If you recall, Bill C-46 introduced and amended much of the legislation around impaired driving (operation). One new piece of legislation sought to address the issue around accident reports (e.g. provincial Motor Vehicle / Highway Traffic Acts) that are compelled and to allow police to use that information to form grounds for demands. In short, Section 320.31(9) of the Criminal Code permits the admission of a statement compelled by provincial statute for the purpose of justifying a demand made under either of ss. 320.27 or 320.28. But what of its use to prove identity? One of the core elements of an offence under s. 320 of the Criminal Code is the identity of the driver. For the Crown to obtain a conviction, it must show beyond a reasonable doubt that the person before the Court was the operator of the conveyance in question. An inability to do that will render the rest of the evidence, however strong it might be, moot. This was most recently discussed in R. v. Thorne 2022 ONCJ 193.
Parliament did not carve out an exception for that use in Bill C-46, as it did for the issue of grounds to make a demand. For a confession (which is what this effectively is, at least related to identity) to be admissible, it must be found to be voluntarily given. A driver’s statement, as part of the accident report required by the provincial act, can hardly be said to be voluntary because (s)he is compelled in law to report the collision in certain circumstances. A compelled statement cannot be used against a driver to prove his or her guilt as to do so would infringe on the right against self-incrimination.
So, while the compelled statement may not be admissible to prove the element of identification, it may still be admissible to show the investigating officer’s grounds to make an ASD or breath demand. To provide evidence that the driver was the operator of the conveyance in question at the time of the offence, we will need to obtain evidence (e.g., video captured, independent witnesses at the scene) in the same manner as we were required to do all along before Bill C-46.