation lasted approximately three minutes. [ 19 ] The PCJ found that Officer did not tell the Respondent anything about what he was investigating, that is, whether he was taking an accident report under the TSA or investigating a possible criminal charge. [ 20 ] The Officer himself testified he was only thinking of the TSA investigation until the Respondent admitted she was drunk.

The PCJ found that the Officer's belief corresponded with the Respondent's expectation that the police would be coming as she had been in a serious accident. [ 21 ] The PCJ found that the Respondent was consistent and never wavered in her assertion that she answered the Officer's questions because she had a very strong belief from her AMA driving course and two previous car accidents that she had a duty to report the accident and that reporting would require her answering questions from police. [ 22 ] The PCJ also found that the Respondent's admission she was drunk came after being asked at least three times, described by the PCJ as the Respondent being "pumped by the Officer" and the paramedic, to answer why she was saying she was in trouble.

The PCJ found that despite "a change in her tone", the Respondent's verbal admissions were "part and parcel of one event or one transaction between the Officer and the [Respondent]" in the reporting of the accident under the TSA . [ 23 ] The PCJ rejected the Crown's suggestion that the Respondent's admission was motivated by other factors and found that "statutory compulsion was the primary motivation" for the Respondent's statements to the Officer. [ 24 ] Based on these facts and applying the legal principles she had identified, the PCJ found that the Respondent had met her onus by proving on a balance of probabilities, that her statements to the Officer had been statutorily compelled, under the TSA .

The PCJ thus ruled that the contents of the Respondent's statements to the Officer in the ambulance were inadmissible in the trial proper on the basis of use immunity as stipulated in White . [ 25 ] After determining that the Respondent's statements to the Officer were statutorily compelled by s 71 of the TSA , the PCJ turned to consider whether the recently enacted s 320.31(9) of the Code violated the Respondent's Charter rights to life, liberty and security of the person as guaranteed by s 7 of the Charter . [ 26 ] In analyzing this issue, the PCJ applied the two-step test set out by the Supreme Court in Carter v Canada (Attorney General) , 2015 SCC 5 . [ 27 ] In so doing, the PCJ again considered the Supreme Court's decision in White as well as the three appellate court decisions in Powers , Soules , and Porter that followed White in unequivocally ruling that that s 7 Charter rights are engaged when the state uses compelled statements in criminal proceedings because their admission would violate the principle against self-incrimination.

The PCJ noted that these appellate court decisions considered and rejected similar Crown arguments that White had been improperly overextended in those decisions. [ 28 ] The PCJ considered the Supreme Court's more recent decision in R v Paterson , 2017 SCC 15 .

The PCJ, following the reasoning of the Ontario Court of Appeal in R v Roberts , 2018 ONCA 411 , rejected the Crown's argument that the Supreme Court "correct[ed] the misapplication of White " in a footnote to the majority decision in Paterson . [ 29 ] The PCJ considered the Crown's argument that the limited use principle for "compelled direct participation" as grounds for demands applied in R v Orbanski ; R v Elias , 2005 SCC 37 was applicable to this case. The PCJ distinguished that case from the facts here.

The PCJ also noted that both Soules and Powers had considered this argument and rejected it. [ 30 ] The PCJ then concluded that the "portion of

section 320.31(9) dealing with a statement ‘compelled under a provincial Act’” goes directly against the reasoning in White , Powers , Soules and Porter , which are "determinative of the issue: that allowing a compelled statement under a provincial Act, including a compelled statement under the TSA , would infringe the [Respondent's]

section 7 right against self-incrimination in a manner not in accordance with the principles of natural justice". [ 31 ] The PCJ then considered and determined that the infringement of s 7 by s 320.31(9) of the Code was not saved by s 1 of the Charter . [ 32 ] For those reasons, the PCJ declined to apply s 320.31(9) in this proceeding and invited dismissal on both counts. The Respondent was acquitted.

Grounds of Appeal [ 33 ] The Crown relies on three grounds of appeal: 1) the PCJ erred in finding that the Respondent's statements in the ambulance to the Officer were statutorily compelled under the TSA ; 2) the PCJ erred in finding that s 320.31(9) of the Code violates s 7 of the Charter ; and

3) the PCJ erred in finding that s 320.31(9) is not a reasonable limit and not saved by s 1 of the Charter . Standard of Review [ 34 ] Questions of law are reviewed for correctness: Housen v Nikolaisen , 2002 SCC 33 at para 8 . [ 35 ] Findings of fact are reviewed for palpable and over-riding errors. Findings of fact are given deference. An appeal court is not to interfere unless the trial judge was clearly wrong, unreasonable, or the fact findings were not supported by the evidence.

Moreover, the alleged factual error must be plainly identified and shown to have affected the result: R v Clark , 2005 SCC 2 at para 9 . [ 36 ] Whether the PCJ correctly applied the legal principles in deciding the admissibility of the Respondent's statements to the Officer is a question of law reviewed for correctness. Findings of fact made in that analysis are reviewed for palpable and over-riding error. [ 37 ] The questions of whether s 320.31(9) violates s 7 of the Charter and cannot be saved by s 1 of the Charter are questions of law reviewed for correctness. Applicable Law [ 38 ]

Section 7 of the Charter provides certain protections in relation to statutorily compelled statements when an accused's liberty is at risk of deprivation, specifically the principle against self-incrimination. The essence of the principle is that an accused is not required to respond to an allegation of wrongdoing made by the state until the state has made out a prima facie case against them. [ 39 ] In Alberta, a driver involved in collision is subject to two statutory obligations under the TSA . [ 40 ]

Section 69 of the TSA requires the driver to remain at the scene and produce in writing their name, address, operator's licence number, the registered owner's name and address, the vehicle's licence plate number and a financial responsibility card to any person sustaining a loss and to the police. [ 41 ]

Section 71 of the TSA requires a driver in an accident to provide in the form and manner prescribed by the Regulation a report of the accident to a peace officer having jurisdiction where the accident occurred.

Section 148 of the Operator Licensing and Vehicle Control Regulation (Alberta) requires a peace officer or a driver to provide further information to the Registrar if they provide a report under s 71 and are required to do so by the Registrar. [ 42 ] In White , the Supreme Court considered the application of the principle against self-incrimination in the context of a driver's statutory duty to report an accident under a provision similar to s 71 in the BC Motor Vehicle Act . [ 43 ] In that case, White was involved in a fatal hit and run accident. The following day she reported the accident to the police.

Some elements of the conversation White had with police that day linked her to the accident. White testified that she knew she had a duty to report the accident and felt obliged to speak with the police officers who came to her home. The source of that legal obligation was a provision in the BC Motor Vehicle Act that required a person driving or in charge of a vehicle involved in an accident to report the accident to the police or designated official and to "furnish the information respecting the accident required by the police officer or designated person".

The Crown sought to adduce the statements at White's criminal trial for the purpose of proving the elements of the charge of leaving the scene of the accident. [ 44 ] The majority of the Court in White ruled that the verbal statements made in three conversations between White and the police were made under compulsion of the BC Motor Vehicle Act .

In so deciding, the majority made a number of rulings. [ 45 ] The majority set out the general proposition that statements made under compulsion of provincial motor vehicle laws are inadmissible in criminal proceedings against the declarant because their admission would violate the principle against self-incrimination, a principle of fundamental justice under s 7 of the Charter . [ 46 ] The majority also confirmed that if

section 7 is engaged by the circumstances surrounding the admission of a compelled statement, the concern with self-incrimination applies to all of the information in the compelled statement: White at para 70 . This means that none of the information in the compelled accident report is admissible, even in a limited way. [ 47 ] But not all statements made to police following an accident will violate s 7. There may be times when statements are made freely, with no belief that there is a legal obligation to do so.

The statement may be motivated by factors other than the obligations under provincial motor vehicle laws.

Such volunteered statements are not statutorily compelled and so would be admissible: White at para 76 . [ 48 ] Where an accused seeks to exclude evidence of statements made by them to a police officer responding to an accident, the accused has the onus to establish on a balance of probabilities that at the time the report was given by them, they had "an honest and reasonably held belief that he or she was required by law to report the accident to the person to whom the report was to be given": White at para 75 . The requirement of a subjective belief necessarily implies the absence of consent.

The accused must establish that they knew of the legal duty to report the accident and that they spoke when they did because they felt compelled by a legal duty to do so. [ 49 ] However, even if the accused was not in fact required by law to give a report but has an honest and reasonably held belief that they were legally compelled to do so, their statement will be subject to use immunity: White at para 78 . [ 50 ] The question of whether a statement or report given to a police officer following an accident was statutorily compelled is a question of fact that is determined on the particular facts of the case: Roberts at para 45 .

Did the PCJ Err in Finding that the Respondent's Statements Were Compelled by the TSA ? Parties' Positions [ 51 ] The Crown submits that the PCJ erred in applying White to the oral utterances made by the Respondent to the Officer after the accident.

The Crown says that the PCJ, in finding White applicable, failed to consider and give effect to differing legislative contexts and thus overextended the scope of the protection against compelled self-incrimination provided for in the circumstances of White . [ 52 ] The Crown points out that a driver's obligations under the TSA are narrower in scope than a driver's reporting obligations under the BC Motor Vehicle Act that was at issue in White . [ 53 ] The reporting obligation under the BC Motor Vehicle Act , described by the majority in White as "fairly broad", required a driver to provide to police particulars of the accident, the person involved, the extent of damage or injury "and other information necessary to complete a written report".

The Crown suggests that because the scope of that "other information" was left largely to the discretion of the police, the majority in White was led to conclude that a driver would reasonably assume they were to remain answering police questions until they were advised by police that their reporting obligation had ended. [ 54 ] The Crown submits that, in contrast, a driver's statutory reporting obligations under the TSA are more narrowly defined.

The TSA only requires a driver to remain at the scene of an accident, provide police with the information set out in s 69 and provide a formal written accident report in the prescribed form to a designated peace officer. [ 55 ] The Crown submits that if, as the majority in White suggested, the police may structure their investigations to signal when they are taking an accident report as opposed to conducting a potential criminal investigation, then the TSA may likewise delineate accident reporting obligations. [ 56 ] The Crown relies on the provincial court decision R v Jaroni , 2012 ABPC 186 as illustrative of this point. [ 57 ] The Crown suggests that the PCJ's reliance on Velandia was in error as the Crown submits it was wrongly decided.

The Crown submits that the trial judge in that case failed to consider the much narrower obligation imposed on drivers by the TSA , which calls for a more constrained need for the residual protection of s 7 of the Charter . The Crown also noted that White makes clear that s 7 does not extend to all statements made to police after an accident.

The Crown suggests that oral statements made to police after an accident are not compelled within the meaning of White when the answers given are not information compelled by the TSA and no reference has been made by police to completion of the prescribed accident report. [ 58 ] The Crown submits that there was no legal obligation under the TSA here that compelled the Respondent to volunteer to the Officer that she was "in trouble" and "drunk" nor did the Officer say anything that would have caused the Respondent to believe that she was required to volunteer that information.

The Crown suggests that, as was the case in Jaroni , it is difficult to see how the Respondent's belief that she was compelled to make the statements she did was reasonable in these circumstances. [ 59 ] The Respondent argues that White 's principle of use immunity applies equally to any oral or written statements given to police following an accident. [ 60 ] The Respondent says that the Crown's argument that the only statutorily compelled information by the TSA is the written content in a prescribed accident report that does not include any oral statements made to police at the accident scene is an artificial and unreasonable

interpretation that would result in an illogical and impractical approach to the White framework. The Respondent suggests that such an

interpretation would designate as compelled only the written answers to police questions leaving the oral answers given at the same time admissible in criminal proceedings against them. The Respondent relies on Velandia and says that Jaroni is distinguishable. [ 61 ] The Respondent submits that the police often undertake both a regulatory and a criminal investigation in motor vehicle accidents. In so doing, the police cannot parse out elements of a statutorily compelled statement to pursue a criminal investigation.

The Respondent emphasized that White holds that when a statement is given under an honest and reasonable belief, it is statutorily compelled, and all aspects of that statement are protected by use immunity. Analysis [ 62 ] This issue turns on the PCJ's finding that White , as followed in Powers , Soules and Porter , applies to the circumstances here. [ 63 ] The PCJ found that the Respondent proved, on a balance of probabilities, that her verbal statements made in the ambulance to the Officer "were statements compelled by

section 71 of the [ TSA ] and that the [Respondent] did have an honest and reasonable belief that she was statutorily compelled to answer [the Officer's] questions, as such, they are inadmissible due to the immunity use principle under the White case …". [ 64 ] This is a credibility-based finding of fact to which deference is to be given unless a palpable and overriding error was made. [ 65 ] In my view, the evidence supports the PCJ's finding. [ 66 ] The Respondent had just been involved in a collision that caused significant damage to vehicles. Her assertion that she believed she had a duty to report is supported by the objective circumstance of the collision.

[ 67 ] The Respondent testified how she had learned of her duty to report accidents from her driving training course with AMA. She also testified about two previous collisions she had been involved with and the steps she took in reporting them to police. [ 68 ] The Respondent's evidence about her previous two collisions provides further support for her evidence that she had experience with the reporting duty under the TSA and had a duty to report when she spoke to the Officer. [ 69 ] As a matter of law, the Respondent did have a duty to remain at the accident scene and report the collision.

This provides support for the credibility of the Respondent's evidence that she had a duty to report. [ 70 ] The Respondent testified that during her interaction with the Officer and the paramedic in the ambulance she was probed for information by both the Officer and the paramedic as to why she was "in trouble".

She testified she gave the verbal responses she did in relation to those questions based on her perceived understanding of her statutory obligations under the TSA to answer any questions the Officer asked of her as a driver involved in a motor vehicle accident. [ 71 ] The PCJ believed the Respondent that she "had a very strong belief" that she was required to answer the Officer's questions. [ 72 ] I see no palpable and overriding error in the facts found by the PCJ. [ 73 ] With this finding, the preponderance of case law would rule that White would apply.

In particular, use immunity would prevent the admission of statutorily compelled statements where the driver satisfied the test of an honest and reasonably held belief for compulsion under provincial highway safety legislation. [ 74 ] The issue is whether White applies to the circumstances here given the Respondent made oral utterances that were neither answers to the information required to be provided under s 69 of the TSA nor contained in a formal written accident report made pursuant to s 71 of the TSA . [ 75 ] It is of note that the Court in White held that oral statements made in three conversations between the driver, White, and police were made under compulsion of the BC Motor Vehicle Act .

The police officer had advised White that even though she was not required to provide a written statement, she had to provide a statement to police. As was the case here, the officer there did not expressly request a statement from White. [ 76 ] The PCJ relied on Velandia in support of her finding that White applied to the Respondent's oral statements made to the Officer. [ 77 ] I do not agree with the Crown's suggestion that Velandia was wrongly decided. [ 78 ] In that case, the trial judge was aware of the specific reporting obligations under the TSA as he considered ss 69, 70 and 71 of the TSA .

He concluded that for the purposes of determining whether the White use immunity applies, the provisions of the TSA had the "same degree and nature of compulsion as did the statutes in Ontario and British Columbia". [ 79 ] Similarly, our Court of Appeal in Porter also ruled that s 71 of the TSA is similar to the provision at issue in White , that provides that the driver of a vehicle involved in an accident "shall … provide a report of the accident" to a peace officer at para 20. [ 80 ] I agree that, substantively, the statutory reporting obligations are not dissimilar enough to make the principles set out in White inapplicable to the circumstances here.

The provision in the BC Motor Vehicles Act that requires a driver to provide "other information necessary to complete a report" appears broader than the TSA accident reporting obligations, which is limited to drivers providing a peace officer with a report of the accident "in the form and manner prescribed by the regulation", including further information by either the peace officer or the driver if required by the Registrar. Given the vague terms, police questioning may still occur under the TSA to obtain the information necessary to complete the report.

As a result, it does not appear that the accident reporting obligations under the two provincial statutes are all that dissimilar. The critical point is that drivers under either statutory regime are required to remain at the scene of an accident and provide information - answer questions - that responding police ask about the accident. [ 81 ] The trial judge in Velandia reviewed case law, including R v Lynch , 2008 ABQB 506 , a decision of this court that concluded that White applies to oral as well as written statements, form being irrelevant.

The trial judge then concluded that to hold that White only applies to statements made in the specific legislated form would effectively neutralize the s 7 Charter protection against self- incrimination.

His rationale was as follows at para 46: … it does seem to me that to hold otherwise (i.e., to hold that the White protection only applies if the statements are made in the specific form referred to in the legislation) would effectively neutralize the protection against self-incrimination in situations where provincial legislation compels a driver to give certain information to the police, but the police simply ask for the information in a form other than that set out by the legislation.

A driver who is involved in an accident, and who knows that he or she is statutorily compelled to give certain information to the police, should not have to determine whether the police officer's request for information falls within or outside the compulsory provisions of the legislative scheme based upon how the request is made. Such a situation would simply afford to the police too much scope to thwart the driver's

section 7 Charter rights. [ 82 ] I accept and endorse this reasoning. I agree that the "form" of the accident report should not determine the applicability of White : namely, whether the statements made to police in reporting the particulars of an accident were made because the driver felt compelled by law to do so or did so for some other reason.

Section 7 Charter protection should not depend on whether questions are asked as a written form is completed. What is relevant is the circumstances of the soliciting of that information by police and the reason why the driver provided the information they did - their report of the accident - to the police.

Did the driver answer police questions in a spirit of cooperation or because they honestly and reasonably believed they were compelled by law to do so? [ 83 ] I conclude that the test for compulsion to invoke use immunity provided for under White as subsequently applied in Powers , Soules and Porter can apply to oral statements made during a TSA investigation even if those statements do not directly answer s 69

inquires or are in the form prescribed by s 71 of the TSA . Whether those oral statements satisfy the test for compulsion to take the protection of the White use immunity is a question of fact to be determined based on the particular circumstances of each case. [ 84 ] The Crown referred to the provincial court decision in Jaroni as support for their position that White is not applicable and does not confer use immunity if there is no actual legal obligation imposed on drivers by the TSA to answer the question asked by the police. [ 85 ] In that case the accused’s vehicle collided with another vehicle.

A responding police officer found the accused still in the driver's seat and asked if he was ok and what happened. The officer then noticed a smell of alcohol from the vehicle. He asked the accused if he had been drinking. The accused replied he had some beer a few hours earlier. An ASD demand was made, resulting in a fail. Ultimately, the accused provided evidentiary samples showing his blood alcohol content to be over .08. At trial the accused argued that he answered the officer's question about drinking because he believed he was compelled to do by s 71 of the TSA .

The trial judge rejected the accused's claim that answers to any questions asked by police at the scene of an accident are compelled statements. The trial judge reasoned at para 55 that: The immunity applies to the information which the declarant is statutorily obliged to give. Nothing in the [ TSA ] obliges drivers to provide information about alcohol consumption.

Had the Accused failed or refused to respond to the inquiry by [the police officer] about alcohol consumption, he would not have been subject to sanction under the [ TSA ]. [ 86 ] In Jaroni , the primary officer, after noting the odour of alcohol asked the driver if he had been drinking, thus initiating a criminal impaired driving investigation. In this case, the PCJ accepted the evidence of the Respondent and the Officer that their interaction in the ambulance was in relation to the accident and the TSA .

The PCJ, applying the test for compulsion set out in White , accepted the evidence of the Respondent that she answered the Officer's questions because she honestly believed the law required her to do so. [ 87 ] As held in White , not all statements to police officers who respond to motor vehicle accidents are statutorily compelled; it is a fact-specific analysis. There will be cases "where the accused responds freely, entirely unmotivated by any such statutory duty". This was the finding in Jaroni but is not the finding here.

These differing facts call for differing conclusions. [ 88 ] Further, in my view, the trial judge's finding in Jaroni that the use immunity principle from White does not apply to statements made by individuals about their alcohol consumption because nothing in the TSA requires drivers to provide information about alcohol consumption is too fine an

interpretation, given there may be a simultaneous motor vehicle and criminal investigation, or a crossover from one to the other. [ 89 ] Further, this proposition ignores the White test for compulsion, which incorporates a subjective element that calls for credibility assessments. I also note that the trial judge in Jaroni did not have the benefit of our Court of Appeal's decision in Porter . I do not find Jaroni of assistance here. [ 90 ] Here, no specific reference was made to either the TSA or a criminal investigation for a potential crime.

However, the PCJ found that both the Officer and the Respondent believed that the questions the Officer asked of the Respondent and the answers she gave up to the point after she admitted she was drunk were made in relation to the TSA and part of a TSA investigation. [ 91 ] And while no specific reference had been made to motor vehicle legislation in the conversation leading up to the statements, the PCJ found as a fact that the Respondent had been influenced by her honest and reasonable belief that she was required to answer the Officer's questions because of her understanding of a driver's obligations under the TSA .

This was a reasonable factual finding, supported by the evidence. As the majority noted in White , the basis of a subjective belief exists because compulsion implies an absence of consent. [ 92 ] In this case, the Officer observed the Respondent to be very emotional, crying and upset when he asked, "what happened".

It was reasonable for the PCJ to conclude that the very brief, approximately three-minute exchange, that followed was the making of a report of the accident that had just occurred. [ 93 ] As Iacobucci J. noted in the majority reasons in White at para 66 : The spontaneous utterances of a driver, occurring very shortly after an accident, are exactly the type of communication that the principle against self-incrimination is designed to protect. They are a personal narrative of events, emotions and decisions that are extremely revealing of the declarant's personality, opinions, thoughts and state of mind.

The dignity of the declarant is clearly affected by the use of this narrative to incriminate. [ 94 ] I find these comments particularly relevant to the circumstances here. [ 95 ] The Court in White also made clear that use immunity under s 7 was restricted to the narrow circumstances of the making of a statutorily compelled accident report and did not extend to "ordinary police investigation". [ 96 ] The Court distinguished between the making of a report pursuant to provincial motor vehicle statutes and "ordinary police investigation” as follows at para 74: … the driver has an interest in knowing with some certainty precisely when he or she is required to speak, and when he or she is permitted to exercise the right to remain silent in the face of police questioning.

Conversely, the right of the state to prosecute crime will be impaired to the extent of the reporting requirement under

section 61 of the Motor Vehicle Act . Thus, the public too has a strong interest in identifying with some certainty the dividing line between taking of an accident report under

section 61, on the one hand, and ordinary police investigation into possible crimes on the other. [ 97 ] The Court, in recognizing that police would not be able to rely on statements made under statutory compulsion, made clear an

investigating officer must separate their questioning between questioning for the statutory compelled accident report and voluntary, warned statements taken for the purpose of criminal proceedings. [ 98 ] In conclusion, the PCJ made a finding of fact that the Respondent held an honest and reasonable belief that she was required to answer the Officer's questions due to a statutory duty to report the particulars of the accident to a police officer.

I see no palpable and overriding error here. [ 99 ] In my view, the PCJ was correct in law to find that the verbal statements the Respondent made to the Officer in the ambulance comprised her s 71 TSA report and did not have to be in the prescribed form to attract use immunity under White .

This finding was correct because the PCJ was satisfied that the Respondent's statements were compelled in the circumstances through the oral questioning and probing by the Officer as part of his TSA investigation and the Respondent satisfied the White test for compulsion. [ 100 ] For these reasons, I find that the PCJ's decision that statutory compulsion under the TSA was the primary motivator for the Respondent giving the statements she did to the Officer was correct with no palpable and overriding error in her factual findings. [ 101 ] This ground of appeal is dismissed. Did the PCJ Err in Finding

Section 320.31(9) Violates

Section 7 of the Charter [ 102 ] The Crown submits that a recent amendment to the Code provides a complete answer to this appeal. [ 103 ]

Section 320.31(9), which came into effect on December 18, 2018 provides:

(9) A statement made by a person to a peace officer, including a statement compelled under a provincial Act, is admissible in evidence for the purpose of justifying a demand made under

section 320.27 and 320.28. [ 104 ] The Crown argues that the Respondent’s statements, even if compelled under the TSA , should have been admitted into the evidence for the limited purpose of establishing the Officer's reasonable and probable grounds to arrest the Respondent and make a breath demand of her.

In the result, the PCJ erred in declining to apply s 320.31(9). [ 105 ] The Respondent argues that the effect of s 320.31(9) is to overrule White , Soules , Powers and Porter as good and binding law and is inconsistent with the principles of natural justice that provide protection against self-incrimination provided under s 7 of the Charter .

Is the Expansion of White by Powers , Soules and Porter Incorrect and Inconsistent with Orbanski and Elias ? [ 106 ] The Crown's first argument is that Soules , Powers and Porter are unwarranted expansions of White to derivative use immunity statements and are inconsistent with the principles set out in Orbanski and Elias . In those cases, the Supreme Court permitted the admission into evidence of compelled statements for the limited purpose of showing reasonable suspicion to make an ASD demand or reasonable and probable grounds to make a breath demand.

The Court held such "compelled direct participation by the motorist in roadside tests" did not violate the person's right to counsel under s 10(

b) of the Charter . [ 107 ] The Crown submits that White makes clear that statements compelled under provincial highway safety legislation may not be used to establish an element of the offence in any ensuing criminal trial.

For example, a compelled statement by a person that they were the driver of a vehicle at the time of the accident may not be used for the purposes of establishing the identity of a driver in a criminal trial. [ 108 ] However, the Crown contends that using a statutorily compelled statement for the purposes of reasonable suspicion or reasonable and probable grounds to make breath demands as part of a voir dire is not a self-incriminating use of evidence because the evidence is only being used on the voir dire and is not being used to prove an element of the offence in the ensuing criminal trial.

This is where the Crown says Soules , Powers and Porter overextended the White principles. [ 109 ] The Crown says that support for their position can be found in the majority's decision of the Supreme Court in Orbanski and Elias , which discussed self-incrimination concerns but concluded that the limits on the s 10(

b) right to counsel at roadside were justified under s 1 of the Charter . The Court, despite acknowledging that asking a detained person specific and pointed questions about alcohol consumption before giving them the opportunity to consult counsel might cause the person to reasonably believe they are compelled to answer, concluded that such answers from "compelled direct participation by the motorist in roadside tests" were admissible for the limited purpose of establishing grounds for the demand: Orbanski at paras 48 and 58 . The Court said that the

section 7 right claimed in those cases amounted to no more than a "reassertion of [the appellant's] rights under s 10(b)." [ 110 ] For these reasons, the Crown contends that Soules , Powers and Porter were wrongly decided because those cases decided that compelled statements under provincial highway safety legislation cannot be used for any purpose.

The Crown says that these decisions failed to apply Orbanski and Elias that provide authority for using compelled statements for the limited purpose of establishing grounds for a demand in a voir dire but would not be admissible in the trial as justifiable under s 1 of the Charter and so would not violate s 7 of the Charter . [ 111 ] While there may be some merit to Crown's argument, as the PCJ also noted, both appellate courts in Soules and Powers expressly considered this argument and rejected it.

[ 112 ] Further, as the PCJ correctly noted, the three provincial appellate courts in Powers , Soules and Porter have held that statutorily compelled statements are not admissible in a trial as proof of an essential element of an offence (i.e. identity of a driver) or for the purpose of establishing grounds for making either the ASD or breath demand.

As relied on by our Court of Appeal in Porter and the Ontario Court of Appeal in Soules , Iacobucci J made clear in White at para 70 : The protection afforded by the principle against self-incrimination does not vary based upon the relative importance of the self- incriminatory information sought to be used. If s. 7 is engaged by the circumstances surrounding the admission into evidence of a compelled statement, the concern with self-incrimination applies in relation to all of the information transmitted in the compelled statement.

Section 7 is violated and that is the end of the analysis, subject to issues relating to s. 24(1) of the Charter . [ 113 ] The PCJ correctly concluded that Soules , Powers and Porter "support one another and are consistent with one another" arriving at the same

interpretation of White , which provides a compelling reason why there should not be interference with those appellant court decisions at this time. [ 114 ] The PCJ then concluded that unless and until either the Supreme Court or the appellate courts, including our Court of Appeal, hold that Soules , Powers and Porter are wrongly decided they are persuasive authorities, and in the case of Porter , is binding authority in Alberta. [ 115 ] I see no error in law here in the PCJ's decision to follow the three appellant courts decisions in Soules , Powers and, significantly here, Porter , which would invoke the principle of stare decisis .

It cannot be said that the principles espoused in any of those cases were obiter dictum . Has the Supreme Court in Paterson Overruled Soules and by Extension, Powers and Porter ? [ 116 ] The Crown's second argument is based on the Supreme Court's decision in Paterson .

The substance of the argument is the same: Soules , Powers and Porter failed to follow Orbanski and Elias as authority to find that the use of compelled statements for reasonable suspicion or reasonable and probable grounds to make a breath demand is not an incriminatory use because it is not used in the trial proper to prove an element of the offence and for that reason does not violate s 7 of the Charter .

Their argument is that Paterson overrules Soules and by extension, Porter . [ 117 ] The Crown claims that after Paterson statutorily compelled roadside statements to police are now admissible to establish grounds for a demand under s 320.27 or 320.28 of the Code . [ 118 ] The issue before the Court in Paterson was slightly different as it considered whether voluntariness of a statement made to a person in authority had to be proven for the Crown to rely on the statement during a Charter voir dire .

The Court, while not specifically addressing statutory compulsion and the rule in White , held that the Crown was not required to do so.

The Crown says that the analysis as it applies to the common law confessions rule should apply with equal force as it is an aspect of the principle against self- incrimination. [ 119 ] In making this submission, the Crown points to a footnote in the majority opinion in Paterson in which Brown J, after noting that arguments before the Court had commented on the Soules decision, cast doubt on the correctness of Soules when he stated: Without commenting on the correctness of Soules , I observe that Orbanski 's direction that the police may rely upon roadside statements for the purpose I have described was categorical. [ 120 ] The "purpose … described" was for establishing the grounds for a breath demand in a Charter voir dire . [ 121 ] While there may be merit to the Crown's argument and Brown J's footnote has put in issue the correctness of Soules , the Supreme Court expressly declined to resolve the question and find Soules was wrongly decided. [ 122 ] As did the PCJ, I concur with the comments made by the Ontario Court of Appeal in Roberts at paras 42-48 when they considered Brown J's comment as in obiter and concluded that it was unlikely that the Supreme Court would overrule Soules in a footnote in a decision in which the majority expressly declined to comment on the correctness of Soules .

In the result, the Ontario Court of Appeal concluded that Soules remains the binding law in Ontario until it is reconsidered or overruled by the Supreme Court. [ 123 ] I too agree that the issue is too complex and important for this to be the case. I also agree that where the Supreme Court comments, but expressly declines to rule on the correctness of a particular Court of Appeal decision, it cannot then be said that the Court has impliedly overruled the decision. [ 124 ] Strictly speaking, Alberta courts are not bound by Soules or Powers .

However, our Court of Appeal in Porter endorsed the reasoning of those two appellate courts.

Our Court of Appeal applied those courts’ reasoning in finding that statutorily compelled statements were not admissible for any purpose and highlighted that their conclusions were determinative in its decision that admissions in a TSA accident report were not admissible for the purpose of establishing reasonable and probable grounds to obtain a search warrant or production order at para 27. [ 125 ] The Supreme Court may well in future rule otherwise on the proper application of White but until it does Soules , Powers and Porter , stand as the considered decisions of three appellate courts on the very same issues raised here.

These are highly persuasive authorities, and, for reason of stare decisis , in Alberta, Porter should be followed. [ 126 ] In the result, the PCJ was correct in deciding that Paterson did not overrule White as applied in Soules and thus Soules , Powers and Porter remain good law. The use of compelled statements is not admissible in a criminal proceeding for any purpose, including to establish reasonable grounds for a breath sample demand.

[127] As conceded by the Crown, having found that White, Soules, Powers and Porter remain good and binding law, it follows that s320.31(9) is inconsistent with the principles of natural justice as its intended effect is to admit compelled evidence that White, as appliedin Soules, Powers and Porter, has ruled is in contravention of s 7 of the Charter. [128]

Section 320.31(9) is an attempt to override this accepted jurisprudence and alter the legal effect of White. As the PCJ correctlystated s 320.31(9) "engages s 7" and is "causally connected to the prejudice arising from the infringement of the principle against self-incrimination and an individual's right to life, liberty and security of the person.

Section 320.31(9) cannot change or alter s 7 Charterrights." [129] For these reasons, I conclude that the PCJ made no error in law in concluding that s 320.31(9) violates s 7 of the Charter. [130] This ground of appeal is dismissed. Is

Section 320.31(9) a Reasonable

Section 1 Limit on theProtection against Self-incrimination? [131] The Crown has rightly conceded that if s 320.31(9) is found to have infringed s 7 Charter rights, then the s 1 Charterreasonable limit justification has not been satisfied in these circumstances. The Crown acknowledged that its appeal would succeed orfail under s 7, not s 1. [132] The Supreme Court has repeatedly stated that infringements of s 7 are "not easily saved by

section 1", given that s 7 engages thefundamental principles of natural justice: Re Motor Vehicle Act, (SCC), [1985] 2 SCR 486 at para 85. [133] There are no exceptional circumstances here. There was no evidence pointing to a harm that s 320.31(9) was meant to address. [134] There is no evidence to suggest a rational connection despite the many years since use immunity was provided for under White. [135] The impairment is significant allowing for 13 different types of demands under s 320.31(9) and is a significant impairment to anindividual's right to remain silent.

There are other investigative means available to police that are less intrusive to an individual's right toremain silent that have been in practice since White as was noted in Porter at para 26. [136] There may be a deleterious effect as s 320.31(9) creates an impossible situation of forcing drivers to decide whether tocontravene the Code or the TSA. [137] As to the balancing of competing interests, there is no strong evidence that without s 320.31(9), police investigations intoimpaired driving offences will be crippled.

There may be logistical issues, but police have since White conducted their investigations in away to avoid self-incrimination by drivers. The Court in Soules considered a similar argument and rejected it as "unfounded".

I agree. [138] In the result, the Crown has not shown on a balance of probabilities that the violation of the right to remain silent created inWhite as applied subsequently in Soules, Powers and Porter, is a reasonable limit under s 1. [139] For these reasons, I find the PCJ made no error in law when she concluded that the Crown failed in demonstrating that s320.31(9) could be upheld as a reasonable limit under s 1 of the Charter. [140] I further find that the PCJ made no error in law when she found that s 320.31(9) of the Code is inconsistent with s 7 of theCharter and declined to apply that law in the Respondent's trial. [141] This ground of appeal is dismissed.

Conclusion [142] For these reasons, the Crown's appeal is dismissed on all three grounds. Heard on the 29th day of September, 2022. Dated at the City of Calgary, Alberta this 25th day of November, 2022. G.A. Campbell J.C.K.B.A.

Appearances: Matthew Griener for the Appellant/Crown M. Ian Savage for the Respondent