In a recent post I blogged about compelled statements and the case of R v Soules, 2011 ONCA 429. In that blog [New & Notable: Compelled Roadside Statements] I suggested that the ratio of Soules - that compelled roadside statements were not admissible at hte behest of the Crown not even on the issue of grounds - was limited to only "statutorily compelled statements"; it did not limit the use the Crown could make of other evidence obtained during impaired investigation or other utterances. In the recent decision of R v Parol, 2011 ONCJ 292 Duncan J held that Soules indeed does not affect other utterances, even ones made in the context of an accident, unless those were truly a "compelled report".
In Parol Duncan J considered whether two utterances made by the accused during an investigation into a motor vehicle accident were "compelled statements". The police had attended and found the accused at the scene of an accident. The officer asked the accused if was the driver and he replied "No English". The officer then "charaded" the actions of steering a car and the accused said "yes". The officer then charaded drinking out of a bottle and the accused said "yes" [para 12].
In order to find those utterances to be compelled Duncan J held that the accused must establish, on a Charter motion, that (1) he was compelled by statute to provide a report, (2) that the statements were a "report" and that (3) the "report" was given in a honest and reasonable belief he was compelled to do so [para 7].
Turning to consider those issues, Duncan J held - in relation to the second point as follows:
The Court in White made the distinction between the making of a report pursuant to statute and “ordinary police investigation”. Nothing could be more ordinary and natural than a police officer arriving at the scene of an accident and asking who was driving. If the exchange in issue here is considered a “report” then the “dividing line” drawn by the Court in White would be completely obliterated [para 13].
Turning to the third point, Duncan J offered the following quotable quote:
Respect for, or even fear of police may have contributed to his co-operation, but that is not the same thing as answering questions in order to comply with a known or suspected statutory obligation to report: R v Manley OJ No 5103. I have no doubt that had the situation involved not an accident but, say, an illegally parked car and the officer asked “Is this your car?” the defendant would similarly have answered the question.
I view this application as an attempt at strained re-casting of what occurred into an ill-fitting mould in order to achieve a desired legal end. I reject that attempt and find that the defendant did not make his statements as a result of any belief in a statutory duty to report an accident [paras 19 and 20]. [Emphasis added].