Her Majesty the Queen - v. -, 2014 SKPC 33

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 033 Date: March 10, 2014 Information: 24478009 Location: Nipawin _____________________________________________________________________________ Between: Her Majesty the Queen - and - Brett Kelly Olson Appearing: Lori O ’Connor For the Crown Michael Owens For the Accused DECISION ON VOIR DIRE J. RYBCHUK , J INTRODUCTION [ 1 ] The accused, Brett Kelly Olson, is charged with four counts that on or about July 2, 2012, at or near Tobin Lake, Saskatchewan, he: (

i) operated a motor vehicle while impaired by alcohol contrary to s. 255(1) and s. 253(1) (

a) of the Criminal Code ;

(ii) having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, did operate a motor vehicle contrary to s. 255(1) and s. 253(1) (

b) of the Criminal Code ; (iii) operated a motor vehicle on Highway 225 in a manner that was dangerous to the public contrary to s. 249(1) (

a) of the Criminal Code ; (iv) did wilfully obstruct Cst. Carmen Taylor and Cst. Keegan Malkoske, peace officers engaged in the lawful execution of their duty by lying and providing false information contrary to s. 129 (

a) of the Criminal Code . [ 2 ] A voir dire was entered into at the commencement of the trial dealing with various Charter applications, most of which were subsequently abandoned by the accused along the way when the Crown entered a stay of proceedings in relation to the second count. As such, there remains to be determined only one Charter issue that was dealt with in the briefs of law filed by the parties. ISSUE Whether the statements made by the accused to Cst.

Taylor when she arrived at the scene of the accident are inadmissible as statutorily compelled statements pursuant to The Traffic Safety Act and a violation of s. 7 of the Charter ? FACTS [ 3 ] Cst. Taylor was called to the scene of a motor vehicle accident that occurred in the early morning hours of July 2, 2012 at the T-intersection where Tobin Lake Road meets Highway 225 near Tobin Lake, Saskatchewan. When she arrived, it was storming with thunder and lightening. It was raining quite steadily with very hard intermittent downpours. There were large puddles of water on the road and visibility was poor.

As she approached the scene she noticed that the fire and ambulance departments were already there tending to a male person laying on a stretcher on the ground and a female person still trapped inside the truck. [ 4 ] It appeared to her that the truck had gone through the intersection, the ditch and approximately 40 to 50 feet out into a field. The truck was quite damaged and did not appear to be drivable. The front windshield had a large spider web type crack in it as if the driver’s head had hit it.

The rear window was broken out completely. [ 5 ] Everything was in disarray with items strewn about both inside and outside of the truck. There were numerous beer bottles, both empty and full, along with baby clothes and other items scattered outside the truck. Inside the truck there were more baby clothes with a baby car seat base that had become partially loose in the back seat of the truck. There was a mickey of hard alcohol along with several empty and full bottles of beer. Cell phones and baseball hats were spread around. [ 6 ] Two males were wrapped in blankets standing outside the truck. [ 7 ] Cst.

Taylor asked who they were. One of the men identified himself to her as the accused, Brett Olson. Cst. Taylor could smell beverage alcohol on him when she was close to him and it appeared as if he had been drinking. [ 8 ] The accused indicated that there was a sixth male who had been driving the truck and ran off into the bush after the accident. [ 9 ] Cst. Taylor took the accused back to her police truck because it was wet and cold outside and the first responders had requested several times that the gentleman stay away from the paramedics who were busy working on the injured and trapped passengers.

She was also concerned about the sixth male being out in the middle of the bush in northern Saskatchewan in a storm in the middle of the night (ie. approximately 4:00 a.m.) with injuries as it appeared the driver’s head had hit the windshield of the truck.

[10] Inside the police truck, Cst. Taylor noticed the accused had a scratch or abrasion on the skin of his forehead. The smell ofbeverage alcohol in the enclosed space of the truck was stronger and it appeared he was slurring his speech. [11] The accused stated he did not know the name of the sixth male, but that it was a guy he knew from hockey in Tisdale and theyhad been out drinking at the bar in Tobin Lake that night. When they left the bar, the male offered to drive the truck because the accusedknew he could not drive.

The accused was just a passenger and sat in the back seat of the truck with his girlfriend, Rebecca Stasiuk, whowas the female person still trapped inside the truck at the scene of the accident. [12] The accused told Cst. Taylor numerous times that he did not know the driver’s name, his cell phone number or anything likethat and that he had no way of contacting him. He described him as being taller than himself, having blonde hair and wearing a baseballcap and t-shirt.

She obtained a witness statement from the accused and then spent at least the next hour searching for and trying to locatethe driver of the truck. [13] Cst. Taylor testified that when she approached the accident scene, she was investigating a reported accident pursuant to herduties under The Traffic Safety Act, c. T-18.1, and that the reason she did not warn or caution the accused when she obtained thestatement from him is because all the information she had at the time indicated he was merely a passenger in the truck and not the driver. ANALYSIS [14] The accused argues that the answers he gave to Cst.

Taylor’s questions when she first arrived at the accident scene as to whathappened and who was driving are not admissible against him in these criminal proceedings as “use immunity”. That is, Cst. Taylor hada statutory duty to investigate the accident and the accused was statutorily required to answer her questions pursuant to ss. 253(3) and (4)of The Traffic Safety Act. If his statements are admitted and used to incriminate him, this would result in an unfair trial and a breach of s.7 of the Charter. [15] The accused relies upon the Supreme Court of Canada decision in R. v.

White, (SCC), [1999] 2 S.C.R. 417,as interpreted by the British Columbia Court of Appeal in R. v. Powers, [2006] BCCA 454 and the Ontario Court of Appeal in R. v.Soules, [2011] ONCA 429 and applied by our courts in Saskatchewan in R. v. McTaggart, 2003 SKQB 525, R. v. Scharf, 2013 SKQB328, R. v. Gamble, [2007] S.J. No. 312 and R. v. By, 2013 SKPC 29. [16] In R. v.

White, supra, the Supreme Court of Canada set out the test for a statutorily compelled statement at paragraph 75,whether the declarant: ... gave the report on the basis of an honest and reasonable belief that he or she was required by law to report the accident to the person towhom the report was given. The Court went on further in paragraph 76 to state that: If a declarant gives an accident report freely, without believing or being influenced by the fact that he or she is required by law to do so,then it cannot be said that the statute is the cause of the declarant’s statements.

The declarant would then be speaking to police on thebasis of motivating factors other than s. 61 of The Motor Vehicle Act. [17] If the test for compulsion is met, then the accused’s statements are inadmissible under either the common law or s. 24(1) ofthe Charter as a violation of the accused’s s. 7 right to a fair trial. [18] Here, the accused testified that he thought he had to answer Cst. Taylor’s questions about the accident by law. As such, heargues it cannot be used against him in this criminal trial. However, I do not accept the accused’s evidence in the voir dire for the

reasons that follow. [ 19 ] The accused cannot be believed. He changed his story and admitted during cross-examination on the voir dire that in fact, he was the one who had been driving the truck at the time of the accident. This contradicts entirely what he had said previously and repeatedly on the night of the accident that he was not the driver and instead some other sixth male, a guy he played hockey with in Tisdale, was driving the truck and had ran off into the bush after the accident.

And further in cross-examination he went to claim that this sixth male was now a girl. [ 20 ] In direct examination the accused testified that he believed he had to answer the police officer’s questions by law. He provided no further information or basis for this belief. In cross-examination he admitted that answering the officer’s questions would also include telling the truth. Yet, he did not tell the truth apparently. Then further, in re-examination when asked whether the law that says he has to answer the questions also includes telling the truth, he said he did not know.

This is all nonsensical and casts considerable doubt on the credibility of his testimony in general. [ 21 ] I found the accused’s testimony in the voir dire to be circumspect and unreliable. He minimized his actions. He claims to have almost no memory of what happened that night, yet he is quite certain that he was the driver and was required by law to answer Cst. Taylor’s questions.

His responses to simple and direct questions put to him during cross-examination were either that he could not recall, did not know, did not remember, was very vague, hit and miss, he guessed, it was a very long night and he had a head injury that was supposedly affecting his memory. [ 22 ] The accused acknowledged that his capacity to observe, remember and communicate that night could have been impaired by alcohol and/or hitting his head on the windshield. He smelled of alcohol and had slurred speech at the time. [ 23 ] The accused qualified many of the responses he did give.

He could not seem to remember matters that were detrimental to him, but could remember vividly matters that benefited him. [ 24 ] The accused was unable to testify clearly to significant details and his answers were ambiguous.

He suffered from apparent selective memory. [ 25 ] I found the accused to be quite peculiar and suspicious in his behaviour on the stand, the language he used and the answers he chose to give and not to give. [ 26 ] I therefore, do not believe or accept the evidence of the accused in the voir dire and conclude that he did not have an honest subjective belief that he was required by law to answer the questions Cst. Taylor asked him that night.

Even if I had found on a balance of probabilities that he honestly and subjectively believed he was required to answer her questions by law, I still would not have found that belief to be reasonable in the unique circumstances of this case for the following reasons. [ 27 ] Although Cst. Taylor may believe that witnesses to an accident are legally required to answer her questions when investigating a motor vehicle accident under The Traffic Safety Act , this is not the case. There is a legal issue here whether the accused was indeed, statutorily compelled to answer her questions. All the evidence Cst.

Taylor had at the scene of the accident was that Mr.

Olson was merely one of six passengers in a truck involved in an accident. [ 28 ] Subsections 253(3) and (4) of The Traffic Safety Act of Saskatchewan compel the person in charge of a motor vehicle involved in an accident in certain circumstances to report the accident to the nearest peace officer as soon as practicable after the accident and to provide that peace officer with any information or written statement concerning the accident that the peace officer may reasonably require to complete an accident report. [ 29 ] Other occupants (i.e. passengers) in the motor vehicle are not statutorily compelled to provide the same information to a peace officer unless:

(

i) the person in charge of the motor vehicle involved in an accident is physically incapable of making the report pursuant to s. 253(5); or (ii) the person sustained a bodily injury arising out of the motor vehicle accident pursuant to s. 253(6) and the passenger is physically capable of making the report pursuant to The Traffic Safety Act . [ 30 ] On the facts of this case, at the time the accused made his statements to Cst. Taylor it was unclear whether the driver who had ran off into the bush was still capable of providing a statement once he was found.

It was also unclear whether the accused had sustained any bodily injury in the accident as Cst. Taylor had observed nothing on him at roadside when he was wrapped in a wet blanket answering her questions. She then took him inside the police truck where all she could see on him was a scratch on his forehead. It was not until much later after the accused had already given the statement and they were in the light of the Nipawin Police Detachment that Cst. Taylor also noticed swelling and bruising to one of his eyes. [ 31 ] At no time did Cst.

Taylor tell the accused that he was legally required to answer her questions, as was the situation in some of the cases referred to me by the accused such as R. v. McTaggart, supra. [ 32 ] Likewise, nor did the accused ask Cst. Taylor if he legally had to answer her questions.

These are distinguishing factors to be considered in assessing the reasonableness of a belief in a legal duty to provide a statement to police. [ 33 ] It is not reasonable for a person to think he has a legal duty to answer a police officer’s questions on the one hand, but then on the other hand think he does not have a legal duty to answer those questions truthfully. [ 34 ] Here, we are not dealing with a formal written highway accident report under The Traffic Safety Act as was the situation in some of the cases referred to me by the accused such as R. v. McTaggart, supra.

Instead, we are dealing with the situation of a police officer coming upon the scene of a serious motor vehicle accident in the middle of the night in a remote, rural area of northern Saskatchewan. It is storming and showering outside. There is chaos with emergency personnel tending to injured people laying on the ground and still trapped inside truck. Things are in disarray with items strewn about everywhere. Beer bottles and baby clothes lay in the field. Inside the vehicle is a detached baby seat, baby clothes, cell phones and open/unopened bottles of alcohol scattered around. [ 35 ] Cst.

Taylor does have a legal duty under The Traffic Safety Act to investigate the accident, but all she was doing at this point was trying to orient herself to the situation and figure out who is who. The accused standing outside the truck with his girlfriend still trapped inside the truck, I do not think a reasonable person in those circumstances would believe his legal duty right then and there was to help complete an administrative highway accident report for government insurance purposes pursuant to the provisions of The Traffic Safety Act .

His motivations for answering the police officer’s questions, in the manner in which he did, lay elsewhere. They had far more pressing matters at hand. The first responders were trying to extricate his girlfriend from the truck while another passenger lay on the ground on a stretcher being treated by paramedics. Not to mention the driver of the vehicle who had apparently smashed his head against the windshield and run off into the bush in northern Saskatchewan on a cold, wet and dark night wearing only a t-shirt. Cst.

Taylor’s concern at the time was for his safety and security, not necessarily to complete, mentally or otherwise, the task of a highway accident report for SGI. [ 36 ] The Crown is not seeking to rely on the accused’s statement to prove that he was driving and support grounds to make an ASD or breath demand as was the situation in almost every case cited to me by the defence. Here, we have the unique situation where the statement is merely being used to support a charge of obstruction of Cst.

Taylor in the execution of her duty by lying and providing false information which forms part of the actual actus reus of the offence. Thus, there was no issue of the voluntariness of the statement in the voir dire .

These are uniquely distinguishing features of this case from the usual cases dealing with statutorily compelled accident reports under the various provincial highway traffic safety and insurance legislation across Canada. [ 37 ] My previous findings of credibility and fact that the accused did not really possess a bona fide subjective belief that he was legally required to provide a statement is another major uniquely distinguishing feature of this case from all the cases cited by the

accused. CONCLUSION [ 38 ] I therefore, conclude that the accused did not subjectively and honestly believe he was legally required to answer Cst. Taylor’s questions when she arrived at the scene of the accident and further, that it would not have been reasonable for him to have such a belief in the unique and factually distinguishing circumstances of this case. [ 39 ] I find the accused made the statements freely, without being influenced by any belief that he was required by law to make them.

His motivation for making the statements was for reasons other than those contained in The Traffic Safety Act , and it cannot be said this piece of legislation was the cause of his statements. [ 40 ] As such, the accused has failed to meet its evidentiary burden in the voir dire of establishing on a balance of probabilities a violation of s. 7 of the Charter, and I admit the statements made by the accused to Cst. Taylor into evidence in the trial of this matter. J. Rybchuk, J