R. v. Fancey, 2000 CanLII 28430 (NL SC) Document History (0): Contrary to s.140(1) of Criminal Code, Every one commits public mischief who, with intent to mislead, 140(1) Public mischief -- Every one commits public mischief who, with intent to mislead, causes a peace officer to enter on or continue an investigation by making a false statement (d) reporting or in any other way making it known or causing it to be made known that he or some other person has died when he or that other person has not died.” Did you say 140 people died today in the town of Manchester, JA.? An hour later, you said only 40 people died. Then, you said 1000 people died across the country. The News Service needs the names and death certificates to confirm the veracity of the reports. You reported more dead people in the last few weeks than the actual number of citizens in the country. We respect your authority." Click here for more.
R. v. Fancey, 2000 CanLII 28430 (NL SC)
Date:
2000-06-12
File number:
1999050216
Other citations:
193 Nfld & PEIR 79 — 582 APR 79
Citation:
R. v. Fancey, 2000 CanLII 28430 (NL SC), <http://canlii.ca/t/2dxh9>, retrieved on 2020-03-26
Supreme Court of Newfoundland and Labrador, Trial Division
R. v. Fancey
Date: 2000-06-12
Kevin Preston, for the Appellant;
Edward Cardwell, for the Respondent.
(1999050216)
June 12, 2000.
[1] EASTON, J.: This is an appeal from a conviction entered by a Provincial Court judge against the appellant where he was found guilty on a charge pursuant to s. 140(1) of the Criminal Code of Canada.
“140(1) Public mischief -- Every one commits public mischief who, with intent to mislead, causes a peace officer to enter on or continue an investigation by
(a) making a false statement that accuses some other person of having committed an offence;
(b) doing anything that is intended to cause some other person to be suspected of having committed an offence that the other person has not committed, or to divert suspicion from himself;
(c) reporting that an offence has been committed when it has not been committed; or
(d) reporting or in any other way making it known or causing it to be made known that he or some other person has died when he or that other person has not died.”
[3] At the trial of the appellant on this charge an agreed upon statement of facts was entered into evidence and a voir dire was subsequently conducted. After hearing the agreed upon statement of facts and the submissions of counsel, the trial judge accepted into evidence the statement made by the appellant and a conviction was registered.
“On June 21, 1998, a motor vehicle accident occurred on Route 340 North heading in the direction of the town of Boyd’s Cove in the Province of Newfoundland. This was a single vehicle accident. The registered owner of the vehicle was the accused, Terry Fancey. Mr. Fancey was one of the occupants of the vehicle at the time the accident occurred. Mr. Fancey was the registered owner of the vehicle.
“The Royal Canadian Mounted Police were summoned to the scene. However, by the time they arrived at the scene, the occupants of the vehicle were already gone. The police examination of the scene led to the conclusion that an investigation should be initiated with respect to possible criminal charges of either or both of ‘impaired driving’ or ‘failing the breathalyser’. Terry Fancey was a suspect in that regard. The investigation was further pursued on that same date.
“On June 25, 1998, Mr. Fancey attended at the Lewisporte Detachment of the R.C.M.P. for purposes of providing the necessary statement with respect to the motor vehicle accident as statutorily required of him under the provisions of the Highway Traffic Act, and which he believed he was required by law to provide. At the time that statement was provided to the police, Mr. Fancey was aware that he was a suspect on either or both of possible ‘impaired driving’ or ‘failing the breathalyser’ charges under the Criminal Code of Canada.
“In the Highway Traffic Act statement, Mr. Fancey acknowledged that he was an occupant of the motor vehicle at the time of the accident, but denied that he was driving the vehicle at the time. Instead, he said that, ‘Colleen Vivian was driving, and she had nothing to drink beforehand.’ A copy of the Highway Traffic Act statement being referred to is attached hereto and marked as ‘Appendix A’.
“The person referred to in Mr. Fancey’s Highway Traffic Act statement, Colleen Mondela Vivian, was interviewed by the police with respect to the circumstances of the accident on June 29, 1998. She indicated that she had not been driving Mr. Fancey’s vehicle at the time of the accident, and, indeed, had not even been an occupant of his vehicle at the time. She further indicated that Mr. Fancey approached her about a week after the accident, and told her he had told the police that she had been the driver of his vehicle at the time of the accident. She indicated she had then agreed that she would lie and say that she had been the driver if the police were to make inquiry of her in that regard. A copy of Colleen Mondela Vivian’s witness statement is attached hereto and marked as ‘Appendix B’.
“As a consequence of the information obtained from Colleen Vivian, Terry Fancey was subsequently charged with the alleged offense contrary to section 140(1) of the Criminal Code of Canada presently being considered by this Honourable Court.”
“173. A written report or statement made or provided under section 169, 170, 171 or 172
(a) is not open to public inspection; and
(b) is not admissible in evidence for any purpose in a trial arising out of the accident except to prove
(i) compliance with section 169, 170, 171 or 172, or
(ii) falsity in a prosecution for making a false statement in the report or statement.”
[6] The appellant argues that the trial judge should not have accepted the statement of the appellant into evidence and that the trial judge was in error in coming to the conclusion that the trial “did not arise out of the accident”. The trial judge had indicated that the charge arose out of “… the reporting of the accident”.
[7] The appellant argues that but for the accident no statement would have been provided by the appellant to the police. He goes on to argue that but for the provisions of the statement arising out of the accident, there would be no trial for public mischief arising out of the provision of a false statement. He argues a logical and actual connection between the accident and the trial relating to the giving of a false statement. The appellant postulates that if s. 173(b)(ii) does not contemplate a false statement, then what type of false statement given under compulsion of the Highway Traffic Act does this section contemplate?
[8] The appellant also takes the position that there is an onus on the Crown to prove that the statement was given freely and voluntarily before it could be admitted into evidence and this was not done in this case.
[9] The appellant also argues that the statement should have been excluded based on an infringement of the principle against self incrimination as embodied in s. 7 of the Charter.
[10] The appellant relies heavily on the Supreme Court of Canada decision in R. v. White (J.K.) (1999), 1999 CanLII 689 (SCC), 240 N.R. 1; 123 B.C.A.C. 161; 201 W.A.C. 161 (S.C.C.). In particular he refers to para. 37 of that case where the court stated:
“The principal s. 7 issue in this appeal is whether the admission into evidence in a criminal trial of statements made under compulsion of s. 61 of the Motor Vehicle Act would violate the principle against self-incrimination. The respondent did not challenge the constitutional validity of s. 61 at trial, but rather sought a remedy under s. 24(1) of the Charter. The respondent’s position and the finding in the courts below is that, while compelling a driver to report a motor vehicle accident accords with s. 7 of the Charter, the principle against self-incrimination as embodied in s. 7 requires at least that the driver be protected against the subsequent use of such a report in criminal proceedings.”
“Under the Motor Vehicle Act, the prospect of unreliable confessions is very real. In particular, accident reports under the Act are frequently given directly to a police officer, i.e., to a person in authority whose authority and physical presence might cause the driver to produce a statement in circumstances where he or she is not truly willing to speak: see R. v. Hodgson, 1998 CanLII 798 (SCC), [1998] 2 S.C.R. 449, at para. 24, per Cory J. The driver who reasonably believes that he or she has a statutory duty to provide an accident report under the Motor Vehicle Act will likely experience a significant ‘fear of prejudice’ if he or she does not speak. At the same time, there may be a strong incentive to provide a false statement, given the serious consequences which the driver may feel will flow from telling the truth, even if the truth does not in fact support a finding that a criminal offence was committed. It is reasonable to expect that this fear of prejudice and incentive to lie would be dissipated if the driver could be confident that the contents of the accident report could never be used to incriminate him or her in criminal proceedings. A rule which granted use immunity in criminal proceedings would thus serve to enhance rather than impair the effectiveness of the statutory reporting scheme, as was suggested by Esson, J.A., in the Court of Appeal below. Indeed, it is possibly for precisely this purpose that the province originally enacted the use immunity set out in s. 61(7).”
[12] The appellant takes the position that if the decision of the trial judge is allowed to stand, then it means that an individual who drives a motor vehicle which is involved in an accident must give a statement or else he will face a charge under the Highway Traffic Act. He then goes on to say that if that individual then does give a statement, the statement must be accurate, or the Crown can lay a charge under either the Highway Traffic Act or s. 140 of the Criminal Code of Canada. This means that a provincial statute which infringes a constitutional right of an individual to remain silent has exposed him to criminal liability. This exposure to criminal liability tends to defeat the legislature’s goal since individuals fearing repercussions from the contents of their statement may tend to give inaccurate or false reports.
[13] In support of his position the appellant also referred the court to the civil case in this jurisdiction Parrill v. Genge (1994), 1994 CanLII 10491 (NL SC), 125 Nfld. & P.E.I.R. 27; 389 A.P.R. 27 (Nfld. T.D.), where at paragraph 8 Green, J. (as he then was), stated:
“Because the provision of such information could possibly involve admissions that might subsequently affect criminal or civil liability of the person making the report, the trade-off for requiring that information to be given is that the report will not be used in evidence in a subsequent trial arising out of the accident. That approach is consistent with Canadian legal tradition, exemplified by s. 5 of the Canada Evidence Act, R.S.C. 1985, c. C-5, and s. 13 of the Canadian Charter of Rights and Freedoms, where the person required to give incriminating information in testimony is then given protection against its use for purposes of incrimination in later proceedings.”
[14] The appellant here also takes issue with the decision of the respondent or more accurately, the police, in choosing to charge the appellant under the Criminal Code rather than under the Highway Traffic Act. He argues that a conviction for such a charge under the Criminal Code exposes the appellant to a greater liability and penal sanctions than those which would be imposed under the Highway Traffic Act.
[15] The respondent does not agree with the characterization of the issues here as put forward by the appellant. It is of the view that the actual statement provided by the appellant here was the actus reas of the offence. Because of this the Crown takes the position that it does not have to prove that the statement was given voluntarily and consequently none of the confession rules apply to the taking of the statement. I was referred to R. v. Stapleton (1982), 1982 CanLII 3331 (ON CA), 66 C.C.C.(2d) 231 (Ont. C.A.), where on page 234 the court states:
“The rule as stated by Lord Sumner in Ibrahim v. The King, [1914] A.C. 599 at pp. 609-610, that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to be a voluntary statement, in the sense that it was not induced by fear of prejudice or hope of advantage inspired or held out by a person in authority, applies to statements made by an accused after the commission of an offence and which are sought to be introduced in evidence for the purpose of incriminating him in respect of the commission of that offence. In the present case, the statements made by the accused to Sergeant Cronk were not introduced to incriminate the appellant in respect of an offence which he is alleged to have previously committed. The statements are alleged to constitute the actus reus of the very offence charged. The confession rule requiring proof of voluntariness of any incriminating statement made to a person in authority is, consequently, not applicable.”
[16] The respondent agrees that the Highway Traffic Act does provide protection in making statements, but points out that there is nothing in the statement resulting in a criminal charge, but rather it is the statement itself that was the criminal act. The respondent points out that there is a distinction between incriminating evidence given in a statement and the actual statement being the incriminating evidence.
[17] As the Crown says in its brief “there is no information given in the statement which is incriminating, instead it is the statement itself which constitutes the offence.”
[18] The respondent argues that the appellant in this case was not charged because of any admission about a wrongdoing during the accident. He was charged because he gave a false statement. He told the police that another individual was driving the vehicle in attempt to mislead the police in their investigation. The charge stems from the fact that the appellant lied (which was admitted) in an attempt to mislead the police.
[19] The respondent on the second issue of police discretion in deciding to lay a charge argues that our justice system depends upon the use of that discretion and that police discretion is necessary to ensure that justice is served.
Analysis
[20] In his judgment the trial judge found that:
“This charge does not arise out of the accident but rather the reporting of the accident and as far as I’m concerned, the statement in question could not be excluded for that reason, because the trial doesn’t arise out of the accident.”
[21] Under the Highway Traffic Act if an individual is involved in a motor vehicle accident he or she is required by the Act to give a statement to the police. There are numerous reasons for requiring persons to give statements, including the possibility of breaches of the Highway Traffic Act, statistical information and safety concerns re: vehicles and highways. Because of the compulsory nature of the legislation, there is what one might call a saving clause. If you give such a statement, as you are required to do, you have the assurance under s. 173(c) that it is not open to public inspection and more importantly, under s. 173(b) that:
“It is not admissible in evidence for any purpose in a trial arising out of the accident except to prove
(ii) falsity in a prosecution for making a false statement in the report or statement.” (my underlining)
[22] Clearly then while the provincial legislature gave limited immunity because he or she is compelled to give a statement, it anticipates that people do not always tell the truth and there is a possibility that they may lie about the accident or their participation in it. The Crown can charge them under the Highway Traffic Act and introduce the statement to prove falsity for making a false statement.
[23] The appellant here is arguing that the provincial legislature is, by compelling a person to give a statement, saying that either you give a correct statement or the Crown can charge you under either the Highway Traffic Act or the Criminal Code. This, he says, infringes on your right to remain silent, exposing you to criminal liability. He cites R. v. White as authority for that proposition.
[24] In White the respondent was involved in an accident and called the police the next day. First she refused on her lawyer’s advice to give a statement with respect to the accident. She had three conversations with police officers. She was advised by the officer that even though she was not required to provide a written statement, she would be required to provide a statement if requested by the police under the Motor Vehicle Act and that that statement could not be used against her in court. She was later charged with failing to stop at the scene of an accident under s. 252.1 (a) of the Criminal Code. At trial the Crown sought to adduce evidence of three conversations the respondent had had with the police; elements of the conversation linked the respondent to the accident.
[25] Section 651.7 of the B.C. Motor Vehicle Act supplements a reporting scheme by creating use immunity for the declarant in relation to the information provided pursuant to s. 61(1) (see headnote). It reads:
“(7) The fact a report has been made under this section is admissible in evidence solely to prove compliance with this section, and the report is admissible in evidence on the prosecution of any person for the offence of making a false statement therein, but neither the report nor any statement contained in it is admissible in evidence for any other purpose in a trial or proceeding arising out of the accident referred to in the report.”
[26] In White the police from the outset were investigating what appeared to be a hit and run - a criminal offence. In the second conversation which the officer had with the woman she was given her rights under s. 10(b) of the Charter. There was another conversation after this. When she was charged with failure to stop at the scene of an accident, the Crown tried to introduce evidence of the three conversations she had had with the police. The defence argued that the various statements were obtained in violation of her s. 10(b) Charter rights, thereby violating s. 7 of the Charter not to be compelled to incriminate herself.
[27] In White, as I mentioned earlier, the police were actively pursuing an apparent criminal offence, i.e., the offence of leaving the scene of an accident, and the conversations which they had with the woman were quite obviously slanted towards the pursuance of the aim of laying charges against the perpetrator of the crime. The Supreme Court of Canada ruled in essence that statements made under the compulsion of s. 61 of the Motor Vehicle Act can not be used to incriminate the declarant in subsequent criminal proceedings.
[28] The Supreme Court of Canada in discussing the compulsion to give statements made under s. 61 of the British Columbia Motor Vehicle Act observes that the police could in certain circumstances over emphasize the statutory duty to report an accident in order to obtain relevant information. It goes on to say:
“The effect of such overemphasis might be to circumvent or defeat a driver’s s. 7 right to remain silent when under investigation for a criminal offence.” (my underlining)
[29] The court comments in para. 65:
“The inability of police to rely upon statements made under the compulsion of s. 61 of the Motor Vehicle Act highlights the importance of questioning a driver separately for the purpose of engaging in a criminal investigation. Clearly, police are entitled to question a person who is suspected of a motor vehicle offence, and who is properly advised of and given the opportunity to exercise his or her Charter rights. The effect of s. 61 of the Motor Vehicle Act is thus to create a logistical difficulty for police. If police wish to use in criminal proceedings information acquired from the driver through questioning, the information must not be provided pursuant to the duty in s. 61. There are several ways in which police might organize their investigation in order to prevent any information acquired independently of s. 61 from becoming ‘tainted’, as it were, by the accident report that is subject to use immunity.”
[30] In the instant case the appellant was a suspect in possible criminal charges of either or both of “impaired driving” or “failing the breathalyzer”. However, it is important to note that the criminal charge he faced at the trial had nothing whatsoever to do with either of these charges. He faced a criminal charge under s. 140(1) of the Criminal Code of Canada and, importantly he only faced that charge after the police were convinced that the appellant had lied to them when he made his statement. Had the police laid charges of “impaired driving” or “failing the breathalyzer” (both of which would have arisen from the accident), they may well have found themselves within the four corners of White. As it is, however, I do not believe that s. 7 of the Charter has been triggered in this case.
[31] In White the police wanted to use the verbal utterances of the three conversations with the accused as evidence in the charge under the Criminal Code offence of leaving the scene of an accident. The Supreme Court of Canada said you cannot do that because it infringes your right to remain silent. In this case the police want to use the written statement itself as the foundation of the charge though the statement itself is false. The statement is not being used as evidence per se - the statement is the actus reas of the offence. This does not, as the trial judge pointed out, arise out of the accident. The law requires the person involved in an accident to provide a statement, but surely logic dictates that the statement should be accurate. It should not be a bare faced lie designed to deflect suspicion away from the possible perpetrator of a crime. To allow the accused here to take refuge behind s. 7 of the Charter would be tantamount to giving legal sanction to a lie. It would give a person who by law is required to give a statement after an accident, a license to prevaricate, a license to lie to and mislead the police and to face no other penalty than the one available under the Highway Traffic Act. This, in my view, is a wrong statement of the law.
[32] As counsel for the respondent pointed out, the purpose of the protection provided under the Highway Traffic Act is to ensure that an accurate account of the accident is obtained. The protection afforded by the Highway Traffic Act is for admissions made during the statement so that the truth behind the event can be known. However, there is no protection for the making of false statements. The Act specifically states that a:
“… written report or statement … is not admissible in evidence for any purpose in a trial arising out of the accident, except to prove falsity in prosecution for making a false statement in the report or statement”.
[33] I can quite readily see a distinction between incriminating evidence being found in a statement and the actual statement itself being in fact the incriminating evidence which constitutes the offence. The latter is what we have here and there is no protection under the Highway Traffic Act or any other acts for the making of false statements. The argument that the appellant can have the protection of s. 7 of the Charter is sophistry. It is superficially attractive and apparently plausible, but in the final analysis, it is misleading and fallible.
[34] In this case the appellant also takes issue with the police discretion to charge him under the Criminal Code of Canada, rather than under a provincial statute which carries a less severe penalty. I have examined that argument and have found it essentially to be without merit. The correct position is that enunciated in R. v. Beare; R. v. Higgins, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask.R. 1; 45 C.C.C.(3d) 57, where the court found that police discretion is an essential feature of the criminal justice system.
Appeal dismissed.
Comments
Post a Comment