* Names have been changed to protect client privacy
IN THE MATTER OF:
HER MAJESTY THE QUEEN
BEFORE THE HONOURABLE MR. JUSTICE J. D. WAUGH
HEARD At the Ontario Courthouse,
Kemptville, Ontario on October 13, 2010
D. Algie, Esq. Counsel for the Attorney General of Ontario
R. Auger, Esq. Counsel for Ms. M.
HER MAJESTY THE QUEEN AND SHANNON
HELD AT THE ONTARIO COURT OF JUSTICE
KEMPTVILLE, ONTARIO, ON OCTOBER 13, 2010
WAUGH, J. (Orally)
The accused is before the Court charged that on November the 8th, 2009, she was operating a motor vehicle while her ability to do so was impaired and, also, she had a blood alcohol above the legal limit.
Defence has brought an application for Charter relief based on a violation of s.7, asking that pursuant to s.24 (1) of the Charter the evidence that the Crown has to put her behind the wheel be ruled inadmissible.
Both counsel are agreeable that the issue here is if the only evidence the police have was that the complainant was the driver is as a result of her responding to questions through the police investigation, that that evidence has been ruled by the Supreme Court of Canada in White and by a number of other courts, including our Court of Appeal and Wein, J., in DaCosta, that such an admission cannot be used in an exclusively criminal case to establish a necessary element of the criminal offence being charged.
Wein, J., at page eight, paragraph both 35 and 36, quotes directly from the White case from the Supreme Court of Canada and at paragraph 35, she has listed this quote:
“The application of the principle against self-incrimination begins and the societal interest in the effective investigation and prosecution of crime is subordinated at the moment when a driver speaks on the basis of a reasonable and honest belief that he or she is required by law to do so.”
And then she goes on:
“Whether at the time that the accident was reported by the driver, the driver gave the report on the basis of an honest and reasonable held belief that he or she was required by law to report the accident to the person whom the report was given.”
This, as it is an allegation of a Charter breach, has to be established by the defence simply on the balance of probabilities.
In her testimony on the voir dire the accused said:
“I felt legally I had to.”
And then she went on to say:
“You have to answer what a cop asks you.”
And she also went on to say that, as part of her driver education, she recalls the part that she was supposed to stay at the scene of an accident.
The Crown is right, she has not used the legalese term to suggest that “I’ve had to answer these questions because I was obliged by statute,” but that is the test, whether or not she held an honest and reasonable held belief that she was required by law. When she testified that she felt legally that she had to and then she recalled part of the actual training told her she had to be there, to remain at the scene of the accident, on the balance of probabilities, it simply would be impossible for me to reject that evidence. As a result, on the evidence, the defence has proven on a balance of probabilities that the utterances that the police have to put the accused behind the wheel of the car would be subject to a s.7 protection. As a result of the violation of s.7, there will be an order excluding that evidence under s.24 (1).
THE COURT: That being the case then I take it the Crown has no further evidence to adduce to establish that this young lady was, in fact, the driver of the car?
MR. ALGIE: Well, as I say, Your Honour, I think what follows through, of course, would be the absence of reasonable suspicion, the absence of reasonable and probable grounds, so that that’s it as far as the Crown is concerned, Your Honour.
THE COURT: That being the case then the charge would be dismissed. Young lady, you are very fortunate. The police could have had a dozen people there to put you behind the wheel of the car. I do not know what your readings were, you are not the first or the last individual to have a few drinks the night before and not recognize they have not all gone away. So just count your lucky stars and do not do that again, okay? Thank you.