Statements – Snatching Defeat from the Jaws of Victory!
I’m going to use some clips from Breaking Bad to illustrate the lesson here. In the show, Saul Goodman, a criminal lawyer visits Badger at the police station. Just in tine before Badgers says anything stupid which as you’ll learn is anything at all. The show is an American one and while there are some differences in the laws surrounding statements, 1 common thread is that you don’t have to make one.
Let’s start with excerpts of the clip. The link to the entire clip is below. A simple like or share will give you access to it and all the materials discussed here.
Part I – The Police are NOT Your Friends
You have lived your entire life having never been in trouble but I assure you, you may not realize when the police are in an adversarial role with you. First thing to remember, THE POLICE ARE NOT YOUR FRIENDS! Now, they may appear friendly and down to earth, they may appear to like you. When they’re investigating that minor accident, they may come across like it’s no big deal but. Watch this clip and we’ll discuss it further.
Now the Police officer is really nice in the video. Offering to help in some way. The lawyer has the best question. Here is the second except:
Perfect! Did you say anything stupid? And by stupid I mean anything at all? No truer words have been spoken. Ok back to reality and not tv. Excluding a statement from evidence is too often overlooked. Clients will always make one absent legal advice. Well, not always but it’s rare.
Client A was in a minor accident (not at fault) and did not stop. He drove the car straight home and parked it in his garage. He locked the garage. Police having a partial plate made their way to his house. They saw his 2nd car but not the one he was in an accident in. They couldn’t go in the garage, didn’t have a warrant, nor could they get one. The police persistently called him. He finally agreed to go see them. He got great legal advice. You don’t have to speak to police and if you go to the police station, don’t go in the car you were in the accident. Guess what he did?
If you guessed he went to the police station in the car he had the accident with, you’d be right. He thought it was a big building with a huge shared lot and no one would look. Don’t ask why. There’s no rational explanation for it. He walked in. They were… friendly. And understanding. And while they were talking to him, 2 police officers went looking for the car. Within 8 minutes it was located, photographed and those photos printed.
During the interrogation (you can call it an interview if you think that’s what it is if it’s friendly). The photos are brought in and they say “Hey. We got ya. Look at these pictures.” They actually could only prove it was his car involved but not necessarily him driving the car. They didn’t frame it that way of course, and he… Wait for it… Made a full statement. Not under threat, or inducement, or with any promises. While there was some issues with the taking of the statement, the only reason they wanted one was to prove HE was driving. Had he not made it, it would have been a slam dunk case. His explanation was that he thought it was innocuous to explain that he wasn’t at fault in the accident.
The lesson is that even things you think aren’t bad can be. DON’T SAY ANYTHING STUPID AND BY STUPID I MEAN ANYTHING AT ALL!
Client B was in a minor accident. He had a car full of people. Everyone was out of the vehicle after the accident and no one else involved in the accident knew who was driving. Police officer (friendly, understanding and with a big smile). Asks if everyone is ok. Says “Glad to hear no one is hurt. No one needs to make a statement. I just need to know who was driving. None of the passengers said anything. The driver however…. Wait for it… Said something stupid. He said “I was driving.”. That was it. He gave the officer his license (and ownership and insurance) and got his lovely careless driving charge. Guess what he should not have done? If you guess say anything stupid, and by stupid you mean anything at all, you’d be right.
Identification of the Driver
Statements in the context of a traffic ticket don’t really come up much in your simple stop. The come up when the police don’t see what happens. The reason is, the defendant is not required to attend court and quite often their legal representative does the trial without them. I know that the criminal lawyers reading this are scratching their head saying “What?” I say that because in the criminal context, accused persons are present for their trials and people who practice criminal law are generally used to the idea that their clients will always be there for the trial. It escapes many that they can leave the client at work or home or wherever they want to be besides the courtroom to be identified by a witness.
There are two ways to prove the defendant was driving.
- A witness identifies them in court;
- The Defendant’s statement is admitted for the truth of it’s contents.
If the Defendant doesn’t come to court, the only way to prove the Defendant was driving is to put their statement into evidence.
Some Preliminary Things
Section 199(1) of The Highway Traffic Act says:
199. (1) Every person in charge of a motor vehicle or street car who is directly or indirectly involved in an accident shall, if the accident results in personal injuries or in damage to property apparently exceeding an amount prescribed by regulation, report the accident forthwith to the nearest police officer and furnish him or her with the information concerning the accident as may be required by the officer under subsection (3).
Some would say (mostly prosecutors and police officers) that you don’t have to keep quiet. You have to make a statement. Statutory compulsion is what it’s called. If you’re forced to make a statement, it can’t very well be voluntary can it? But even before we get there, have a gander at the Court of Appeal in R v Slopek 1974 OJ No 826. Before the prosecution can rely on the statutory compulsion, they must first prove the Defendant was the driver. Puts the prosecution in a bit of a pickle. What came first the driver? or the statement? So the prosecution in trying to prove the Defendant was the driver must prove the Defendant was the driver. I think you can worry little about the statutory compulsion now. If you’re still a wee bit worried. Take a look at the Court of Appeal again in R v Soules 2011 ONCA 429 and read paragraphs 39 & 40.
How then does the prosecution put a Defendant’s statement into evidence? They must prove it is voluntary through a voir dire. Well, not entirely true, a res gestae statement doesn’t require a voir dire. A res gestae statement is a spontaneous utterance. If before the officer asks anything, the Defendant starts blurting things, be prepared for the prosecutor to argue it should go in res gestae.
A voir dire is a hearing within a hearing (some refer to it as a trial within a trial but tom MAY toe / tom AH toe). In a voir dire to admit a Defendant’s statement, the prosecution must prove the statement was voluntary. The burden on them is proof beyond a reasonable doubt. In the materials section below (like to unlock) we provide all the major authorities.
To do this, the prosecution must call every police officer and person in authority to eliminate the Defendant was under any threats, promises, inducements, etc.
There are a couple decisions which say that in car accident cases there is no need to hold a voir dire or caution a defendant (we’ll get to the caution next). These decisions fail to consider the Court of Appeal decisions which are much more binding and persuasive than them so be cognizant of the seminal cases when arguing a statement voir dire.
The Supreme Court of Canada dealt with this issue in R v White 1999 SCR 2-417. Some might argue (again mostly prosecutors) that there is no need for a caution. They would be wrong. It has been settled law for years now that when a person is a suspect, they must be cautioned. To this you’ll have police officers testify that they had not made up their minds yet. Look at this in context. If for example, a 10 year veteran police officer shows up to a rear end collision and he speaks to the driver in front first, he will be armed with enough information to lay the charge. He might say he was keeping an open mind or something along those lines. Who cares? The driver behind is a suspect nonetheless. Ask the question “Officer, in the 10 years of policing you have, showing up to a rear end collision and speaking with the front driver first, are you seriously asking us to believe that charging the driver behind never occurred to you?” He will do one of 2 things. Be honest or lose credibility.
All of this is to sum up that in almost every accident case, the statement will be an issue. Police always need a statement when they didn’t see it and don’t have a witness who can prove it for them. Hence the importance for silence. Or the lack of saying anything stupid and by stupid I mean anything at all.
The Charter of Rights and Freedoms protects people (for statements anyway) under sections 7 and 10(b). The Charter implications on statements would make this way too long a blog post but in the future I plan to write about Charter protection in the context of Traffic Tickets. It is nonetheless, very relevant in excluding statements. And in the materials below, I’ve included a whole bunch of case law both Charter and other issues.
So remember, the next time you have an accident case, ask yourself, if I left my client at home, how would they put him behind the wheel? If you think you found a way, email me at email@example.com and we’ll argue about it.
Breaking Bad Video
For those who asked for the downloadable video file. Enjoy…
Unknown type of the video. Check your video link.
For the Crown
For the Defence
Cases are in alphabetical order not by level of court or chronological. So read them all and know your stuff when it comes to arguing the exclusion of a statement.