Q.B.G. A.D. 1997 No. 1793 J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA and HER MAJESTY THE QUEEN RESPONDENT D.M. MacMullin on behalf of Peter Chow M.M. Vass on behalf of her Majesty the Queen JUDGMENT ZARZECZNY J. January 2, 1998 The appellant, Peter Chow, appeals his conviction on acharge of dangerous driving contrary to ss. 249(1)(a) of theCriminal Code, R.S.C. 1985, c. C-46. The conviction was entered June 5, 1997, by Her Honour, Judge J.E. McMurtry of the Provincial Court. There are two grounds of appeal, namely:1. The learned trial Judge erred in holding thatstatements made by the Appellant were not made pursuant tothe Highway Traffic Act and therefore admissible in thecriminal proceedings against the Appellant.2. The learned trial Judge erred in holding that therewas no evidence to indicate that statements made by theAppellant were made pursuant to the Highway Traffic Act andthese statements could have been made simply because theAppellant wished to have his description of the accidentpresented to the police and therefore were voluntary andadmissible in criminal proceedings. During the trial, and after conducting voir dire to determine the admissibility of certain statements made by the accused to Constable Louvel, member of the Regina City Police Force, the learned trial judge concluded that the statement made by the accused was voluntary and admissible. review of the transcript reveals that the accused attended at the Regina City Police station to report an accident. He reported to Constable Louvel that he was the driver of vehicle involved in collision April 12, 1996, in the 2000 block Broad Street. Constable Louvel had earlier received the statement of other witnesses involved in the accident. At pp. 60 and 61 of the transcript he testifies: A.The one gentleman was asked to take seat while the gentleman here was taken into small interview room where we discussed the matter. From the statements had received earlier formed an opinion that what had happened was dangerous driving and he was issued an appearance notice in relation to the charge. We also completed an accident report at that time as he had identified himself as the driver. Again, at pp. 64 and 65, Constable Louvel was asked and gave answers to the following questions: Q.So in the initial discussion out at the front desk there had been no rights to counsel or caution. A. No. Q.Is that correct? A.No. He was just in to report the accident at that time. No other evidence was produced by the Crown at the trial to identify who was driving the vehicle in question other than the statement given by Mr. Chow. The argument of defence counsel at the voir dire was to the general effect that the statement made by the accused (namely that he was the driver of the vehicle) was given pursuant to the compulsion of statute, namely, s. 83 of The Highway Traffic Act, S.S. 1986, c. H-3.1. As such it was not "voluntary" statement and therefore ought to be ruled inadmissible. Counsel then argued that should McMurtry J. agree with that submission there existed no evidence of identity and consequently the charge should be dismissed. It is clear from the transcript of the trial that the arguments of counsel with respect to the admissibility issue were based upon the application of common law principles of voluntariness. During the argument on appeal however it was recognizedthat the question of voluntariness raised a s. 7 Canadian Charterof Rights and Freedoms, Part I of the Constitution Act, 1982,being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11("Charter") issue. Neither the argument before McMurtry J. nor the noticeof appeal raised the Charter argument. The determination of the Charter issue is at the heart of this case and may very well be conclusive of the voluntariness issue. If the accused's statement is not admitted the conviction of the accused cannot stand. (See, for example, considerations of the admissibility of statement given under compulsion of provincial statute in the context of criminal prosecution and s. of the Charter as reviewed in the cases of R. v. Hicks (1988), 1988 CanLII 7148 (ON CA), 42 C.C.C. (3d) 394 (S.C.C.); R. v. Sarkonak (1990), 1990 CanLII 10982 (MB QB), 53 C.C.C. (3d) 542 (Man. Q.B.); R. v. Spyker (1990), 1990 CanLII 10954 (BC SC), 63 C.C.C. (3d) 125 (B.C.S.C.); R.v. Fitzpatrick (1995), 1995 CanLII 44 (SCC), 102 C.C.C. (3d) 144 (S.C.C.).) One other aspect of this case needs to be addressed in the context of the second ground of appeal. The trial judge, in giving her ruling on the admissibility of the accused's statement after the voir dire concludes at p. 82 of the transcript: As am not aware of the reason why Mr. Chow attended to the police station and gave the information, cannot say that the question arises in this case as to whether or not The Highway Traffic Act obligation to give report to the police renders any statement made during the report involuntary. Accordingly, for that reason do not find the statements made by Mr. Chow to be involuntary. With respect to the learned trial judge, find it difficult to agree with her conclusions in this respect or her statement that notwithstanding the evidence of Constable Louvel already referred to she was not aware of the reason why Mr. Chow attended at the police station. Constable Louvel testified that it was his understanding Mr. Chow did so to give an accident report. Had the Charter issues been properly raised and arguedbefore the learned trial judge, a conclusion different from theone she reached (based solely upon the application of common lawprinciples of voluntariness) may well have resulted. The Saskatchewan Court of Appeal, in the case of R. v.; Pelletier (1995), 1995 CanLII 3923 (SK CA), 97 C.C.C. (3d) 139, established that objections to the admissibility of evidence in criminal trials based upon Charter arguments must be made on timely basis. Mr. Justice Tallis observed "the need for some element of discipline with respect to s. 24(2) applications". The issue now raised is an important issue and impacts directly and perhaps conclusively upon the conviction of the accused. Objections to the admissibility of the accused\'sstatements based upon s. 7 of the Charter raise a different issueand different considerations from the application of common lawprinciples. There may also be different approach to the evidence that counsel for either the accused or the Crown may adduce in the voir dire in order to establish the foundation for the Charter argument. In the result, and particularly out of consideration for the justice of the case insofar as the accused is concerned, the appropriate approach in disposing of this appeal is that taken by the Court of Appeal in the Pelletier case directing, as it did, that new trial be ordered. Accordingly, the appeal is allowed, the conviction setaside, and a new trial in the Provincial Court is ordered.
An appeal of conviction on a charge of dangerous driving on the grounds the trial judge erred in holding that statements made by the appellant were not made pursuant to the Highway Traffic Act and therefore admissible in the criminal proceedings; and in holding the statements could have been made simply because the appellant wished to have his description of the accident presented to the police and therefore were voluntary and admissible. The defence at the voir dire was that the statement by the accused that he was the driver of the vehicle was given pursuant to the compulsion of a statute, s 83 of the Highway Traffic Act, and as such was not a 'voluntary' statement. Arguments during trial were based upon the application of common law principles of voluntariness. HELD: The appeal was allowed, the conviction set aside and a new trial ordered. During the appeal it was recognized that the question of voluntariness raised a s7 Charter issue which was not raised in the trial nor in the notice of appeal. Objections to the admissiblilty of the accused's statements based upon the Charter raise a different issue and considerations from the application of common law principles and a different conclusion may have been reached.