R. v. White

R. v. White
Collection
Supreme Court Judgments
Date
1999-06-10
Report
[1999] 2 SCR 417
Case number
26473
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; McLachlin, Beverley; Iacobucci, Frank; Bastarache, Michel; Binnie, William Ian Corneil
On appeal from
British Columbia
Subjects
Constitutional law
Notes
SCC Case Information: 26473
Decision Content
R. v. White, [1999] 2 S.C.R. 417
Her Majesty The Queen Appellant
v.
Joann Kimberley White Respondent
Indexed as: R. v. White
File No.: 26473.
1998: November 13; 1999: June 10.
Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, McLachlin, Iacobucci, Bastarache and Binnie JJ.
on appeal from the court of appeal for british columbia
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.
Per L’Heureux-Dubé J. (dissenting): In addition to their duty to receive a mandatory accident report, police officers also have the duty to investigate criminal conduct, such as the failure to stop at the scene of an accident. These different functions are not incompatible. However, when performing these various functions implies the risk of self-incrimination, the police must make efforts to clarify the purpose of their presence.
The principle against self-incrimination must be applied on a case-by-case basis and must begin with a concrete and contextual analysis in the circumstances. As stated by Iacobucci J., the proper test for determining whether the statements should be considered to have been made under the compulsion of s. 61 is whether, at the time the accident report was given, 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 trial judge applied the wrong test and his findings, which were based on several errors of law, cannot stand.
There is evidence to conclude that the first two statements are inadmissible because they were made under statutory compulsion. The third, which was made after the police officer had informed the respondent of her s. 10 (b) Charter rights and her right to silence is admissible, since it was voluntary and freely made. In giving the warnings, the officer clearly indicated that the matter was serious and that he was starting a criminal investigation. Any ambiguity as to whether the officer was there to take a report under the Act was no longer present after the warning. The evidence must not only disclose that the respondent subjectively believed that she was under a statutory duty to report, but must also establish an objectively reasonable basis for that belief. No such objective basis was established here because the accused (1) was cautioned about her right to a lawyer, (2) contacted her lawyer who advised her not to make any comments and (3) told the officer that she would not make a statement about the accident. There is no rule prohibiting the use, for questioning purposes, of information gathered under a statutory duty to report or any information gathered otherwise.
Cases Cited
By Iacobucci J.
Distinguished: R. v. Fitzpatrick, [1995] 4 S.C.R. 154; considered: R. v. Jones, [1994] 2 S.C.R. 229; R. v. Therens, [1985] 1 S.C.R. 613; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Harrer, [1995] 3 S.C.R. 562; Schreiber v. Canada (Attorney General), [1998] 1 S.C.R. 841; R. v. Terry, [1996] 2 S.C.R. 207; referred to: Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Spyker (1990), 63 C.C.C. (3d) 125; R. v. Stillman, [1994] B.C.J. No. 646 (QL); R. v. Hundal, [1993] 1 S.C.R. 867; R. v. S. (R.J.), [1995] 1 S.C.R. 451; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. P. (M.B.), [1994] 1 S.C.R. 555; British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Seaboyer, [1991] 2 S.C.R. 577; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; Dedman v. The Queen, [1985] 2 S.C.R. 2; R. v. Finlay, [1993] 3 S.C.R. 103; Walker v. The King, [1939] S.C.R. 214; R. v. Hodgson, [1998] 2 S.C.R. 449; Starr v. Houlden, [1990] 1 S.C.R. 1366; R. v. Strachan, [1988] 2 S.C.R. 980.
By L’Heureux-Dubé J. (dissenting)
R. v. Fitzpatrick, [1995] 4 S.C.R. 154; R. v. S. (R.J.), [1995] 1 S.C.R. 451; R. v. Schmautz, [1990] 1 S.C.R. 398; Ibrahim v. The King, [1914] A.C. 599; Boudreau v. The King, [1949] S.C.R. 262.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 10 (b), 11 (c), 13 , 24(1) , (2) .
Constitution Act, 1867, s. 91(27) .
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) [am. 1986, c. 19, s. 2; 1990, c. 71, s. 7], (1.1) [ad. 1990, c. 71, s. 7], (4) [am. 1986, c. 19, s. 2], (7) [idem], 69.
APPEAL from a judgment of the British Columbia Court of Appeal (1998), 122 C.C.C. (3d) 167, 13 C.R. (5th) 187, 32 M.V.R. (3d) 161, [1998] B.C.J. No. 82 (QL), dismissing an appeal from acquittal by Carlgren Prov. Ct. J. Appeal dismissed, L’Heureux-Dubé J. dissenting.
William F. Ehrcke, Q.C., for the appellant.
Peter Burns, for the respondent.
The judgment of Lamer C.J. and Gonthier, McLachlin, Iacobucci, Bastarache and Binnie JJ. was delivered by
//Iacobucci J.//
1 Iacobucci J. -- The primary question in this appeal is whether the admission into evidence in a criminal trial of statements made by the accused under compulsion of the British Columbia Motor Vehicle Act, R.S.B.C. 1979, c. 288, offends the principle against self-incrimination as embodied in s. 7 of the Canadian Charter of Rights and Freedoms .
2 The case involves a Crown appeal both with leave and as of right from a judgment of the Court of Appeal for British Columbia, which dismissed the Crown’s appeal from the respondent’s acquittal on a charge of failure to stop at the scene of an accident under s. 252(1) (a) of the Criminal Code, R.S.C., 1985, c. C-46 . At issue are three separate statements made to police by the respondent, purportedly pursuant to the duty set out in s. 61 of the Motor Vehicle Act to report a motor vehicle accident. The trial judge excluded the three statements under s. 24(1) of the Charter , on the basis that their admission into evidence would violate s. 7 . The Crown argues that the admission of these statements would not have violated s. 7 of the Charter . The Crown also contests whether, in law, the three statements can all be considered to have been made pursuant to the statutory duty to report an accident.
I. Factual Background
A. The Respondent’s Three Conversations with Police
3 Around midnight on October 6, 1994, Lawrence O’Brien was changing a tire on the side of a local highway near Fernie, British Columbia, when he was struck by a passing vehicle. O’Brien was thrown several feet and died in hospital from his injuries a number of hours later. During their investigation into the accident, police observed that the driver’s door of O’Brien’s vehicle was dented and had fresh scrape marks on it. Plastic fragments from a broken yellow vehicle turn signal were strewn on the ground nearby.
4 During the morning of October 7, 1994, a telephone call came in to the R.C.M.P. detachment in Fernie from a woman who identified herself as Joann Wright or White. Corporal Dehmke testified that the woman advised him that she wanted to report an incident that had happened the night before, in which she had swerved to miss a deer on the road and had hit a jack and a man changing a tire. The woman stated that she had panicked and left the scene, and she asked Cpl. Dehmke how the man was. Cpl. Dehmke asked the caller for her birth date and address, which she provided. He advised the woman that an officer would soon attend at her address to speak with her. This was the first of three conversations which the respondent would have with police that morning.
5 About half an hour later, Sergeant Tait of the R.C.M.P. attended at the respondent’s trailer. Sgt. Tait observed a blue Ford pickup truck outside the trailer, with noticeable damage to its right front corner. Sgt. Tait met the respondent outside and identified himself. The respondent asked him how the fellow from the accident was. Sgt. Tait informed her that the man had died. The respondent became very upset, and took about 10 minutes to regain her composure. The respondent told Sgt. Tait that she had swerved to miss hitting deer in the road and that she had hit a jack, panicked, and driven on. Sgt. Tait asked the respondent for her driver’s licence, which she provided to him. Sgt. Tait then read the respondent her rights under s. 10 (b) of the Charter , and warned her that she was not obliged to say anything but that anything she did say might be given in evidence. Sgt. Tait did not place the respondent under arrest, but indicated that he would like to talk to her outside once she had spoken to a lawyer, if she chose to do so. Sgt. Tait then went outside. This exchange was the second conversation between the respondent and police.
6 The respondent called a lawyer from a neighbour’s trailer. About 45 minutes later she returned and got into the front seat of Sgt. Tait’s police car. She said that she had spoken with a lawyer and that, on the lawyer’s advice, she would not provide a statement with respect to the accident. Sgt. Tait told her she did not have to provide a written statement. He asked her if she had swerved to miss a deer, as she had said earlier. She replied: “Actually there were two. It was on the blind corner across from the mill at Galloway. I just swerved and I thought I hit the jack and I panicked. I’m sorry.” Sgt. Tait informed the respondent of some of the charges she might face as a result of the accident. Sgt. Tait then told the respondent that even though she was not required to provide a written statement, she would be required to provide a statement, if requested to do so by police, under the British Columbia Motor Vehicle Act. He told the respondent that any statement she gave under the Motor Vehicle Act could not be used against her in court, but Sgt. Tait did not expressly request a statement under the Motor Vehicle Act from the respondent. This was the respondent’s third and final conversation with police on the morning of October 7, 1994.
7 Sgt. Tait seized the pickup truck that was in the respondent’s driveway. The truck was later determined to be owned by the respondent’s husband. The plastic fragments from the accident scene were matched to the damage to the truck’s right front corner.
8 The respondent was charged under s. 252(1)(a) of the Code with the offence of failure to stop at the scene of an accident. The Crown proceeded by indictment. The respondent elected to have the trial heard by a provincial court judge. At trial, the Crown sought to adduce evidence of the three conversations between the respondent and police on October 7, 1994. Defence counsel argued that the respondent’s various statements to police were involuntary, that they were obtained in violation of her s. 10 (b) Charter rights, and that their admission into evidence would violate her right under s. 7 of the Charter not to be compelled to incriminate herself. A joint voir dire was held on all of these issues.
9 The respondent testified on the voir dire. She stated that she knew immediately upon being involved in the accident that she was under a duty to report it. With respect to her first conversation with Sgt. Tait, prior to the giving of the s. 10 (b) warning, the respondent testified that she felt that he had attended at her premises to take an accident report, and that she was under a duty to speak to him about the accident. She stated that she continued to feel obligated to speak to him after she had spoken to a lawyer.
10 The trial judge, Carlgren Prov. Ct. J., accepted the respondent’s evidence that she believed she was required by law to report the accident to police. Although he found that the respondent’s statements to police were voluntary, and dismissed the motion under s. 10 (b), he allowed the s. 7 motion and excluded the respondent’s statements to police pursuant to s. 24(1) of the Charter . At the close of the Crown’s case, defence counsel brought a motion to have the charge against the respondent dismissed on the basis that the Crown had adduced no evidence as to the identity of the person driving the truck which had struck Mr. O’Brien. The motion was granted and the respondent was acquitted. A Crown appeal on the s. 7 issue was dismissed by a majority of the Court of Appeal for British Columbia.
B. Accident Reports Under the Motor Vehicle Act
11 Section 61 of the British Columbia Motor Vehicle Act establishes a statutory regime requiring and regulating the reporting of motor vehicle accidents in the province. Sections 61(1) and (1.1) require a driver involved in a motor vehicle accident to report the accident where the accident has caused death or personal injury, or has caused property damage beyond a certain monetary value. The driver is expressly required to provide information to the person who receives the accident report (usually the police) as required. The provisions read as follows:
61. (1) Where a vehicle driven or operated on a highway, either directly or indirectly, causes death or injury to a person or damage to property causing aggregate damage apparently exceeding the amount set out in subsection (1.1), the person driving or in charge of the vehicle shall report the accident to a police officer or to a person designated by the superintendent to receive those reports, and shall furnish the information respecting the accident required by the police officer or designated person.
(1.1) The amount referred to in subsection (1) is
(a) $1 000, in the case of a vehicle other than a motor cycle, and
(b) $600, in the case of a motor cycle.
12 Section 61(4) imposes a corresponding duty upon the person who receives an accident report to secure information from the driver and from other sources and to prepare a written report. The recipient of the information is required by law to secure the particulars of the accident, the persons involved, the extent of the personal injury or property damage, and other necessary information:
(4) The person receiving a report under this section shall secure from the person making it, or by other inquiries where necessary, 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, and shall forward the written report to the superintendent within 10 days after being advised of the accident.
13 Section 61(7) of the Act supplements the reporting scheme by creating use immunity for the declarant in relation to the information provided pursuant to s. 61(1). The declarant is protected against self-incrimination by a statutory guarantee that, with two exceptions, neither the report nor any information contained in it is admissible in a trial or proceeding arising out of the accident:
(7) The fact a report has been made under this section is admissible in evidence solely to prove compliance with this section, and the report is admissible in evidence on the prosecution of any person for the offence of making a false statement therein, but neither the report nor any statement contained in it is admissible in evidence for any other purpose in a trial or proceeding arising out of the accident referred to in the report.
As is discussed below, the parties have agreed that this use immunity applies only in provincial proceedings and not in proceedings under the Code.
II. Judicial History
A. Provincial Court of British Columbia
14 Carlgren Prov. Ct. J. held that the respondent’s three statements to police on October 7, 1994, were all made under the statutory compulsion of s. 61 of the Motor Vehicle Act. Carlgren Prov. Ct. J. first considered whether the conditions precedent to the obligation to report an accident existed in the respondent’s case. He asked whether, as a general matter, the obligation to report an accident exists as soon as a driver has a subjective and possibly mistaken belief in the duty to report the accident, or whether the belief must be objectively reasonable in light of the requirements of the statute. He found that, where a party wishes to claim the benefit of the use immunity accorded by s. 61(7), as distinct from where a person is being prosecuted for a failure to report an accident, objective reasonableness is not required in order for a report to be deemed to have been made pursuant to the duty in s. 61(1). An accident report, he concluded, “is a statement concerning an accident made to a police officer by a person who believes it is a statement required to be made”.
15 Carlgren Prov. Ct. J. went on to state that, if he were wrong in his determination of what constitutes a compelled accident report under ss. 61(1) and (7), the obvious damage to the respondent’s husband’s truck in this case, as apparent from photographs filed as exhibits, was sufficient for the respondent to have held a reasonable belief that she was required to report the accident. He held that the respondent subjectively believed that she was required to report the accident, and that when she called the R.C.M.P. on the morning of October 7, 1994, and engaged in subsequent conversations with the police, she did so pursuant to her perceived obligation to report.
16 Carlgren Prov. Ct. J. held that the admission of the respondent’s three statements to police as evidence against her in her criminal trial would violate s. 7 of the Charter , and that the statements should therefore be excluded pursuant to s. 24(1) . He reviewed the decisions of this Court in R. v. Fitzpatrick, [1995] 4 S.C.R. 154, and Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, as well as the decisions of the British Columbia Supreme Court in R. v. Spyker (1990), 63 C.C.C. (3d) 125, and R. v. Stillman, [1994] B.C.J. No. 646 (QL). Both of these latter trial judgments had excluded statements made under the compulsion of provincial statutes from criminal trials on the basis that their use in the trial would itself be a breach of the accused’s s. 7 rights. Carlgren Prov. Ct. J. held that he was bound to accept these two decisions as determinative, provided the respondent could establish that she fell within the scope of the principles enunciated therein.
17 Carlgren Prov. Ct. J. found that the respondent had established that admission of the statements would violate s. 7 . He concluded that, although the principles of fundamental justice must reflect a balance between the interests of society and the interests of the individual seeking the protection of s. 7 , use immunity is itself a reflection of that balance. Carlgren Prov. Ct. J. held that Spyker and Stillman applied in the respondent’s case to require the exclusion of all three statements, and he excluded them pursuant to s. 24(1) .
18 At the end of his reasons, Carlgren Prov. Ct. J. commented that s. 61 of the Motor Vehicle Act is vague as to what information is required to be reported by a driver. He stated that this vagueness should enure to the benefit of the accused, unless the Crown is able to establish that a particular statement was not made pursuant to the statutory obligation to report an accident.
B. Court of Appeal for British Columbia (1998), 122 C.C.C. (3d) 167
(1) Esson J.A., Lambert J.A. concurring
19 Esson J.A. reviewed the decision of this Court in Thomson Newspapers, supra. He stated that all five members of the Court in that case agreed that, where testimony is compelled in the context of proceedings investigating wrongdoing and potentially resulting in criminal charges, s. 7 affords protection co-extensive with the individual’s testimonial participation, through use immunity in those subsequent criminal proceedings.
20 Esson J.A. reviewed this Court’s decision in Fitzpatrick, supra, and concluded that it was not applicable to the facts of the respondent’s case. Esson J.A. noted that one of the reasons why the admission of the compelled records in that case was found not to violate s. 7 was that the maintenance of the records was an integral part of a regulatory scheme in which both the accused and the Crown were participants. Exclusion of the records would have “remove[d] the teeth” from the regulatory scheme itself (p. 177). The difference between Fitzpatrick and this case, he stated, was that the respondent was being prosecuted for a criminal offence. None of the reasoning in Fitzpatrick could be applied in this different context. Esson J.A. stated that, if compulsory accident reports could be used against an accused in criminal proceedings, this would compromise the integrity of the statutory reporting scheme, since motorists would prefer to refrain from reporting accidents rather than risk self-incrimination.
21 With respect to the issue of whether all of the respondent’s statements to police were made pursuant to her statutory obligation under s. 61(1), Esson J.A. stated that there was evidence upon which the trial judge could have reached the conclusion he did that they were, and that he saw no basis for interfering with that conclusion.
22 Esson J.A. then discussed the trial judge’s comments regarding the vagueness of the reporting requirement created by s. 61. Esson J.A. found that, contrary to the Crown’s submission, the trial judge had not imposed a reverse onus on the Crown to prove that a statement by the accused was not made pursuant to a statutory obligation under s. 61(1). Esson J.A. interpreted the trial judge as first having determined that the respondent had met the onus of establishing a prima facie case that her statements were made pursuant to the reporting requirement, and then having ruled that it was up to the state to adduce evidence of its own to rebut this prima facie case, in accordance with the ordinary onus of proof in Charter matters. Esson J.A. found no error in principle in the manner in which the trial judge dealt with what Esson J.A. described, at p. 179, as a “rather tricky question”. Esson J.A. therefore dismissed the Crown’s appeal.
(2) Southin J.A. dissenting
23 Southin J.A. began her analysis by noting that the Charter does not contain a blanket protection against self-incrimination. She referred to the judgment of this Court in Fitzpatrick, supra, which emphasized the importance of engaging in a contextual analysis in order to determine whether the principle against self-incrimination has been engaged. Southin J.A. stated that the principles of fundamental justice under s. 7 require a balance to be struck between the interest of the individual claiming the protection of s. 7 , and the interest of society in providing a fair and workable system of justice. She emphasized Canadian society’s pressing interest in curbing motor vehicle offences, referring on this point to the reasons of Cory J. in R. v. Hundal, [1993] 1 S.C.R. 867, and to recent statistics regarding death and injury rates from motor vehicle accidents in British Columbia.
24 Southin J.A. did not accept the Crown’s submission that the analysis applied by the Court in Fitzpatrick, supra, was similarly applicable to the respondent’s case. She noted that, although driving is a regulated activity, driving is one of life’s necessities, such that it cannot be said that compulsory accident reporting constitutes voluntary compliance with a chosen regulatory regime. As she stated, at p. 194, “these sections are coercive and were intended by the Legislature to be so.”
25 Nonetheless, Southin J.A. held that the principles of fundamental justice are not violated where at least some elements of a compulsory accident report are adduced as evidence in a criminal trial for a driving offence. She stated that, if Parliament enacted a statute providing that statements compelled by the Motor Vehicle Act were admissible in criminal proceedings, that statute would be sustained either under s. 7 or under s. 1 of the Charter , at least to the extent of rendering admissible the name and address of the driver and the fact that he or she was driving at a certain place and time. Admitting any more of the statements, though, would go beyond the needs of society. As a result, she found that the trial judge’s imposition of a rule of automatic exclusion of all statutorily compelled statements was over broad.
26 With respect to the facts of the case, Southin J.A. accepted the trial judge’s finding that the respondent’s initial telephone call to police was founded in an honest belief that she was under an obligation to speak to police. She also agreed with the trial judge’s conclusion that such an honest belief is all that is required to bring a statement within the scope of s. 61(1) of the Motor Vehicle Act as a compelled statement. Southin J.A. found that the second conversation with police, when Sgt. Tait first arrived at the respondent’s trailer, was simply an extension of the initial phone call. However, she held that the third conversation, taking place as it did after a s. 10 (b) warning and after the respondent had spoken to counsel, could not be considered compelled and was thus admissible in its entirety as an uncompelled statement, regardless of the analysis under s. 7 of the Charter .
27 Finally, Southin J.A. stated that the trial judge’s remarks as to the need for the Crown to demonstrate a lack of statutory compulsion under s. 61 were obiter, and she did not consider it necessary to comment further on them.
III. Issues
28 The formal order of the Court of Appeal states that Southin J.A.’s dissent is founded upon three issues of law, namely:
1. Whether there is a rule of automatic and complete exclusion in a criminal trial of all statements made by an accused under compulsion of statute, namely, section 61 of the Motor Vehicle Act, R.S.B.C. 1979, c. 288.
2. Whether the voluntary statement of an accused made under the statutory compulsion of s. 61 of the Motor Vehicle Act that he or she was driving at a particular time and place must automatically be excluded as evidence in a criminal trial.
3. Whether the trial judge erred in law in concluding that the voluntary statement of the accused to Sgt. Tait after she had been informed of her section 10 Charter rights and after she had consulted with counsel must be excluded from evidence on the basis that it was a statement made under compulsion of the provisions of the Motor Vehicle Act. [Emphasis added.]
29 The Crown was subsequently granted leave to appeal to this Court on two closely related grounds:
1. That the British Columbia Court of Appeal erred in law in failing to find that statements compelled by the operation of s. 61 of the Motor Vehicle Act, R.S.B.C. 1979, c. 288, are properly admissible in evidence on a criminal trial for reasons analogous to those in Regina v. Fitzpatrick, [1995] 4 S.C.R. 154.
2. That the British Columbia Court of Appeal erred in law in failing to find the trial judge erred in law both in placing the onus on the Crown, and also in his determination of what constitutes a statement made under the compulsion of s. 61 of the Motor Vehicle Act.
IV. Analysis
A. Introduction
30 To begin with, I am in general agreement with the lucid reasons of and conclusions reached by Esson J.A. in the Court of Appeal in this case. Statements made under compulsion of s. 61 of the Motor Vehicle Act are inadmissible in criminal proceedings against the declarant because their admission would violate the principle against self-incrimination. I agree with Esson J.A. that the respondent’s three statements to police in this case were properly found by the trial judge to have been made under compulsion of s. 61, and that the trial judge did not impose a reverse onus on the Crown to disprove such compulsion.
31 In these reasons, I wish to elaborate upon Esson J.A.’s conclusions, and to deal with the other issues raised by the appellant and by the dissent of Southin J.A. In this respect, a brief outline of the structure of the reasons may be useful.
32 I begin with a discussion of the primary issue of why statements made to police under compulsion of s. 61 of the British Columbia Motor Vehicle Act are inadmissible in criminal proceedings against the declarant. This discussion relating to s. 7 of the Charter constitutes the bulk of the analysis. In light of the dissenting reasons of Southin J.A. in the Court of Appeal, I also consider the more specific question of whether the statements are admissible for the limited purpose of revealing the declarant’s name and address and the fact that he or she was driving at a particular place and time.
33 Next, I examine the issue of when, in law, a statement may properly be characterized as having been made pursuant to s. 61 of the Motor Vehicle Act. In particular, is a subjective belief that one is making a statement pursuant to s. 61 sufficient, or must the belief also be reasonably held? Also, who bears the onus of establishing that a statement was made pursuant to s. 61 of the Motor Vehicle Act?
34 Finally, I consider the court’s power to exclude evidence whose admission at a criminal trial would violate s. 7 of the Charter , and conclude with a discussion of the admissibility of the respondent’s three conversations with police on October 7, 1994.
35 It should be noted that, in their submissions before this Court, the parties have not disputed two legal issues. First, the parties agree that the use immunity created by s. 61(7) of the Motor Vehicle Act does not extend to proceedings under the Code, because it would be ultra vires the province of British Columbia to restrict the admissibility of evidence in criminal matters. It is for this reason that the respondent has sought the protection of the Charter in order to exclude her three statements to police.
36 Second, the respondent has not contested the trial judge’s finding that the respondent’s statements to police were voluntary. The issue of voluntariness is thus not squarely raised in this appeal, and I do not intend to discuss it.
B. The Section 7 Issue
37 The principal s. 7 issue in this appeal is whether the admission into evidence in a criminal trial of statements made under compulsion of s. 61 of the Motor Vehicle Act would violate the principle against self-incrimination. The respondent did not challenge the constitutional validity of s. 61 at trial, but rather sought a remedy under s. 24(1) of the Charter . The respondent’s position and the finding in the courts below is that, while compelling a driver to report a motor vehicle accident accords with s. 7 of the Charter , the principle against self-incrimination as embodied in s. 7 requires at least that the driver be protected against the subsequent use of such a report in criminal proceedings.
38 Section 7 of the Charter reads as follows:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Where a court is called upon to determine whether s. 7 has been infringed, the analysis consists of three main stages, in accordance with the structure of the provision. The first question to be resolved is whether there exists a real or imminent deprivation of life, liberty, security of the person, or a combination of these interests. The second stage involves identifying and defining the relevant principle or principles of fundamental justice. Finally, it must be determined whether the deprivation has occurred in accordance with the relevant principle or principles: see R. v. S. (R.J.), [1995] 1 S.C.R. 451, at p. 479, per Iacobucci J. Where a deprivation of life, liberty, or security of the person has occurred or will imminently occur in a manner which does not accord with the principles of fundamental justice, a s. 7 infringement is made out.
39 In the present case, it is clear that the respondent’s liberty interest is engaged by the potential admission into evidence of her three statements to police on October 7, 1994, because she faces the possibility of up to five years’ imprisonment if convicted on indictment under s. 252(1)(a)