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CARE OR CONTROL INVESTIGATIONS


April 30, 2013
By Mauro Succi

2980 words – MR

HEAD: The rules on care or control investigations

by Mauro Succi and Dave McCormack

Canada’s Supreme Court defined the term “care or control,” as found under

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of the Criminal Code, as “(1) an intentional course of conduct with a motor vehicle; (2) by a person whose ability to drive is impaired or whose blood alcohol level exceeds the legal limit; (3) in circumstances that create a realistic risk of danger to persons or property. <1>

The last aspect of this definition has been the most difficult to prove in court, particularly with a single motor vehicle accident or a driver found sleeping in their vehicle. In these situations, officers often have statements alone to form their reasonable grounds for the care or control offence. The difficulty arises when these statements are excluded during a voir dire, which usually results in the accused being acquitted.

The reason courts frequently exclude these statements stems from a 1999 Supreme Court ruling. In situations involving accidents, the court ruled that statements taken from a driver involved in a collision cannot automatically be later used during a criminal proceeding because of the provincial mandatory requirement to report.

<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.> <2>

That is not to say that courts will routinely exclude statements taken from a possible impaired driver involved in a collision. It is all about the initial approach an officer takes when investigating.

{The law}

The essential elements of care or control are:

(1) An intentional course of conduct associated with a motor vehicle;
(2) By a person whose ability to drive is impaired or whose blood alcohol level exceeds the legal limit;
(3) In circumstances that create a realistic risk of danger to persons or property.

The risk of danger must be realistic. This line of thinking is found in the presumption in law set out in <s. 258(1)(a)> Criminal Code, <3> which provides that an accused found in a motor vehicle driver’s seat is automatically in care or control. However, the defence can rebut the presumption by introducing evidence that the accused had no intention to drive.

<Parliament’s purpose in enacting the care or control provision was preventive and directed at the inherent danger that normally arises from the mere “combination of alcohol and automobile”. With respect, however, I believe this supports my view that Parliament’s intention in enacting s. 253(1) of the Criminal Code was to criminalize only conduct that creates a realistic risk of danger.> <4>

It is clear that an intention to set the vehicle in motion is enough to create the risk of danger needed to be convicted of care or control. On the other hand, an accused who satisfies the court that he/she had no intention to set the vehicle in motion can still be convicted if it’s proven a present realistic risk of danger existed.

In the absence of the present intention to drive, a realistic risk of danger may arise in at least three ways:

  1. An inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so;
  2. An inebriated person behind the wheel may unintentionally set the vehicle in motion;
  3. Through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property. <5>

The issue to be determined on the facts of each case is whether any acts by the accused could cause the vehicle to become a danger, whether by putting it in motion or in some other way. <6> Therefore, an officer’s observations noted at the scene are critical. They should be prepared to articulate in detail all of the factors that may prove the third element of the realistic risk of danger.

{Investigating collisions (incriminating statements)}

In <R. v. White>, <7> the accused struck and killed a pedestrian. White fled the scene and phoned police the next day to report the collision. A police officer went to the residence, heard her version of the event and gave White her Charter rights.

White then spoke to her lawyer and subsequently advised the officer that she, on her lawyer’s advice, would not provide a written statement about the collision. In response to a question by the officer, she confirmed some elements of previous statements. White had told the officer she swerved to avoid a deer and struck the person. She also admitted to panicking and fleeing the scene. The officer advised White that even though she wasn’t required to provide a written statement, she would be required to provide a statement under the Motor Vehicle Act.

White was later charged with failing to stop at the scene of an accident under the Criminal Code. At trial, the Crown sought to introduce three conversations the accused had with the officer. On a voir dire, White testified she knew immediately on being involved in a collision that she was under a duty to report it. She stated that she felt the officer came to take a collision report and that she was obligated to speak to him about it.

{Supreme Court ruling}

It is now well-established that there is a principle against self-incrimination, a code of fundamental justice under <s. 7> of the Charter. The defence argued that all White’s statements should be excluded because of the provincial obligation to report the collision; thus contravening the principle of self-incrimination. The Crown disagreed, arguing that the three statements made under the Motor Vehicle Act did not violate this principle. The Crown argued that:

1) Driving is a regulated activity;

2) All drivers are required to obtain a licence to drive; and

3) In so doing, drivers automatically give free and informed consent to all of the rules of the road, including the requirement to report a collision.

Therefore, it cannot be said a driver is coerced to provide a collision report when the occasion arises.

The Supreme Court disagreed and excluded all statements made to the officer.

<8>

Further, the court ruled there is an onus on police to clearly explain when a statement is being taken pursuant to the provincial law requirement or when it is being taken for some other purpose (i.e. possible criminal matter). It set forth a simple question for the courts to decide whether to admit the statements: did the driver give the collision report on the basis of honest and reasonably held belief that they were required to report by law?

Lastly, the court concluded the accused must establish on a balance of probabilities that he or she was compelled to provide the statement in the first place and that it is open to the Crown to rebut that an accused was compelled.

{The rules: ( decision)}

  1. Statements made under compulsion of a provincial traffic statute are not admissible in a criminal proceeding.
  2. Onus of establishing that statements were made under compulsion is on the accused.
  3. Accuseds must have reasonably and honestly believed, at the time they gave the statement, that they were required by law to report the collision. The belief may be mistaken and the accused need not have a legal understanding of the statutory duty.
  4. Police must clearly delineate for the accused the start and end points of the collision report, otherwise it is reasonable for them to assume they continue to be subject to the statutory duty, regardless of the police purpose in obtaining the statement. <9>

{Post White}

As a result of the White decision, it was feared mandatory reporting in various provincial legislation governing collisions would create many difficulties for police because of statements being excluded from evidence. This fear wasn’t without merit. <10>

An Ontario Court of Appeal decision addressed this matter (<R. v. Soules>). The accused was one of four drivers involved in a string of collisions. When the officer asked what happened, Soules quickly said he was driving his vehicle and the officer immediately suspected that he had alcohol in his system. The accused complied with an ASD demand and failed.

Soules was arrested for Over 80, advised of his right to counsel and eventually charged with the offence. The trial judge acquitted him, finding that his <s. 7 and 10(b)> Charter rights had been violated, and excluded the statements, citing of the Ontario Highway Traffic Act, which contain the statutory obligations to report accidents on the highway. <11> The Ontario Court of Appeal agreed.

However, more importantly, the appeal court disagreed with the Crown’s submission that the interpretation of White “has the potential to cripple the investigation of drinking and driving offences where a collision has occurred”. <12>

The Supreme Court stated two ways an officer might investigate a collision that may evolve to a criminal matter without concern of the statements being excluded at trial, which was reiterated by the Ontario appeal court. They are:

1) Police can inform 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; or

2) Police can tell the driver that they will postpone the taking of an accident report until after they have questioned him or her. <13>

“Given the above, I think it is an unfounded argument that use immunity arising from the information mandated by provincial legislation such as that in this case has the potential to cripple the investigation of drinking and driving offences where a collision has occurred”. <14>

{Conclusion}

Care or control investigations present a number of new challenges for police. As we have seen, the courts require evidence that a realistic risk of danger existed. Therefore, an officer’s observations, supported with detailed notes, are critical. The investigating officer should be prepared to articulate in detail all of the reasons that led to their belief of the risk that was present. Some of these factors include:

  • Was the accused sitting or sleeping in the driver’s seat? (presumption in law)
  • Was the accused sleeping?
  • Was the seat reclined or in full upright position?
  • What was the position of the accused’s legs and upper torso?;
  • Were the brake lights illuminated? (foot resting on brake)
  • Was the emergency brake on?
  • Was the seat belt on?
  • What gear was the vehicle in? (park, drive, neutral)
  • Were the accused’s shoes on?
  • Was the engine running?
  • Was the engine compartment warm?
  • Where was the vehicle located? (parking lot, highway, ditch)
  • Did the driver leave the vehicle and re-enter?
  • Were other lights or accessories on?
  • Were there any witnesses? (caller reporting a suspicious vehicle, etc.)
  • Is there evidence to support the accused’s alternate plan? (i.e taxi, friends attending)
  • Was a tow truck called or on scene? (statements made to tow truck operator, etc.)

Lastly, officers are reminded that any suspects in a collision involving a possible impaired offence should be told in simple and clear language from the outset that the accident report will be postponed; thus, avoiding any possible confusion that a statement is mandatory in fulfilling the provincial requirement for the collision report. Doing this would place the onus back onto the accused during any voir dire in arguing that he or she was compelled to provide the statement.

1 <R. v. Boudreault, S.C.C. 2012>

2 <R. v. White, S.C.C. 1999>

3 <258(1)(a) C.C.> – shall be deemed to have had the care or control of the vehicle . . . unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle . . . in motion . . .;

4, 5 Boudreault supra

6 <R. v. Wren O.C.A. 2000>

7 <R. v. White S.C.C. 1999>

8, 9 <R. v. White> (supra)

10 – The Crown appealed the accused’s acquittal of drive over 80. The British Columbia Court of Appeal dismissed the appeal, finding the accused’s statement that he drove the vehicle involved in a collision was given in the context of section 67 of the B.C. Motor Vehicle Act. The officer asked at the collision scene, “Who is the driver of the car in the ditch?” The accused replied that he was. The trial judge, relying upon Powers’ evidence on the voir dire that he admitted to being the driver because he thought he was required to answer the police officer’s question and report the accident to police, held that Powers gave the report on the basis of an honest and reasonably held belief that he was required by law to report the accident to the police officer.

<R. v. Velandia, ABPC 2012> – a uniform officer on patrol in Calgary came upon a motor vehicle collision. The officer had not been dispatched to the accident, but simply “stumbled upon it”. The officer testified he was of the opinion that the collision had recently occurred. When asked what had happened, the female driver admitted that she had been cut off by another vehicle. The officer smelled alcohol and, after forming reasonable grounds for suspicion, made an ASD demand. The driver failed and was charged.

At trial, the justice excluded the statements made to the officer, concluding:

.

11 199(1) Ontario Highway Traffic Act – Every person in charge of a motor vehicle or street car who is directly or indirectly involved in an accident shall, if the accident results in personal injuries or in damage to property apparently exceeding an amount prescribed by regulation, report the accident forthwith to the nearest police officer and furnish him or her with the information concerning the accident as may be required by the officer under subsection (3). (1.1) If, on reporting the accident to the nearest police officer under subsection (1), the person is directed by the officer to report the accident at a specified location, the person shall not furnish the officer described in subsection (1) with the information concerning the accident but shall forthwith attend at the specified location and report the accident there to a police officer and furnish him or her with the information concerning the accident as may be required by the officer under subsection (3). (2) Where the person is physically incapable of making a report and there is another occupant of the motor vehicle, the occupant shall make the report. (3) A police officer receiving a report of an accident, as required by this section, shall secure from the person making the report, or by other inquiries where necessary, the particulars of the accident, the persons involved, the extent of the personal injuries or property damage, if any and the other information that may be necessary to complete a written report concerning the accident and shall forward the report to the Registrar within ten days of the accident. (4) The report of a police officer under subsection (3) shall be in the form that is approved by the Minister.

200(1) Ontario Highway Traffic Act – Where an accident occurs on a highway, every person in charge of a vehicle or street car that is directly or indirectly involved in the accident shall, (a) remain at or immediately return to the scene of the accident; (b) render all possible assistance; and (c) upon request, give in writing to anyone sustaining loss or injury or to any police officer or to any witness his or her name, address, driver’s licence number and jurisdiction of issuance, motor vehicle liability insurance policy and policy number, name and address of the registered owner of the vehicle and the vehicle permit number. (2) Every person who contravenes this section is guilty of an offence and on conviction is liable to a fine of not less than $200 and not more than $1,000 or to imprisonment for a term of not more than six months, or to both and in addition the person’s licence or permit may be suspended for a period of not more than two years.

12 <R. v. Soulas, O.C.A. 2011>
13, 14 <R. v. Soulas,> (supra)

bio

Mauro Succi and Dave McCormack are instructors with the Ontario Police College. Email them at
Mauro.Succi@ontario.ca or Dave.McCormack@ontario.ca for a more complete dialogue on this subject.


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