Impaired investigations are apparently catching the attention of the Ontario Court of Appeal lately. In the recent case of R v Rivera, 2011 ONCA 225 [which I blogged about on May 24, 2011, New & Notable: Roadside Statements] the Court of Appeal considered the use of roadside statements in the context of a refusal. In R v Soules, 2011 ONCA 429 [SCA decision 2010 ONSC 1014; trial decision 2009 CarswellOnt 8925 (CJ)] the court considered the issue of what use if any the Crown may make of compelled statements.
Stephen Soules was apparently impaired (blowing 143 and 136) when he slammed into the back end of another vehicle causing a multi-vehicle collision. When the police arrived the respondent identified himself to the police as the driver and admitted to consuming alcohol. The attending officer ultimately formulated a reasonable suspicion and made a demand under section 254(2); after a failure was obtained the respondent was arrested for “over 80”.
At trial the respondent sought to exclude the admission that he was the driver based on an alleged violation of section 7; without this admission the Crown apparently could not prove that the officer had a reasonable suspicion – a finding which was apparently accepted by the trial judge but which is hard to accept [see R v Bush, 2010 ONCA 554].
The trial judge, relying upon R v White, 1999 CanLII 689 (SCC) and R v Powers, 2006 BCCA 454 held that the statements given by the respondent at the roadside were compelled by provincial highway traffic legislation and accordingly were inadmissible pursuant to section 7 of the Charter. The Crown appealed unsuccessfully to the summary conviction appeal court and subsequently appealed to the Ontario Court of Appeal.
LaForme JA, writing for a unanimous court, held dismissed the appeal. LaForme JA offered the following summary of the trial judge’s decision:
The trial judge accepted Mr. Soules’ evidence that he remained at the scene of the collision and answered the questions of Constable Bucci because he understood that he was required by law to do so. He held that the statements were statutorily compelled and inadmissible [para 9].
After analyzing Power and White, LaForme JA agreed with the trial judge that they were determinative; statutorily compelled admissions are not admissible, even for the limited purpose of establishing grounds [para 43].
There are two important points that are worth noting. First, the decision is only about statutorily compelled statements. It does not address, nor should it be interpreted as addressing, the use that can be made of any other evidence gathered by an officer during a roadside investigation.
This is borne out not only by the facts and argument but clearly by comments made by LaForme JA in the ruling. Consider for example the framing of the “key issue”:
The key issue is whether statements compelled under the Highway Traffic Act, R.S.O. 1990, c. H.8 are admissible in a criminal trial. Specifically, are the statements admissible for the purpose of establishing that an officer had grounds to make an approved screening device demand…[para 1].
Similarly, consider the LaForme JA’s rejection of the Crown’s attempt to analogize this situation with “compelled” ASD samples.
To illustrate its view, the Crown notes that a motorist’s compelled participation in an ASD test is admissible to support an officer’s grounds to make a breath demand: R v Thomsen,  1 S.C.R. 640. Therefore, the Crown argues, it must also be the case that compelled statements made at the scene of a collision are admissible when they are being used for the same limited purpose. The Crown points out that in both cases:• the evidence emanates from the accused;• they invoke the same level of concern regarding the potential for self-incrimination;• it is an offence to fail to participate or cooperate with police; and,• the evidence cannot be used at trial to prove an element of the offence.I disagree. The Crown’s reliance on Thomsen and other like cases is misplaced, and for a very noteworthy reason: the questioning by police in those cases does not involve compelled answers. In each of them the motorist can refuse to answer if he or she chooses; they are not forcefully enlisted in aid of their own prosecution. For example, in the case of a breath demand made by a police officer pursuant to s. 254(5) of the Criminal Code, the motorist is legally obligated to comply with the demand; nevertheless, s. 7 continues to furnish him or her with the right to choose whether or not to speak with the police – a choice statutory compulsion clearly eradicates. There is absolutely no legal compulsion to speak or provide information in any of the cases cited [paras 41 and 42].
These passages make clear that the issue in the case relates only to compelled statements.
Second, the decision only applies to “statutorily compelled statements” and does not, therefore, limit the use of statements made by an accused during a routine highway traffic stop.