R. v. Birnbaum
Her Majesty the Queen, and
 O.J. No. XXXX
Ontario Court of Justice
Oral judgment: April 21, 2010.
Donna Robbins, counsel for the Provincial Crown.
T. Pain, counsel for Ralph Birnbaum.
1 SMITH J. (orally):– Ralph Birnbaum is charged with an offense under Section 253 (1)(b) of the Criminal Code of Canada, that is the operation or care and control of a motor Vehicle while having a blood alcohol level over the legal limit. His counsel has raised a Charter argument alleg-ing infringement of Section 7, 8, and 9 of the Canadian Charter of Rights and Freedoms. The Section 7 argument relates to what is often referred to as “use immunity”. Specifically, the chal-lenge is to the admissibility of statements made by the accused to police in which he identified him-self as the driver of a motor vehicle involved in a collision and made an admission that he had con-sumed alcohol. It is argued by the defense that as these statements were made under compulsion of the Highway Traffic Act they could not be used to incriminate Mr. Birnbaum in the Criminal Coda charge. In his argument, counsel for the defense relies primarily on the decisions of the Supreme Court of Canada in R. v. White, 1999 SCC 28, R. v. Powers,  B.C.J. No. 2650, after which leave to appeal to the Supreme Court of Canada was denied and recorded at 2006 Supreme Court of Canada appeals Number 252,  S.C.C.A. No. 452, R. v. Dacosta, a decision of Madame Jus-tice Wein of the Ontario Superior Court, reported at  O.J. No. 2392 and R. v. Naces, a deci-sion of my brother Justice Horkins reported at  O.J. No. 3854.
2 A review of the facts as I find them discloses that on the 21st of February 2009 at 3:04a.m., Hamilton Police Services Constable Amanda Burin was dispatched to an area near 133 Dewar Road in the city of Hamilton. This is a residential area. There had been a report by residents of a motor vehicle collision. She was accompanied by Constable Vino, a breath technician who was with her as her supervising training officer. They arrived at 3:12a.m.
3 On arrival Constable Burin saw a van that had struck a tree and a second motor vehicle behind that van. It was obvious damage to both the van and the motor vehicle. There was no other vehicu-lar or pedestrian traffic in the area but residents were observed standing on their front porches.
4 A male person was standing within a few feet of the van. When Constable Burin approached the man and asked what happened, he said he was driving the van, that a dog had run onto the street causing him to swerve and lose control of the van at which point he struck the car and the tree. At the request of Constable Burin, the man produced a valid Ontario driver’s license, identified himself as the accused, Ralph Birnbaum.
5 There was some further conversation between the accused and Constable Burin relating to where he had been and where he resided and ultimately a question by Constable Burin, whether Mr. Birnbaum had consumed alcohol. He stated that he had three to four beer. Thereafter, Constable Burin made the demand for a roadside screening sample, Mr. Birnbaum complied and failed the roadside at 3:29a.m.
6 That failure led to an arrest at 3:31a.m. Birnbaum was transported to Station 20 for an intox-ilyzer breath sample, arriving at 3:43a.m. On arrival, he was, for the first time, given his rights to counsel and cautioned. Mr. Birnbaum’s counsel of choice did not respond to a call from Constable Burin, but the accused did have a conversation with duty counsel at 4:25 a.m.
7 At 4:31a.m. custody of the accused was turned over to Constable Vino in his capacity as breath technician. After reading the appropriate cautions, Constable Vino embarked on the questions as set out in the alcohol influence report. Mr. Birnbaum answered, “No answer” to each and every ques-tion in the report, most importantly those questions which sought to identify him as a driver of a motor vehicle and the consumption of alcohol.
8 Subsequent breath readings disclosed a blood alcohol content of 145 milligrams of alcohol in 100 milliliters of blood, at 4:46a.m. In a second sample, disclosing 136 milligrams of alcohol in 100 milliliters of blood at 5:06a.m.
9 During the course of contact with police, Mr. Birnbaum was observed to be cooperative and friendly. There was no physical indicia of impairment such as an odor of alcohol, The only observa-tions made by Officers Burin and Vino regarding the accused condition was in the case of Mr. Vino, a description of Mr. Birnbaum as appearing disoriented and in the case of P.C. Burin, “he fumbled” about his whereabouts and where he had been coming from and where he was going. These indicia are equally attributable to having been in a motor vehicle accident.
10 On a Charter application for the exclusion of evidence for an infringement of the right against self-incrimination based on use immunity, the accused must satisfy the court on a balance of probabilities that such an infringement occurred, P.C. Burin testified that the evidence upon which she formed a reasonable suspicion for the purposes of a roadside demand was first, Mr. Birnbaum’s statement that he had been driving and second, his admission to the consumption of alcohol. With the roadside failure, P.C. Burin testified that she formed the reasonable and probable grounds for arrest, the breath demand in section 253(b) charge.
11 It is not an issue that Mr. Birnbaum was not statutorily bound to answer questions regarding the investigation of an accident pursuant to the Highway Traffic Act. In his affidavit in support of a Charter argument, Mr. Birnbaum stated that he believed he was bound to answer questions put to him by a police officer investigating an accident. And in his oral evidence on cross examination, he testified that he felt it was his duty as a driver to do so.
12 In cross-examination by the Crown, he testified, “If the Officer said I didn’t have to answer, I wouldn’t have”. On a balance of probabilities, I am satisfied that Mr. Birnbaum has met the re-quirements of step one in the test as set in R. v. White, namely that Mr. Birnbaum answered the questions put to him because of his belief that as a driver involved in a motor vehicle collision, he was required to do so.
13 The evidence discloses Birnbaum was approached by Constable Burin who asked the ques-tions and he answered those questions. He did not volunteer anything beyond the context of what was asked. That is supported by the combines evidence of Mr. Birnbaum and Constable Vino: Mr. Birnbaum had been advised during the collision investigation, said that he need not answer ques-tions he would not have done so; the evidence of P.C. Vino: that Mr. Birnbaum had been advised of his rights to counsel and cautioned in the context of criminal charges and had the opportunity to speak with duty counsel, thereafter he refused to answer incriminating questions put to him from the alcohol influence report. Indeed, he did not answer some 20 questions put to him in the course of taking that report.
14 That Mr. Birnbaum articulated his reasons in the manner that he did is not fatal to the applica-tion. In R. v. Dacosta, referred to, Madame Justice Wein stated, from paragraph 37, “It is quite clear that most drivers are aware of the duty to provide information, including documentation and a re-port of what occurred to the police after an accident. This necessarily involves an admission of be-ing the driver”.
15 In R. v. Naces referred to, Justice Horkins said at paragraph 32, “The fact that driving is a li-censed activity supports the assumption that most drivers have been educated as to their duties and responsibilities and therefore will have at least a vague notion that they are subject to a statutory duty to report the details of an accident”.
16 Mr. Birnbaum’s evidence falls well within those parameters. His testimony was not adversely affected by cross-examination. The Crown argued on the basis of R. v. Manley, a decision of my brother, and then Associate Chief Justice Wake reported at  O.J. No. 5103. In that case, how-ever, the accused had been twice cautioned about his right to silence. Court found the accused wanted to explain his conduct or at least unburden his conscience and the accused declined to speak with counsel and provided a lengthy and detailed statement. Manley is clearly distinguishable on its facts and the findings made by Justice Wake.
17 Mr. Birnbaum having satisfied the onus upon him, I find he is entitled to an exclusion of the impugned statements. The Supreme Court of Canada in R. v. White and the British Columbia Court of Appeal again, in R. v. Powers leave to appeal to the Supreme Court of Canada, refused, clearly endorsed the exclusion of such evidence under section 24(1) without the necessity of a section 24(2) inquiry. R. v. White and R. v. Powers, were decided under the Collins regime, that is R. v. Collins,  1 S.C.R. 265. The court making it clear that it was not necessary to embark on a Section 24(2) inquiry. R. v. Grant,  2 S.C.R. 353, the newer regime respecting Section 24(2) does not alter that. Grant specifically addresses the “jurisprudential gloss” that had built up around Section 24(2). R. v. Blake,  O.J. No. 48, and does not address section 24(1) of the Charter. Having found the section 7 breach, and determined that evidence flowing there from should be excluded I must necessarily find a breach of Sections 8 and 9 of the Charter as well. Without the statutorily compelled admissions obtained from Mr. Birnbaum that he was the driver of the van involved in the accident, and that he had consumed alcohol, Officer Burin by her own testimony had no reasonable suspicion and therefore grounds to compel the roadside screening result and hence, in the absence of other indicia observable to her or Constable Vino, no grounds to make the intoxilyzer demand, no grounds to detain and arrest Mr. Birnbaum for the offense with which he was charged.
18 The Section 7 breach has had a domino effect, such that there are multiple infringements which even under the considerations in R. v. Grant, tip the balance between a driver’s right not to be compelled to self-incrimination in a criminal proceedings and the province’s interest in highway safety in favour of the accused.
19 The impact on Mr. Birnbaum is obvious, his extended detention, his arrest and invasion of pri-vacy on two occasions for the purposes of the breath test. The long term effect and broad impact of admitting evidence obtained by such infringements raises a concern about the long term repute of the justice system. There is a strong societal interest in ensuring police know and follow the law of the land as established in R. v. White, some 12 years ago. Even under the test in R. v. Grant, the evi-dence should be excluded. I should state that there was also an absence of other evidence surviving the excluded evidence which would, with the requisite certainty identify Mr. Birnbaum as the driver of the van and an absence of evidence about the time of his driving and the time of the consumption of alcohol.
20 As a result, the charge is dismissed.
21 I’d like to thank both counsel for their thorough submissions on the issues.
22 MS. ROBBINS: Thank you, Your Honour.
23 MR. PAIN: Thank you.
24 THE COURT: Thank you.