2007 SKPC 74 IN THE PROVINCIAL COURT OF SASKATCHEWAN AT SASKATOON, SASKATCHEWAN Between HER MAJESTY THE QUEEN and Brian Erwin Gamble J. Plemel, Q.C. for the Crown M. Brayford, Q.C. for the Accused B.M. SINGER, PCJ DECISION June 27, 2007 [1] This is a decision, following a voir dire, on the admissibility of statements made by the accused to a police officer. [2] The Crown called Constable McGunigal. This officer testified that while investigating another matter he received word of single vehicle roll-over accident that had taken place outside Vanscoy on Highway #7. While continuing his investigation of the first incident, he attended at the parking lot of St. Paul’s Hospital in Saskatoon where he was approached by the accused. The accused called out to him and said; “Excuse me, I was in a roll-over accident and I am intoxicated.” [3] His interest piqued, the officer spoke with the accused and received identification information from his licence and advised him to check into the injuries he displayed by seeing the nurse at the emergency department. [4] The officer abandoned his previous investigation. He accompanied the accused to the triage nurse and stayed with him while the accused checked in. During this process the officer observed symptoms of impairment and asked the accused how much he had to drink and was told that he had consumed about 15 beer. [5] The police officer formed the opinion that he should ask the accused for blood sample to determine the quantity of alcohol in his blood. He therefore placed the accused under arrest for impaired operation of motor vehicle, read him his Charter rights, the Police Warning and Demand for Blood Sample. According to the officer, the accused understood his rights, the warning and the demand for the blood sample and was “relatively co-operative” through out. The officer then detained the accused, by remaining with him while awaiting the Blood Kit to arrive and for blood technician to take the blood. During this time, the accused was also awaiting treatment for his injuries. [6] While they were waiting the officer interrogated the accused about the accident and the accused provided additional information to the officer. [7] The accused testified on the voir dire. He said that after the roll-over, he received ride to Saskatoon with truck driver, who dropped him off near his cousin’s home. While walking there he phoned his father, cousin and the 9-1-1 operator. He received advice that there was legal obligation to report the accident promptly to the police. Indeed, the 9-1-1 operator gave him the police phone number to do this. He then went to the hospital to attend to his injuries. [8] He testified, that when he talked to the police officer, it was only because he felt he had legal obligation to do so. Perhaps, that is why he approached the officer in the way he did and was co-operative throughout. However, he had no recollection of the officer ever placing him under arrest, giving him the warning or making the blood demand. [9] It is useful for me to divide the series of statements that the accused made into groups. Those before the arrest and those given after. [10] The Crown concedes that the accused did have a legal obligation to report the accident promptly, and if I find that the accused believed he was reporting the accident when he gave self-incriminating statements to the police officer as a result of this belief, then the law requires me to exclude those statements. The concession made by the Crown is correct. As stated in R. v. White, (1999) 1999 CanLII 689 (SCC), 24 C.R. (5th) 201 S.C.C. any self-incriminating statements believed to be made under compulsion of provincial statute would be breach of the accused’s section Charter rights and would result in an unfair trial. [11] I find in this case that the accused did approach the police officer with the intention of reporting the accident as is required by the Traffic Safety Act. There really is no other reasonable explanation for his statement to the police. As such his initial statement, anything said by the accused while providing his personal information and the answer to any question while registering at the hospital are excluded from this trial. [12] This leaves us with the statements made after his arrest, rights and warning. The accused testified that he did not recall being placed under arrest, being given his rights and warning or even the blood demand. The officer was sure that he had done so and had made contemporaneous note, in his notebook, of these statements to the accused and his responses. find as fact that the arrest, rights and warning were read to the accused and that he understood them. [13] The accused testified that when he continued to talk to the officer he was only doing so because he still felt compelled to do so by his statutory obligation. The Crown contends that if I accept that he was given the police warning then it would be clear to the accused that he did not have to continue to answer questions of the officer. [14] The Defence also argues that since the arrest and the blood demand were based upon evidence that was obtained by breach of the accused’s section 7 rights and was self- incriminating, I should find that the arrest was illegal and exclude all evidence obtained thereafter, or at least that the information obtained was illegally obtained and the police cannot rely on that information to make the demand. These are two distinct arguments. [15] The latter argument is somewhat supported by the British Columbia Court of Appeal in R. v. Powers, [2006] BCCA 454. That case holds that where police officer’s grounds for making demand for sample are as the result of self-incriminating statements of the accused, that have been excluded as they are in breach of section (as they were made under compulsion of statute), the results of the demand must be excluded. In other words, evidence of the certificate of analyses may be excluded if the evidence which resulted in the demand for the samples was illegally obtained. That is not however the subject of this voir dire, which is the admissibility of statements made to the police officer after the accused was placed under arrest. However, that case is instructive as to the effect of the continuing belief of the accused that he was obliged to answer the questions of the officer under the compulsion of statute. [16] In the case before us, the self-incriminating statements, that were made under compulsion of statute have been excluded. Does is it not follow that any evidence that came about as a result of the officer following up on those excluded statements are also in breach of the accused’s section 7 rights? I believe so. [17] Having concluded that the evidence received by the officer was as the result of breach of his section rights, must now determine if the evidence so gathered must be excluded from the trial pursuant to section 24(2) of the Charter. [18] This is more difficult decision. The evidence must only be excluded based upon the factors expressed in R. v. Collins, [1987] S.C.R. 285 and R. v. Stillman (1997), 1997 CanLII 384 (SCC), 113 C.C.C. (3d) 321. In making this analysis it is important for me to state that believe that the officer was acting in good faith. Indeed, he did not know that the accused was only saying things because he believed he had to under compulsion of statute. Constable McGunigal was not acting with serious, intentional disregard of the accused’s rights nor was he taking statement under the Traffic Safety Act. He was interrogating the accused after he had arrested him, explained what he was arrested for, explained to him his rights to counsel and further warned him that he was not obligated to say anything further to the police. accept that the accused responded to the police officer that he knew his rights and understood the warning. [19] On the other hand, the evidence obtained, the statements in particular were self- incriminating and conscriptive. As the Supreme Court held in Stillman, at paragraph 110 where evidence would not have been discovered in the absence of the conscription of the accused in violation of the Charter, its admission would render the trial unfair. In those circumstances it is not necessary to consider the seriousness of the violation or the repute of the administration of justice. Evidence obtained though process of self-incrimination will generally be excluded in order to ensure that the accused has fair trial. The fair trial test tends more towards an absolute rule of exclusion because courts are instructed not to concentrate on the motives behind the Charter violation. Of course, the rule is different if we are dealing with “real” evidence. [20] That being the case I have concluded that even though the investigator did nothing that violated the accused’s rights, they were nevertheless violated. Because the result of that violation was that there were statements made that amounted to self-incriminating evidence, following the logic of the case law, it is necessary to exclude those statements. Therefore, all of the statements of the accused including those made after the arrest are excluded and will not form part of the Crown’s case. [21] The result of the voir dire is that none of the statements of the accused will be admissible in evidence in this trial. Dated at Saskatoon this 27th June 2007. B.M. Singer, P.C.J.
Decision, following a voir dire, on the admissibility of statements made by the accused to a police officer, beginning with: 'Excuse me, I was in a roll-over accident and I am intoxicated.' The officer, who observed symptoms of impairment, asked the accused how much he had had to drink and was told he had consumed about 15 beers. The officer placed the accused under arrest for impaired operation of a motor vehicle, and read him his Charter rights, the Police Warning and a Demand for Blood Sample. The officer then detained the accused by remaining with him while awaiting the Blood Kit to arrive and for a blood technician to take the blood. During this time, the officer interrogated the accused about the accident and the accused provided additional information. The Crown contended that if he was given the police warning then it would be clear to the accused that he did not have to continue to answer questions the officer's questions. The Defence argued that since the arrest and the blood demand were based upon self-incriminating evidence obtained by breach of the accused's s. 7 rights, the arrest was illegal and all evidence obtained thereafter should be excluded; or, at least, that the information obtained was illegally obtained and the police could not rely on that information to make the demand. The accused testified that he talked to the police officer only because he believed he had a legal obligation to do so, based on advice he had received from others that there was a legal obligation to report the accident promptly to the police. The Crown conceded that the accused did have a legal obligation to report the accident promptly, and that if the accused believed he was reporting the accident when he gave self-incriminating statements to the police officer as a result of that belief, those statements must be excluded according to law. HELD: All of the statements of the accused, including those made after the arrest, are excluded and will not form part of the Crown's case. The evidence obtained, and the statements, in particular, were self-incriminating and conscriptive. The officer was acting in good faith, not with serious intentional disregard of the accused's rights. He was not taking a statement under the Traffic Safety Act. He did not know that the accused was only saying things because he believed he had to under compulsion of statute. Even though the investigator did nothing that violated the accused's rights, they were nevertheless violated. Because the violation resulted in the making of statements that amounted to self-incriminating evidence, following the logic of the case law, it is necessary to exclude those statements. The accused did approach the police officer with the intention of reporting the accident as is required by the Traffic Safety Act. As such, and as the Crown correctly concedes, his initial statement, anything said by the accused while providing his personal information and the answer to any question while registering at the hospital are excluded from this trial. As the self-incriminating statements made under compulsion of statute have been excluded, it follows that any evidence that came about as a result of the officer following up on those excluded statements are also in breach of the accused's s. 7 rights.