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WHEN TO TALK AND NOT TO TALK: Voluntariness in the Context of Drinking and Driving

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Defending impaired driving and over 80 cases often involves a challenge to the actions of police officers holding up their conduct to the scrutiny of the Charter. One such area is the right to remain silent and to advise from counsel. Technology has yielded digitally recorded real time evidence showing the interaction between the police and the detainee while in the police station. This has a dual affect. All actions of the detainee are captured for all to see at a trial but similarly the officers are constrained in their actions, thereby resisting making any threats or promises to induce statements. When a person enters the “breath room”, the intoxilyzer technician will routinely advise of the right to speak to counsel without delay and will delay the tests if a request is made by an accused to speak to either private or duty counsel. As well, the primary and secondary caution will be given prior to any tests being administered. In the past any conversation between two tests had been regarded as admissible evidence since the detainee has been given the rights and caution and voluntarily chosen to answer the questions. A recent decision of Regina v. Duong , the Honourable Mr. Justice H. Chisvin ruled that the answers provided between the two tests were not voluntarily as Mr. Duong was not re-cautioned after the 1st sample was obtained.

In most Ontario jurisdictions, there is a standard form utilized with questions relating to how, what, when and how long details of alcohol consumption. A further question confirming the accused had been operating the motor vehicle when stopped by the police is in included in the form. At trial, a Crown prosecutor will make application to tender those utterances to either prove the necessary elements of the offence(s), or to rebut “evidence of the contrary”.

Mr. Duong was arrested with impaired operation of a motor vehicle as a result of being involved in an accident. Mr. Duong was not proficient in English. The technician had another officer act as translator prior to taking the first sample. After the first sample was taken, the officer immediately began asking the standard questions in English and without the secondary caution being re-administered. His Honour confirmed that “although there is no obligation to repeat the caution, the failure to do so may, in some circumstances, result in a finding that the answers given were not voluntary.” He then observed that to an accused”…this had the appearance of being a seamless process and objectively could be seen as part of the entire testing procedure.” After being told that the accused must provide two samples of his breath, it flows that an accused would feel compelled to answer such questions that are inevitably inculpatory.

This decision is both consistent and an extension of Regina v. Pomeroy , wherein the Honourable Mr. Justice Casey Hill, sitting as a summary conviction Judge, confirmed that although there is no obligation in law, the failure to do so “… may result in an adverse finding and exclusion of answers” . Even though Justice Hill refused to overturn the trial judge’s finding that the statements were voluntary, there is judicial recognition that an accused must understand the extent of his/her jeopardy during each stage of the investigative process.

Although it may seem polite to answer the officer’s questions, there is no substitute for adhering to the right to remain silent.

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