R. v. Gallant (S.), (2007) 323 N.B.R.(2d) 83 (PC)

• Judge: Ferguson, P.C.J.
• Court: Provincial Court of New Brunswick (Canada)
• Case Date: May 01, 2007
• Jurisdiction: New Brunswick
• Citations: (2007), 323 N.B.R.(2d) 83 (PC);2007 NBPC 27

R. v. Gallant (S.) (2007), 323 N.B.R.(2d) 83 (PC);

    323 R.N.-B.(2e) 83; 832 A.P.R. 83

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2007] N.B.R.(2d) TBEd. AU.010

Renvoi temp.: [2007] N.B.R.(2d) TBEd. AU.010

Her Majesty the Queen v. Serge Gallant

(13477413; 2007 NBPC 27; 2007 NBCP 27)

Indexed As: R. v. Gallant (S.)

Répertorié: R. v. Gallant (S.)

New Brunswick Provincial Court

Judicial District of Miramichi

Ferguson, P.C.J.

July 20, 2007.

Summary:

Résumé:

A driver involved in a single car accident left the accident scene in his severely damaged vehicle. The investigating police officer located a damaged vehicle parked outside a nearby restaurant. Inside the restaurant, the officer identified the accused based on a vague description of the driver that had been given by witnesses. Before questioning the accused, the officer read the standard police caution. The accused was charged with impaired driving offences, dangerous driving and breach of probation. The issue arose as to admissibility of statements that the accused made to the officer. A voir dire was held to determine whether (1) the accused was detained when he had first contact with the officer thus triggering s. 10(b) of the Charter; (2) whether the answers attributed to the accused by the officer violated the principle against self-incrimination by operation of the principles governing compelled statements made by suspected drivers of motor vehicles on highways after accidents; and (3) whether the statements were voluntarily made by him.

The New Brunswick Provincial Court held that (1) the accused was not detained at the time of first contact with the officer; (2) the principle against self-incrimination was not violated; and (3) the statements were voluntarily made.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - A driver involved in a single car accident left the accident scene in his severely damaged vehicle - The investigating officer located a damaged vehicle parked outside a nearby restaurant - Inside the restaurant, the officer identified the accused based on a vague description that had been given by witnesses - The officer advised the accused that he was investigating a possible dangerous driving incident and an accident and read the standard police caution - After the officer bluffed by stating that there were people who could identify the driver, the accused admitted to being the driver - The officer noted indicia of impairment - The officer arrested the accused and gave a breathalyzer demand and a s. 10 Charter notice - The New Brunswick Provincial Court rejected an assertion that the accused was detained when he had first contact with the officer thus triggering s. 10(b) of the Charter - The evidence did not support a finding of subjective constructive detention - The officer's questioning could not have lead the accused, on reasonable grounds, to believe that the officer had assumed control over his movements by a demand or direction that had a significant legal consequence and that he had no choice but to comply - On the contrary, the accused had just been told that he need not answer any of the questions - The accused's evidence that he wanted to answer the officer's questions supported that finding - See paragraphs 36 to 52.

Civil Rights - Topic 4328

Protection against self-incrimination - Self-incriminating statements - Statements made under statutory compulsion - A police officer approached the accused and identified himself - The officer indicated that he was investigating a possible dangerous driving incident and an accident and read the standard police caution - The accused initially denied, but then admitted to being the driver of the vehicle involved in the accident - The officer noted indicia of impairment - The officer arrested the accused and gave a breathalyzer demand and a s. 10 Charter notice - The New Brunswick Provincial Court rejected an assertion that the accused's answers to the officer's questions violated the principle against self-incrimination by operation of the principles governing compelled statements made by suspected drivers of motor vehicles on highways after accidents - The accused was immediately advised of the issue that the officer wanted to discuss and of his right to remain silent and that he need not say anything and that if he did his answers could be used as evidence - Implicit in the latter statement was that any information provided would not be protected by use immunity - The accused failed to establish on a balance of probabilities that he felt compelled to provide the answer pursuant to the statutory accident report requirements - See paragraphs 53 to 68.

Criminal Law - Topic 5339

Evidence and witnesses - Confessions and voluntary statements - Admissibility - Statements made under statutory compulsion - [See Civil Rights - Topic 4328 ].

Criminal Law - Topic 5339

Evidence and witnesses - Confessions and voluntary statements - Admissibility - Statements made under statutory compulsion - A driver involved in a single vehicle accident left the accident scene in his severely damaged vehicle - The investigating officer located a damaged vehicle parked outside a nearby restaurant - Inside the restaurant, the officer identified the accused based on a vague description that had been given by witnesses - The officer indicated that he was investigating a possible dangerous driving incident and an accident and read the standard police caution - The accused denied being the driver - The officer bluffed by indicating that there were people who could identify the driver - The accused admitted to being the driver - The officer noted indicia of impairment - The officer arrested the accused and gave a breathalyzer demand and a s. 10 Charter notice - The New Brunswick Provincial Court held that the accused's statements to the officer were made freely and voluntarily - Although the officer's questions were pointed, they did not improperly overbear the accused's will - The setting of a restaurant was an important factor - Additionally, the accused did not appear to have been intimidated - The officer's bluff was within the bounds of proper police interrogation - The evidence did not indicate that the accused felt compelled to answer the questions pursuant to the statutory obligation to report an accident - See paragraphs 23 to 32.

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - [See second Criminal Law - Topic 5339 ].

Droit criminel - Cote 5339

Preuve et témoins - Confessions et déclarations volontaires - Admissibilité de déclarations faites sous contrainte légale - [Voir Criminal Law - Topic 5339 ].

Droit criminel - Cote 5355

Preuve et témoins - Confessions et déclarations volontaires - La déclaration a-t-elle été faite librement et volontairement - [Voir Criminal Law - Topic 5355 ].

Droits et libertés - Cote 3604

Détention et emprisonnement - Détention - En quoi consiste la détention - [Voir Civil Rights - Topic 3604 ].

Droits et libertés - Cote 4328

Protection contre le témoignage incriminant - Déclaration auto-incriminantes - Déclarations faites sous contrainte légale - [Voir Civil Rights - Topic 4328 ].

Cases Noticed:

R. v. White (J.K.), [1999] 2 S.C.R. 417; 240 N.R. 1; 123 B.C.A.C. 161; 201 W.A.C. 161, refd to. [para. 4].

R. v. Albrecht, [1966] 1 C.C.C. 281 (N.B.C.A.), refd to. [para. 23].

R. v. M.C.H. (1998), 230 N.R. 1; 113 O.A.C. 97; 127 C.C.C.(3d) 449 (S.C.C.), refd to. [para. 24].

R. v. McIntosh (C.) (1999), 128 O.A.C. 69; 141 C.C.C.(3d) 97 (C.A.), refd to. [para. 25].

R. v. Oickle (R.F.), [2000] 2 S.C.R. 3; 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201, refd to. [para. 26].

R. v. Spencer (B.S.) (2007), 358 N.R. 278; 237 B.C.A.C. 1; 392 W.A.C. 1; 2007 SCC 11, refd to. [para. 26].

R. v. Lewis (M.D.) (2007), 250 N.S.R.(2d) 283; 796 A.P.R. 283; 217 C.C.C.(3d) 82 (C.A.), refd to. [para. 37].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1, refd to. [para. 37].

Delaware v. Prouse (1979), 440 U.S. 648, refd to. [para. 41].

R. v. Clayton (W.) et al. (2007), 364 N.R. 199; 227 O.A.C. 314; 2007 SCC 32, refd to. [para. 42].

Browne v. Dunn (1893), 6 R. 67 (H.L.), refd to. [para. 43].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 44].

R. v. Leighton (B.K.) (1994), 155 N.B.R.(2d) 211; 398 A.P.R. 211 (C.A.), refd to. [para. 44].

R. v. Kicovic (N.) (2004), 377 A.R. 176 (Prov. Ct.), refd to. [para. 44].

R. v. Al Saidi (M.H.) (2006), 302 N.B.R.(2d) 49; 784 A.P.R. 49 (Prov. Ct.), refd to. [para. 44].

R. v. C.S. (2006), 302 N.B.R.(2d) 317; 784 A.P.R. 317 (Prov. Ct.), refd to. [para. 44].

R. v. Sargent (K.) (2005), 292 N.B.R.(2d) 219; 761 A.P.R. 219 (Prov. Ct.), refd to. [para. 44].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, refd to. [para. 49].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122, refd to. [para. 50].

R. v. Rajaratnam (M.) (2006), 397 A.R. 126; 384 W.A.C. 126; 214 C.C.C.(3d) 547 (C.A.), refd to. [para. 51].

R. v. Osmar (T.) (2007), 220 O.A.C. 186 (C.A.), refd to. [para. 67].

Counsel:

Avocats:

William Morrissy, for the Crown;

Wendell Maxwell, Q.C, for the defence.

This voir dire was heard on May 1, 2007, by Ferguson, P.C.J., of the New Brunswick Provincial Court, Judicial District of Miramichi, who delivered the following decision on July 20, 2007.