How to Advise Pre-Charge Clients | Criminal Defence Articles by Tushar K. Pain

This article originally appeared in the October 18, 2002, issue of The Lawyers’ Weekly

A client seeking immediate advice tells you that she was involved in a car accident. She tells you that there was serious damage to the other vehicle but she left the scene and several hours later when she got home, she found that the police had been there and left a message that they wanted to interview her. She wants to know what she should do. How do you advise her?

The case of R v. White (1999) 135 C.C.C. (3d) 257 was released by the Supreme Court of Canada in June of 1999. By now, many criminal defence lawyers are familiar with the Court’s pronouncements regarding the admissibility of statutorily compelled statements in a criminal trial. But what, if any, effect does this case have upon the legal advice given and steps taken before a criminal charge is even laid?

In White (a case originating in British Columbia), a fatal car accident occurred near midnight. Ms. White had struck another motorist who was changing a flat tire by the side of the road. Although it was an accident, Ms. White panicked and fled the scene. The next morning she called the police to report the accident. She explained how she had swerved to miss a deer and hit somebody changing a tire. This was her first statement to the police. The officer attended her home to interview her. At this time, Ms. White learned that the person she struck had died. She became distraught and explained again how it was an accident. This was her second statement. At this point the officer gave Ms. White her rights to counsel and cautioned her about making any statements. Ms. White called a lawyer. She then told the officer that she spoke to a lawyer and did not wish to provide a statement. The officer told her that she did not have to provide a written statement but then proceeded to ask her if she had swerved to miss a deer. Ms. White explained again what had happened. This was her third statement. Ms. White was charged with failing to stop at the of an accident contrary to the Criminal Code.

The majority held that all three of her statements were statements made under compulsion of section 61 of the Motor Vehicle Act, R.S.B.C. 1979, c. 288. This section requires a driver involved in a motor vehicle accident to report the accident where the accident has caused death or personal injury or has caused property damage beyond a certain monetary value. As such, the statements were ruled to be inadmissible against her because their admission would violate the principle against self-incrimination as guaranteed by the principles of fundamental justice under section 7 of the Charter.

The Court made the following key points:

A declarant under section 61 of the Motor Vehicle Act will be protected by use immunity under s. 7 of the Charter only to the extent that the relevant statements may properly be considered compelled.

The test for compulsion under section 61 of the Motor Vehicle Act 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 to report the accident to the person to whom the report was given.

Provided that the police have offered no indication to the driver that the statutory requirements for the reporting of an accident have been satisfied, it will likely be reasonable for a driver to assume that he or she continues to be subject to a statutory duty to speak to police.

Returning to our scenario, how do we advise our client? If this incident had occurred in Ontario (where I practice), a relevant consideration would be section 199(1) of the Ontario Highway Traffic Act, R.S.O. 1990, c.H.8 the Ontario equivalent of section 61 of the Motor Vehicle Act of British Columbia. This section makes clear that she has a legal duty to report the accident forthwith to the police and provide all relevant information.

Let’s assume our client has been advised of her legal duty to report and the potential consequences of both reporting and not reporting. She decides that she’s going to make a report to the police. Now she wants to know how best to do this.

Keeping in mind the pronouncements of the Supreme Court of Canada, as I first step I would contact the officer and confirm that he is seeking a statement under section 199 of the Ontario Highway Traffic Act. Then I would advise the client to attend her meeting with the officer with a letter in hand. The letter would confirm that (a) the officer is seeking to obtain a statement under section 199 and that (b) she (the client) wished to comply with her duty to provide the statement. I would also confirm that she wished to provide no other evidence than the statement required by statute.

The test to determine whether the statement was compelled under statute is whether the accused held an honest and reasonable belief that she was required to make it. At trial, this issue will turn on the accused’s credibility. The letter, introduced at trial, virtually removes the client’s credibility as a contentious issue on this point.

The letter also reduces the likelihood of your involvement as a potential witness. Without it, the client would have to testify as to her state of mind at the time of making the statement. This would likely include testimony that you had advised her that she was required to make the statement. To support this assertion, you might have to testify. The letter provides direct and compelling evidence regarding the motivation for the statement and removes the need for you to take the stand.