New s. 320.31 came in to force on December 18, 2018 as part of the new drinking, drugs and driving offence provisions in new PART VIII.1 — OFFENCES RELATING TO CONVEYANCES. Subsection (9) thereof provides:
(9) ADMISSIBILITY OF STATEMENT — 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.
This is an attempt by the government to overrule the principle in cases such as R. v. Soules, 105 O.R. (3d) 561, [2011] O.J. No. 2500 (Ont. C.A.), leave to appeal refused [2011] S.C.C.A. No. 375 (S.C.C.) that compelled statements such as admissions of being the driver compelled to be made pursuant to provincial highway traffic legislation such as ss. 199 and 200 of the Ontario Highway Traffic Act, are inadmissible for any purpose in a criminal case because of s.7 of the Charter's protection against compelled self-incrimination.
The present law I have summarized elsewhere as follows:
"An accused’s liberty interest is implicated by the introduction into evidence of statutorily compelled information.1 Statements made under compulsion of provincial motor vehicle legislation requiring reporting of accidents and the like are inadmissible in criminal proceedings against the declarant. The test for compulsion is whether, at the time the driver made the report regarding the accident, he made the report on the basis of an honest and reasonable belief that he was required by law to report the accident as he did.2 This is so whether the evidence is to be used directly as evidence of guilt or indirectly as evidence of reasonable grounds to demand a breath sample.3 [Emphasis added]
1. R. v. White, [1999] 2 S.C.R. 417, 135 C.C.C. (3d) 257, 24 C.R. (5th) 201, [1999] S.C.J. No. 28 (S.C.C.); R. v. Fitzpatrick (1995), 102 C.C.C. (3d) 144, 43 C.R. (4th) 343, [1995] S.C.J. No. 94 (S.C.C.); R. v. Jarvis, [2002] 3 S.C.R. 757, 169 C.C.C. (3d) 1, 6 C.R. (6th) 23, [2002] S.C.J. No. 76 (S.C.C.); R. v. Ling, [2002] 3 S.C.R. 814, 169 C.C.C. (3d) 46, 6 C.R. (6th) 64, [2002] S.C.J. No. 75 (S.C.C.); British Columbia (Securities Commission) v. Branch, [1995] 2 S.C.R. 3, [1995] S.C.J. No. 32 (S.C.C.).
2. R. v. White, [1999] 2 S.C.R. 417, 135 C.C.C. (3d) 257, 24 C.R. (5th) 201, [1999] S.C.J. No. 28 (S.C.C.); R. v. Velandia, 2012 ABPC 347, [2012] A.J. No. 1346 (Alta. Prov. Ct.).
3. R. v. Soules (2011), 105 O.R. (3d) 561, [2011] O.J. No. 2500 (Ont. C.A.), leave to appeal refused [2011] S.C.C.A. No. 375 (S.C.C.); R. v. Hussainyar, 2015 ONSC 2109, [2015] O.J. No. 1585 (Ont. S.C.J.); R. v. Powers, [2006] B.C.J. No. 2650 (B.C.C.A.) (inadmissible to supply grounds for screening test); R. v. By, 2015 SKQB 86, [2015] S.J. No. 148 (Sask. Q.B.) (even as grounds for ASD demand); R. v. Porter, 2014 ABQB 359, [2014] A.J. No. 617 (Alta. C.A.) (cannot be used in provincial offences prosecution where imprisonment possible and cannot be used in ITO to obtain search warrant).
Gold, The Practitioner's Criminal Code 2020, Charter of Rights, ¶7-4 at pp 1445-6
The government's argument can be anticipated to be that statutorily overruling Soules only to the extent of allowing such self-incriminating material to be used for the reasonable grounds issues and not for guilt determination in the trial is a reasonable s.1 limitation on any Charter right such as s.7's right against self-incrimination. Before referencing Soules to show that this argument was specifically rejected in Soules, a brief history of the issue is useful.
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