) ) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 3156

CITATION : R. v. Bhangal, 2013 ONSC 3156 COURT FILE NO.: 11/92 DATE: 20130531 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – LAKHVINDER BHANGAL ) ) ) ) ) ) ) ) John Dibski, for the Crown Marcy Segal, for Lakhvinder Bhangal ) ) HEARD: February 4, 14, 19, 20, 21, 22, March 6, 8, April 2, 4, 18 and 22, 2013 RULING HOURIGAN J. Introduction [ 1 ] Lakhvinder Bhangal is charged with Criminal Negligence Causing Death and Dangerous Operation of a Motor Vehicle Causing Death contrary to the Criminal Code of Canada . [ 2 ] Mr.

Bhangal brings this application to exclude certain evidence pursuant to sections 24 (1) and 24(2) of the Charter as a consequence of alleged violations of his rights under sections 7, 8 and 10(

b) the Charter. He seeks to exclude a statement provided to an officer at the scene of the collision, daily logs and related documents, a videotaped interview with the police and the information and documents discovered as a result of that interview. [ 3 ] For the reasons which follow, the application is allowed in part. Background (

i) Evidence of Officer Todd [ 4 ] At approximately 4:30 a.m. on March 27, 2010, Office Robert Todd of Halton Region Police Services was travelling to work on Highway 25 in Oakville. He was dressed in civilian clothes and was driving his personal vehicle. [ 5 ] Officer Todd came upon the scene of a collision on the roadway. He noticed a minivan and had a brief conversation with a civilian who was at the scene. He then came upon human remains on the road. Officer Todd then spoke with two other persons who were present at the scene. [ 6 ] He then proceeded to a tractor-trailer that was stopped at the scene.

The officer’s evidence in-chief in regard to the discussions he had with the accused at that point was as follows: Q. Yes, and what happened then?

A. As I walked towards the tractor trailer, I thought that the truck had stopped to provide assistance. Q. And why did you think that? A. It had been parked on the shoulder; most of the truck was off of the roadway and I can still see that the lights were on the truck. It appeared to me as though it had come to stop and had parked on the side of roadway. Q. Yes. A. From my location I couldn’t, I didn't see any damage to the truck. I was looking at the back of the trailer and there didn't appear to be any damage that was obvious to me as I was walking towards the tractor trailer.

As I got closer to the tractor trailer, I noticed that there was a man standing near the cab portion of the truck and as I walked towards the trailer portion of the truck that man walked towards me. * * * Q. Yes. Okay. And then maybe take us through that part again as far as where you get to and what happens? A. As I walked towards the trailer, I observed that there was a male standing near the back of the cab and was walking towards the trailer, and I met him near the trailer. Q. All right. And are you on the, the roadway side of this tractor trailer or are you on the, on the ditch side? A. On the roadway side.

Q. All right. And are you able to describe that person? A. Yes, male, south Asian in appearance, approximately five foot ten, of medium build. Q. All right. And do you see that person here today? MS. SEGAL: It’s conceded for the purpose of the application Your Honour, that he saw Mr. Bhangal. THE COURT: All right. MR. DIBSKI: Thank you. Q. All right. And so what happens next? A. As I approached that male, I asked if he was okay. I believe he had identified himself as the driver of the tractor trailer. Q. And do you know which happened first as far as who spoke first? A. I don't recall. Q. All right.

And what happened then? A. I asked if he was, I asked if he needed any help and he told me that he didn't. Initially I didn't know whether he was the driver or the passenger or what his involvement was with the truck, but after he had identified himself as the driver and that he didn't need any help, I had identified myself as a police officer and told him that there was other officers coming to the scene. Q. All right. And what happened at that point? A.

At some time during the brief conversation I had with him, he told me that he was a safe driver, he told me that he was not, not sleeping; he also told me that he was okay and didn't know what had happened. Q. All right. And are you able to tell us as best you can, how did that develop as far as how or what sort of interaction was taking place as those things were being said? A. I asked him if he was okay. He told me that he was and that he didn't need any help. I tried to offer him some reassurance that other police officers were on the way, and that I had identified myself as a police officer.

I asked him if he knew what happened and he told me that he did not. He also told me that he was a safe driver and that he wasn't sleeping. I did not prompt him for those responses. * * * Q. All right. And as you were speaking, as you approached Mr. Bhangal and when you started speaking to him, what did you consider your role to be at that time? A. I was there trying to provide assistance, trying to maintain continuity of the scene, and trying to protect the public from any damage that might have occurred from someone driving into the debris. * * * Q. All right.

So I just wanted to come back to a few areas there, shortly. So the first thing that I wanted to go back and ask you about

was when you were having these initial dealings with Mr. Bhangal, approximately how long were you in his presence? A. Less than five minutes. * * * Q. All right. Thank you. And in relation to those initial dealings with him, did you receive any other information about him as far as a name or anything like that? A. I did not. I did not ask him for his name, I did not ask him from any documentation to prove his identity. Q. All right. And was anything produced to you as far as any documents: like a driver's licence, insurance card or anything like that? A. No, it was not. Q.

And at any point of your dealings with him, did you give him a rights to counsel, or caution? A. No. [ 7 ] During his cross-examination, Officer Todd testified about his initial encounter with the accused as follows: Q. You knew when you were going on your way to work when you saw the accident that you were going to have to return. Correct? A. I did, yes. Q. And you knew that you were going to have to return as the supervisor. Correct? A. Yes. Q. And that you knew that because it was a fatality, there was going to be an investigation. Correct? A. Yes. * * * Q.

Nor would you, nor if he did try to leave, I’m certain you would say you need to stay here until you report the accident. Isn’t that a logical thing you would say to him? A. Yes. Q. Okay. You didn’t say that, since you were the first police officer on scene, literally. Correct? A. Yes. Q. And you didn’t tell him that he didn't have to tell you anything. Correct? A. No, I didn’t say that. Q. And you didn’t say to him ‘listen I’m not the first....’ ‘like I’m not the officer you have to report it to’ ‘there’s going to be other officers you’re going to have to report it to’? Fair enough? A. Yes. Q.

And as well, you were the one; you were the one that asked him if he was the driver. Correct? A. Yes. Q. You knew that that answer could implicate him later on. Fair enough? A. That wasn't my thought at the time. Q. Okay. You, we, you don’t actually remember your full thoughts at the time. Fair enough? A. Yes. Q. Right. So when you say it wasn't your thought at the time, that’s not fair when I suggest to you that you don’t, you, you don’t actually have a full memory of actually what were you thinking when you asked that question. Isn’t that fair to say? A. I have a recollection of what my thought was at the time.

[ 8 ] It is worth pointing out that Officer Todd’s notes were not done until after he returned to the police station and that they are out of chronological order. Officer Todd also testified to a further conversation that he had later at the scene with Mr. Bhangal but that statement is not being tendered at trial. (ii) Evidence of Officer Kent [ 9 ] Paul Kent is an officer with the Halton Regional Police Service. He gave evidence regarding both his search for documents at the scene and regarding a non-cautioned statement he took from the accused.

The Crown advised during the course of the voir dire that it was not seeking to tender that statement. [ 10 ] Officer Kent testified that he was told by Officer Pat Martin to obtain the driving logs and that Officer Martin stood behind him while he searched the cab of the vehicle. He testified that he searched the entire cab, including the sleeper berth.

He realized during the course of the search that there was a log missing. [ 11 ] Officer Kent believed that he had authority to collect documents for the purpose of investigating a motor vehicle collision. [ 12 ] He admitted that he did not ask the accused for the logs and related documentation and that he was in error in not making that request of Mr.

Bhangal. ( iii) Evidence of Officer Heffernan [ 13 ] Chris Heffernan is a member of the Halton Regional Police Service and he was the officer in charge of the case. [ 14 ] It was Officer Heffernan’s recollection that when he arrived at the scene he stopped by Officer Kent’s car while that officer was taking a statement from the accused. He asked Officer Kent if the statement was cautioned and was told that it was not. Officer Heffernan stated that he then told Officer Kent to seize the driving logs and supporting documents from Mr. Bhangal.

Officer Heffernan could not be specific about the exact words he used in making that request. He also asked Officer Kent to drop the documents off at the reconstruction van that Officer Heffernan was working from. [ 15 ] Officer Heffernan testified that he believed that the police had the authority to demand the documents pursuant to Regulation 555 of the Highway Traffic Act , which relates to commercial trucking. However, he agreed in cross-examination that he knew that he did not have authority to seize the documents under that regulation.

He further testified that he believed that the documents could be seized pursuant to section 489(2) of the Criminal Code of Canada . [ 16 ] Later that day he became aware that the daily log for March 26, 2010 was missing. He entered the truck at approximately 3:47 p.m. to see if he could locate the document. Again he believed that he had authority to enter the truck pursuant to section 489(2) of the Criminal Code of Canada . [ 17 ] While Officer Heffernan was inside the cab, Mr. Bhangal returned to retrieve some personal items.

Officer Heffernan told him that it was possible that he was investigating a Criminal Code of Canada charge of dangerous driving causing death. He provided Mr. Bhangal with a caution at this point. Arrangements were made for Mr. Bhangal to follow the officer to 12 Division Police Station located in Milton so that his licence could be photocopied and returned to him. While there, the officer had a discussion with Mr. Bhangal about attending the next day for an interview at 2 p.m. [ 18 ] At approximately 5:20 p.m. Officer Heffernan made photocopies of the logs and supporting documents.

He then spread the documents on a table in the community room at 12 Division and undertook a review of same with Officer Martin and Officer Alan Stennett, who was also a member of the Halton Regional Police Service. He reviewed the documents with the other officers for approximately 45 minutes and then left to attend to other matters. [ 19 ] A significant portion of Officer Heffernan’s evidence was devoted to a document by document review to determine what information and evidence he gleaned from each document.

Officer Heffernan testified that he returned some but not all of the original documents to the accused. [ 20 ] On March 28, 2010 Officer Heffernan called the accused at one of the numbers that was on the accident report to confirm the 2 p.m. interview. Mr. Bhangal advised him during that call that he had located the March 26, 2010 log and Officer Heffernan told him to bring the document to the interview. Officer Heffernan admitted in cross-examination that he does not know if he had authority to make that request. [ 21 ] Mr. Bhangal attended at the 12 Division station that day and was interviewed.

The interview was videotaped and the videotape was played during the voir dire . At the outset of that interview there was the following exchange: MALE OFFICER: Q. And just if you could have a seat in that chair right over there. Before we get started, I just wanted to let you know that everything in this room is audio and video recorded- - LAKHVINDER BHANGAL: A. Sure. Q. - -so like I said yesterday, it would be audio and video recorded and that’s so that we can- - you know, we can talk and we can discuss things, you know, everything’s accurately recorded. Thank you very much for coming in.

I know you didn’t have to come in. I hope you understand that you don’t have to come in. 14:08 You’re not under arrest or anything like that. You’re here of your own free will and you can get- - get up and leave at any time that you want during the - - during the statement or the interview, okay?

A. Okay. Q. I know I read you a cautioned statement yesterday, as well as your rights to counsel. I asked you if you wanted to speak to a lawyer. At that time we were inside your- - your truck. You didn’t want to at that time. I’m going to read the same statement to you again just because it is on audio and video recording right now, okay? You gave a statement to Officer Kent at the- - at the scene. I appreciate that. Under the Highway Traffic Act , you have to provide a statement about the collision. This is something different now.

I’m investigating the fatal collision and also any possible criminal charges that may stem from the investigation. 14:09 And the possible criminal charges at this point- - and you’re not under arrest or anything like that, I just want to make sure that you know that- -are criminal negligence causing death. Do you know what that means or- - A. No. Q. - - what criminal negligence is? It’s if something- -if somebody does or does not do something that causes another person’s death. That’s what criminal negligence is. It is a serious charge. And another charge that is being considered is dangerous driving.

Do you know what that is? A. Dangerous driving- -like, as I’m thinking you are- - you’re going over speed or you are just cutting off people some way, but I’m a very safe driver. Nothing- - Q. Okay. I just wanted to make sure that you understand what these- -what your potential charges could be and I- -I’m going to read that statement I said I was going to. [ 22 ] Officer Heffernan then read the accused the standard caution from his police notebook but he failed to provide the toll free number for Legal Aid. He did not provide the secondary caution.

He also did not specifically warn the accused that information regarding his cellular carrier could be used to obtain a production order. [ 23 ] Officer Heffernan testified that he did not use the information the accused provided him during the interview to reconstruct the accused’s route. Instead, he relied upon the logs and supporting documentation. He further stated that he would have reviewed the logs regardless of the statement made by the accused to Officer Kent to the effect that he was not tired and was a safe driver. [ 24 ] Officer Heffernan gave evidence regarding his request of Mr.

Bhangal to provide the name of his cellular phone carrier. He testified that he asked the question to save a step in the investigation. At that point in his career he had not obtained a production order for a cellular phone before and did not know how to obtain information about the carrier. He now believes that this information could be obtained through the Intelligence Unit or from Internet searches. [ 25 ] The phone number for the cellular phone was listed on the report prepared by Officer Kent. It was also listed in a document seized from the truck.

In addition, Mr Bhangal left Officer Heffernan a voicemail message on March 30, 2010 asking him to call him on his cellular number and he provided that number in the message. (iv) Evidence of Officer Stennett [ 26 ] Officer Stennett is assigned to the Commercial Vehicle Unit of Halton Regional Police Service. That unit is responsible for commercial motor vehicle enforcement and safety on regional and municipal roadways. [ 27 ] According to Officer Stennett, he has the authority to demand logs and related documents under

section 216 of the Highway Traffic Act because he is a designated as a Commercial Vehicle Safety Alliance Officer by the Ministry of Transportation and is also designated under his police service as a Commercial Vehicle Officer. He testified that regular police officers do not have that authority but do have the authority to demand production of a daily log under section 190(4) of the Highway Traffic Act . [ 28 ] He attended on the scene at approximately 8:37 a.m. and conducted an inspection of the tractor-trailer.

Officer Stennett inspected the inside of the trailer and noticed that there were markings on the boxes which indicated that some of the cargo came from Streetsboro, Ohio. He concluded, based on that information, that this was not a local transport situation and that logs would be required. [ 29 ] Officer Stennett attended later that day at 12 Division and engaged in a review of the logs and related documents with Officer Martin and Officer Heffernan.

He noticed that the log for March 25, 2010 was incomplete and that there were no logs for March 26 and 27, 2010. [ 30 ] He testified that he has not enforced the federal legislation regarding hours of service and only enforces the Highway Traffic Act . (

v) Evidence of Officer Martin [ 31 ] Officer Martin is also a member of the Halton Regional Police Service’s Commercial Vehicle Safety Unit. He assisted Officer Stennett in carrying out the inspection of the tractor-trailer. [ 32 ] He reviewed the documents that had been seized and determined that there were missing logs and that no supporting documents had been obtained. Because the documents he reviewed were already in police custody, he believed that demand must have

been made from the driver. He testified that he climbed up into the cab of the vehicle in an effort to locate missing logs. Officer Martin believed that he did not have to make a demand of the driver before he went into the cab because he thought a demand had already been made. He conceded that there was no authority to seize the documents. [ 33 ] Once in the cab, Officer Martin looked on the floor and on the seat of the vehicle but did not look in the sleeper berth. He did seize documents but he cannot say which documents he seized and he did not prepare a list of those documents.

He knows that he did not find any additional logs. [ 34 ] Officer Martin was involved in the review of the documents at 12 Division for approximately two hours. In cross- examination he testified as follows regarding that review: Q. So, these other officers are in the room. You know that they have no authority to be keeping these documents in their original form under the Highway Traffic Act or the regulations, right? A. Correct. Q. So you're turning a blind eye; that’s what you're doing? You're being a party to them doing it by, "A", not saying anything, correct? A. Correct. Q.

And you're not leaving; you're staying there while that's all being done? A. Yes, I was there until 9:20, yeah. Q. And even at the end of the meeting you're not saying, "Hey, listen guys, these documents need to be returned?" A. No. I didn't think of it. [ 35 ] Officer Martin testified that he is not familiar with the federal hours of service legislation. (vi) Affidavit of the Accused and Evidence on the Voir Dire [ 36 ] In support of his Charter application, the accused swore an affidavit, the relevant portions of which are as follows: 3. I was born in Raipur, India. I emigrated to Canada in 1993.

I received my drivers licence in December, 1993, upon completion of the written and on road examinations. As part of my studying for the exam, I was required to learn the Highway Traffic Act , which included the obligation to speak to the police when there has been accident involving personal injury or damage to a vehicle (presently the amount is $1,000 damage). 4. I have always known since then that if I am involved in an accident that I must report and speak to the police about the specifics of the collision.

As a truck driver, I must be even more aware of the rules and regulations of the Highway Traffic Act , since I make my living being on the road. 5. While I was living in India, it was always known to me that when questioned by police, I am under a duty to answer their questions and never had a right to choose not to. Since emigrating to Canada, I maintain that belief. In addition, I had studied to become a police officer and was about to write the exam when I received my visa to emigrate to Canada. Further, my father was a senior forest officer in India for almost 28 years.

My grandfather was also a police officer. 6. On March 27, 2010, I was involved in an accident that resulted in a fatality. I was operating the Volvo Truck at the time of the collision. I was well aware that when the police arrived, I was obligated to speak to them, not only about how the accident occurred, but to answer any questions they asked because of the requirement under the Highway Traffic Act . 7. I was questioned by two (2) officers. The first officer was not dressed in uniform, but he did advise me that he was a police officer. While he was speaking to me, he was not writing in his notebook.

At no time did he ask me to read his notebook. The second officer was writing the statement out and asked me to sign it, which I did. 8. At no time did either officer advise me that I need not answer his questions, nor did either officer advise me that I could speak to a lawyer prior to answering any questions. 9. The “daily logs” were inside the cab of the Truck and were retrieved by one of the officers at that time. I was never asked at the scene to produce the “daily logs” and deliver them to an officer. I do recall Cst. Heffernan telling one of the officers to enter the cab and seize the “daily logs”. 10.

Prior to my attendance at the police station on March 28, 2010, Cst. Heffernan advised me to bring the “daily log” to the station that was not retrieved the day before. The reason why it wasn’t retrieved by the police was because it had been in my jacket and I had forgotten that it was in there. I did deliver the “daily log” to Cst. Heffernan on the abovementioned date. 11. I was aware of the obligations under the Highway Traffic Act and regulations regarding inspection of the daily logs and trip receipts.

I was also aware that I had no choice but to allow the police to inspect my daily log and trip documents. [ 37 ] Mr. Bhangal gave evidence in-chief on the voir dire and was cross-examined on that evidence and on the contents of his affidavit. [ 38 ] He testified that he spoke to Officer Todd at the scene because he was aware that he was a police officer and he knew that he had to answer questions put to him by a police officer following an accident. Specifically, he understood that he had to tell the officer

what had happened in the accident. [39] Mr. Bhangal has no recollection of what he said to Officer Todd and has no specific recollection of telling him that he wasa safe driver and was not tired. [40] In cross-examination he testified that despite what he said in paragraph 7 of his affidavit, he could not remember whetherthe officer was writing notes or not. He also could not recall what he attested to in his affidavit about Officer Heffernan instructing anofficer to seize documents, despite the fact that the affidavit was sworn on the first day of the voir dire. Analysis (

i) Statement to Officer Todd [41] The defence relies upon the decision of the Supreme Court of Canada in R v. White (SCC), [1999] 2S.C.R. 417. In that case the court found that statements reporting a motor vehicle accident made under compulsion pursuant to the BritishColumbia Motor Vehicle Act were inadmissible in criminal proceedings because they violated the right against self-incrimination. [42] The court held that in order to obtain the benefit of use immunity under

section 7 of the Charter, the accused mustestablish on a balance of probabilities that he had an honest and reasonably held belief that he was compelled to make the statement tothe police (see paragraphs 74 to 80 of White). [43] The issue of compelled statements was considered more recently by the Ontario Court of Appeal in R v Soules 2011ONCA 429. In that case the accused was involved in a multi-vehicle accident. The investigating officer spoke to each driver and formedthe belief that the accused had been drinking. The accused confirmed to the officer that he had been drinking the previous evening. Theaccused was acquitted at trial because the trial judge concluded that his

section 7 and 10(

b) rights had been violated. That finding wasaffirmed on appeal. [44] On further appeal, the Ontario Court of Appeal upheld the acquittal. In so doing the court cited sections 199 and 200 ofthe Ontario Highway Traffic Act, which provide in part: 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. * * * 200.

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

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

b) render all possible assistance; and (

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

H.8, s. 200 (1); 1997, c. 12, s. 16. [45] The court undertook an analysis of the White decision and the decision of the British Columbia Court of Appeal in R v.Powers, (2006) 2006 BCCA 454 , 213 C.C.C. (3d) 351 (B.C.C.A.), leave to appeal refused [2006] S.C.C.A. No. 452. The courtheld that a statutorily compelled statement is not admissible for the purpose of establishing grounds for making a breath demand. Thecourt also rejected the submission that the decisions in White and Powers could be distinguished on the basis of a difference in wordingbetween the British Columbia and Ontario legislation. [46] In R v.

Parol 2011 ONCJ 292 , [2011] O.J. No. 2641 (O.C.J.), Justice Duncan held that in order for an accusedto come within the protection of White, the accused must establish three things (at paragraph 7): (

i) that he was compelled by statute to make the report; (ii) that the statement was a report within the meaning of the compelling statute; and (iii) that he gave the report in the honest and reasonably held belief that he was compelled by the statute to do so. [47] In that case when the police arrived at the scene of an accident they asked the accused whether he had been driving andthe accused replied “No English”. The officer then made the motion of steering a car and the defendant said yes. The officer then madethe motion of drinking and the accused said yes.

The court found that this exchange did not amount to the making of an accident reportand thus held that the statements were not protected by White. [48] Turning to the case at bar, the first question is whether the accused was compelled by statue to make the report. In mymind, there is no question that under

section 199 of the Highway Traffic Act he was compelled to report the accident and to furnish thepolice with such information as was required by the police. [49] I accept that the information provided to Officer Todd did not include all of the information one would expect to find in acompleted accident report. The accused did not provide his driver’s licence or proof of insurance and did not provide details regardingwhat happened immediately before and during the collision. However, I cannot accept the submission of the Crown that this was not a

report within the meaning of the Highway Traffic Act. The admission that the accused was the driver would be an essential part of anyreport. Other pertinent details were not part of this initial conversation but it must be remembered that Mr. Bhangal was answering thequestions that were put to him by the officer. [50] The analysis turns on whether the accused gave the report in the honest and reasonably held belief that he was compelledby the statute to do so. On this point the evidence is not entirely clear. Officer Kent testified that at some point he did tell the accusedthat he was a police officer.

The accused has little or no recollection of what he said to the officer, but he insisted that any informationthat he provided was disclosed because Officer Todd identified himself as a police officer and Mr. Bhangal felt that he had an obligationto answer the officer’s questions. [51] I agree with the Crown that the accused’s testimony was at times evasive and self-serving.

That said, he was not shakenfrom his position that he believed that he had an obligation to answer the officer’s questions because he had been involved in an accident.This understanding strikes me as entirely reasonable given his training as a driver.

I am satisfied that the accused has met his onus ofestablishing that he made the statements to Officer Todd based on an honest and reasonably held belief that he was compelled by statuteto do so. [52] I conclude that the statements made by the accused to Officer Todd were made under statutory compulsion and pursuantto section 24(1) of the Charter I order that they cannot be introduced by the Crown at trial. (ii) Logs and Related Documents:

Section 8 [53] The Crown argues that the first step in considering the

section 8 application is a determination whether the accused had areasonable expectation of privacy regarding the documents. Absent such a reasonable expectation of privacy there can be no breach ofsection 8. [54] In R v. Edwards (SCC), [1996] 1 S.C.R. 128, Justice Cory reviewed Canadian and U.S. authoritiesregarding

section 8 and summarized the principles as follows (at paragraph 45): 45 A review of the recent decisions of this Court and those of the U.S. Supreme Court, which I find convincing and properlyapplicable to the situation presented in the case at bar, indicates that certain principles pertaining to the nature of the s. 8 right to besecure against unreasonable search or seizure can be derived. In my view, they may be summarized in the following manner: 1. A claim for relief under s. 24(2) can only be made by the person whose Charter rights have been infringed. See R. v.

Rahey, (SCC), [1987] 1 S.C.R. 588, at p. 619. 2. Like all Charter rights, s. 8 is a personal right. It protects people and not places. See Hunter, supra. 3. The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have beenviolated. See Pugliese, supra. 4. As a general rule, two distinct inquiries must be made in relation to s. 8. First, has the accused a reasonable expectation of privacy.Second, if he has such an expectation, was the search by the police conducted reasonably. See Rawlings, supra. 5.

A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. See Colarusso, supra, atp. 54, and Wong, supra, at p. 62. 6. The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following: (

i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (

v) the ability to regulate access, including the right to admit or exclude others from the place; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation. See United States v. Gomez, 16 F.3d 254 (8th Cir. 1994), at p. 256. 7. If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage todetermine whether the search was conducted in a reasonable manner.

[55] In R v. Hufsky, [1998] 1 S.C.R. 621 the court considered the issue of a privacy expectation where documents weremandated under provincial legislation to be produced: 22. The final issue in the appeal is whether, as contended by the appellant, the demand by the police officer that theappellant surrender his driver's licence and insurance card for inspection, as required by s. 19(1) of the Highway Traffic Act and s. 3(1) ofthe Compulsory Automobile Insurance Act, infringed the right to be secure against unreasonable search or seizure guaranteed by s. 8 ofthe Charter, which is as follows: 8.

Everyone has the right to be secure against unreasonable search or seizure. 23. The appellant contended that the compelled production of his driver's licence and insurance card constituted a searchwithin the meaning of s. 8 and that it was an unreasonable search because there were no criteria or guidelines for determining when adriver should be required to surrender these documents for inspection.

In my opinion the demand by the police officer, pursuant to theabove legislative provisions, that the appellant surrender his driver's licence and insurance card for inspection did not constitute a searchwithin the meaning of s. 8 because it did not constitute an intrusion on a reasonable expectation of privacy. Cf. Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145. There is no such intrusion where a person is required to produce a licence or permit or otherdocumentary evidence of a status or compliance with some legal requirement that is a lawful condition of the exercise of a right orprivilege.

There was therefore no infringement of the right to be secure against unreasonable search or seizure, and I would accordinglyanswer the fourth constitutional question in the negative. [56] Did the accused have a reasonable expectation of privacy regarding the logs and related documents? As noted above, theSupreme Court in Edwards made clear that a reasonable expectation of privacy is to be determined on the basis of the totality of thecircumstances.

The question for determination is whether the accused reasonably expected that the police could not enter his cab andseize the logs and related documents. [57] The Crown relies upon the following points in support of its submission that there is no reasonable expectation of privacy. [58] First, the logs are statutorily mandated documents. Section 23 (1) of Highway Traffic Act Regulation 555/06 provides: 23.

(1) A driver who is required to keep a daily log shall not drive unless the driver has in his or her possession, (

a) a copy of the daily logs or a copy of the record required to be kept under subsection 18 (3), for the preceding 14 days; (

b) the daily log for the current day, completed up to the time at which the last change in the driver’s duty status occurred; and (

c) any supporting documents. O. Reg. 555/06, s. 23 (1).

(2) A driver shall forthwith surrender the documents referred to in subsection (1) for inspection upon the demand of an inspector.O. Reg. 555/06, s. 23 (2).

(3) If a driver is using a recording device to make a daily log or did use a recording device to make a daily log for any of the preceding14 days, the driver shall, (

a) forthwith surrender, upon demand of an inspector, a printed or handwritten daily log generated from the information stored in thedevice for each of such days; and (

b) show, upon demand of an inspector, (

i) a readable display from the device of the required information stored in the device for each of such days, and (ii) a readable display from the device indicating that it has not been disconnected during any of the previous 14 days that it has beenused to make a daily log. O. Reg. 555/06, s. 23 (3).

(4) An operator shall not request, require or allow a driver to drive in contravention of subsection (1). O. Reg. 555/06, s. 23 (4). [59] Thus the logs would not exist but for the legislation. They are only kept for the purpose of making them available to therelevant authorities for inspection.

Given that the sole reason for the existence of the documents is to satisfy the relevant authorities thatthe provisions of the legislation are not being violated, the Crown submits that it is not possible that the accused could have anobjectively reasonable expectation of privacy in those statutorily mandated documents. [60] Second, both the provincial legislation and the federal legislation (which is applicable given that this was a cross bordertrip) grant broad powers for the inspection of vehicles for such documents. The powers of inspection described in

section 216 of theHighway Traffic Act were considered by the Ontario Court of Appeal in R. v. Sandhu, [2011] O.J. No. (C.A.):

[23] Although not a police officer or a peace officer, Officer Leeman is an enforcement officer authorized to act under the HighwayTraffic Act and other provincial transport legislation. [24]

Section 216.1 of the Highway Traffic Act permits an enforcement officer to examine, at any time, a commercial vehicle, itscontents and all documents relating to the ownership and operation of the vehicle to determine whether legislation relevant to commercialvehicles is being complied with.

The relevant portions of s. 216.1 provide as follows: 216.1(1) Any officer appointed for carrying out the provisions of this Act may, at any time, examine any commercial vehicle and itscontents and equipment for the purpose of ascertaining whether this Act, the Compulsory Automobile Insurance Act or the DangerousGoods Transportation Act, or the regulations under any of them, are being complied with, and the driver, operator or other person incontrol of the vehicle shall assist in the examination. ...

(3) Where a commercial vehicle and its contents and equipment are examined under this section, the officer conducting the examinationmay require the driver, operator or other person in control of the vehicle to surrender all documents relating to the ownership andoperation of the vehicle and to the carriage of the goods, and to furnish all information within that person's knowledge relating to thedetails of the current trip. [Emphasis added.] [61] Also of relevance to the analysis are the next two subsections: Copies

(4) An officer obtaining a document under subsection (3) may take the document for the purpose of making a copy of it, but the copyingshall be done as quickly as reasonably possible and the document copied shall be promptly returned. 2002, c. 18, Sched. P, s. 37. Same

(5) Any copy made as provided in subsection (4) and certified to be a true copy by the person making it is admissible in evidence in anyproceeding as proof, in the absence of evidence to the contrary, of the original document and of the contents of the original document.2002, c. 18, Sched. P, s. 37. [62] The regulation referred to above provides in section 23(2) that a “driver shall forthwith surrender the documents referredto in subsection (1) for inspection upon the demand of an inspector”, which includes a police officer. [63] Sub-section 190(4) of the Highway Traffic Act affords the power to a regular police officer to demand the surrender of adaily log:

(4) Every driver who is required under subsection (3) to carry a daily log shall surrender it to any police officer or officer appointed forthe purpose of carrying out the provisions of this Act upon demand by the officer. R.S.O. 1990, c. H.8, s. 190 (4). [64] The federal legislation is even broader in scope.

Section 97(2) of the Commercial Vehicle Drivers Hours of ServiceRegulations, SOP/2005-313, promulgated under the Motor Vehicle Transport Act, provides: An inspector may at any time stop and enter a commercial vehicle, except for its sleeper berth, for the purpose of inspecting the dailylogs and supporting documents. [65] The term “inspector” in that regulation includes a police officer. [66] Thus the Crown argues that there can be no objective expectation of privacy with respect to the privacy of the cab for thelogs and related documents.

He further and submits that the accused did not testify that he had a subjective expectation of privacyregarding the cab or the documents. [67] While I conclude that the privacy interests of the accused are very minimal, I am unable to agree with submission that theaccused had no reasonable expectation of privacy. A determination regarding the existence of a reasonable expectation of privacy mustbe viewed in the totality of the circumstances. In this case the documents are statutorily mandated and the police and/or regulatoryofficers have broad powers of inspection. But those powers are not unfettered.

There is no right to seize the documents and no right tosearch the sleeper berth of the cab. This is not a case where it can be stated that any police officer could seize these documents in anymanner the officer sees fit from anywhere in the vehicle. Those limits create a reasonable expectation of privacy, albeit very slight innature. [68] Having found that the accused has established on a balance of probabilities that he had a reasonable expectation of privacyregarding the logs and related documents found in the cab of the vehicle, the analysis shifts to whether the search was reasonable in thecircumstances.

Because the search was warrantless, the Crown has the onus of proving on a balance of probabilities that the search wasauthorized by law, that the law itself is reasonable and the manner in which the search was carried out was reasonable (see R v. Nolet,2010 SCC 24 , [2010] 1 S.C.R. 851). Here I conclude that the Crown has not met its onus.

[69] The evidence regarding how the documents were obtained is far from clear. The Crown admits that Officer Kent hadpoor notes and a poor recollection of the collection of the documents. He believed that Officer Martin was with him when the documentswere gathered. It is conceded by the Crown that this is not possible given that Officer Martin was not on the scene at the time. It isadmitted that during the course of that search Officer Kent searched the sleeper berth of the cab.

According to Officer Martin, he laterobtained documents from the truck but he could not identify which documents he seized. [70] I do not find on the evidence that the accused provided the documents to the police. No police witness testified that Mr.Bhangal provided the documents to them. The Crown’s reliance on ambiguous statements made by the accused during the videotapedinterview does not persuade me that the accused actually turned over the documents to the police. Therefore, the officers did not complywith the provisions of the provincial legislation in terms of making a request for the documents.

As noted above, the federal legislationdoes permit the search of cabs but not sleeper berths. [71] Neither the federal nor the provincial legislation permits the permanent seizure of the documents. Clearly that was done inthis case. The police still have possession of documents obtained as part of the search. At most, the police or relevant regulatory authorityare entitled to inspect the documents and make copies of same within a reasonable period of time. [72] I also find that the reliance placed by some officers on section 489(2) of the Criminal Code of Canada is misplaced.

I notethat no authority was provided by the Crown in support of this proposition. [73] I find that

section does not permit an officer to enter a vehicle involved in a motor vehicle collision and start collectingevidence. Such an

interpretation is overly broad and is not consistent with

section 8 of the Charter. [74] I note as well that a prerequisite for the operation of the

section is that the officer must first be in a “place”. I am notcertain that a vehicle qualifies as a place. Moreover, the officer’s presence must be as a result of a warrant or the lawful execution of hisduties. In the case at bar there was no warrant. None of the officers testified that they entered the cab pursuant to the provisions of thefederal legislation which is the only lawful authority for a regular police officer to enter the cab. It would appear that

section 216 of theHighway Traffic Act permitted Officer Martin to enter the cab, but that officer cannot say with any certainty what documents he seized.Therefore, I cannot find that the documents were seized by a police officer who was in the cab pursuant to the lawful execution of hisduties. [75] I am not satisfied on a balance of probabilities that the Crown has established that the search and seizure was authorizedby law and was reasonable in the circumstances. I find a

section 8 breach. [76] Because a breach of

section 8 has been established, the next step is a consideration of section 24(2). Pursuant to thedecision of the Supreme Court of Canada in R v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353, three factors must be considered ina section 24(2) analysis: the seriousness of the Charter infringing state conduct; the impact on the Charter protected interests of theaccused; and society’s interest in an adjudication on the merits. All three factors must be considered and none is definitive. [77] In analyzing the seriousness of the Charter infringing state conduct, such violations vary in seriousness.

Inadvertent or minorviolations of the Charter will have a minimal impact on public confidence in the rule of law whereas evidence obtained through wilful orreckless disregard of Charter rights poses a very serious risk of bringing the administration of justice into disrepute by sending themessage that courts “effectively condone state deviation from the rule of law.” (See Grant at paragraphs 72-75). [78] Under the Highway Traffic Act and the relevant regulation, the police officers had a right to demand the surrender of a dailylog.

Authorized officers, such as Officer Martin and Officer Stennett, have broader rights to inspect and obtain documents andinformation under

section 216 of that legislation. Under the federal regulation, a police officer has the right to enter the cab and inspectthe documents, although none of the officers purported to be acting under that regulation. [79] What the officers did in this case was to go beyond their powers, enter the cab and actually seize the documents. OfficerMartin, as a very experienced officer in dealing with commercial vehicles, fairly conceded in his testimony that he knew that in so doingthe police had gone too far. I do not find that the officers acted in bad faith.

I believe that they were somewhat careless in conductingtheir investigation.

I conclude, therefore, that the state misconduct is properly classified in the middle of the spectrum of misconduct.This factor is neutral regarding the inclusion or exclusion of the evidence. [80] In considering the impact on the Charter protected interests of the accused, the impact of a breach may range from being“fleeting and technical” to being “profoundly intrusive.” The more serious the impact on the accused’s protected interests, the greaterthe risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail tothe citizen, thereby breeding public cynicism and bringing the administration of justice into disrepute (see Grant, at paragraphs 76-78). [81] It is necessary for the court to first identify the interests engaged by the infringed right and then to examine the degree ofimpact from the violation (see R v.

MacMillan, 2013 ONCA 109, at paragraph 77). In this case the interests engaged are privacy andhuman dignity. [82] As noted above, the reasonable expectation of privacy in the case at bar can only be described as very minimal. This was asearch of a commercial vehicle. Commercial trucking is a highly regulated industry and truckers can expect to be subject to randomsearches (see Nolet, at paragraph 31 and R v. Sandhu, 2011 ONCA 124, at paragraph 72).

While I accept that the police failed to requestthe documents, failed to return all originals and searched the sleeper berth, the impact on the accused’s rights is best described astechnical because the police had the right to demand the documents and to make copies. This factor militates in favour of inclusion of theevidence. [83] The third part of the analysis is society’s interest in an adjudication on the merits. Society generally expects that a criminalallegation will be adjudicated on its merits.

This third line of inquiry asks whether the truth-seeking function of the criminal trialprocess would be better served by admission of the evidence, or by its exclusion.The reliability of the evidence is a significant factor inthis line of inquiry but any suggestion that reliable evidence is admissible regardless of how it was obtained is inconsistent with the

Charter. The importance of the evidence to the Crown’s case is also a factor at this stage (see Grant at paragraphs 79-83). [84] This factor strongly weighs in favour of the inclusion of the evidence. The evidence obtained is highly reliable. It is alsocritical to the Crown’s case, especially in regard to establishing the requisite elements of the charge of Criminal Negligence CausingDeath, in particular whether the accused showed a wanton or reckless disregard for the lives or safety of others. [85] The second and third Grant factors favour the admission of the evidence, while the first factor is neutral.

In balancing thesefactors, I conclude that the admission of this evidence would not bring the administration of justice into disrepute. Accordingly, I orderthat the evidence shall not be excluded. (iv) Logs and Related Documents:

Section 7 [86] The defence also submits that the logs and related documents seized from the cab of the truck were produced in violation ofthe accused’s

section 7 right against self-incrimination. The defence argues that because the documentation in issue had to be created andmaintained pursuant to the provincial legislation and had to be produced to the authorities for inspection then, following the samereasoning employed in White and Soules, there should be use immunity granted.

The defence argues that this evidence must be excludedunder section 24(1) of the Charter. [87] No authority was provided by defence where a court has extended the principles from White and Soules against self-incrimination to a situation where the evidence in issue is a pre-existing document which must be maintained and produced in order toparticipate in a regulated activity. [88] The closest case on the facts is R v. Fitzpatrick, (SCC), [1995] 4 S.C.R. 154. There the defendant was acaptain of a vessel engaged in commercial groundwater fishing.

He was charged under the federal Fisheries Act with three counts ofcatching and retaining fish in excess of the fixed quota. At trial the Crown sought to introduce fish logs and hail reports that the accusedwas obliged under the Fisheries Act to maintain. The trial judge excluded the documents on the basis that they were self-incriminatoryand their admission would violate

section 7 of the Charter. That ruling was overturned by the British Columbia Court of Appeal. [89] In dismissing the further appeal, the Supreme Court of Canada held: 33 The parameters of the general principle against self-incrimination were succinctly described by the Chief Justice in Jones,supra. Although the Chief Justice was there speaking in dissent, his analysis of the principle against self-incrimination was endorsed byIacobucci J. for a majority of the Court in S. (R.J.), and must, accordingly, be considered authoritative.

In Jones, the Chief Justice wrote(at p. 249): Any state action that coerces an individual to furnish evidence against him- or herself in a proceeding in which the individualand the state are adversaries violates the principle against self-incrimination. Coercion, it should be noted, means the denial of free andinformed consent. 34 In applying this definition to the present case, two things should be immediately apparent. First, the information provided inthis case was not provided "in a proceeding in which the individual and the state are adversaries".

Instead, it was provided in response toa reasonable regulatory requirement relating to fishery management. Second, the "coercion" imposed on the appellant is at best indirect,for it arose only after he had made a conscious choice to participate in a regulated area, with its attendant obligations.

In what follows, Ishall address each of these issues in turn. * * * 36 The situation presented here is, therefore, fundamentally different from that considered in S. (R.J.), where a co-accused wascompelled to testify at his colleague's criminal trial, and in both Thomson Newspapers and Branch, where individuals engaging in certainbusinesses were compelled to testify at an investigation into wrongdoing in their industry.

In each of those situations, the individualsbeing compelled to give information were in an adversarial, or at least an inquisitorial, relationship with the state, and the principleagainst self-incrimination was engaged as indicated by Lamer C.J. in Jones. Certain protections were therefore necessary respecting theuse of the compelled information in order to comply with the Charter.

In the present case, by contrast, individuals like the appellantwho are compelled to furnish hail reports and fishing logs are not in an adversarial or even inquisitorial relationship with the state at thetime they provide this information. Indeed, far from being "adversaries", the individual and the state are in fact partners, joined togetherin the need (1) to protect the fishery as a valuable resource through conservation measures, and (2) to fairly allocate the fish that do existbetween all those who seek to have access to them.

The valuable objectives served by s. 61 of the Fisheries Act are of benefit to the veryindividuals who are bound by the section's requirements. In my view, the lack of adversarial relationship between the individual and thestate at the time the hail reports and fishing logs are statutorily compelled is an important basis upon which to conclude that the principleagainst self-incrimination is not engaged in this case.

(2) Lack of Coercion 37 Even more important, however, is the fact that the "coercion" exercised by the state here is, to say the least, muted. This is afar cry from the facts in S. (R.J.), Branch and Thomson Newspapers, where individuals were subpoenaed to testify on pain of contempt,without any choice in the matter. It is true that once an individual decides to participate in the groundfish fishery, and accepts hislicence, he is thereafter "compelled" to submit hail reports and fishing logs in accordance with the dictates of s. 61 of the Fisheries Act.

But this is not an obligation imposed upon a fisher through "the denial of free and informed consent", in the terms suggested by the ChiefJustice in Jones, supra, at p. 249. In fact, free and informed consent is the essence of the relationship between the state and theindividual in this context. 38 No one is compelled to participate in the groundfish fishery; they do so purely as the result of their own free decision. Having decided to participate, they are then informed in great detail about all the obligations that attach to their participation in theindustry.

They receive a copy of the Pacific Groundfish Trawl Management Plan, which details the quotas established for certain species

of fish in designated areas. Some fishers are even involved in the determination of appropriate quotas under the Plan. The Plan includes a warning that the quotas established under it will be subject to variation as the fishing season progresses. It informs fishers that these variations will be publicized by Fisheries Public Notices, telexed Notices to the Industry, or Canadian Coast Guard radio broadcasts.

It urges them to contact the Department of Fisheries and Oceans prior to fishing to determine what orders are in effect, and to refer to Fisheries Public Notices posted throughout the region at local fishery offices. As an appendix to the Plan, fishers are provided with a letter detailing the requirement for "true returns" under s. 61 of the Fisheries Act , including both hail reports and fishing logs. 39 The appellant here has not entered the commercial fishery with his eyes closed.

He must be presumed to be aware of the terms and conditions of the vessel's fishing licence, which include the submission of hail reports and fishing logs. (As noted by Taggart J.A. in the court below, there is a clause in the standard form commercial fishing licence, above the place for the signature of the vessel owner/operator, that provides that the undersigned understands that he or she is obliged, as a condition of the licence "to furnish accurate catch records in such manner and to such persons as the Fisheries Act and regulations may stipulate", and that otherwise the fishing licence may be cancelled or suspended.) The appellant must be presumed to be aware of the Groundfish Management Plan, which accompanies the fishing licence, and provides that the amount of fish he is allowed to catch is governed by quotas.

He knows these quotas are subject to variation, publicized by means of Fisheries Public Notices, and he also knows that he is prohibited from taking more fish than is permitted under the quota. When he does so, can it be said that it will be a matter of surprise to him that the Crown seeks to rely on his own hail report and fishing logs in order to prosecute him? Did he not realize in submitting this report and these logs that this might be one of their uses? * * * D.

Rationale Behind the Principle Against Self-Incrimination 43 In Jones , supra , at p. 250, the Chief Justice identified the two fundamental purposes behind the principle against self- incrimination as being: first, to protect against unreliable confessions, and second, to protect against the abuse of power by the state. He further stated, at p. 257, that in his view any limits on the principle against self-incrimination should be determined by reference to these two underlying rationales. I agree.

In my view, neither of these two rationales is threatened by allowing the Crown to use hail reports and fishing logs in the prosecution of those who overfish, and this strengthens my conviction that the principle against self-incrimination should be limited in this area. 44 I suggest that the first purpose underlying the principle -- the need to protect against unreliable confessions -- is not here determinative. Primarily this is because I do not believe that there has been any "confession" on the facts of this case at all.

On the assumption that a true return under s. 61 can be equated to a confession, however, I still do not believe that allowing the use of these returns at trial increases the likelihood of their being falsified. First of all, I would be surprised if there is not already a certain incentive to falsify returns, given that fishers are aware that they must abide by quotas, and may have a desire to appear to be doing so. This dangerous incentive is already combatted by s. 63 of the Act, however, which makes it an offence to file a false return.

It does not require application of the principle against self-incrimination. Moreover, it is unclear to me what is proposed as an alternative, were a concern about unreliable returns warranted. Would the system be better if fishers could (honestly) submit hail reports and fishing logs that indicated they had massively overfished under the Act, secure in the knowledge that these returns could not later be used against them?

I am not prepared to accept the fear of an increased incentive to falsify returns as a reasonable basis to conclude that the principle against self-incrimination applies to this case. 45 This leaves us to consider the second rationale proposed by the Chief Justice in Jones as underlying the principle against self-incrimination -- the need to guard against the abuse of power by the state. This concern was reflected in Iacobucci J.'s emphasis in S. (R.J.) , supra , on the "case to meet" idea as the unifying thought behind the principle against self-incrimination.

This idea proposes that "individuals should be left alone in the absence of justification, and not conscripted by the state to promote a self-defeating purpose" (p. 504).

The need to prevent against abusive state conduct is also reflected in the reasons of the Chief Justice, and Sopinka and L'Heureux-Dubé JJ. in S. (R.J.) , all of whom sought like Iacobucci J. to define the point at which state conduct in obtaining evidence from an individual becomes offensive under s. 7 . 46 In my view, there is little danger of abusive state conduct in this instance, so this rationale for the principle against self- incrimination does not therefore require the principle to be applied here.

I cannot see how it can be said to be abusive for the state to prosecute overfishing on the basis of the true returns it requires fishers to fill out as a condition of their voluntary participation in the commercial fishery. 47 In fact, in my view, the alternatives to the self-reporting scheme would run the risk of being far more "abusive" on the part of the state. If the Crown were prohibited from relying on true returns when prosecuting overfishing, other means would have to be devised to meet the state's important fishery conservation and management objectives.

As stated by Taggart J.A. in the court below, "it would take a considerable number of fisheries officers and a small armada of fisheries patrol vessels to maintain the kind of surveillance required to ensure fishers stay within the quotas fixed by the Plan" (p. 177). Since what is particularly important in setting quotas is the precise location of the fishing underway, vessels would have to patrol virtually all relevant fishing areas at all times. They would have to be empowered to board fishing vessels and demand to know the size, type and timing of catch.

Not only would this be extremely expensive and complicated to administer, it would also be far more invasive of the commercial industry than the current self-reporting requirement. 48 The difficulty and expense of this alternative might in fact make it impractical, leaving the state with no feasible means of enforcing specific quotas in certain fishing areas. It is hard to see how this would be a desirable outcome.

Surely most people would think it was abusive on the part of fishers if they could file returns blatantly admitting their overfishing, and then escape prosecution because to use these returns would offend against s. 7 of the Charter . The principle against self-incrimination was never intended to assist individuals in committing regulatory offences, and should not be extended to protect the appellant from prosecution in the present case. [ 90 ] Of course, in the Fitzpatrick case the documents were sought in the context of a regulatory proceeding. However, in R v.

Schertzer, [2007] O.J. No 3560 (S.C.J.) Justice Nordheimer conducted the analysis in the context of a criminal proceeding: [11] I first note, as Mr. Justice La Forest did in Fitzpatrick, that the Charter does not create a freestanding right against self-incrimination. Whether the principle against self-incrimination is applicable depends on the context in which it arises. This case by caseapproach was reiterated in White where Mr.

Justice Iacobucci said, at para. 45: “That the principle against self-incrimination does have the status as an overarching principle does not imply that the principleprovides absolute protection for an accused against all uses of information that has been compelled by statute or otherwise. The residualprotections provided by the principle against self-incrimination as contained in s. 7 are specific, and contextually sensitive.” This point had also been made earlier by Mr. Justice Iacobucci in R. v.

S. (R.J.) (SCC), (1995), 96 C.C.C. (3d) 1(S.C.C.) where he said that the principle against self-incrimination “demands different things at different times”. [12] Four factors have been identified as being of assistance in determining whether the context of a given situation requires theapplication of the principle – see R. v. D’Amour (ON CA), (2002) 166 C.C.C. (3d) 477 (Ont. C.A.). They are: thepresence of state coercion; the existence of an adversarial relationship; concerns regarding unreliable confessions and the possibility ofabusive state conduct.

I will deal with each of these factors. [91] Before turning to a review of those factors in the case at bar, reference to one more case on the point is helpful. In R v.Harripersad, (ON SC), [2001] O.J. No. 3639, Justice Seppi was considering the issue of self-incrimination in thecontext of an importing narcotics case. Two types of evidence were in issue. The first was the standard customs form which all travellershave to complete. The second were statements made to custom officers.

Justice Seppi found that the statements made to the officers wereinadmissible because they were made in the context of a criminal investigation. However, the customs form was completed when noadversarial relationship existed and the accused voluntarily subjected themselves to the obligation to complete the form when they choseto travel by air.

Thus Justice Seppi admitted the document in evidence. [92] In the case at bar there was no adversarial relationship between the state and the accused at the time that the logs are created.Rather, the logs were prepared as part of the regulation of the trucking industry and they pre-dated the collision.

They are designed toensure that trucks are operated in a safe manner, which is in the interests of not only the general public but commercial vehicle operatorsthemselves who are regularly operating on the province’s roads and highways. [93] With respect to the notion of coercion, the accused finds himself in a position very similar to the defendant in Fitzpatrick. Hehas voluntarily chosen to participate in the heavily regulated trucking industry. It cannot be said that his choice to do so came about byreason of the denial of free and informed consent.

The accused has chosen to obtain the benefits of engaging in the industry; he cannotnow deny the obligations that come with his voluntary participation. [94] In the case at bar there can be no realistic concern regarding unreliable confessions, as I do not consider the logs to betantamount to a confession. However, even if they could be considered as such, the concern is not present.

Because the logs pre-date thecollision, there is no concern that the documents will be falsified in order to protect the accused. [95] I also do not find that the use of the documents in a criminal proceeding engages a concern about the abuse of state power.This is reliable evidence that the accused has voluntarily chosen to create and maintain as a condition of his participation in the truckingindustry and for the purpose of maintaining public safety.

The records are designed for inspection by the state and any further use ofthem by the state to maintain public safety in the criminal law context can hardly be considered to be abusive. (iv) March 26 Log [96] As noted above, at the time of the incident no daily log for March 26, 2010 was located by the police. [97] The defence submits that the seizure of this log was also a violation of the accused’s

section 8 and 7 Charter rights and shouldbe excluded from admission. [98] My conclusion with respect to this log is consistent with my conclusions reached above regarding the logs and relateddocuments seized from the cab of the tractor-trailer. [99] I find that the permanent seizure of the document was not authorized by law and therefore a violation of the accused’s section8 rights. However, for the reasons given previously, a balancing of the Grant factors favours admission of the document into evidence.Therefore, I would not exclude this log from admission into evidence at trial. [100] With respect to the

section 7 argument, I would reject this for the same reasons given above. This type of pre-existing documentis not covered by the protections against self-incrimination provided for in

section 7 of the Charter. (

v) Statement to the Police and Derivative Evidence [101] The accused submits that his

section 10(

b) Charter rights were infringed during his videotaped statement due to the content ofthe caution provided and the failure of the officer to provide a secondary caution. It is submitted, therefore, that the statement and anyderivative evidence flowing therefrom should be excluded. [102] I reject this submission. It was made very clear to the accused at the beginning of the statement that he was not under arrest andhad no obligation to stay. Officer Heffernan further advised Mr.

Bhangal that he was in a different position then he was the day previousbecause he was not providing a compelled statement under the Highway Traffic Act. [103] I conclude that Mr. Bhangal was not arrested or detained and that there was no need for his rights to counsel to be given. (See Rv. Esposito, (ON CA), [1985] 53 O.R. (2d) 356 (C.A.)). No

section 10(

b) violation has been established.

[ 104 ] With respect to derivative evidence alleged to have been obtained as a result of this interview, the accused submits that the information which he provided permitted the police to trace his movements for the previous few days and thereby locate potential witnesses and that such evidence should be excluded. I reject this submission for two reasons. [ 105 ] First, any information provided was lawfully obtained by the police because the interview did not violate the accused’s

section 10(

b) rights. Therefore, there is no basis to exclude the evidence. [ 106 ] Second, the assertion made that the police used this information to locate witnesses and trace the accused’s movements is not correct. The information obtained from the logs and related documents provided the police with all of the necessary information to track the accused’s movements and locate witnesses. The Crown went into great detail with Officer Heffernan to establish that all of the necessary information came from the logs and related documents.

I also accept Constable Heffernan’s evidence that the interview was not relied upon and that he relied solely upon the information contained in the daily logs and supporting documentation. [ 107 ] The only exception is the information regarding the accused’s cellular phone carrier. I note that the actual phone number was available to the officers from the supporting documents found in the truck. I need not speculate as to whether the officer could have obtained the name of the carrier if that information did not come from the accused. The fact is that there was nothing impermissible in the officer asking Mr.

Bhangal the name of his cellular phone carrier and nothing impermissible in the officer using that information to obtain and serve a production order on the carrier. [ 108 ] I reject the submission that the officer was obliged to provide a specific warning to the accused that the information he provided about his cellular phone carrier could be used to obtain evidence. There was no requirement for the officer to provide a caution. Even if Mr.

Bhangal was detained or under arrest, which I find that he was not, there was no requirement that the officer provide a caution on the basis of each potential piece of evidence or on the basis of each question. [ 109 ] I conclude that no breach of

section 10(

b) or

section 8 has been established and that no so-called derivative evidence should be excluded. Disposition [ 110 ] The application is allowed in part. I order that the statements made by the accused to Officer Todd be excluded pursuant to section 24(1) of the Charter . The balance of the application is dismissed. Hourigan J. Released: May 31, 2013 CITATION : R. v. Bhangal COURT FILE NO.: 11/92 DATE: 20130531

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – LAKHVINDER BHANGAL RULING Hourigan J. Released: May 31, 2013