R. v. Patanjosthi, 2011 ONCJ 181

COURT FILE No. Toronto Citation: R. v. Patanjosthi , 2011 ONCJ 181 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Mr. J. Dunda ) for the Crown ) — AND — ) ) ATUNTHAVARASA PATANJOSTHI, ) NALLATHAMBY KULASEGARAM ) Mr. J. Fitzmaurice ) for Patanjosthi ) Mr. G. Henderson for Kulasegaram ) Heard: March 1, 2011 ) ) NAKATSURU J.: [ 1 ] The accused, Mr. Patanjosthi and Mr. Kulasegaram, are charged with fraud offences. They have pleaded not guilty and elected trial in this court.

The following are the specific counts they face: Atunthavarasa PATANJOSTHI sometime between and including the 28 th day of December in the year 2005 and the 10 th day of February in the year 2006 in the City of Toronto, in the Toronto Region did by deceit, falsehood, or other fraudulent means attempt to defraud TD SECURITY NATIONAL of monies of a value which exceeded five thousand dollars, contrary to the Criminal Code ; And further Atunthavarasa PANTAJOSTHI sometime between and including the 28 th day of December in the years 2005 and the 10 th day of February in the year 2006 in the City of Toronto, in the Toronto Region did by deceit, falsehood or other fraudulent means defraud TD SECURITY NATIONAL of monies of a value which did not exceed five thousand dollars, contrary to the Criminal Code ; And further that Nallathamby KULASEGARAM sometime between and including the 28 th day of December in the year 2005 and the 5 th day of January in the year 2006 in the City of Toronto, in the Toronto Region did by deceit, falsehood, or other fraudulent means defraud ING INSURANCE COMPANY OF CANADA of monies of a value which exceeded five thousand dollars, contrary to the Criminal Code .

A. OVERVIEW [ 2 ] It is the Crown theory of the case that Mr. Patanjosthi and Mr. Kulasegaram were involved in a fraudulent scheme where they acquired cars that had serious damage and were deemed to be “salvage” or “irreparable” by the Ministry of Transportation of Ontario. It is alleged that the accused purchased these vehicles, kept them for a period of time so that it would appear as though the repairs were made, then re-registered them with the Ministry and obtained insurance for them.

The Crown alleges that the accused then feigned a motor vehicle accident and made false claims against their respective insurance companies for compensation. [ 3 ] At their trial, the Crown seeks to introduce “Self-Reporting Collision Reports” given by both accused to the Toronto police. The defence objects and argues that to permit the Crown to do so would be a violation of their s. 7 right against self-incrimination under the Canadian Charter of Rights and Freedom . B.

SUMMARY OF THE EVIDENCE [ 4 ] On December 29, 2005, the two accused had their vehicles taken to the Toronto East Collision Reporting Center at separate times. The accused both filled out and completed a “Self Reporting Collision Report” (henceforth “Report”) indicating that they had collided with each other the previous night. The East Collision Reporting Center is operated by the Toronto Police Service to take reports of motor vehicle accidents. Such reports are mandated by s. 199(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 .

Both accused provided these reports pursuant to their statutory obligation and were assisted by a police officer in doing so. [ 5 ] The insurance companies who were allegedly defrauded required these Reports to be submitted in order to process the claims and provide compensation to the accused.

[6] An expert, Mr. Beaton, was retained by the insurance company in the investigation of these claims. Mr. Beatonexamined the Reports submitted by the accused. He came to the opinion that the accidents could not have happened as claimed by Mr.Patanjosthi and Mr. Kulasegaram in the Reports they submitted to the police. The Crown intends to call Mr. Beaton as a witness to offerthis opinion evidence. C. THE ISSUES AND THE POSITIONS OF THE PARTIES [7] The accused argue that the Reports cannot be admitted at their criminal trial.

To do so, it is submitted, would be aviolation of their s. 7 right against self-incrimination. The Reports were compelled by statute. Both accused provided their statements tothe police under that compulsion. It is argued that the case of R. v. White, (SCC), [1999] 2 S.C.R. 417 is on all fourswith the facts of this case. In White, three reports made to the police under the compulsion of a provincial law requiring the reporting ofserious traffic accidents were held to be inadmissible at the criminal trial of the person who made the reports on a criminal charge offailing to stop at the scene of an accident.

The Supreme Court of Canada held that because the reports were provided under compulsion,their admission would violate the s. 7 principle against self-incrimination. Mr. Patanjosthi and Mr. Kulasegaram contend that the samecontextual analysis done on the facts of this case would lead to a similar conclusion. [8] The Crown submits that this case can be distinguished from White. He argues that the contextual factors supportadmission. In this instance, the Reports are the gravamen or the actus reus of the fraud and attempted fraud charges.

In support of hissubmissions, the Crown relies on the authorities that hold that voluntariness statement voir dires are not required when the statement tothe police form the actus reus of the offence charged. See R. v. Stapleton, (ON CA), [1982] O.J. No. 49 (C.A.); R. v.Hanneson, (ON CA), [1989] O.J. No. 1067 (C.A.). In addition, the Crown relies on the case of R. v. Rogers, [2005]O.J. No. 5699 (C.J.). In that case an accused was alleged to have struck and killed a pedestrian. Ms. Rogers subsequently providedaccident reports pursuant to her obligations under the Highway Traffic Act.

It was alleged that these reports she made were false and shewas charged with obstructing a police officer. The trial judge, Chester J., dismissed a s. 7 application based on White that the statementsshould attract use immunity. In assessing the merits of the defence position, the court declined to follow the case of White and found itsignificant that the statements constituted the gravamen of the offence. D. THE LAW [9] In Ontario, s. 199 of the Highway Traffic Act states: 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). R.S.O. 1990, c. H.8, s. 199 (1); 2002, c. 17, Sched. F, Table.

(1.1) If, on reporting the accident to the nearest police officer under subsection (1), the person is directed by the officer to report theaccident at a specified location, the person shall not furnish the officer described in subsection (1) with the information concerning theaccident but shall forthwith attend at the specified location and report the accident there to a police officer and furnish him or her withthe 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.

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

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

(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).

(5) The Lieutenant Governor in Council may make regulations prescribing the amount of property damage for the purposes ofsubsection (1). R.S.O. 1990, c. H.8, s. 199 (5). [10] It has now been well established that s. 7 of the Charter provides an accused the right against self-incrimination.

In Re:Application under s. 83.28 of the Criminal Code, 2004 SCC 42 , [2004] 2 S.C.R. 248 at para. 70, the Supreme Court of Canadasummarized the jurisprudence leading to the present state of the law: This Court has recognized that the right against self-incrimination is a principle of fundamental justice: S. (R.J.), supra, at para. 95;Branch, supra; R. v. Jarvis, [2002] 3 S.C.R. 757, 2002 SCC 73. In Jarvis, at para. 67, the right against self-incrimination was described as"an elemental canon of the Canadian criminal justice system".

It has further been recognized in relation to the principle of individualsovereignty and as an assertion of human freedom: S. (R.J.), supra, at para. 81; R. v. Jones, (SCC), [1994] 2 S.C.R. 229,at pp. 248-49; and R. v. White, (SCC), [1999] 2 S.C.R. 417, at para. 43. Having recognized the centrality of theprinciple in Canadian law, this Court's jurisprudence has further articulated general principles regarding the relationship of self-incrimination to criminal law more broadly.

To this end, testimonial compulsion has been invariably linked with evidentiary immunity.Beginning in S. (R.J.), supra, and continuing in Branch, supra, Phillips, supra, and Jarvis, supra, the more recent jurisprudence of ourCourt on self-incrimination developed such that three procedural safeguards emerged: use immunity, derivative use immunity, and

constitutional exemption. [11] In White, Iacobucci J. for the majority held that the s. 7 principle against self-incrimination barred the admission of motorvehicle accident reports made under the compulsion of the provincial Motor Vehicle Act. To obtain use immunity, the person who madethe statement would have to prove compulsion on a balance of probabilities.

In the case at bar, it is an admitted fact on this applicationthat both accused made their statements under this compulsion and that their belief was reasonable. [12] Iacobucci J. recognized that this residual protection offered by s. 7 was case-specific, contextually sensitive and requireda balancing process. In some contexts, the factors that favoured the search for truth would outweigh the factors that favoured theprotection of the individual against undue compulsion by the state. E.

ANALYSIS [13] I will therefore address the contextual factors identified by the Supreme Court of Canada in White and the earlier case ofR. v. Fitzpatrick, (SCC), [1995] 4 S.C.R. 154.

The four factors identified as being engaged by the principle against self-incrimination are: (1) whether there was real coercion by the state in obtaining the statements; (2) whether there was an adversarialrelationship between the accused and the state at the time the statements were obtained; (3) whether the statutory compulsion wouldincrease the risk of unreliable confessions; and (4) whether the statutory compulsion increased the risk of abuses of power by the state. [14] In the case at bar, I find the first factor is neutral. This parallels the finding in White.

While the obligation to report unders. 199 arises in the context of the regulated activity of driving, as Iacobucci J. pointed out, frequently, for an individual to meaningfullyparticipate in society, he or she must be able to drive.

As a result, the issue of whether there is a free and informed consent to participatein this activity is a neutral factor in determining whether the principle against self-incrimination is infringed by s. 199. [15] The second factor whether there was an adversarial relationship between the accused and the state at the specific time theself-incriminatory statements were made was considered a key factor in White.

Iacobucci J. held that the provincial decision to vest theresponsibility for taking the accident reports to the police transformed what could have been a partnership relationship in regulating roadsafety to potentially an adversarial one. At the time of the receipt of the report, the police are tasked with investigating possible criminaloffences arising out of the accident. The accused is in the presence of the police and under emotional and psychological pressure.

Thereis no need to permit the use of the accident reports in criminal proceedings to maintain the integrity of the regulatory scheme. [16] In the case before me, I see little to distinguish this factor from the context that existed in White. See R. v. DaCosta(2001), (ON SC), 156 C.C.C. (3d) 520 (Ont. S.C.J.) at paras. 32-33. [17] When the accused were at the Reporting Center, they were in a police facility staffed by police officers. The policeofficers would be under the same simultaneous obligation of taking the Reports and potentially investigating the accident.

The Crownargued that at the time the accused gave the Reports, there was not even a suggestion of a criminal fraud investigation. While that mightbe true, that does not alter the essential dynamic between individuals in the position of the accused and the police. It remains anadversarial relationship. Indeed, although it is not necessary to go this far, I would suggest that while no specific grounds for fraud mayhave existed at the time of these Reports, the potential of insurance fraud when it comes to motor vehicle accidents is not so remote thatthe police who receive such reports would be oblivious to it.

The police who investigate motor vehicle accidents have the responsibilityof investigating all potential criminal offences arising out of such accidents and are not limited to only driving offences. [18] Moreover, I find that the use of these Reports in a criminal proceeding is not an essential aspect of the regulatory scheme.The fact that this is an insurance fraud prosecution does not alter this conclusion. It is not suggested that the Highway Traffic Act isconcerned with the investigation of insurance fraud, in general or with respect to automobiles in particular.

It is not a purpose of theHighway Traffic Act to compel these Reports in order that private insurance companies can better process and facilitate insurance claims. The integrity of the regulatory scheme does not depend upon the use of such reports in this type of criminal proceeding. [19] The third factor supports the granting of use immunity in these proceedings. Iacobucci J. found the prospect of unreliableconfessions when it came to accident reports was very real. There is a fear of prejudice of not speaking to the police given the statutorycompulsion.

Yet there is also a strong incentive to lie given the serious consequences the driver may feel that exists if the truth is told,even if the truth does not support a criminal charge. A rule granting use immunity in criminal proceedings would enhance rather thanimpair the effectiveness of the statutory reporting scheme. [20] I recognize that there is no provision granting limited use immunity in Ontario’s Highway Traffic Act as there was in theprovincial legislation under consideration in White. However, this is not a significant distinction.

There is nothing in Ontario’s legislationthat implies that these Reports were being obtained to be used against the driver even in provincial proceedings. The same psychologicalpressures on the individual still exit in this case. Indeed, it may well be greater given that no statutory protection is explicitly offered. [21] The facts of this case illustrate the potential unreliability of these statements. The accused in their Reports give differentaccounts of how the accident occurred. This is probably not an uncommon occurrence when it comes to the reporting of motor vehicleaccidents.

If such reports are not granted use immunity in criminal cases, drivers may well be reluctant to speak to the police. Thiswould impair the completeness of the scheme. If they do speak to the police, they may be even less likely to give an honest and accurateaccount of the accident if the driver was aware this could be used to prosecute and incriminate him or her in a subsequent criminalproceeding. In the absence of use immunity, the driver will have a motive to put his or her actions in the best possible light. [22] I appreciate that the Crown’s theory is that the accident in this case was wholly falsified.

However, the Crown is still yetto prove this. The question of whether s. 7 protection is granted should not depend on the specific theory of the prosecution advanced in acase. More significant is that the purpose underlying the principle of the right against self-incrimination, the need to protect againstunreliable confessions, remains relevant. It is better that drivers report accidents honestly, secure in the knowledge that their reports will

not be used later in criminal proceedings to prosecute them. As I will address later, I need not define the outer limits of this propositionwhen it comes to the question of whether this should include any and all criminal offences, including ones such as public mischief or theobstruction of police.

It is enough at this point to say that a more honest account is likely forthcoming from the driver if he or she isaware that this account will not be used to later incriminate him or her should a criminal charge be laid including criminal fraud.Insurance and civil liability can involve questions of fault as much as investigations about the driving conduct itself. [23] The final consideration is the apprehension that permitting the use of compelled statements to incriminate would increasethe likelihood of abusive conduct by the state.

Iacobucci J. was concerned that there would be a strong incentive on the part of the policeto overemphasize the statutory duty to report an accident in order to obtain relevant information. This could defeat or circumvent adriver’s s. 7 right to remain silent when under investigation for a criminal offence. Further, there is engaged a strong expectation ofprivacy in that it is the thoughts, opinions, and state of mind of the driver that is sought to be extracted through the reporting obligation. [24] The Crown submits that there is no concern for state abuse in this case.

It was not the police who initially investigatedthe fraud claim but the insurance companies. The Reports were taken in 2005 and the charges were not laid until after the insuranceinvestigation was complete. [25] I do not find this distinction persuasive. What concerned the Supreme Court of Canada in White was not whether therewas state abuse in a specific case, but that the need to guard against state abuse was prominent when the state tried to use statementscompelled in a regulatory scheme to prosecute individuals in a criminal case. This was the context that was significant for the court.

Neither in principle nor by express reference does Iacobucci J. limit the concern to only criminal charges involving the driving itself. That the officers may not have abused their powers in this case is not the essential issue. Rather, by permitting the state to conscript theaccused in incriminating themselves criminally raises the potential for state abuse.

It is entirely foreseeable that in obtaining a s. 199report, that the police may come to suspect that criminal offences other than driving offences have been committed by the driver andsteer their investigation in a direction unrelated to the purposes of the Highway Traffic Act.

Use immunity would deter that type ofabusive conduct. [26] In White Iacobucci J. stated “in a situation where all statements made by the driver under compulsion of the Act aresubject to use immunity, police are more likely to conduct an independent investigation rather than to use the compulsory accidentreporting system as a source of information (at para. 64)”. This case is a classic illustration of the potential problem. Here, the Crownwishes to tender the expert evidence of Mr. Beaton. In essence, Mr.

Beaton uses the Reports as given by the accused under s. 199,conducts an investigation, including the examination of the damaged motor vehicles, and concludes that the accidents could not havetaken place like the accused have claimed in their Reports. Thus, the statements made under compulsion by the accused are now beingused to assist in the proof of the state’s case to meet in a criminal trial to show that there was no accident. It is this type of scenario thattroubled the Supreme Court of Canada in White.

Rather than conducting an independent investigation, the Crown intends to use thecompulsory accident reporting system as a source of information to prove guilt in this criminal proceeding. [27] The accused argue that the Crown is seeking an exemption from the White line of authority on the basis that the Reportsform the actus reus or gravamen of the offences. The defence denies that the Reports so form the actus reus. The Crown replies that itsargument follows the contextual analysis required but the context must take into account the nature of the statements and the purposesfor which they are being used.

While the parties argue the point from different perspectives, the fundamental issue is whether the factthat the Reports are alleged to be the actus reus should tip the balance in favour of admission given the interests behind the s. 7 rightagainst self incrimination.

The analysis conducted above shows that those interests are very much alive in the circumstances of this case. [28] In assessing this question, firstly the cases of Stapleton and Hanneson, supra, as relied on by the Crown for theproposition that a voluntariness voir dire is not required when the statements to a person in authority are part of the actus reus have littleapplication to the s. 7 analysis here.

In addition, to the extent that Chester J. in Rogers, supra, found these authorities persuasive in thatregard I would respectfully decline to follow that reasoning. [29] More supportive of the Crown’s position is the Charter analysis conducted in Hanneson regarding the s. 10(

b) right tocounsel. In Hanneson, the defence argued that because the police violated the accused’s s. 10(

b) rights, the statements should beinadmissible. The Ontario Court of Appeal rejected the proposition that a breach of s. 10(

b) of the Charter could insulate the person forliability for offences yet not committed, such as a verbal threat against the police; offences which were unconnected to the violation. InHanneson the Court cited with approval the case of R. v. Staranchuk (1983), (SK CA), 8 C.C.C. (3d) 150 (Sask.C.A.), affirmed (SCC), [1985] 1 S.C.R. 439, where it was held that the s. 13 right against self-incrimination should notbe interpreted to prevent the prosecution of an individual for giving false statements if those statements formed the very substance of theoffence with which he is charged.

Even in White, Iacobucci J. took pains to point out that the use immunity given to the statements underthe British Columbia Motor Vehicle Act was a narrower protection than “transactional immunity” where the individual is protectedagainst subsequent penal proceedings per se (at para. 71). [30] The Crown admits that the facts of this case go a step further than what was before the court in Rogers or in Hanneson.

In those cases, the accused were charged with obstructing a peace officer engaged in the execution of his duty by wilfully providing falsestatements or attempting to obstruct justice by giving a false statement. It was these false statements that were the subject of the Charteranalysis. In this case, the Crown does not seek to prosecute the accused for giving false statements to the police per se. [31] This then requires a close examination of the Crown’s purported characterization of the Reports as the actus reus or thegravamen of the offences for which the accused are charged. [32] Recently in R. v.

Rivera (March 23), 2011 ONCA 225 LaForme J.A. provided some guidance with respect to howstatements alleged to be the actus reus of an offence should be treated. In that case, the appellant was convicted of refusing to provide abreath sample. The appellant had made a number of statements to the police officer as the officer tried to conduct a roadside screeningdevice test. The trial judge used the statements in rejecting the appellant’s credibility. LaForme J.A. held that given these statementswere made without the appellant’s s. 10(

b) right to counsel being provided, the statements could only be used to establish grounds for ademand but could not be used by the trial judge to assess the appellant’s credibility at trial. The Crown on appeal had argued that these

statements formed a part of the actus reus of the offence of refusing to provide a breath sample and therefore subject to the exception inHanneson. LaForme J.A. rejected these arguments and held that many of the statements admitted such as inconsistencies on how muchand what she had to drink and a falsehood that she worked for the Ontario Provincial Police, did not form part of the refusal to provide abreath sample. In short, in his view the “Crown’s proposed characterization of the relevance of the statements … stretches the concept ofactus reus beyond its well-established meaning.

Actus reus is simply the voluntary and wrongful act or omission that constitutes thephysical components of a crime (at para. 91)”. In that case, LaForme J.A. held that it was for the trial judge to determine what statementor action amounted to the actus reus of the offence and observed that in Rivera’s case, there was other evidence of actus reus includingthe unsuccessful attempts and the observations by the police officer.

Perhaps, more significantly to the case at bar, LaForme J.A.rejected the Crown position that all the roadside utterances should be evidence of the actus reus in a case of a feigned attempt to providea breath sample. The learned justice held to hold so would be contrary to the principles limiting the scope of the use of statements takenin breach of s. 10(

b) of the Charter (at paras. 97-98): The Elias/Milne/Coutts line of authority establish that it would be unfair to give broad incriminatory scope to evidence obtained froma motorist who is detained at a roadside stop and whose s. 10(

b) rights are suspended. As stated at p. 298 of Coutts: “The unfairnessarises because the motorist has been compelled, at the behest of the state, to provide evidence that would not have been obtained but forthe motorist’s participation in its construction and the evidence is being tendered for a purpose beyond that contemplated by s. 254(2) ofthe Code”. See also R. v. Smith (1996), (ON CA), 28 O.R. (3d) 75 (Ont. C.A.), at p. 87.

Contained in the reasoning of these authorities is that the analysis is not limited to situations in which a breath sample was ultimatelyprovided; rather, it is equally applicable to a case involving a failure to provide a breath sample, itself a criminal offence. If the courtwere to treat roadside statements as evidence of the actus reus even if the statements did not indicate the act of refusal, the unfairnessaverted to in Coutts would re-surface. [33] This reasoning resonates with the principles underlying the s. 7 right against self-incrimination.

If overly broad scope isgiven to the compelled statements that can be treated as actus reus of the offence, the protections offered by s. 7 will be significantlyeroded. [34] While I am mindful that fraud can be committed or attempted in many different ways and can constitute an ongoingenterprise and involve separate transactions in an overall fraudulent scheme, I find that the Reports do not have the character argued forthem by the Crown. They are not the actus reus of the offences. Rather the Crown seeks to use them to assist the Crown’s proof of theoffences committed against the insurance companies.

The Crown seeks to do so by tendering them into evidence directly and indirectlythrough Mr. Beaton. [35] Admittedly the insurance companies’ process of dealing with the insurance claims has meant that compensation wouldnot be paid without submission of these Reports. However, this is not akin to the Reports being the gravamen or actus reus of theoffences. The frauds allegedly perpetrated or attempted are the applications for damages and benefits arising from the accidents. Oncethe accused applied to the insurance companies for their losses suffered, they have engaged in the fraudulent scheme.

In oralsubmissions, the Crown conceded that even without the Reports, the Crown could and would still proceed with the prosecution of thesecriminal offences. The Reports are not necessary to prove the frauds. It is then difficult to see how these Reports constitute the wrongfulact that is the physical component of the crime. [36] The fact that the internal corporate policy and practise of these insurance companies required the submission of, and somereliance on, these Reports before compensation would be paid, does not change the essence of the Crown’s use of these compelledstatements in this prosecution.

That is, the Crown wishes to use the Reports to assist in incriminating the accused. They wish to use theReports in order to help prove that the accident did not happen. In looking at Mr. Beaton’s report for the insurance company, this isabundantly clear. Mr.

Beaton takes the accounts given by the accused in the Reports, assesses them, and comes to the conclusion thatthe accidents did not happen as stated by the accused in their Reports. [37] Even if I am wrong and the Reports can be considered an aspect of the actus reus of the offences, they are notindispensible and form but a minor part of the overall alleged fraudulent transaction. The real purpose I see in their introduction is tohelp incriminate the accused in proving that the accident did not happen or did not happen in the way they said it did.

In applying the s.7 analysis in a case-specific manner and using a contextual approach, I am firmly of the view that they should not be admitted in thisprosecution. This view respects the purpose behind the s. 7 right against self-incrimination as stated by Lamer C.J. in R. v. P.(M.B.), (SCC), [1994] 1 S.C.R. 555 at paras. 36-37: Perhaps the single most important organizing principle in criminal law is the right of an accused not to be forced into assisting in hisor her own prosecution: M. Hor, "The Privilege against Self-Incrimination and Fairness to the Accused", [1993] Singapore J. Legal Stud.35, at p. 35; P.

K. McWilliams, Canadian Criminal Evidence (3rd ed. 1988), at para. 1:10100. This means, in effect, that an accused isunder no obligation to respond until the state has succeeded in making out a prima facie case against him or her. In other words, until theCrown establishes that there is a "case to meet", an accused is not compellable in a general sense (as opposed to the narrow, testimonialsense) and need not answer the allegations against him or her.

The broad protection afforded to accused persons is perhaps best described in terms of the overarching principle against self-incrimination, which is firmly rooted in the common law and is a fundamental principle of justice under s. 7 of the Canadian Charter ofRights and Freedoms. As a majority of this Court suggested in Dubois v.

The Queen, (SCC), [1985] 2 S.C.R. 350, thepresumption of innocence and the power imbalance between the state and the individual are at the root of this principle and theprocedural and evidentiary protections to which it gives rise. [38] Furthermore, the balance between the search for truth and the right against self-incrimination in this context where theCrown seeks to use compelled regulatory statements in a criminal proceeding is best achieved by extending use immunity protection tothe Reports.

As noted in White by Iacobucci J., the right things must be balanced when conducting a contextual analysis: Accordingly, the balance which must be struck in the context of s. 61 of the Motor Vehicle Act is not between self-incrimination

concerns, on the one hand, and the effectiveness of criminal prosecutions on the other. Rather, the balance which must be struck isbetween a driver’s right not to be compelled to self-incriminate in criminal proceedings and the province’s interest in highway safety (atpara. 72). [39] Undoubtedly, the Crown’s case will be adversely affected by providing use immunity. However, the integrity of theregulatory scheme and the province’s interest in highway safety is no more compromised by use immunity being granted for theseReports than in use immunity being granted in White.

The self-incrimination rationales are as acutely present in Mr. Patanjosthi and Mr.Kulasegaram’s situation as they were for Ms. White. Therefore, the accused should be entitled to use immunity for the Reports givenunder s. 199 in these criminal proceedings in relation to the contents of those statements. F. EXCLUSION OF THE EVIDENCE [40] In White the statements were excluded pursuant to a remedy under s. 24(1), something that the Supreme Court of Canadafound that the trial judge was entitled to do. This power to exclude evidence under s. 24(1) was more recently considered and affirmed inR. v.

Bjelland, 2009 SCC 38 , [2009] 2 S.C.R. 651. In addition, as expressed in R. v. Harrer, (SCC), [1995] 3S.C.R. 562, there is a common law power of judges to exclude evidence whose admission would adversely affect the fairness of anaccused’s trial. In this case where the accused are entitled under s. 7 to use immunity in relation to the Reports in these criminalproceedings, exclusion of the evidence is required both under s. 24(1) and the common law. Therefore the Reports will not be admittedinto evidence. [41] Mr. Beaton’s testimony is more complicated.

There are aspects of his report and therefore his evidence at this trial thatdoes not depend upon the Reports. He has conducted other investigation independent of the Reports including making a physicalexamination of the motor vehicles in question. Consequently, while Mr. Beaton will be precluded from giving evidence of the Reports,he will be permitted to testify with respect to other evidence which is otherwise admissible. Released: April 4, 2011 Signed: