R. v. Parol, 2011 ONCJ 292

Citation: R. v. Parol , 2011 ONCJ 292 ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario B E T W E E N : HER MAJESTY THE QUEEN -and- ZDZISLAW PAROL REASONS FOR JUDGMENT Duncan J. 1 . The defendant is charged with impaired and exceed 80, offence date June 6 2010. 2 . The Crown’s case is that the defendant was involved in a minor single vehicle accident when he steered into a curb or median. Police were soon on scene and found the defendant standing beside his car. He acknowledged that he had been driving and that he had been drinking.

The usual procedures ensued, culminating in breath tests yielding readings of 190 and 180. 3 . The defence is based primarily on arguments rooted in R v White [1990] 2 SCR 417 (SCC) wherein it was held that statements made pursuant to compliance with the compulsory accident reporting provisions in provincial statutes are inadmissible in criminal proceedings. It is argued that the admissions made by the defendant at the roadside fall within this exclusionary rule.

It is further contended that such admissions cannot even be used or considered as grounds for arrest and demand and that their elimination from consideration sets off a domino-effect exclusionary chain, ultimately ousting the damning breath test readings. 4 . In my view there is no merit to the argument on the facts of this case and the application must be dismissed. R v White: 5 . The facts and legal context of the White case are important. A man changing his tire at night on a highway was struck and killed by a passing vehicle that did not stop.

The next day Ms.White called the police station to report that she had been involved in an accident which she described and which coincided with the fatality. Police attended at her home and ultimately obtained a statement from her. The police repeatedly told White that the statement was in furtherance of preparation of the report that she was obliged by provincial legislation to complete.

They told her that it could not be used against her, as the statute provided. [1] However the defendant was later charged with hit and run under the Code and the Crown attempted to rely on the statements to prove White’s identity as the driver. It was in this specific context that the Supreme Court of Canada held that use of the statements in the report to incriminate the defendant in a criminal case would violate

section 7 of the Charter. 6 . The Court in White was clear that its holding was confined to the narrow circumstances of the making of a statutorily compelled accident report and did not extend to “ordinary police investigation” [2] . The Court said (para 74):

A declarant under s. 61 of the Motor Vehicle Act will be protected by use immunity under s. 7 of the Charter only to the extent that therelevant statements may properly be considered compelled. Accordingly, the driver has an interest in knowing with some certaintyprecisely 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 policequestioning. Conversely, the ability of the state to prosecute crime will be impaired to the extent of the reporting requirement under s. 61of the Motor Vehicle Act.

Thus the public, too, has a strong interest in identifying with some certainty the dividing line between thetaking of an accident report under s. 61, on the one hand, and ordinary police investigation into possible crimes, on the other.When will a driver's answers to police questioning cease to be protected by the use immunity provided by s. 7 of the Charter? …….

In my view, the test for compulsion under s. 61(1) of the Motor Vehicle Act is whether, at the time that the accident was reportedby the driver, the driver gave the report on the basis of an honest and reasonably held belief that he or she was required by law toreport the accident to the person to whom the report was given. (bolding and underlining added) Three points must be established: 7. In my view, the defendant must establish three things to come within the protection of White: 1. That he was in fact compelled by statute to provide a report. 2.

That the statements he made were a ‘report” within the meaning of the compelling statute 3. That he gave his report in the honest and reasonable belief that he was compelled by the statute to do so. Points 2 and 3 could be collapsed under one heading as is usually done in the reported cases. But I think there is some benefit to keepingthe two separate thereby ensuring that the basic requirement that the communication be a “report of an accident” (see underlining inquote from White above) not be overlooked.

If the statement cannot reasonably be considered an accident report, as I find below in thiscase, the defendant’s claimed belief that he thought he was compelled to make it because of an accident reporting statute would not bereasonable – or credible 8. In my view the defendant in this case fails on all three points. Was the defendant compelled? 9. The applicable statutory provision in Ontario,

section 199 of the Highway Traffic Act reads:[3] 199.

(1) Every person in charge of a motor vehicle or street car who is directly or indirectly involved in an accident shall, if the accidentresults in personal injuries or in damage to property apparently exceeding an amount prescribed by regulation, report the accidentforthwith to the nearest police officer and furnish him or her with the information concerning the accident as may be required by theofficer under subsection (3). (The whole

section is set out in the Appendix at the end of this judgment) 10. It can be seen that the reporting requirement is limited to cases of personal injury or damage over an amount specified in theregulations (now $1000). In this case there was no injury and there was no evidence of the quantum of damage. In fact the defendanthimself testified that there was no damage aside from the air bags deploying. 11. Accordingly, the defendant has not established that he was compelled by statute. Even if he thought he was compelled, (dealt withbelow), he was not – and the White rule of exclusion has no application. End of story. Was the defendant making a “report” within meaning of

section 199? 12. The defendant did not call the police to “report” the accident and according to his own testimony had no particular plan to do so,though to be fair he also said that he believed someone else had called. When the police officer arrived and asked whether he had beendriving, the defendant responded “No English”. The officer charaded the action of steering a car and the defendant said “yes”. Theofficer then did a bottle-to mouth drinking charade and the defendant again said “yes”. These are the statements in issue. 13.

It seems to me that it would be a stretch beyond the breaking point to consider this exchange as the making of a report within themeaning of the statute. It does not fit the ordinary meaning of the word or the concept of reporting. The Court in White made thedistinction between the making of a report pursuant to statute and “ordinary police investigation”.[4] Nothing could be more ordinaryand natural than a police officer arriving at the scene of an accident and asking who was driving.

If the exchange in issue here isconsidered a “report” then the “dividing line” drawn by the Court in White would be completely obliterated. 14. Despite the words in White and the obvious distinction in law and fact between the two situations, a number of decisions haveapplied White much more broadly -- to oral statements made at an accident scene upon arrival of police: R v Powers (2006)2006 BCCA454 , 213 CCC3d 351(BCCA); R v DaCosta (2001) (ON SC), 156 CCC 3d 520 (Ont SupCrt); R v Soules[2009] OJ No 6022 aff’d June 6 2011(C.A).

15. But I think the crucial point is this: Those cases turned, as does this one, on whether the trial Court was prepared to find on abalance of probabilities [5] that the statements in issue were made pursuant to the compulsion of the provincial statute – i.e. that theywere accident reports and believed to be so by the defendant at the time he made them. This is a credibility-based finding of fact, made attrial or deferred to on appeal[6] not binding or even particularly helpful in any other case[7]. Once that finding is made, White applies. Ifthe finding is not made, it doesn’t. 16.

It suffices to say that I am not prepared to make such a factual finding in this case. In fact I would put it more strongly and wouldconsider it absurd to think that the street exchange described above amounted to the making of an accident report. Accordingly, Whitehas no application to the statements at issue in this case. Did he have an honest and reasonable belief that he was compelled? 17. In contrast to White, the police in this case made no mention of any requirement to report throughout their dealings with thedefendant.[8] It was not an issue on the radar at the time of his arrest.

On May 15 2011 – almost a year after the incident, between thefirst and second day of trial, the defendant swore an affidavit to the effect that because he was involved in an accident he believed that he had an obligation to provide thepolice with the information that they were requesting. At trial the defendant had difficulty staying on script and when asked to describethe statutory compulsion that motivated his statements he ultimately answered (not verbatim) “all over the world when a policeman asksif you have been driving and drinking, you answer” 18.

A minor accident happened and a police officer arrived and inquired of the lone man standing beside the car whether he wasdriving – an obvious and natural question to which the accused gave a natural response. I don’t think that a belief in statutory compulsionhad any role in the exchange at all.

The defendant’s answer was motivated by his belief that he should co-operate with police officers.Respect for, or even fear of police may have contributed to his co-operation, but that is not the same thing as answering questions inorder to comply with a known or suspected statutory obligation to report: R v Manley[2007] OJ No 5103. I have no doubt that had thesituation involved not an accident but, say, an illegally parked car and the officer asked “Is this your car?” the defendant would similarlyhave answered the question. 19.

I view this application as an attempt at strained re-casting of what occurred into an ill-fitting mould in order to achieve a desiredlegal end. I reject that attempt and find that the defendant did not make his statements as a result of any belief in a statutory duty to reportan accident. 20. Accordingly, the White application is dismissed. Alternatively: 21. A successful White argument affects the admissibility of evidence going both to the identity of the driver and now, followingPowers and Soules, the grounds for roadside testing or, in this case, arrest.

Counsel for the defendant focused her argument on thegrounds point since there was other evidence to establish driving, including the defendant’s admission in the breath room whichfollowed cautions and consultation with a Polish speaking criminal lawyer. As I understood it, that admission was specifically notincluded in the applicant’s White argument. The breath room statement was ruled voluntary; its reliability is supported by thecircumstances of the defendant being found beside the damaged car. Driving has therefore been established even without the roadsidestatement. 22.

As for the grounds, even absent the statements, the defendant’s proximity to the vehicle and the other surrounding circumstancesprovided ample grounds for the officer to believe that the defendant had been driving or was in care or control. The possibility of otheralternatives does not undermine those grounds: R v Bush (2010) 2010 ONCA 554 , 259 CCC3d 127 (Ont CA). The officer’sobservations of indicia provided reasonable grounds regarding impairment. Accordingly the arrest and demand were well grounded quiteapart from the statements at issue. The ensuing breath tests are admissible. Conclusion: 23.

The exceed 80 charge has been proven. The defendant is found guilty. 24. The evidence satisfies me that the defendant was impaired by alcohol at least to the Stellato standard. He is found guilty on theimpaired count as well. June 7 2011 B Duncan J. H. Spence, for the defendant

T. Kim, E. O’Marra, E.Norman for the Crown APPENDIX: Highway Traffic Act 199.

(1) Every person in charge of a motor vehicle or street car who is directly or indirectly involved in an accident shall, if the accident results in personal injuries or in damage to property apparently exceeding an amount prescribed by regulation, report the accident forthwith to the nearest police officer and furnish him or her with the information concerning the accident as may be required by the officer under subsection (3). R.S.O. 1990, c. H.8, s. 199 (1) ; 2002, c. 17 , Sched. F, Table. Officer may direct person to report accident at another location

(1.1) If, on reporting the accident to the nearest police officer under subsection (1), the person is directed by the officer to report the accident at a specified location, the person shall not furnish the officer described in subsection (1) with the information concerning the accident but shall forthwith attend at the specified location and report the accident there to a police officer and furnish him or her with the information concerning the accident as may be required by the officer under subsection (3). 1997, c. 12, s. 15; 2002, c. 17 , Sched. F, Table. Where person unable to report

(2) Where the person is physically incapable of making a report and there is another occupant of the motor vehicle, the occupant shall make the report. R.S.O. 1990, c. H.8, s. 199 (2) . Duty of police officer

(3) A police officer receiving a report of an accident, as required by this section, shall secure from the person making the report, or by other inquiries where necessary, the particulars of the accident, the persons involved, the extent of the personal injuries or property damage, if any, and the other information that may be necessary to complete a written report concerning the accident and shall forward the report to the Registrar within ten days of the accident. R.S.O. 1990, c. H.8, s. 199 (3) . Report of police officer

(4) The report of a police officer under subsection (3) shall be in the form that is approved by the Minister. R.S.O. 1990, c. H.8, s. 199 (4) . Regulations as to amount of property damage

(5) The Lieutenant Governor in Council may make regulations prescribing the amount of property damage for the purposes of subsection (1). R.S.O. 1990, c. H.8, s. 199 (5) . Duty of person in charge of vehicle in case of accident 200.

(1) Where an accident occurs on a highway, every person in charge of a vehicle or street car that is directly or indirectly involved in the accident shall, (

a) remain at or immediately return to the scene of the accident; (

b) render all possible assistance; and (

c) upon request, give in writing to anyone sustaining loss or injury or to any police officer or to any witness his or her name, address, driver’s licence number and jurisdiction of issuance, motor vehicle liability insurance policy insurer and policy number, name and address of the registered owner of the vehicle and the vehicle permit number. R.S.O. 1990, c.

H.8, s. 200 (1) ; 1997, c. 12, s. 16. [2] The Court of Appeal in Soules also repeated the distinction between the making of an accident report and answers given in response to police questioning not directed at compiling a report (para 53).. [4] Ordinary police questioning does not engage issues of self incrimination. A police officer is at liberty, and indeed is obliged, in the execution of lawful duties, to ask questions of anyone including a suspect. Such questioning is an entirely appropriate exercise by the

police of their investigatory function. The police are empowered to question anyone to obtain information concerning a suspectedoffence. But the police have no power to force the person to answer and must let the person be on his way if he refuses to respond. R. v.Esposito (1985), (ON CA), 24 C.C.C. (3d) 88 (Ont. C.A.);R. v. Van Wyk, [1999] O.J. No. 3515 (S.C.J.) Absentdetention, police questioning does not give rise to any constitutional issue.

In particular, the right to silence is NOT violated when asuspect makes pre-detention or pre-arrest inculpatory statements, provided that no official coercion or inducements are made: R. v. Hicks (1988), (ON CA), 42 C.C.C. (3d) 394 (Ont. C.A.), affirmed (1990), (SCC), 54 C.C.C. (3d)575 (S.C.C.). See also pre-White decision: R v Smith (1996) (ON CA), 105 CCC 3d 58 (Ont CA) re drivers andcompelled surrender of information to police. [7] See Qualcast (Wolverhampton) v Haynes [1959] AC 748 (HL).