In reading a recent case out of the ABPC (R. v. Sibanda 2015 ABPC 238), I was reminded of the difficult situation that we sometimes find ourselves in. That is, if the desire is to use information acquired from a motorist in criminal proceedings, the information cannot derive from the duty of the motorist mandated by the statutory provisions. In Sibanda, officers were dispatched to a collision scene to investigate a possible impaired driving. When the two officers arrived, they saw a vehicle stuck in a snowbank resting on top of a bent road sign. The front wheels of the vehicle were “slightly off the ground”, and were spinning. One officer saw Mr. Sibanda standing on the passenger side of the vehicle and walking around. An officer also noticed that a female was in the front passenger seat of the motor vehicle. The officer approached the accused and said, “What happened? The driver said he misturned, crashed, and got stuck. The officer noticed some signs of possible impairment (smell, balance, stumbling) as well. This post won’t focus on the grounds for the breath sample issues, but instead on the issue of compelled statements.
Mr. Sibanda made an admission to the officer to the effect he was driving his motor vehicle earlier and he drove into a sign. The issue here is what use can be made of that statement? This issue has been dealt with in cases such as R. v. Therens,  1 S.C.R. 613 and R. v. Thomsen,  1 S.C.R. 640, R. v. Ellerman,  6 W.W.R. 704, and many others. Provincial Court Judge M.G. Allen in Sibanda summarized his understanding of the jurisprudence:
The s. 10(b) Charter rights of suspected impaired drivers who are detained are suspended while the police are performing screening tests. The screening procedures must be carried out in a reasonably prompt manner; otherwise, the detained driver’s s. 10(b) rights may come into play. The screening tests include: an approved screening device test, admissions made by the detainee as a result of police questioning and compelled physical testing. The admissions, the approved screening sample and results of the compelled testing may only be used to support the demanding officer’s reasonable grounds to make a s. 254(3) demand, or the reasonable suspicion to ground an officer’s s. 254(2) demand. These observations cannot be used to prove impaired operation or impaired care or control offences. Some observations that do not result from the compelled participation of the accused may be used to support these offences.
In short, Judge Allen found that Mr. Sibanda’s admission that he was driving when the vehicle crashed can only be used as a basis for the officer’s s. 254(3) demand and cannot be used to prove he was operating the motor vehicle. Therefore, the Crown (officer) must prove who was driving in other ways. This got me pondering on a larger scale because this is a common dispatch faced by many officers.
This research led me down two roads, although they often intersect. It is well recognized that where police stop drivers to check for sobriety, the driver is detained: R. v. Hufsky (1988), 40 C.C.C. (3d) 398 (SCC); R. v. Ladouceur (1990), 56 C.C.C. (3d) 22 (SCC); R .v Mellenthin (1992), 76 C.C.C. (3d) 481 (SCC). What cases such as R. v. Orbanski; R. v. Elias,  2 S.C.R. 3 have decided is that the impugned evidence is admissible for a limited purpose. That is, the evidence is admissible for the limited purpose of establishing reasonable grounds (suspicion) to make an ASD demand or a breath demand, but not as evidence to prove directly elements of the offence at trial. Although the court found that s. 10(b) was infringed, it also found that the infringement was a reasonable limit justified under s. 1 of the Charter.
The other road involves s. 7 of the Charter. Despite the strong connection between ss. 7 and 10(b) of the Charter, the two are not mutually exclusive. In what circumstances would admission into evidence in a criminal trial of statements made by the accused under legislative or regulatory compulsion violate the s. 7 protection against self-incrimination? The answer depends on the context.
When there is a motor vehicle accident, we have a duty to investigate and complete an accident report where the requirements are met. In most provinces (e.g. Saskatchewan, pursuant to section 253 of the Traffic Safety Act, s. 98 in Nova Scotia, s. 130-131 in New Brunswick, s. 232 in PEI, and so on), police have a duty to complete an accident report. In situations such as these, it requires the driver or the person in charge of the vehicle to report to a police officer, and it further requires the officer receiving the “report” (information) to make a written report. So, it contemplates two mandatory reports — one by the motorist (to give the information), and one by the police officer. Therefore, the question to ponder is, “Can statements or admissions made while participating in the mandatory making of the report (statutory requirement) be used for any purposes in the criminal trial for grounds for a demand or an arrest?” Narrowly focused, due to the provincial legislation, answers to any questions asked by the police where there has been a collision are compelled answers, so can they be used to establish who was driving in criminal precedings?
In the case of a roadside stop, the questioning by police in those cases does not involve compelled answers; the motorist can refuse to answer if he or she chooses; they are not forcefully enlisted in aid of their own prosecution. The same cannot be said when an accident is involved and the driver is compelled to report (or give answers to) certain information. There is absolutely no legal compulsion to speak or provide information in the prior, but there is in the latter. What many courts have decided in the latter context is that the statutorily compelled admission(s) from the driver is not admissible for the purpose of establishing grounds for making either the ASD or the breath demand.
So, how do we avoid these pitfalls? Follow the directions of Mr. Justice Iacobucci in R. v. White,  2 SCR 417: be aware of your (officer) own “observations”, and look to other sources of information (witnesses, etc.) to establish grounds of who was driving because it would seem alot of courts have decided that an admission of driving in response to us investigating a motor vehicle accident are compelled statements and inadmissible even as grounds for arrest or demand. Mr. Justice Iacobucci in White said at paragraph 80:
…as a practical matter, it will be very important for the police officer who takes an accident report while simultaneously investigating a crime to delineate clearly for the declarant the start and end points of the accident report. For example, it may be useful for police to tell the driver that they will postpone the taking of an accident report until after they have questioned, or attempted to question, the driver. Alternatively… police may wish to tell the driver that they intend to secure the details of the accident report from sources other than the driver, thus terminating the statutory duty to report.
For further insight into this, I turn to the issued cards given to our fellow officers in New Brunswick in such cases. It reads:
I am not at this time seeking an accident report from you pursuant to the provisions of the Motor Vehicle Act (or Off-Road Vehicle Act); therefore you are under no compulsion to answer my questions. If I do decide to take an accident report from you later, I will clearly inform you. Do you understand?