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Mandatory Statement - Inadmissible

R. v. White, [1999] 2 S.C.R. 417  CLII

Constitutional law -- Charter of Rights -- Fundamental justice -- Self-incrimination -- Accused charged under Criminal Code with leaving scene of accident -- Provincial legislation requiring persons involved in traffic accident to complete accident report -- Whether accused’s statements made under compulsion in traffic report admissible in criminal proceedings -- Canadian Charter of Rights and Freedoms, ss. 7, 24(1), (2) -- Criminal Code, R.S.C., 1985, c. C-46, s. 252(1)(a) -- Motor Vehicle Act, R.S.B.C. 1979, c. 288, s. 61(1), (1.1), (7).

The respondent was involved in an accident and reported it to the police by telephone the next day.  A police officer attended at her home and she told him her version of the accident.  The officer then read her Charter rights to her.  The respondent then spoke to her lawyer and subsequently advised the officer that she, on her lawyer’s advice, would not provide a statement with respect to the accident.  In response to a question by the officer, the respondent confirmed some elements of her previous statements.  The officer then advised her, however, that even though she was not required to provide a written statement, she would be required to provide a statement, if requested by the police, under the Motor Vehicle Act and that that statement could not be used against her in court.  The respondent was later charged with failing to stop at the scene of an accident under s. 252(1)(a) of the Criminal Code.  At trial, the Crown sought to adduce evidence of the three conversations that the respondent had had with the police; elements of the conversations linked the respondent to the accident.  On a voir dire, the respondent stated that she knew immediately on being involved in an accident that she was under a duty to report it.  She stated that she felt the officer had attended at her premises to take an accident report and that she was under a duty to speak to him about the accident and that she felt so obligated even after speaking with her lawyer.

The trial judge, even though he found the respondent’s statements to be voluntary, allowed a defence motion as to an infringement of s. 7 (self-incrimination as part of fundamental justice) and excluded the statements under s. 24(1) (appropriate and just remedy) of the Canadian Charter of Rights and Freedoms.  A motion to dismiss the charge on the basis that the Crown had adduced no evidence as to the identity of the person driving the vehicle involved in the accident was granted.  The Court of Appeal dismissed a Crown appeal on the s. 7 issue.  The primary issue here is whether the admission into evidence in a criminal trial of statements made by the accused under compulsion of the Motor Vehicle Act offends the principle against self-incrimination embodied in s. 7 of the Charter.

Held (L’Heureux-Dubé J. dissenting):  The appeal should be dismissed.

Per Lamer C.J. and Gonthier, McLachlin, Iacobucci, Bastarache and Binnie JJ.:  Statements made under compulsion of s. 61 of the Motor Vehicle Act are inadmissible in criminal proceedings against the declarant.  Their admission in a criminal trial would violate the principle against self-incrimination, which is one of the fundamental principles of justice protected by s. 7 of the Charter.  The respondent’s statements to the police in this case were made under compulsion.

Several self-incrimination concerns were present here.  Firstly, while the state should not be perceived as being coercive in requiring drivers to report motor vehicle accidents, the concern with protecting human freedom which underlies the principle against self-incrimination cannot be considered to be entirely absent in this context.  Secondly, the vesting of responsibility for taking accident reports in the police transforms what might otherwise be a partnership relationship into one that is adversarial, for the police officer can simultaneously be investigating a possible crime where the driver is a suspect.  The driver is generally in the officer’s immediate physical presence at the time of giving the accident report, resulting in a context of psychological and emotional pressure.  Thirdly, the prospect of unreliable confessions is very real because accident reports are frequently given directly to a police officer who might be seen as a person in authority and whose physical presence might cause a person to produce a statement in circumstances where that person is not willing to speak and where there may be a strong incentive to provide a false statement.  Fourthly, the possibility is real and serious that permitting the use of compelled accident reports within criminal proceedings might increase the likelihood of abusive conduct by the state.  The police can question a person suspected of a motor vehicle offence but if they wish to use this information  in a criminal proceeding the information must not be provided pursuant to the Motor Vehicle Act.  Finally, an accident report is a personal narrative and its use to incriminate clearly affects the declarant’s dignity.  The reduced expectation of privacy in a vehicle generally is irrelevant.

The protection afforded by the principle against self-incrimination does not vary according to the relative importance of the self-incriminatory information sought to be used.  If s. 7 is engaged by the circumstances surrounding the admission of a compelled statement, the concern with self-incrimination applies in relation to all of the information transmitted in the compelled statement.  Immunity against the use of an accident report in subsequent criminal proceedings is itself a balancing between society’s goal of discerning the truth, and the fundamental importance for the individual of not being compelled to self-incriminate.  The balance which must be struck in the context of the reporting provision of the Motor Vehicle Act is between a driver’s right not to be compelled to self-incriminate in criminal proceedings and the province’s interest in highway safety.

A declarant under s. 61 of the Motor Vehicle Act will be protected by use immunity under s. 7 of the Charter only to the extent that the relevant statement may properly be considered compelled.  

The test for compulsion under s. 61(1) is whether, at the time that the accident was reported by the driver, the driver gave the report on the basis of an honest and reasonably held belief that he or she was required by law to report the accident to the person to whom the report was given.  The basis of a subjective belief exists because compulsion implies an absence of consent.  The requirement that the belief be reasonably held also relates to the meaning of compulsion.

The Crown does not bear the onus of establishing that an accident report was not made pursuant to the statutory duty to report.  Rather, since the onus lies on the person raising the Charter challenge to establish an infringement of his or her rights, it is the accused who must establish on the balance of probabilities that the statement was compelled.  The trial judge did not misapply the onus.  His reasons reflected the uncontroversial view that once a prima facie case has been made with respect to an element of a Charter claim, it is left to the Crown to adduce evidence to rebut that prima facie case.

It may not be necessary to use s. 24(1) of the Charter in order to exclude evidence whose admission would render the trial unfair.  Section 24(1), however, may appropriately be employed as a discrete source of a court’s power to exclude such evidence.  Here, exclusion was required.  There was evidence on which the trial judge could reasonably have found the accused’s statements to be compelled by s. 61 of the Motor Vehicle Act.


By Iacobucci J.

Jim O'Neil, LL.B.

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