



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Moussavi, 2016 ONCA 924

DATE: 20161208

DOCKET: C60584

MacPherson, Cronk and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohammad Moussavi

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

Gillian Roberts, for the respondent

Heard: November 3, 2016

On appeal from the conviction entered by Justice Peter
    Tetley of the Ontario Court of Justice on February 20, 2015.

MacPherson J.A.:

A.

introduction

[1]

The appellant was convicted of dangerous operation of a motor vehicle causing
    bodily harm, contrary to s. 249(3) of the
Criminal Code
. At the scene
    of a very serious accident, the appellant answered questions from a police
    officer. He was then given a breath test that he failed. At his trial, the
    appellant argued that the results of the breath test were inadmissible on
    several
Charter
grounds. The trial judge dismissed the appellants
Charter
application in its entirety and convicted the appellant, who now appeals to
    this court.

B.

facts

(1)

The parties and the events

(a)

The collision

[2]

On June 21, 2011, the appellants black BMW struck the rear of Trevor
    Newhooks red Toyota on Highway 407 at approximately 1:35 a.m. The appellants
    BMW was travelling between 171 and 226 km/h just after impact and would have
    been going faster prior to impact. Newhook was driving approximately 105 km/h.

[3]

At the time of the collision, the roadway was dry and well lit. Traffic
    was light. The force of the collision was significant. The two cars ended up
    about 100 meters apart and Newhooks Toyota came to rest about 250 meters from
    the point of impact. There was a great deal of debris on the highway between
    the two cars.

[4]

Newhooks Toyota was all but demolished. Newhook sustained a significant
    laceration to his head and intracerebral bleeding. His injuries had lasting
    effects.

[5]

The appellants BMW tipped over, rolled, rotated, and slid on its roof
    before turning upright and coming to a stop. It was severely damaged.
    Incredibly, the appellant was not injured.

[6]

Allan Reynolds, driving with his wife and son, saw the debris and pulled
    over. He called 911. Michael Armstrong, a tow-truck driver, arrived next.
    Reynolds indicated that he was approached by a man whom he assumed was the
    driver of the dark car (the BMW). Reynolds recalled that man asking what hit
    me?. Armstrong also testified that he was approached by an individual who
    indicated that the Toyota hit his vehicle. The man then walked back toward the
    BMW.

(b)

The appellant and the police

[7]

Constable Bill Gerov arrived at the scene at 1:44 a.m. He spoke to
    Newhook, Armstrong, Reynolds and Reynoldss wife and son.

[8]

Constable Eugene Johnson arrived at 1:47 a.m. He went to the Toyota and
    discovered that the driver was bleeding badly. He then went to look for the
    driver of the BMW. Cst. Johnson noticed the appellant and approached him. The
    appellant was walking towards the police cruiser as the officer approached him.

[9]

When they met, Cst. Johnson asked the appellant if he was the BMW
    driver. The appellant answered that he was.  The appellant said that the other
    vehicle hit him as he was driving back from downtown Toronto. At this point,
    Cst. Johnson detected an odour of alcohol coming from the appellants breath
    and asked whether he had been drinking. The appellant responded that he had.
    Cst. Johnson concluded that the appellant had been consuming alcohol recently
    and directed Cst. Gerov to escort the appellant to Gerovs police cruiser to
    determine whether the appellant was 253 or not.

[10]

Cst.
    Gerov noticed the appellant walking in what he believed to be a nervous
    fashion. Cst. Gerov approached him. He asked whether the appellant was the
    driver of the BMW. The appellant confirmed that he was and indicated that the
    other vehicle hit him. Cst. Gerov detected an odour of alcohol on the
    appellants breath and asked him if he had been drinking. The appellant
    admitted that he had consumed three glasses of wine and two shots of Jägermeister.
    Cst. Gerov testified that he suspected the appellant had alcohol in his blood
    and, at approximately, 1:49 a.m., he directed the appellant to accompany him to
    his police cruiser to perform a sobriety test.

[11]

At
    2:00 a.m., Cst. Gerov demanded a breath sample from the appellant. At 2:04
    a.m., the appellant failed the screening test and, at 2:07 a.m., the appellant
    was arrested. Cst. Gerov read the appellant his rights at 2:08 a.m. After
    arriving at the police station, the appellant consulted duty counsel. He was
    turned over to a qualified technician and provided two further breath samples.

[12]

A
    Crown toxicologist testified that the appellants blood-alcohol concentration
    at the time of the collision would have been between 130 to 170 milligrams of
    alcohol in 100 millilitres of blood.

(c)

The trial judgment

[13]

At
    his trial, the appellant brought an application, alleging breaches of ss. 7, 8,
    9, 10(a) and 10(b) of the
Charter of Rights and Freedoms
. He testified
    on the
Charter
application but not during the trial proper. 
    Essentially, he made three arguments.

[14]

First,
    the appellant asserted that he provided a self-incriminatory statement to the
    police at the scene of the accident. He says that these inculpatory utterances
    were statutorily compelled by s. 199 of the
Highway Traffic Act
,
    R.S.O. 1990, c. H. 8 (the 
HTA
) and that their admission as part of
    the Crown case establishing his identity as the driver of the BMW violated his
Charter
s. 7 right to silence.

[15]

Second,
    the appellant submitted that he was detained for investigative purposes at the
    scene prior to his arrest and was not advised in a prompt fashion of the reasons
    for the detention, thus infringing s. 10(a) of the
Charter
.

[16]

Third,
    the appellant contended that the demand made under s. 254(2) of the
Criminal
    Code
was not made forthwith once it became apparent to the arresting
    officer that the appellant had alcohol in his body and had been operating a
    motor vehicle within the preceding three hours.

[17]

The
    trial judge dismissed the appellants
Charter
application and
    convicted the appellant of dangerous operation of a motor vehicle causing
    bodily harm.

[18]

The
    appellant appeals.

C.

issues

[19]

The
    appellant frames his issues in this fashion:

(1)

The trial judge erred in admitting the roadside utterances and by concluding
    that they were not statutorily compelled;

(2)

The trial judge erred in finding that there was sufficient evidence,
    absent the compelled statements, to justify taking the breath samples and to
    arrest the appellant; and

(3)

The trial judge erred in finding that the police were permitted to hold
    off providing rights to counsel or to make the Approved Screening Device
    demand over public safety concerns.

D.

Analysis

(1)

Whether the appellants statements were compelled by statute

[20]

The
    starting point for this issue is s. 199 of the
HTA
which provides in
    relevant part:

199. (1) Every person in
    charge of a motor vehicle  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).



(3) A police officer
    receiving a report of an accident, as required by this section, shall secure
    from the person making the report, or by other inquiries where necessary, the
    particulars of the accident, the persons involved, the extent of the personal
    injuries or property damage, if any, and the other information that may be
    necessary to complete a written report concerning the accident and shall
    forward the report to the Registrar within ten days of the accident.

[21]

The
    personal injuries sustained by Newhook and the amount of damage to property
    were circumstances that required the drivers of the two automobiles to provide
    the police officers with information concerning the accident in accordance with
    s. 199(1) of the
HTA
.

[22]

The
    leading case dealing with statutory provisions like s. 199 of the
HTA
is
R. v. White
, [1999] 2 S.C.R. 417, where the Supreme Court of Canada
    considered a similar reporting requirement under the British Columbia
Motor
    Vehicle Act
, R.S.B.C. 1979, c. 288. In striking a balance between the
    statutory reporting requirements in provincial highway traffic laws and the
Charter
s. 7 right to silence, Iacobucci J., for the majority of the court, explained,
    at para. 75, that the test for compulsion in these circumstances is whether,
    at the time that the accident was reported by the driver, the driver gave the
    report on the basis of an honest and reasonably held belief that he or she was
    required by law to report the accident to the person to whom the report was
    given.

[23]

The
    trial judge was aware of, cited and applied
White
. On the issue of the
    appellants subjective belief, the trial judge said, at para. 134:

The defendant testified that he had an honest and reasonably
    held belief that he was legally obligated to provide information to the police
    and to remain at the scene of the motor vehicle collision. By virtue of a
    combination of his driver training and previous peripheral participation in a
    motor vehicle collision involving his now ex-spouse, I am satisfied, at the
    very least, that the defendant had at least a generalized, non-specific,
    understanding of his duty to report the details of an accident under the
Highway
    Traffic Act
. [Footnote omitted.]

[24]

On
    the issue whether the appellants answers to the initial police questions were
    in fact compelled, the trial judge said, at paras. 145-47:

I conclude that the defendant did not identify himself as [the]
    driver of the BMW as a result of his belief that he had a lawful obligation to
    report his involvement in a motor vehicle accident.

The trial record, and the evidence offered by the applicant on
    the
Charter voir dire
, serve to confirm that the applicants
    motivation was much more basic than that. It is evident that the applicant had
    a self-serving purpose for speaking to the police and did so in order to offer
    an exculpatory declaration of his own involvement in the collision.

The record confirms that the applicant approached Constable
    Johnson. I conclude the applicant volunteered the information requested freely
    and without coercion by statute or otherwise.

[25]

The
    appellant submits that the trial judge erred in so finding. He says that when
    he told the police that he was the driver of the BMW his free will to remain
    silent was overborne by his statutory duty under s. 199 of the
HTA
.
    Accordingly, his
Charter
s. 7 right was triggered.

[26]

I
    am not persuaded by this submission. Whether a statement was compelled by the
HTA
in all the circumstances of a case is a finding of fact. Absent an error in
    principle in applying the test from
White
or a palpable and overriding
    error leading to an unreasonable conclusion, a trial judges determination of
    the issue must be accorded deference.

[27]

In
    my view, there is no basis to interfere with the trial judges conclusion that
    the appellants admission that he was the driver of the BMW was not statutorily
    compelled. The trial judge properly understood and articulated the test from
White
for statutory compulsion and reached a conclusion that was open to him on the
    evidence.

[28]

From
    his comments at the scene to Reynolds and Armstrong, before the police arrived,
    it appears that the appellant was willing to admit that he was the driver of
    the BMW and, importantly, that he was anxious to state his position about the
    collision  that is, that the other vehicle hit him. Nothing changed when the
    police arrived. His interaction with the police was identical to his prior
    interactions with Reynolds and Armstrong. Accordingly, the trial judges
    conclusion that the appellant volunteered the information requested freely and
    without coercion by statute or otherwise is entirely supportable on the
    record.

[29]

Whether
    a roadside statement made by an accused to a police officer after an accident
    is statutorily compelled is a question of fact to be determined based on the
    particular circumstances of each case. There will be instances where the
    accused will in fact be speaking based on a subjective and reasonably held
    belief that he or she must do so. But there will be other cases where the
    accused responds freely, entirely unmotivated by any statutory duty. In the
    latter case, the statements are not protected by the use immunity provided by
    s. 7 of the
Charter
.

[30]

The
    proper balance is struck in
White
, at para. 76:

[C]ompulsion, by definition, implies an absence of consent. If
    a declarant gives an accident report freely, without believing or being
    influenced by the fact that he or she is required by law to do so, then it
    cannot be said that the statute is the cause of the declarants statements. The
    declarant would then be speaking to police on the basis of motivating factors
    other than s. 61 of the
Motor Vehicle Act
.

[31]

In
    this case, the appellant believed that he had to report the accident. However,
    he was not influenced by this fact. The
HTA
did not cause him to
    answer the police questions. Thus, when the police asked him about whether he
    was the BMW driver, he gave his answer freely, as the trial judge found.

(2)

Whether there was sufficient evidence, absent the appellants statements,
    to justify taking the breath samples

[32]

In light of my conclusion on the first issue, it is not necessary to
    address this issue.

(3)

Whether the ASD demand was administered  forthwith

[33]

Constable
    Gerov testified that at 1:49 a.m. he suspected that the appellant had alcohol
    in his blood and, therefore, he directed the appellant to accompany him to his
    police cruiser to perform a sobriety test. At 2:00 a.m., he made the breath
    demand. At 2:04 a.m., the test was administered and the appellant failed. The
    appellant submits that the 11 minute gap between forming the grounds for the
    demand and making the demand were offside the requirement of forthwith in s.
    254(2) of the
Criminal Code
.

[34]

I
    do not accept this submission. The trial judges reasoning on this issue was,
    at para. 154:

While it can be argued that the demand could have been made at
    an earlier opportunity, I conclude the very brief time that passed from the
    point that the defendant was determined to be the driver of the automobile and
    alcohol was detected on the defendants breath to the point of the demand is
    justified by the exigencies inherent in this investigation. In reaching this
    conclusion, I note that the investigation took place in the early morning
    hours, on a major highway, at an accident scene that featured two badly damaged
    automobiles and one injured driver. The debris field resulting from the
    collision was strewn over three lanes of the highway for a distance of
    approximately 100 metres. In these circumstances, the police concern for public
    safety serves to justify and explain the brief period of delay in the
    administration of the approved screening device (see
Quansha
, at
    paragraphs 45-49).

[35]

I
    do not see a problem with this analysis. I would simply add that the Photograph
    Log of the accident scene easily supports the public safety rationale for a
    short delay. The collision was extremely violent and created a large debris
    field on a major public highway.

E.

disposition

[36]

I
    would dismiss the appeal.

Released: JCM DEC 8 2016

J.C. MacPherson
    J.A.

I agree. E.A. Cronk
    J.A.

I agree. David Watt
    J.A.


