Her Majesty the Queen - v. -, 2022 SKPC 21

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2022 SKPC 21 Date: May 31, 2022 Information: 991145595 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Chelsea Caulderwood Appearing: Mr. James Fitzgerald For the Crown Ms. Sharon Fox For the Accused Ms. Katherine Roy Crown / For the Attorney General DECISION ON CHARTER VOIR DIRE D. KOVATCH , J BACKGROUND [ 1 ] The accused Chelsea Caulderwood faces one charge that on November 13, 2020, she operated a motor vehicle when she had a blood alcohol concentration equal to or exceeding .08 percent, contrary to s. 320.14(1) (

b) of the Criminal Code [ Code ]. (Throughout the trial, the accused was sometimes referred to as “Chelsea Crump”. Because she was named as “Chelsea Caulderwood” on the Information, I have referred to her as “Ms. Caulderwood” throughout this decision. I intend no disrespect by that reference.)

[ 2 ] The trial commenced on October 4, 2021. By agreement, the Crown immediately entered into a Charter voir dire . The Crown presented evidence in that Charter voir dire on October 4, 2021 and October 29, 2021. On January 27, 2022, the defence presented evidence on the Charter v oir dire . On March 2, 2022, I heard extensive submissions regarding the Charter and constitutional issues, and thereafter reserved my decision. This is that decision. THE EVIDENCE [ 3 ] The first witness called was Mr. Ken Clemmensen. He testified by video from British Columbia. He testified that he is 61 years of age.

At the time of the incident, on November 13, 2020, he was living in Moose Jaw. He has since moved to British Columbia. In the evening hours, he was driving his 2017 Dodge Ram 1500 pick-up. He was travelling south on Lewvan Drive in Regina approaching the lights and intersection with Saskatchewan Drive. As he approached the lights, the light turned red, and he began to brake. Another car flew by him on the left side. It appears that he just got fully stopped when his vehicle was struck from behind. The driver of the vehicle that struck him was the accused Chelsea Caulderwood.

He got out of his vehicle and spoke to her. He asked if she was okay and she said she was. She had two children with her in her vehicle. He estimated their ages at 10 and 13 years of age. [ 4 ] There was some discussion about a fast moving vehicle that may have distracted her, and she struck Mr. Clemmensen’s vehicle. [ 5 ] Mr. Clemmensen indicated that he used to drive a tow truck. He had attended a number of accident scenes. He said he got fairly close to the accused and was looking for some indication of impairment. He was looking for bloodshot eyes or the smell of alcohol on her breath.

He clearly stated that he did not detect any indication that she had been drinking or other signs of impairment. He did say that her speed was significant, over 50 km/hr. He said the damage to her vehicle was severe. He believed it was written off. [ 6 ] Mr. Clemmensen testified that very shortly after the accident an individual stopped his vehicle at the scene. That individual indicated he was an off-duty police officer. He very briefly spoke to both parties and made sure that everyone was okay. He advised that he had called in the accident to police. [ 7 ] Also, shortly after the accident, Ms.

Caulderwood’s husband showed up in his vehicle. Ms. Caulderwood and her children got into her husband’s vehicle. Mr. Clemmensen got into his vehicle. They then waited for an on-duty police officer to arrive. Mr. Clemmensen advised that after he spoke to the on-duty police officer, that officer advised him he could leave. Mr. Clemmensen’s vehicle was still drivable. He left the scene. [ 8 ] Under cross-examination, Mr. Clemmensen agreed that Ms. Caulderwood was driving a smaller SUV.

Her vehicle was considerably lighter than his, and as a result suffered significantly more damage from the collision. [ 9 ] He advised that the off-duty police officer said he had called Regina Police, or would call Regina Police. He could not recall the exact conversation. He did indicate that it was his understanding and he believed everyone’s understanding, that they had to wait for the on-duty police officer to arrive so that they could formally report the accident. [ 10 ] He also reiterated that as a tow truck operator, he had frequently dealt with accidents where alcohol had been involved.

He is familiar with the normal signs of impairment. He reiterated Ms. Caulderwood made perfect sense as she spoke, and he did not detect any indication of alcohol consumption or impairment. Lastly, Mr. Clemmensen indicated that he remained at the scene and worked with the police officer to complete all of the appropriate paperwork. He remained at the scene until the officer advised him he was free to go. Upon being so advised, he then left the scene. [ 11 ] Timothy Labelle testified that he is a constable with the Regina City Police Service and has been since July 2011.

On November 13, 2020, he was driving on the Lewvan and came upon the accident scene. He saw the SUV (the accused’s vehicle) and could immediately ascertain that it was not drivable because of the significant damage to the front end of the vehicle. He indicated Ms. Caulderwood and her children remained seated in their vehicle. Because of road and weather conditions and the fact that an accident had just occurred, he advised them to remain in their vehicle until the on-duty police officer arrived. Two brief passages from the examination and cross-examination may be of some significance. Vol II, T69 L31-35

Q Okay. Did you have any conversation with either the driver of the truck or the driver of the SUV about whether they were to remain at the scene until police arrived? A Yeah. I would have told them since the vehicle was not drivable that they had to remain. Vol II,T70 L8-15 Q MS. FOX: Just one question, sir. Well, I hope it’s one question. Did you identify yourself as an off-duty police officer to either the driver of the truck or the SUV when you interacted with them? A I think I did, yeah.

If I remember correctly, can’t be a hundred percent sure how I would have formulated it, but I believe I would have said, you know, I’m – I’m an off-duty police officer when I was checking to make sure they were okay, and that -- you know, just -- just explain to them that since one of the vehicles was not drivable, there was an obligation for police to actually attend to the accident. [ 12 ] The next witness was Constable Isiah Dawson. He testified he is a constable with the Regina Police Service, and has been since 2019. Prior to working as a police officer, he worked as a paramedic.

As a result, he has considerable experience dealing with individuals impaired by alcohol. [ 13 ] He testified that in the evening of November 13, 2020, he cleared another call, and at that time noticed from his dispatch screen that a call for a motor vehicle accident had been holding for about an hour. He went to Saskatchewan Drive and the Lewvan to deal with that matter. He advised that when he arrived at the scene, he approached a black truck. (This was the vehicle being operated by Ms. Caulderwood’s spouse). The male driver of this truck rolled down the window. The female, Ms.

Caulderwood, seated in the passenger seat, advised she was driving the white SUV, and handed the officer her driver’s licence. The officer indicated he probably asked who was driving, and she advised she was and gave him the driver’s licence. The following exchanges took place between Crown counsel and the officer: Vol II, T76 L22-40 Q All right. A ′Cause SGI requires that any vehicle not drivable, police have to be involved, they have to complete their investigation, and then we send it off to SGI. Q Okay. A So I -- we kind of backtracked, but -- so I asked, Who was driving the white vehicle?

Chelsea said it was her. She handed me her license so I can confirm that ID, and it was a brief exchange of what happened today. Q Okay. A And she -- I don’t know if I’ll be able to say this, but she said she was driving. Both of them were going I guess southbound on Lewvan. A fast vehicle approached from behind her. She had to swerve out of the way and then ended up hitting -- rear-ending that quarter-panel of the white truck that was in front of her near that intersection. Q So that was her explanation as to how the accident occurred?

A That was her explanation of our brief exchange of what happened during that accident, yes. Vol II, T77 L26 - T78 L22 Q Okay. A So from there, I had I guess both driving licenses, and I went back to my patrol car to I guess confirm valid registration on the vehicles, valid driving licenses, and start the SGI process on -- I guess the SGI form and getting the vehicle removed from traffic Q Okay. A So in that, come back to my patrol car. I start -- there’s an SGI Exchange of Information sheet that essentially gives the driver’s license number, general traffic collision information -- Q Okay.

A -- and an SGI sticker to report the damage. So I gathered up Ken’s copies of his stuff as well as his driving license, and I walk back to his truck to deliver his driving license, exchange of information, as well as the SGI accident form.

Q Well, what is the SGI accident form? A Sorry, Sticker. Q Oh, okay. A So that’s a -- sticker saying Constable Dawson was here, I noted damage to this part of the vehicle, put it on his window, so when SGI does an appraisal, they’d say, oh, yeah, this is involved in this collision, it wasn’t something else. Q Okay. A So just a record of showing that police noted damage at this area. Q Okay. A So I provided him with that information, and I went back to my patrol vehicle to start on -- an SOTI, so a Traffic Safety Act summons or offence notice for the collision. Q Okay.

And who -- who were you considering or contemplating laying that charge against? A That was against Chelsea for following too closely. Q Okay. A Instructing -- or striking, sorry, the back of the other vehicle. [ 14 ] The officer testified that after completing this paperwork, he again approached the black truck. At this time, he approached the black truck on the passenger side to speak specifically with Ms. Caulderwood. Vol II, T79 - L6-8 Q Okay. All right. A So went up to the passenger side of the black truck.

Chelsea who was sitting in the passenger seat was able to roll the window down, and I was serving her documents, giving back the SGI driving license as well as explaining the accident form and the process on how to make a claim with SGI -- Q All right. A -- for the damage of the vehicle. So during that interaction, we were much closer. While she was speaking with me, I was able to detect a strong smell of beverage alcohol coming from her breath while I was speaking with her. Q Okay.

A As I was speaking with her, as well, I noted some glossy eyes. [ 15 ] The officer testified that he then went to the white SUV that was damaged in the accident. He placed SGI accident stickers in the vehicle. At this time, he believed he smelled “ambient alcohol” from that vehicle. He then returned to speak to Ms. Caulderwood to inquire who was in the vehicle with her, at the time of the collision. She advised that the children were with her. The officer testified that he then believed that the smell of alcohol was from Ms. Caulderwood.

Further, that he had a reasonable suspicion that she had alcohol in her body, and he proceeded to make the ASD demand. [ 16 ] The officer later reviewed his notes and report. He testified that the first call to police dispatch was received at 9:36 p.m. The officer was dispatched to the accident (after clearing another call) at 10:41 p.m., arriving at 10:48 p.m. At 11:08 p.m., the formal ASD demand was made. At 11:14 p.m. there was a fail result on the ASD. After the ASD fail result, the officer advised she was under arrest, advised of her Charter rights, and made the formal demand. He also gave a police warning.

Thereafter, Ms. Caulderwood was taken to the Regina Police Station where she provided two samples of breath. She was held until the following morning, at which time she was served with the Certificate of Analyses and other documents and released. [ 17 ] The officer clearly testified that he was dealing with SGI and ticket matters until he handed the ticket to Ms. Caulderwood through the passenger window of her husband’s vehicle. At that time, for the first time, he smelled alcohol.

Under cross-examination, the following passages are of some significance regarding the accident investigation and report, and the Criminal Code investigation.

Vol II, T113 - L20-28 Q Okay. And when you -- when you smelled the alcohol on her, was that something that you felt was important for your Traffic Safety Act investigation? A I think at that point, then, it turns into a Criminal Code investigation. However, it’s a piece of The Traffic Safety Act investigation. Q Okay. So I want to talk to you about that. So when you -- at that point in time, you never told Ms. Crump (phonetic) that you were entering into a criminal investigation, did you? A Not at that time, no. Vol II, T115 - L15 to T117 - L24 Q Okay.

And I’m suggesting to you, sir, the reason you did that -- and actually, your evidence is because you wanted to isolate or determine if there was anyone else causing that smell in the vehicle. A I would agree with that. Q Okay. And so at that point, your question was directed, I’m suggesting to you, towards a criminal investigation because you’re trying to isolate where the smell of alcohol is coming from. A I would agree with that. Q Okay. So in terms of the order of questions that were asked after you came back with a

summary offence ticket, you hand the ticket to Ms. Crump. Correct? A M-hm. Yes. Q And you guys are having conversations at this point based on your evidence with Mr. Fitz-Gerald about the SGI, how to go online and report it, basically The Traffic Safety Act investigations. A Explaining the -- ticket as well. Q Correct. And you’re also explaining how to report an accident and so on, so forth. A That’s a part of explaining the ticket as well as the SGI information. Q Okay. And then during the course of that discussion, you smell this alcohol. Correct? A That’s correct.

Q And you ask her if she’s had anything to drink. A That’s correct. Q And she responds to the affirmative. Correct? A That’s correct. Sorry. Q And you leave -- don’t at this point tell her you’re entering into a criminal investigation. Correct? A I was still formulating my grounds at that time. Q Right. Okay. So you go back to the car. You put the sticker on in the inside of the car, or the SUV, I should say. A Correct. Q Smell this ambient smell of alcohol, you say, in the vehicle. A Correct. Q And by the vehicle, I mean SUV. A Correct. Q Right.

Come back to her window and continue asking her a further question about who else was in the SUV. A Correct. Q Okay. When you handed her the

summary offence ticket, you didn’t tell her she was free to go. Correct? A That’s correct.

Q And so your expectation was that she was going to remain at the scene of the accident until you told her she was free to go. A I would agree. Q And prior to making the breath demand -- or not the breath demand. Prior to making the ASD demand, okay, is it fair to say you never told her she didn’t have to answer any of your questions. Correct? A I would agree that I did not ask her to -- or did not provide her with the police statement caution. Q And you certainly didn’t tell her that she could call a lawyer before answering any of your questions prior to making the ASD demand. Correct? A Agreed. Q Okay.

And you certainly didn’t tell her that you had finished completing your accident report form and now you’re entering into a -- different investigation. Correct? A I would agree with that statement. Q Now, at the point in time when you went to her vehicle to provide her the

summary offence ticket and provide her the SGI exchange of information, was it your intention to give her that information and then let her go? A I think, again, we’re looking at the totality, and the investigation is ongoing in my eyes , that until the accused, whether it be a Traffic Safety Act or a Criminal Code investigation is -- is done until I’m satisfied that there’s nothing else to investigate, that’s when I think it ends. Q Okay. So my question to you was is you’ve left you’re -- you’ve done up the

summary offence ticket, you’ve done up the SGI exchange of information with no information at this point that there’s any reason to enter into a Criminal Code investigation. Correct? A I would agree. Q So you’re walking back to the car to provide her that information. What was your intention with -- in your mind, did you have any reason to continue holding her at that point? A I think until it’s served, I mean, it would be, you know, reasonable for her to expect a stay. [ 18 ] The defence called Mr. Trent Glover on the voir dire . He is the common law spouse of the accused, Chelsea Caulderwood.

He testified that on November 13, 2020, at 9:34 p.m., he received a telephone call from Chelsea advising of the accident. He went to the accident scene, arriving just a few minutes later. On arrival, Chelsea and the children got into his vehicle. They waited for the police to arrive. He testified that during this time he did not notice any signs of impairment from Chelsea. Further, that she provided information to the officer. He believed that in providing that information, she was reporting the accident.

He believed that she was legally obligated to report the accident, and that they or she could not have leave the scene prior to being excused by the officer because she was required to prepare that report. [ 19 ] At some point, the officer came to their vehicle and asked Ms. Caulderwood to step out of the vehicle and to go back to the police vehicle with him. She did that. A short while later, the officer returned to his vehicle without Ms. Caulderwood, and advised that she was being charged and would be taken in to the police station. This was the first that Mr.

Glover heard of a criminal investigation, or that she would be charged with any offence. [ 20 ] It is significant to note that Mr. Glover did not say that the officer told him or Ms. Caulderwood that she could not leave the accident scene or that she was obligated to provide an accident report. This was however a part of his understanding of the procedure and what transpired that night. [ 21 ] Ms. Caulderwood similarly testified that the police officer did not specifically state that she was obligated to report the accident, or that she could not leave. However, that was her understanding.

Further, she testified that she answered all of the officer’s questions and provided the information because she felt legally obligated to do so. [ 22 ] Sergeant Donna Lee Wall and Darrel Danylyshen also testified on the voir dire . Both are police officers with the Regina Police Service. Both had positions in the cells or detention unit of the police station on the night that the accused was held there. Neither could recall Ms. Caulderwood or any specific dealings with her.

Both testified in generalities regarding the usual practices followed as to when they will release an individual following arrest and detention. Neither presented any formal written policy dictating the practices. They indicated that there are a number of factors that will be considered. They will consider whether an individual has a friend and/or relative that would take an individual into their care thereby insuring the safe release. They will also consider the weather and means of transportation.

They will also consider the relative level of sobriety or intoxication of the accused and whether the accused is capable of absorbing and understanding the paperwork and various documents involved. In this case it appears that the accused’s relatively high

readings on the intoxilyzer test were heavily considered by the officers. It would certainly appear that this was the reason that they held the accused until the following morning. It is also very significant that no one testified that the accused had any glaring or obvious indicia of impairment. [ 23 ] Mr. Glover and the accused also testified about matters that occurred following the intoxilyzer tests. It is clear that the accused was not released until the following morning. She testified about her anxiety, discomfort and embarrassment of being held overnight in the police cells. Mr.

Glover testified about calling the police cells and making a specific request to be able to pick up his spouse. This was not allowed. ARGUMENT ON THE VOIR DIRE [ 24 ] Defence counsel argued that there was but one statement obtained from the accused and one investigation of the accused. The accused’s participation in that investigation and statement were statutorily compelled by provincial legislation. It is a long standing cornerstone principle of Canadian constitutional and criminal law that and an individual cannot be compelled to incriminate themselves.

Police used this statutorily compelled statement to provide the grounds for an ASD demand, and for the very basis of this criminal prosecution. This was in breach of s. 7 of the Charter , and all of this evidence should be excluded. [ 25 ] The Crown’s primary argument, advanced by counsel for the Saskatchewan Attorney General, is that the statutorily compelled statement or participation may be used to gather collateral facts and these collateral facts may be used to provide the grounds for the ASD demand.

As a result, there is no Charter breach, and the evidence should be admitted. [ 26 ] Counsel for the Crown, Mr. Fitzgerald, made an interesting argument for admission of the evidence based on “a Grant analysis”. He referred to s. 320.31(9) of the Code , and said Officer Labelle was aware of this provision and believed he was conducting his investigation appropriately and according to law. There was no negligence, mala fides or deliberate breach.

As a result, he argued the Court should admit the evidence. [ 27 ] The defence also argued that this was a severe overholding situation violating the accused’s right against arbitrary detention under s. 9 of the Charter . Defence argued that the breach was egregious and has been repeated on a number of occasions by police. As a result, the Court should send a signal to police by excluding all of the evidence. [ 28 ] As I understand the Crown’s response, it is to the effect that there is insufficient evidence for the Court to conclude whether or not there is an overholding breach.

If the Court reaches a conclusion of an overholding breach, it should regard this as a relatively insignificant breach, and using the Grant analysis, should admit the evidence in any event. ANALYSIS 1. Has the accused been statutorily compelled to provide evidence against herself, in breach of s. 7 of the Charter ? [ 29 ] I begin by a brief historical review of the law in this area. For many years, Saskatchewan has had The Automobile Accident Insurance Act , RSS 1978, c A-35 [ Automobile Accident Insurance Act ]. The present Automobile Insurance Act contains sections 68 to 71, inclusive. They read as follows: 68

(1) In this

section and in sections 69 to 71: (a) “accident report” means an accident report that meets the requirements of Division 7 of

Part XVI of The Traffic Safety Act ; (b) “police officer” means a peace officer as defined in The Traffic Safety Act ; …

(2) In the circumstances mentioned in subsection (3), the person in charge of a motor vehicle that is involved in an accident shall: (

a) report the accident to the nearest police officer as soon as is practicable after the accident; and (

b) provide the police officer mentioned in clause (

a) with any information or written statement concerning the accident that the police

officer may reasonably require to complete an accident report.

(3) The duty to report an accident to a police officer pursuant to subsection (2) applies if the accident: (

a) involves bodily injuries or death; (

b) involves an unidentified motor vehicle; (b.1) involves a motor vehicle for which no certificate of registration has been issued pursuant to The Vehicle Administration Act ; (

c) involves a motor vehicle that was towed from the scene of the accident as a result of the accident; or (

d) involves a person in charge of a motor vehicle who was apparently under the influence of alcohol or drugs to such an extent as to be incapable for the time being of having proper control of the motor vehicle.

(4) If the person in charge of a motor vehicle involved in an accident is physically incapable of making a report required pursuant to subsection (2), another occupant, if any, of that motor vehicle shall make that report.

(5) Every person who sustained a bodily injury as a result of a motor vehicle accident and who is physically capable of making a report shall make a report in the same manner as that required by the person in charge of a motor vehicle pursuant to subsection (2).

(6) A police officer who receives a report of a motor vehicle accident shall: (

a) secure from the person making the report, or by other inquiries if necessary, any particulars of the accident necessary to complete an accident report; (

b) prepare an accident report; and (

c) transmit the accident report to the insurer.

(7) The insurer may require: (

a) any person involved in an accident or having knowledge of an accident or of any bodily injuries or property damage resulting from an accident to furnish any information that is necessary to complete an accident report; or (

b) a police officer to secure any information that is necessary to complete an accident report.

(8) In a prosecution for a contravention of this section, a certificate of the insurer or the chief, deputy chief or person in charge of the police service or unit responsible for providing police services in the municipality where an accident mentioned in this

section occurred that a report has not been filed is admissible as proof, in the absence of evidence to the contrary, of the facts stated in the certificate and of the authority of the person issuing the certificate, without proof of the appointment or signature of the person who completed the certificate. 69

(1) A police officer receiving a report of an accident pursuant to

section 68 must obtain from the person making the report, and by any other inquiries if necessary, full particulars of the accident including: (

a) the persons involved; (

b) the extent of the bodily injuries or property damage, if any, arising out of the accident; and (

c) the purpose for which any vehicle involved in the accident was being used.

(2) For the purposes of subsection (1), a police officer may request any persons involved in or having knowledge of the accident to furnish any additional information the police officer may require.

(3) No person to whom a request is made pursuant to subsection (2) shall fail to comply with that request.

(4) A police officer must make any supplementary reports of the accident that the insurer may consider necessary: (

a) to complete its records; and (

b) to establish as far as possible: (

i) the cause of the accident; (ii) the persons responsible for the accident; and (iii) the extent of the bodily injuries and property damage, if any, arising out of the accident. 70

(1) The insurer may request any person involved in an accident, or having knowledge of an accident, to furnish any additional information respecting the accident and to make any supplementary reports of the accident that the insurer considers necessary: (

a) to complete its records; and (

b) to establish as far as possible:

(

i) the cause of the accident; (ii) the persons responsible for the accident; and (iii) the extent of the bodily injuries and property damage, if any, arising out of the accident.

(2) The insurer may direct the manner in which and the time within which a request made pursuant to subsection (1) must be compliedwith.

(3) No person to whom a request is made pursuant to this

section shall fail to comply with that request. 71(1) A written report or statement made or furnished pursuant to

section 68, 69 or 70 is deemed to be made without prejudice and forthe information of the insurer.

(2) The insurer shall keep any written report or statement mentioned in subsection (1) confidential and is not required to make anywritten report or statement available for public inspection.

(3) The fact that any written report or statement has been made or furnished pursuant to

section 68, 69 or 70 is admissible in evidencesolely to prove compliance with that section, but the written report or statement is not admissible in evidence for any other purpose in anytrial arising out of an accident.

(4) Notwithstanding subsections (1) and (2), the insurer may make available to persons engaged in road safety research any informationcontained in any written report or statement received by it pursuant to

section 68, 69 or 70.

(5) Subject to

section 9 of The Traffic Safety Act, no person who receives any information pursuant to subsection (4) shall make thatinformation public in a form that would enable any particulars to be identified as being related to any specific person or business It must be noted that these sections or very similar provisions have been contained in many successive versions of the legislation and formany years. Also, that a number of other Canadian provinces have insurance legislation with very similar provisions.

Similarly, theseprovisions have been in effect in the other provinces for many years. [30] My understanding is that as a result of these provisions, when police investigated motor vehicle accidents, and interviewedthose drivers, they would often take two quite separate and distinct statements. They would advise the driver that he or she wasstatutorily obligated to provide information to complete the motor vehicle accident report. In so doing, they would advise of theconfidentiality provisions and that the report or the information contained therein could not be utilized for another purpose.

If there wasto be a criminal investigation, they would provide a police warning and take a separate and distinct statement that, subject to thedetermination of voluntariness, could be introduced in evidence in criminal proceedings. I believe that sometimes the criminal statementwould be obtained first, and sometimes it would be obtained second, depending upon when the police officer first became suspicious ofcriminal conduct. This practice was utilized because even prior to the Charter, it was well recognized that an accused person could notbe compelled to incriminate himself.

In addition, the statutorily compelled statement was not voluntary, and would not be admitted incriminal proceedings. [31] It would appear these practices became more important following adoption of the Canadian Charter of Rights and Freedoms. The courts interpreted the right to remain silent as a protected principle of fundamental justice under s. 7 of the Charter.

The result wasthat a breach of an individual’s right to remain silent, or use of an involuntarily obtained statement became a breach of the individual’srights under s. 7 of the Charter. [32] In 1999, the Supreme Court of Canada rendered its decision in R v White, (SCC), [1999] 2 SCR 417[White]. This case originated out of the province of British Columbia, which had provisions in its Motor Vehicle Act that are verysimilar to the provisions quoted above from the Saskatchewan Automobile Accident Insurance Act. Ms. White was involved in a motorvehicle accident.

She was advised by her lawyer not to provide a statement. The police officer involved advised the accused she wouldbe required to provide a statement under the Motor Vehicle Act and that this statement could not be used against her in court. Afterproviding this advice, the police officer had three separate conversations with her. She was subsequently charged with leaving the sceneof the accident, and the Crown sought to use the contents of these three conversations against her in the criminal proceedings.

Atparagraph 35 of its decision, the Court stated: [35] It should be noted that, in their submissions before this Court, the parties have not disputed two legal issues. First, the partiesagree that the use and immunity created by s. 61(7) of the Motor Vehicle Act does not extend to proceedings under the Code, because itwould be ultra vires the province of British Columbia to restrict the admissibility of evidence in criminal matters. It is for this reasonthat the respondent has sought the protection of the Charter in order to exclude her three statements to police.

The Court did not rule on the validity of the provincial use immunity provisions, or whether these provisions could be used to preventadmission of evidence in criminal proceedings. These may still be debatable questions, but will have to be left for another day.

[ 33 ] At paragraphs 79 and 80 of the decision, the Court stated: [79] … I agree with the trial judge that the scope of the compulsion created by s. 61(1) of the Motor Vehicle Act is fairly broad. [80] Section 61(1) requires a driver involved in an accident to report the accident and, in very general terms, to “furnish the information respecting the accident required by the police officer or designated person”.

Section 61(4) requires the person receiving an accident report from a driver to “secure from the person making [the report] … the particulars of the accident, the persons involved, the extent of the personal injury or property damage and other information necessary to complete a written report of the accident” (emphasis added). Thus the Act defines the statutory duty to report an accident to police in vague terms. At the same time, the discretion to determine what information is necessary to a written accident report is vested exclusively in the police officer taking the report.

The driver is largely subject to the will of this officer with respect to determining what constitutes a compelled statement. Provided that the police have offered no indication to the driver that the statutory requirements for the reporting of an accident have been satisfied, it will likely be reasonable for a driver to assume that he or she continues to be subject to a statutory duty to speak to police.

Accordingly, as a practical matter, it will be very important for the police officer who takes an accident report while simultaneously investigating a crime to delineate clearly for the declarant the start and end points of the accident report . (Emphasis added) [ 34 ] And at paragraph 92: [92] … the Charter does not eliminate the statutory compulsion to report an accident. The accused who has consulted counsel does not become immune from the reporting requirement set out in the statute. Rather, as I have discussed in these reasons, s. 7 provides protection to the person who is required to report an accident.

Thus, when the respondent returned from speaking to counsel, she was still required by law to answer Sgt. Tait’s questions regarding the accident, provided those questions were made pursuant to s. 61 of the Motor Vehicle Act .

Indeed, if the respondent’s lawyer acted appropriately in advising her, as the Court should assume he did, he would have told the respondent that she was required by law to answer the officer’s questions pursuant to the Motor Vehicle Act , notwithstanding her general right to silence. [ 35 ] In summation, in my view, the White decision clearly states that an investigating officer must take two statements and draw a clear line between the statutorily compelled accident report and a voluntarily and warned statement to be used for criminal proceedings.

If this does not happen, and an individual provides information to police under a reasonably held belief that they are statutorily compelled to provided such information, then the courts may conclude that such statements are involuntarily and statutorily compelled, contrary to the individual’s s. 7 rights.

The decision also clearly states that in such circumstances, the Court may properly exclude all such evidence, including derivative evidence obtained from the statutorily compelled statement. [ 36 ] Since the White decision, there have been a number of prosecutions and attempts in various provinces across the country wherein the Crown has sought to reduce or avoid the White decision. I speak in particular of R v Powers , 2006 BCCA 454 , 213 CCC (3d) 351; R v Soules , 2011 ONCA 429 , 273 CCC (3d) 496 [ Soules ] and R v Porter , 2015 ABCA 279 , 607 AR 38.

In each of these cases, the relevant Provincial Court of Appeal rejected a more limited

interpretation of the White decision and concluded the White decision still represented good and binding law. [ 37 ] In R v Paterson , 2017 SCC 15 , [2017] 1 SCR 202 [ Paterson ], the Court dealt with the propriety of the seizure of drugs. Mr. Justice Brown, speaking for the majority, referred to R v Orbanski , 2005 SCC 37 , 196 CCC (3d) 481 and indicated that it allowed use of some compelled statements by police to form grounds for a screening device demand. In a footnote, the Court then stated: “The Attorney General of Ontario notes that in R. v.

Soules , 2011 ONCA 429 , upon which the appellant relies, police were prohibited from relying on statutorily compelled statements from the accused for any purpose , including to establish grounds for further investigative steps. 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.” Since then, Crowns have argued that Paterson has reversed White , or limited its effect to matters directly in issue at trial.

Further, that compelled statements could be used to support grounds for other investigative steps, use of derivative evidence, or to provide grounds for demand. Indeed, this very argument is made by counsel for the Saskatchewan Attorney General in this case. In addition, counsel for the Attorney General also relies upon s. 320.31(9) of the Criminal Code , which came into force in December of 2018. That subsection reads as follows: 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 or 320.28. Counsel described this subsection as “the Soules amendment”. As I understand the argument, it is that this subsection effectively overrides the Soules decision and specifically allows for the use of statutory compelled information to justify grounds for an ASD

demand or other investigative purposes. It seems to me that at root, this argument is really that Parliament has effectively intervened and changed the law, and I must now apply this

section to admit the evidence. [ 38 ] I deal firstly with the argument that in Paterson , the Supreme Court of Canada overruled the Soules decision and effectively changed the effect of the White decision. This very argument was advanced before the Ontario Court of Appeal in R v Roberts , 2018 ONCA 411 , 360 CCC (3d) 444. In that case, Mr. Justice Paciocco, speaking for the Court, stated: [44] Although this remark by Brown J. does invite debate about the correctness of Soules , I do not agree that Paterson has resolved the question.

The issue is too complex and important for the Supreme Court to have done so in a footnote; particularly a footnote that expressly refrains from commenting on the correctness of the Soules decision. [ 39 ] The Court went on to conclude that Paterson did not overrule the Soules decision and that Soules and White remain good law. Similarly, in R v Korduner , 2021 ABPC 83 , the Honourable Judge Graham referred to all of these decisions, expressly followed the Roberts decision, and determined that Soules and White remain good law.

I too will follow Roberts and Korduner and conclude the Paterson decision did not change the law as set out in White . [ 40 ] So, after all of the above, did Parliament effectively intervene by enacting s. 320.31(9) , and thereby specifically allow for the use of statutorily compelled information to justify an ASD demand? I leave for another day, the determination as to whether s. 320.31(9) is constitutional and could be applied or used in other circumstances. In this case, I simply determine that this provision did not and could not bring about the legal effect desired by the Crown in this case.

In the White decision, the Supreme Court of Canada clearly concluded that the statements obtained by the police officer were statutorily compelled and the obtaining and use of those statements was in violation of the accused’s s. 7 Charter rights. It is elementary that the Charter is part of the Constitution of Canada . Parliament cannot, by simply enacting an amendment to the Criminal Code , change or alter that Charter provision. For reasons that I will enunciate shortly, I conclude that the statements obtained from Ms. Caulderwood were statutorily compelled and contrary to her s. 7 Charter rights.

Section 320.31(9) did not alter the legal effect of White , and it did not in any way alter or reduce the power of this Court to determine a Charter violation exactly as occurred in White . [ 41 ] Having determined that a Charter violation occurred, under s. 24 of the Charter , this Court is empowered to provide Charter relief or remedy.

Section 24 is also part of the Charter and part of the Canadian Constitution . These powers, in the Court, could not be altered or removed by this subsection of the Code . In other words, having concluded the Charter breach, the Court has exactly the same power to exclude the evidence as was done in the White decision. APPLICATION OF THE FACTS TO THIS CASE [ 42 ] I begin by noting that there was little, if any, argument from the Crown that the statements obtained from Ms. Caulderwood were not statutorily compelled, within the meaning and effect of the White decision.

The Crown arguments seem to me to be primarily based upon limiting the legal effect of the White decision, or allowing the admission of the evidence pursuant to s. 320.31(9) . [ 43 ] It is interesting to note that Ms. Caulderwood and her spouse both testified that the police officers did not directly advise them that they were compelled to make an accident statement. I do not know that the police officers would agree with them. In their evidence, both made statements to the effect that they probably advised of that or that they would normally advise of this. More importantly however, both Ms.

Caulderwood and her spouse clearly testified that it was their shared or common understanding that she was compelled to remain at the accident scene and make a statement formally reporting that accident to the police. I also note that by any simple and plain reading of the statutory provisions quoted on pages 10-13 of this decision, Ms. Caulderwood was clearly correct in assessing her obligation to report. [ 44 ] Most importantly, in my view, Constable Dawson virtually admitted under oath, that he drew no line between preparation of the accident report and the Criminal Code investigation.

In quotes from his cross-examination, beginning at paragraph 17 of this decision, he indicated he was dealing with the accident report and ticket until he smelled alcohol and then “it turns into a Criminal Code investigation.” But he provided no notice of that or warnings. He continued to use his statutory right to question and said Ms.

Caulderwood had to stay and answer his questions until he concluded all his questions and investigation. [ 45 ] In the White decision, the Court said the onus is on the accused to establish, on a balance of probabilities, that the accused provided the information because he or she honestly and reasonably believed that they were required to answer questions and make that

statement. In this case, I conclude Ms. Caulderwood honestly and reasonably held this belief, and in fact, there was only one investigation and statement obtained by the officer. It was the statutorily compelled accident report. He then immediately used that information to make the ASD demand.

With all due respect, the officer could not change gears and convert the accident investigation to a criminal investigation as he did. [ 46 ] The provisions in the provincial legislation and the practices developed to take two statements with “a bright line” between them, were established to respect and protect the accused’s right not to incriminate himself. The investigation here disregarded provincial legislation, criminal and constitutional law, and established investigative practices. In so doing, the officer acquired evidence that he used to make the ASD demand.

I cannot conclude that any of this evidence would have been acquired had he followed proper procedures. The collection of this evidence was fundamentally unfair and contrary to law. It was not collected “in accordance with the principles of fundamental justice” and the accused’s rights under s. 7 of the Charter , were breached. Should the Evidence be excluded? [ 47 ] As mentioned, Mr. Fitzgerald argued the officer believed he acted appropriately and according to law. If he was correct, the demands would have been proper, and the subsequently obtained evidence would have been admissible.

For these reasons, he argued this evidence should be admitted. [ 48 ] However, for the following reasons, I have determined that all of the evidence from the time Constable Dawson arrived at the scene and began speaking to Ms. Caulderwood should be excluded. [ 49 ] Firstly, the evidence was excluded in the White case and the Supreme Court of Canada upheld that decision. In White , the officer had additional conversations with the accused after the initial accident report. There was some separation of the report and the conversations. There was no separation here.

Arguably, the breach here was more severe than in White . [ 50 ] The Charter breach in this case is severe. The police actions were not only contrary to the Charter , but to a long standing and foundational principle of criminal law. The entirety of the evidence was obtained as a result or through the breach. Allowing the admission of evidence obtained through a denial of the right to remain silent would be a massive change in our criminal law bringing the administration of justice into disrepute. In other cases, I have noted that when the accused’s right to counsel under s. 10(

b) is breached, the Courts almost always exclude the evidence because such breaches are regarded as severe. The breach of the right to remain silent is also a severe breach of a foundational principle of our Constitution and criminal law. CONCLUSION [ 51 ] In my view, the law has not changed since the Supreme Court of Canada handed down its decision in R v White in 1999. That case remains good law, and I intend to follow it. In my view, the facts in this case regarding the taking of the accident report from Ms.

Caulderwood lead more easily to a conclusion of the statutorily compelled statement than do the facts in R v White . Accordingly, I follow R v White and conclude that the statement here was statutorily compelled. Similarly in R v White , the Supreme Court examined the trial judge’s decision and determined that the trial judge properly excluded all of the evidence. The right to remain silent is a cornerstone and foundational principle of our Constitution and our criminal law. In my view, all of the evidence obtained here was obtained as a result of the breach of Ms. Caulderwood’s s. 7 rights.

Accordingly, I direct that all of the evidence obtained from and after Constable Dawson arrived at the scene be excluded. [ 52 ] Having reached this conclusion on the s. 7 issue, I decline to make any decision on the s. 9 overholding issue. I also decline to make any further comment on the constitutionality or

interpretation of s. 320.31(9) of the Criminal Code . Dated at the City of Regina, the Province of Saskatchewan, this 31 st day of May 2022.

_________________________ Kovatch, J