R. v. KORDUNER, 2025 ABCA 30, JANUARY 31, 2025.
FACTS: The accused was charged with the offence of refusing to comply with a breath sample demand. The grounds for the demand included a statement made by the accused to the police (that she was drunk) while speaking to them at the scene. The trial judge ruled that this statement was inadmissible because it was statutorily compelled in violation of section 7 of the Charter by the Traffic Safety Act. The trial judge declined to apply section 320.31(9) of the Criminal Code, holding that it violates section 7 of the Charter. The accused was acquitted.
The Crown’s appeal to the summary conviction appeal court was dismissed.
The Crown was granted leave to appeal to the Court of Appeal on the following question:
Did the summary conviction appeal judge err in law in finding that section 320.31(9) contravenes section 7 of the Charter?
Section 320.31(9) of the Criminal Code states:
A statement made by a person to a peace officer, including a statement compelled under a provincial Act, is admissible in evidence for the purpose of justifying a demand made under section 320.27 or 320.28.
HELD: The appeal was allowed, and a new trial was ordered. A majority of the Alberta Court of Appeal did not find it necessary to address the application or constitutionality of section 320.31(9), holding that admission of the accused’s statement would not offend section 7 of the Charter (at paragraphs 85 and 86):
When police are trying to sort out who is who and what happened at an accident scene, they may well end up receiving information from someone who is ultimately subject to criminal charges. Labelling the investigation as criminal from the outset does not, on its own, necessarily give better protection against self-incrimination to the would-be accused. To the extent the suggestion is that, at an accident scene, police must proactively announce to each person they speak to who might be a driver that they are conducting a potential criminal investigation and are not taking a mandatory traffic collision report under provincial legislation, one wonders what this would do to the ability of officers to achieve cooperation at a dynamic scene where evidence and witnesses may be disappearing. As the Supreme Court said in Grant: “Effective law enforcement is highly dependent on the cooperation of members of the public. The police must be able to act in a manner that fosters this cooperation, not discourage it”, at para 39. See also Tessier at para 76. In trying to ensure that the provincial legislation does not unfairly assist police in a criminal prosecution, we must be cautious not to allow the provincial legislation to restrict otherwise permissible police work.
Balancing the applicable factors and principles in the context of the record now before us, we are not convinced that admitting parts of the respondent’s compelled statement for the purpose of justifying Cst. Hlynialuk’s demand for a breath sample would violate section 7 of the Charter.
