R. v. Deighan, 2016 ONCJ 453

CITATION: R. v. Deighan, 2016 ONCJ 453 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — ANDREW DEIGHAN Before Justice S. Ray Heard on February 8-9, and April 29, 2016 Reasons for Judgment released on July 22, 2016 J. McNabb ....................................................................................................... counsel for the Crown C.

Angelini ...................................................................... counsel for the Defendant Andrew Deighan RAY J.: Introduction [1] Andrew Deighan has been charged with driving while his ability to drive a motor vehicle was impaired by alcohol, anddriving while the quantity of alcohol in his blood was over the legal limit, contrary to sections 253 (1) (

a) and (

b) of the Criminal Code,RSC 1985, C-46. The Over 80 charge has been dismissed at the invitation of the Crown. The next issue that I must decide is whether ornot statements made by the Defendant to police officers at the scene that he was the driver and that he had been drinking are admissibleas evidence on the charge of impaired driving. [2] The defence position is that the statements are inadmissible because they are statutorily compelled pursuant to s. 199 ofthe Highway Traffic Act RSO 1990, H.8 (HTA).

The Crown’s view is that the Defendant was just being generally cooperative with theToronto Transit Commission (TTC) and police officers, and that his answers to the questions were not statutorily compelled. They werenot the type of accident report envisaged by s. 199 of the HTA. The law on statutory compulsion [3] The seminal case on statutory compulsion is the Supreme Court of Canada’s decision in R v White (SCC), [1999] 2 SCR 417. The factual foundation for the finding of compulsion in that case couldn’t have been clearer.

At trial theDefendant stated that she knew immediately on being involved in an accident that she was under a duty to report it. Even after speakingto a lawyer, she felt under a duty to speak to the police about the accident, and that the Officer was taking an accident report. The Courtheld that the test for compulsion is whether, at the time that the accident was reported by the driver, the driver gave the report on thebasis of an honest and reasonably held belief that he or she was required by law to report the accident to the person to whom the reportwas given.

It is the Accused, who must establish on a balance of probabilities that the statement was compelled, since the onus lies onthe person raising a Charter challenge to establish an infringement of his rights. The Court decided that the principle against self-incrimination is a well- established component of fundamental justice under s. 7 of the Charter. Its two key purposes are to protectagainst unreliable confessions, and to protect against abuses of power by the state. There is both an individual and a societal interest inachieving both of these protections.

Both protections are linked to the value placed on individual privacy, personal autonomy, anddignity. The Court found a breach of s. 7, which undermined the right to a fair trial, and as such the evidence should be excluded under s.24(1). [4] White was based on BC provincial legislation, and it was applied by the Ontario Court of Appeal in R v Soules 2011ONCA 429 . In this case the Accused told a police officer, who was investigating a multi-vehicle accident, that he was thedriver of one of the vehicles and that he had been drinking the previous evening.

The trial judge accepted his evidence that he answeredthe Officer’s questions, because he believed that he was required by law to do so, and found that the statements were compelled under s.199 of the HTA. The trial judge held that the admission of these statements would violate s. 7, and excluded the breath test results unders. 24(1), and the appeal Courts agreed. [5] White and Soules were applied by our Court in R v Parol 2011 ONCJ 292 , [2011] OJ 2641 (QL), and R vBociat [2014] OJ 2449 (QL).

In both cases the facts fell short of showing that information had been provided under compulsion, and theCourts noted that this was a credibility-based finding. The statements were found to be provided as part of an ordinary investigation anda moral sense of duty to cooperate with the police. The finding was made in Bociat after noting that an Accused can be influenced by as

little as a generalized and non-specific understanding of a driver’s responsibilities to report the details on an accident in order for a conclusion of compulsion to be reached (para 22). In R v Bacci [2016] OJ 879 (QL) , the Accused did not testify, and the Court found that there was no evidence that she felt compelled to provide the information. There had been no “report,” within the meaning of the HTA

section 199 in the exchange between the Accused and the Officer, and no evidence of any psychological, emotional or other pressure on the Accused in the very short time after police arrived and before she made the utterances. She had “volunteered” the information. Analysis [ 6 ] Where in the continuum between compulsion, as reflected in White and Soules , and volunteering information, as reflected in Parol , Bociat, and Bacci , do we find the Defendant Andrew Deighan?

Am I being asked, as Duncan J remarked at para 19 in Parol , to perform a “strained re-casting of what occurred into an ill-fitting mould in order to achieve a desired legal end?” The case before me does not easily fit at either end of the compulsion/volunteering information continuum. [ 7 ] There is no dispute between the parties with respect to how the Defendant attracted the attention of TTC and police officers on the day in question.

A black Honda Ridgeline, vehicle alleged to have been driven by the Defendant, was seen entering and driving far into the Queen’s Quai streetcar tunnel and stopping near the streetcar station platform. The driver wanted to extricate himself from the situation by driving either forwards or backwards, but he was advised he could not. The car ultimately stopped, and the driver and passenger stepped out onto the platform. By that time the car was stuck in the tracks and could not move. Significant damage to the vehicle was also observed by TTC employees, and later the police, including a flat tire and body damage.

The Accused acknowledged in his evidence that it was a bumpy ride down the rails, but suggested he did not know the car was damaged. Opinions were expressed by witnesses that he must have known the car would have been damaged, and he must have been impaired to drive so far into the tunnel. Some symptoms of impairment were observed, but observations regarding the smell of alcohol were inconsistent. [ 8 ] N. Hylton-Ehlers, a TTC employee, testified that he advised the driver that they were waiting for the police to attend, and he was noting information for his report in front of the Defendant.

The witness suggested that he would not have been able to stop the driver and passenger from leaving, but he agreed that he had his information, and if they had tried to leave, he would have suggested that it would be best to wait for the police. Station Manager Segree testified that he was standing on the platform, when the vehicle stopped and he saw two males in the vehicle. During the conversation he told the driver that there was no other exit to get out. He had to stop and stay right there. He encouraged the driver to leave the vehicle and offered him help with respect to removing it.

He asked him to sit on the bench and wait there, while they called for help. The vehicle was damaged and it was holding up streetcar service. [ 9 ] Officer J. Leung testified that he arrived on scene and observed the vehicle stuck on the tracks. I cannot discern from his testimony what questions he asked, when he spoke to the Defendant. He recorded in his notes information that the driver told him he had three drinks and that was five hours ago, so he surmised he must have had a conversation with him.

He recorded some symptoms of impaired and other information, but it became apparent during cross-examination that his notes were not in chronological order and that he did not know when some of the things he recorded occurred. He explained that he wrote his notes on the fly and that he relied on a video to record what happened. I did watch portions of a video during the trial, but it became apparent to me that not everything was recorded on the video, particularly the initial contact and communication with the driver and passenger.

It was also difficult to discern what I heard on the video without a great deal of assistance. Quite unfortunately, Officer Leung’s recollection of events was confused, and his evidence did not render much assistance to the Court. [ 10 ] Officer A. Isaac testified that he was Officer Leung’s partner on the night in question, and once on scene somebody pointed out the driver of the car. He started a conversation with the individual, who had been pointed out to him, and confirmed that he was the driver of the car.

Specifically, he approached him, and asked if he was the driver of the car, to which the driver replied, “Yes.” And then he asked him if he’d been drinking, and he also stated, “Yes.” These are the statements that the defence seeks to exclude. He confirms that shortly afterwards, Officer Leung arrested the Defendant. He remembers the Defendant being asked when he had his last drink. He asked his partner to write down the answer, which was “about five hours ago.” Officer Isaac confirmed on cross-examination that the in-car camera was activated after the Defendant was arrested and got in the car.

So this explains why the initial conversations at the scene between the police officers and the Defendant were not on the video tape. It was certainly not prudent for Officer Leung not to take good notes, when they were not in the car and the video was not recording. Officer Isaac’s notes were better than Officer Leung’s, but certainly not ideal. I found some of Officer Isaac’s evidence to be reliable. He agreed with reasonable suggestions and he did not exaggerate.

He was generally credible. [ 11 ] The Defendant, Andrew Deighan, testified that he was standing around, talking, and looking at his truck, when the police officers arrived. They asked, “What happened?” They asked if he had had anything to drink, and he replied, “Yes, I’ve had a couple of drinks tonight.” There was some waiting around for 15 to 20 minutes. He did not leave, because he wanted to make sure that, “the proper steps were taken.” He described it this way: I wanted to make sure everything was filed. That my car was going to be towed.

That I’ve – the TTC – TTC Officers told me that the police had been called so I didn’t have to call them.

So, I just wanted to make sure everything was kind of being done as it’s supposed to do if you are in an accident, from my understanding. [ 12 ] He testified further that, “Leaving …scene of an accident, from my knowledge, is not a good thing to do.” He clarified that he meant it was “illegal.” He explained that, “You’re in an accident or an accident happens, you should report to police, your insurance, kind of everything what happened.” He testified that, “I did not know I had an option not to answer.” He could not remember during examination in chief, which officer spoke to him first.

With respect to the questions they asked, he clarified on cross-examination that he was just speculating rather than remembering exactly what questions he was asked. He agreed that he was just providing them with information. He believed that after that evening, the police would have “made their report,” and it was not necessary to go back and supplement what he told them on the night in question. [ 13 ] Based upon my review of all of this evidence, I have concluded on a balance of probabilities that the following sequence of events occurred:

1. Mr. Deighan drove into the street car tunnel at Queen’s Quai, blew a tire, damaged his car, stopped and got stuck near the platform. 2. He was instructed by TTC employees to get out of the car, sit down, help would be called, and police were on their way. He should have understood at this time that the collision had already been reported to the police, and that TTC employees were gathering information for their reports. He should have understood at this stage that any information he would be providing to the police would supplement what TTC officials had already provided. 3. He remained until the police came.

He did not want to leave the scene of an accident or do anything illegal. He felt he had to answer their questions. 4. There is no evidence that anything was explained to Mr. Deighan about the purpose behind the questions he was asked by the police i.e. whether they pertained to a collision report pursuant to the HTA, or whether he was simply participating in an ordinary police investigation. The clearest evidence we have is that after Deighan was pointed out, Isaac approached him and confirmed his identity. This is when Deighan admitted he was the driver and he had been drinking.

Deighan’s evidence is not inconsistent with Isaac’s. 5. It is not clear from Mr. Deighan’s evidence whether he thought he was reporting a collision or simply complying with a legal and moral responsibility to cooperate with the police. He saw TTC employees taking down information for their reports. He thought the police would be making a report. He stayed because he wanted to make sure everything was filed and completed properly. He thought he had to answer the questions asked by the police. He thought he did not have any choice.

He agreed on cross-examination that he was just providing them with information, but the context is that he thought he had to answer the questions, and he thought he had to file and complete something properly. [ 14 ] My initial view of the evidence in this case was that Mr. Deighan should have known that the collision had already been reported, so the obligation to report had already been substantially complied with. Mr. Deighan was encouraged but not compelled by TTC employees to wait, but this waiting was primarily for help getting his car out of the tunnel, not to report the accident.

The TTC reported it for him. So he should have realized that any information he provided was supplementary. [ 15 ] What has made me hesitate, before finding that he volunteered the information, is that I accept his evidence that he felt he had no choice but to provide answers to questions posed to him by the police. His evidence was generally credible but for what he could not remember. Most of his evidence was not inconsistent with that of Officer Isaac. The Defendant had a generalized and non-specific understanding of a driver’s responsibility to report the details of an accident.

For this reason, he was not really volunteering the information. The police already knew he was the driver. They were only confirming that with him, and it is a normal sort of question that would be answered in a s. 199 report. I accept his evidence that he wanted to make sure that everything was filed and completed properly. But the question that was asked with regard to his drinking is not an appropriate question for a s. 199 report. That went beyond reporting the collision, and Mr. Deighan thought he had to answer the question.

One of the purposes of the principle against self- incrimination protected by s. 7 of the Charter is to prevent an abuse of power by the state. When Mr. Deighan felt he was obliged to answer the question about whether he had been drinking, and he did so as part of making sure that everything was filed and completed properly, it was an overreach of the power of the state to compel an accident report, because this information does not have to go in an accident report. This overreach into a question that should not be compelled, that Mr.

Deighan felt he had to answer, supports the factual basis for a finding of compulsion in this case, and the credibility-based factual foundation for the violation of s. 7 that I find. Conclusion [ 16 ] This Soules application is allowed. The Defendant made statements as a result of his belief that he had to answer questions about the collision, that everything should be filed and completed properly i.e. reported. He had a generalized and non-specific understanding of a driver’s responsibility to report the details of an accident, and he acted pursuant to this understanding.

His subjective understanding was reasonable in the circumstances. Released: July 22, 2016 Signed: “Justice S. Ray”