The Lawyers Weekly - June 17, 2011

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Continued From Page 1

sufficiently meritorious and did not raise a significant question for the administration of justice.

“This is a case of first impression for this court,” he wrote, Appeal in R. v.

Powers (2006),
213 C.C.C. (3d)
351. “That,
together with
the Charter
implications for
drivers and police, raises issues
of significance to the general
administration of justice so as to
warrant leave to appeal.”
However, with Justices Jean
MacFarland and Robert Sharpe
concurring, he went on to dis-
miss the appeal entirely. “I am
satisfied that this case, because
of the Charter implications for
drivers and police, clearly raises
an issue of significance to the
general administration of jus-
tice. Nevertheless, I am also
satisfied that this appeal is com-
pletely answered by the Supreme
Court of Canada’s decision in
White.”
He noted that in White, the
SCC majority held that state-
ments compelled by B.C.’s Motor
Vehicle Act were inadmissible in
criminal proceedings “because
their admission would violate
the principle against self-incrim-
ination.”
Justice LaForme said Powers
“involved facts similar to those

Gold

in our case. The accused in Powers was involved in a collision. When the attending officer asked who had been driving the vehicle, the accused identified himself as the driver. His eyes were red and his breath had the odour of alcohol. The officer made an approved screening device demand and the accused failed. He then gave a breath sample that read over 80.”

“…the government
cannot pass a law
to compel you to
provide it with
information and then
use what you say in
a criminal prosecution
against you …
As for the Crown’s submission
that the lower courts’ rulings
might cripple police investiga-
tions of impaired driving
offences where an accident had
occurred, Justice LaForme cited
as “instructive” Justice Frank
Iacobucci’s observations in
White that “the possibility is real
and serious that permitting the
use of compelled accident
reports within criminal proceed-
ings might increase the likeli-
hood of abusive conduct by the
state. In taking accident reports
from drivers, police would have
a strong incentive or perhaps an
unconscious inclination to over-
emphasize the extent of the
statutory duty to report an acci-
dent under the Act, in order to
obtain relevant information. The
effect of such an overemphasis
might be to circumvent or defeat
a driver’s s. 7 right to remain
silent when under investigation
for a criminal offence.”
Justice LaForme said it was
“accepted in White that the effect
of statutory provisions such as
those under consideration in
this case is to create a logistical
difficulty for police.” However,
he noted that at various places in
his reasons Justice Iacobucci
“described several ways in which
police might investigate so as to
acquire information independ-
ently of the accident report that
is subject to use immunity.