Most people know that everyone who gets into a collision while driving a motor vehicle that causes damage to property over $1,000.00 (see Note 1) or injuries either to the driver or others must report the collision to the police as soon as possible (see Note 2).The police officer who takes the report must get information from the driver reporting the collision to complete the report (see Note 3).
However, what is not understood is that this reporting obligation can create serious consequences for people charged with a serious traffic offence because what they say could be used against them. This is known as self-incrimination.
1. Do people have the right to refuse to incriminate themselves?
For example, if you are involved in a collision, and a police officer asks you, “Were you driving this vehicle?” Will you incriminate yourself if you answer, “Yes,” to this question?
As an aside, police have other ways to gather information without asking you to incriminate yourself. For example, they could demand you produce ownership registration, an insurance card and a driver’s licence.
Under section 7 of the Charter of Rights and Freedoms, people have the right to refuse to incriminate themselves (see Note 4).
2. How do the courts handle a situation where a person must report a car collision on the one hand while upholding the Charter’s requirements on the other hand?
A court has stated that in certain circumstances, self-incriminating evidence can be entered into the court record.
- If the person giving the statement has given it of his or her own free will and without coercion or compulsion (see Notes 5, 6, and 12).
- If the issue is more important than protecting the defendant (see Notes 7, 8, 9, and 10).
- If the penalty does not include the possibility of imprisonment (see Note 11).
A good piece of advice is this: without distorting the truth, consider carefully what you say or write as it may be used against you.
1. R.R.O. 1990, Regulation 596, s. 11 (under the Highway Traffic Act)
For the purpose of subsection 199 (1) of the Act, the prescribed amount for damage to property is $1,000.
Highway Traffic Act, R.S.O. 1990, c. H.8
2. s. 199(1) Every person in charge of a motor vehicle or street car who is directly or indirectly involved in an collision shall, if the collision results in personal injuries or in damage to property apparently exceeding an amount prescribed by regulation, report the collision forthwith to the nearest police officer and furnish him or her with the information concerning the collision as may be required by the officer under subsection (3).
3. s. 199(3) A police officer receiving a report of an collision, as required by this section, shall secure from the person making the report, or by other inquiries where necessary, the particulars of the collision, 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 collision and shall forward the report to the Registrar within ten days of the collision.
4. Charter of Rights and Freedoms, s. 7
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
R. v. White,  2 S.C.R. 417
5. Any state action that coerces an individual to furnish evidence against him- or herself in a proceeding in which the individual and the state are adversaries violates the principle against self-incrimination. Coercion, it should be noted, means the denial of free and informed consent …
6. Statements made under compulsion … are inadmissible in criminal proceedings against the declarant. Their admission in a criminal trial would violate the principle against self-incrimination, which is one of the fundamental principles of justice protected by s. 7 of the Charter.
7. That the principle against self-incrimination does have the status as an overarching principle does not imply that the principle provides absolute protection for an accused against all uses of information that has been compelled by statute or otherwise
8. … the parameters of the right to liberty can be affected by the context in which the right is asserted …
9. Each principle of fundamental justice must be interpreted in light of those other individual and societal interests that are of sufficient importance …
10. In some contexts, the factors that favour the importance of the search for truth will outweigh the factors that favour protecting the individual against undue compulsion by the state.
11. Where a court is called upon to determine whether s. 7 has been infringed, the analysis consists of three main stages … The first question to be resolved is whether there exists a real or imminent deprivation of life, liberty, security of the person, or a combination of these interests. The second stage involves identifying and defining the relevant principle or principles of fundamental justice. Finally, it must be determined whether the deprivation has occurred in accordance with the relevant principle or principles … Where a deprivation of life, liberty, or security of the person has occurred or will imminently occur in a manner which does not accord with the principles of fundamental justice, a s. 7 infringement is made out. In the present case, it is clear that the respondent’s liberty interest is engaged by the potential admission into evidence of her three statements to police on October 7, 1994, because she faces the possibility of up to five years’ imprisonment if convicted on indictment under s. 252(1)(a) of the Code.
12. The Crown does not bear the onus of establishing that an collision report was not made pursuant to the statutory duty to report. … it is the accused who must establish on the balance of probabilities that the statement was compelled.