R v. Soules 2011 ONCA 429: Are Statutorily Compelled Statements still Relevant in the New Impaired Driving Regime?

The title of this post contains what is known as a case citation (lawyers use case citations for quick reference). If a case is particularly remarkable and sets a precedent (essentially a ruling that evolves the law), the case gets reported and used in argument by lawyers in future cases. The “R” in the citation stands for Regina, and represents the State, i.e., “Her Majesty the Queen”, the “v.” stands for versus, and “Soules” is the name of the accused in the case. In the Criminal law subfield of impaired driving, the ruling in R v Soules set a precedent where Mr. Soules had no choice but to fashion details of what had happened to him in a motor vehicle accident.

Why was Mr. Soules acquitted? In sum, it was the result of the fact that the Highway Traffic Act compelled him to provide details to an officer following his admitting to being a party to a motor vehicle collision. From those details, the officer formed a suspicion that alcohol was involved and decided to administer a roadside alcohol screening device test which ultimately led to Mr. Soules failing the official breath tests back at the police station. If one MUST provide a statement then how should that be balanced against one’s right against self-incrimination?

The details of the case are summarized as follows: At the scene of an accident, Mr. Soules told the investigating officer that he was the driver of one of the involved vehicles. Based on Mr. Soules statement, the officer suspected that Mr. Soules had alcohol in his system and made an approved screening device demand (this is the roadside screening test which registers either a pass, warning range, or fail). Mr. Soules failed the roadside test. He was charged with operation of a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood (colloquially, “Over 80”). At Mr. Soules’ trial, the judge ruled that Mr. Soules' roadside statements were statutorily compelled under the Highway Traffic Act and as such, his statements were inadmissible according to other cognate cases and the logically attached breach of his right against self-incrimination. The judge excluded the breath results from evidence as a result of the breach of section 7 of the Charter - without the roadside statement there was no reasonable suspicion to allow for a proper roadside breath demand. Mr. Soules was acquitted. The Crown appealed but ultimately the Ontario Court of Appeal held true to the findings of the court of first instance.

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THE EFFECT OF THE NEW IMPAIRED DRIVING LEGISLATION

As of December 18, 2018 - this interesting legal issue will have been made redundant. The former test for an investigating officer to administer a roadside screening device test was that he or she had ‘reasonable grounds to suspect’ that there was alcohol at play. This most commonly crystallized as “an odour of alcohol emanating” from an individual’s breath, the freely given admission of consumption of alcohol, and/or open alcohol readily available to a driver within a vehicle. Under section 320.27(2) of the Criminal Code of Canada, an officer no longer needs “reasonable grounds to suspect” the presence of alcohol in the context of making a roadside demand (so long as the roadside device is present with the officer at the time of the demand). Thus utterances made at roadside, like in Mr. Soules case, are no longer necessarily required to get to the stage of an officer validly requesting a roadside demand.

One of the greatest parts of being a criminal lawyer is that it is simply will not possible to be complacent. The law is always evolving. This new legislation will undoubtedly be tried for constitutionality and only time will tell where the Courts will lead us next.

If you would like to discuss your case, please do give me a call at 613-893-5673 or email me at jordan@tekenos-levy.com.

Is There a Statute of Limitations for Crimes Committed in Canada?

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As with any comprehensive response to a legal question, the answer begins with “it depends”. In Canada, when someone is charged with a Criminal offence, there are two ways in which the Crown Attorney proceeds to prosecute the charges: either via summary conviction or indictment (a helpful lateral would be the US based misdemeanour versus felony regime). In Canada, there are designated summary conviction offences (i.e., Section 174 of the Criminal Code of Canada - “public nudity”), and there are also designated indictable offences (i.e., Section 76 of the Criminal Code of Canada - “hijacking”). Summary conviction offences are perceived as less serious than indictable offences. Being convicted under either regime results in one acquiring a criminal record. There is a third category by which the Crown Attorney can proceed to prosecute, these are called hybrid offences (i.e., committing mischief under $5000 can be proceeded on via summary conviction or indictment). The decision to proceed one way or the other is determined by the Crown Attorney. The Crown Attorney will decide which route to prosecute based on the particular facts and circumstances of the case, as well as in consideration of available resources and whether there is a reasonable chance to secure a conviction.

An offence prosecuted via summary conviction has the following features: the accused has no right to a jury trial and cannot elect to have a preliminary hearing nor be tried by a higher court (in Ontario, the case will always be heard in the Ontario Court of Justice); the accused must be charged within 6 months of the commission of the offence; a person who commits a straight summary conviction offence does not have to provide finger prints under the Identification of Criminals Act; summary conviction appeals are first heard in Ontario at the Ontario Superior Court of Justice.

An offence prosecuted via indictment has the following features: the accused is entitled to a preliminary hearing (save for the exceptions in section 553); the accused is entitled to be tried on a judge alone or a judge and jury basis; the accused will typically have their trial heard in the Ontario Superior Court of Justice (but could elect to be tried in the Ontario Court of Justice on a judge alone basis); indictable offences often carry sentences potentially requiring life in prison; appeals for indictable offences are heard at the Ontario Court of appeal; there is no statute of limitations for indictable offences.

A hybrid offence is classed as both a summary conviction and indictable offence. Again, the Crown Attorney will decide which route to prosecute. If the commission of the hybrid offence pre-dated the laying of the charge by more than six months, then the Crown Attorney (should they decide to prosecute) would be bound to prosecute via indictment.

To address the statute of limitations question proposed in the title of this post, at the most basic level, the answer for a summary conviction offence is in the affirmative (6 months). For an indictable offence there is no statute of limitations. For a hybrid offence, whether a limitation exists falls squarely on the procedure the Crown Attorney decides to proceed on. One should note that a Crown Attorney could originally elect summary conviction and later proceed via indictment (for hybrid offences, this is aptly named a ‘re-election’).

Some might tend to think that limitation periods in the criminal law context are bogus given that the passage of time should not detract from the fact that someone is alleged to have committed a crime. Those thinking in this vein should consider that an accused should not be prosecuted for an offence based on newly conceived morality or public opinion that did not exist at the time of the offence; the loss of objectivity (with time a witness might forget/misconstrue evidence [AND THEY DO] required to determine guilt) can lead to an unfair trial; physical evidence or it’s continuity can be lost; and for a straight summary offence (i.e. a less serious offence) it would be impractical to prosecute a dated matter with no physical evidence and no reliable way for the Crown Attorney to screen out unfounded allegations.

As with anything in law, there are rules and corresponding exceptions. There are limitations on some kinds of charges and for others there are not.

To discuss your case, give me a call, 613-893-5673.

- Jordan Tekenos-Levy