'Failure to Stop'? The Principle Against Self-Incrimination & Motor Vehicle Insurance StatementsR v Porter, 2015 ABCA 279 (CanLII)
Keywords: MV Insurance Statements; Traffic Safety Act, RSA 2000, c T-6 (TSA); Careless Driving; Failure to Stop; Traffic Accident; Statutory Compulsion; ss. 7 & ss. 8 of the Canadian Charter of Rights and Freedoms (The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11); R. v. White,  2 SCR 417, 1999 CanLII 689 (SCC); R. v. Soules, 2011 ONCA 429 (CanLII); R. v. DaCosta, 156 CCC (3d) 520,  OJ No 2392 (QL), 86 CRR (2d) 162, 15 MVR (4th) 272, 50 WCB (2d) 233
Mr. Andrew Green pulls over on Anthony Henday Drive, Edmonton; assists another motorist. He is struck and killed by a passing vehicle while on the roadside. The driver of the vehicle does not stop.
Next morning the Respondent, Mr. Kieran Porter, contacts a lawyer about his involvement in an accident. Lawyer correctly advises Mr. Porter has right to remain silent, and obligations to provide a collision statement to police pursuant to the Traffic Safety Act, RSA 2000, c T-6 (TSA); and a collision statement to his insurance company.
Respondent’s lawyer then advises police he has a client who needs to report an accident pursuant to the TSA, provides Mr. Porter’s name to Cst. Jones (indicating that he was only doing so in compliance with the TSA). Lawyer and Respondent attend police headquarters where Mr. Porter provides full TSA report. Respondent is then placed under arrest, interviewed by Det. Yarmuch, and released. Mr. Porter declines to answer any questions during this interview on advice of his lawyer.
Sgt. Jones informs the lawyer police want to seize the Respondent’s vehicle. After reviewing the TSA statement, Cst. Chandra swears Information to Obtain (ITO) for a warrant to seize the Respondent’s car. The ITO contains and relies upon information from the TSA (statutorily compelled statements from the Respondent), including the Respondent’s name, address, and the make of his vehicle.
The warrant is granted and police find incriminating evidence after seizing the Respondent’s vehicle (a 2008 Porsche Cayenne).
Mr. Porter also contacts his insurance broker. Claims adjuster explains conditions of his insurance policy require he provide a statement; failure to cooperate could result in denial of coverage. Mr. Porter sends a written statement indicating his involvement in the collision. Police learn of the insurance statement, and obtain production orders (again relying upon information provided by Mr. Porter in his earlier TSA statement).
At trial, Mr. Porter challenges the admissibility of evidence all derived from his TSA statement (pursuant to R. v. White,  2 SCR 417, 1999 CanLII 689 (SCC)) – asserting any such evidence is obtained in breach of ss. 7 and 8 of the Charter. Following a voir dire, the trial judge agrees, applies White, and excludes the Crown’s evidence under ss. 24(2) – she finds information from compelled statements should not be used to obtain search warrants. Moreover, the trial judge concludes statements made to the insurance company are statutorily compelled and therefore inadmissible as per White.
The Crown raises two issues on appeal:
1. Is it a breach of the Charter for police to use information found only in a TSA collision statement to obtain a search warrant or production order?
2. Were the respondent’s insurance statements compelled statements and inadmissible at trial?
The Alberta Court of Appeal concurs with the trial judge’s reasoning; answering both questions in the affirmative. Mr. Porter is acquitted on one count of careless driving under the TSA and one count of ‘failure to stop at an accident’ under the Criminal Code, RSC 1985, c C-46.
Where police seek to use information acquired from a driver through questioning, that information must not be provided pursuant to statutory duties (such as those found in the TSA). The reason is simple: as per White, where police action compels or coerces an individual to furnish evidence later used against them, inclusion of such evidence will offend the principle against self-incrimination.
Can the Police Rely Upon Information Found in TSA Reports to Advance an Investigation?
In Porter, the Alberta Court of Appeal’s reply is a clear ‘no’. Here the Court adopts reasoning found in both R v Powers, 2006 BCCA 454 (CanLII), leave denied  SCCA No 452 (where the British Columbia Court of Appeal held statutorily compelled statements are not admissible in a criminal proceeding for any purpose – including to establish grounds for a roadside demand or breath sample demand), and R v Soules, 2011 ONCA 429 (CanLII), leave denied  SCCA No 375 (where the Ontario Court of Appeal similarly held statutorily compelled statement not admissible for the purpose of establishing ASD grounds).
Accordingly, the Alberta Court of Appeal found no fault with the trial judge’s determination Mr. Porter’s TSA statement was provided on the basis of an honest and reasonably held belief he was required to do so (note: this is an important precondition for exclusion as per White). The facts used to create the Information to Obtain would not have been ‘in the hands of the police’ but for the statutorily compelled TSA report provided by Mr. Porter himself. Pursuant to R v Grant,  3 SCR 223, a search warrant would not have been issued without the information contained in the TSA report.
Therefore, the search was not authorized by law and the Respondent’s ss 7 and 8 rights were violated. Evidence against Mr. Porter was therefore excluded under s 24(2). Note: in the absence of critical evidence confirming the identity of the driver and the location of the vehicle, the Crown cannot succeed in proving the offence.
If the TSA Report is Off Limits, What about the Insurance Statement?
The Alberta Court of Appeal found certain statutory conditions as set out in the Insurance Act, RSA 2000, c I-3, s 556, require that an insured person ‘promptly give to the insurer written notice’. In R v DaCosta (2001), 156 CCC (3d) 520 (Ont SC), the principles of White were applied to Ontario’s Insurance Act and it was determined, given the mandatory nature of insurance, statements provided pursuant to an insurance contract could be excluded.
In both White and R v Fitzpatrick,  4 SCR 154, the Supreme Court of Canada outlined a series of contextual factors that can be used to assess whether to deploy the principle against self-incrimination to exclude an insurance report in criminal prosecutions.
For the Alberta Court of Appeal, these include:
- the existence of coercion;
- the presence of an adversarial relationship;
- the possibility that of unreliable confessions; and
- the risk for an abuse of power
The Court of Appeal agreed that the mandatory nature of vehicle insurance (especially the mandatory nature of reporting requirements) was sufficient coercion to trigger the principle. The Court concluded that, unlike the situation in Fitzpatrick (which involved reports and fishing logs in a context ‘free of psychological pressure’), here Mr. Porter was the subject of a criminal investigation when he admitted facts to the insurer. On the question of unreliable confessions, the Court held drivers may ‘feel a strong incentive to provide a false statement’ if they know that information will be passed along to the police to assist in their prosecution. Finally, the Court of Appeal found that allowing the Crown to use an insurance statement (required as part of a process designed to facilitate the determination of liability) as part of a criminal prosecution would be to allow the Crown to do, through other means, what ss. 7 of the Charter and White expressly prohibit.
The purpose of insurance reports and/or provisions such as s. 71 of the TSA or s 61 of the British Columbia Motor Vehicles Act (featured in White) is not to assist the police in the investigation of crimes. The reasoning provided by the Alberta Court of Appeal is simply this: the federal division of powers. The criminal law power falls squarely within federal jurisdiction (pursuant to s. 91(27) of the Constitution Act, 1867) the provinces are relegated to make factual inquiries – they are forbidden to interfere with federal jurisdiction.
The constitutional division of powers may certainly create logistical concerns for police investigations, but, as indicated by the trial judge – this law is not new and police should proceed on the basis that statutorily compelled statements are inadmissible.