R. v. CLARK, 2024 NSPC 52, NOVEMBER 28, 2024.
FACTS: The accused was charged with the offences of impaired driving and operating a conveyance with an illegal blood alcohol concentration. The accused pleaded not guilty to both charges. He filed a pre-trial application seeking exclusion of evidence pursuant to section 24(1) of the Charter. Judge Duffy described the nature of the application in the following manner (at paragraphs 4 to 6):
The Applicant (Defence) seeks to exclude from the evidentiary record Mr. Clark’s statements that he made to the 911 operator and to the police roadside prior to his arrest.
The Defence filed a Charter application, alleging a breach of his section 7 rights. Mr. Clark asserts that his conversation with the 911 operator, and his subsequent comments to the police at the roadside prior to his arrest, were made under compulsion by statute. He claims that the admission of these statements at his trial would contravene his right to be free from self-incrimination. The Defence asserts use immunity protection for these statements.
The Defence argues the evidence should be excluded from consideration at his trial, and that the Court can rely upon its common law power to protect trial fairness to do so. Alternatively, the Defence argues the Court can resort to s. 24(1) of the Charter to exclude the evidence.
After the application was heard, the trial proceeded. The evidence at the trial established that the accused had an accident and called 911 to report it. When a police officer arrived at the scene, he spoke to the accused and noticed an odor of alcohol. The accused told the officer he had three or four drinks at a bar.
Judge Duffy described the issues raised as being the following (at paragraph 28):
1. Whether Mr. Clark made the 911 call and the roadside statements under compulsion;
2. Whether admission of the statements would constitute a breach of Mr. Clark’s right to be free from self-incrimination as a principle of fundamental justice guaranteed by section 7 Charter; and
3. Whether the statements should be excluded under s. 24(1) or the common law power of the Court to ensure trial fairness, and instead used only for the limited purpose of justifying a breath demand legislated in section 320.31(9) Criminal Code (CC).
Provincial legislation required that a person involved in an accident must report the accident to the police.
Judge Duffy noted that section 320.31(9) of the Criminal Code “restricts the use of an accused’s statements to a peace officer during the prosecution of impaired driving offences”:
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 application was granted, the 911 call and statements to the police officer were excluded, and the accused was acquitted of both charges.
Whether Mr. Clark made the statements to the 911 operator and police at the roadside under compulsion:
Judge Duffy held that “Mr. Clark was compelled by statute to provide a report” (at paragraph 60). She concluded that “Mr. Clark’s statements to the 911 operator and to the police at the roadside were statutorily compelled reports of the occurrence of a motor vehicle accident as contemplated by the use immunity ruling in White” (at paragraph 67).
Whether admission of the statements would constitute a breach of Mr. Clark’s right to be free from self-incrimination as a principle of fundamental justice guaranteed by section 7 of the Charter:
Judge Duffy held that section 320.31(9) “reflects the intent of Parliament to restrict the use of statements that are compelled by legislation on the trial proper. There may be reliance on such statements to support officer grounds for a breath demand… Admission of these statements made under a statutory duty to report an accident for a purpose beyond supporting officer grounds offends the principle against self-incrimination protected by section 7 of the Charter” (at paragraphs 72 and 73).
Whether the statements should be excluded under subsection 24(1) or under the common law power of the Court to ensure trial fairness:
Judge Duffy concluded that the statements should be excluded (at paragraphs 84 and 85):
I am of the view that invoking section 24(1) is appropriate in this case to arrive at a remedy. The Supreme Court instructed in Doucet-Boudreau v. Nova Scotia, 2003 SCC 62, that “[s]ection 24(1) of the Charterrequires that courts issue effective, responsive remedies that guarantee full and meaningful protection of Charter rights and freedoms” (para 87). The proper remedy lies under subs. 24(1).
While superior courts may craft any remedy that they consider “appropriate and just” in the circumstances, this is a statutory court. Accordingly, I turn to the binding authority from our Court of Appeal and the Supreme Court of Canada as to the nature of the remedy. Our Court of Appeal in R. v. Zwicker, 2003 NSCA 140, approved exclusion of the compelled statement per s. 24(1), which was the same approach recognized in White as a suitable remedy[2]. A consistent approach is in order here and I exclude the evidence pursuant to s. 24(1) of the Charter.