R vs White Defence

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hwybear
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Re: Go get'em

Unread post by hwybear on

Biron wrote:White application..
what is a white application? I have never heard that term.
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Biron
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Unread post by Biron on

Hi hwybear,
hwybear wrote:
Biron wrote:White application..
what is a white application? I have never heard that term.
R. v. White
http://scc.lexum.umontreal.ca/en/1999/1 ... r2-417.pdf

A 1999 Supreme Court Case that deals with self-incrimination under compulsion.

Sec. 199 of the HTA compels drivers to report an accident under certain circumstances -that we all know-. Common Law and section 7 of the Charter gives defendants the right not to be compelled to provide information that would tend to incriminate them. Right to silence.

A Police Officer completing a MVC report has authority under s. 199 to request information from those drivers who are directly or indirectly involved in an accident and the drivers MUST provide that information or could be arrested -if ID is one of the issues- and charged.

The Police Officer may NOT use any of that information to charge the driver. This information includes the Driver's License, which is used to identify the driver. Since identification is an essential element of an offence, without it the conviction fails.

However, if the Officer cautions the driver that a charge may arise from the information provided by him/her, then the driver is no longer compelled and may or may not provide any information. If the driver gives information, it would be volunteer and acceptable as evidence in court.

In one of the cases my client could have not been identified by any other means and the charges where dismissed. It would have been different if the other driver could have identified the Defendant.

On the second case, the prosecutor failed to file responding materials to the application and withdraw the charges.

The application -to exclude that evidence- may be made under the Charter or in Common Law.

Cheers.


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hwybear
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Unread post by hwybear on

Biron wrote: The Police Officer may NOT use any of that information to charge the driver. This information includes the Driver's License, which is used to identify the driver. Since identification is an essential element of an offence, without it the conviction fails..
that is just plain %$%#&^ up reasoning and that is my "civilian" side looking at things.

Now the other side, that does not make sense, police can stop a vehicle and obtain ID, or ID someone in a vehicle at roadside, but a collision is different, that is some whacky decision.

ok, so what if I identify the driver via the Public Works Protection Act? That is then how I obtain the ID and use it to complete the MVC investigation
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Unread post by Biron on

...
Come on hwybear, you asked me what a White application was and I answered.
hwybear wrote:
Biron wrote:The Police Officer may NOT use any of that information to charge the driver. This information includes the Driver's License, which is used to identify the driver. Since identification is an essential element of an offence, without it the conviction fails..
that is just plain %$%#&^ up reasoning and that is my "civilian" side looking at things.

Now the other side, that does not make sense, police can stop a vehicle and obtain ID, or ID someone in a vehicle at roadside, but a collision is different, that is some whacky decision.
There is not much difference between your civilian and police sides, just a matter of quantum :)

Well, as I mentioned, R. v. White is a Supreme Court Case - The leading case in self incrimination.

I didn't meant to argue it here, I've done that successfully in court more than once.

Now; if the Supreme Court is rendering whacky decisions then we may be in trouble, don't you think?
hwybear wrote:ok, so what if I identify the driver via the Public Works Protection Act? That is then how I obtain the ID and use it to complete the MVC investigation

Public Works Protection Act wrote:Powers of guard or peace officer

3.A guard or peace officer,

(a) may require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and address, to identify himself or herself and to state the purpose for which he or she desires to enter the public work, in writing or otherwise;

(b) may search, without warrant, any person entering or attempting to enter any public work or a vehicle in the charge or under the control of any such person or which has recently been or is suspected of having been in the charge or under the control of any such person or in which any such person is a passenger; and

(c) may refuse permission to any person to enter a public work and use such force as is necessary to prevent any such person from so entering. R.S.O. 1990, c. P.55, s. 3.
How is that going to work? How is that relevant?
You got me confuse now.

Are there other ways to get the information apart from the MVC investigation?
Yes; there are and that, in my opinion, is good policing work, but I am on the other side of the fence. :wink:

Cherrs.


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hwybear
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Unread post by hwybear on

Biron wrote:Well, as I mentioned, R. v. White is a Supreme Court Case - The leading case in self incrimination.
I didn't meant to argue it here, I've done that successfully in court more than once.
Nor arguing at all...learning :wink:

Biron wrote:
Public Works Protection Act wrote:Powers of guard or peace officer

3.A guard or peace officer,

(a) may require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and address, to identify himself or herself and to state the purpose for which he or she desires to enter the public work, in writing or otherwise;

(b) may search, without warrant, any person entering or attempting to enter any public work or a vehicle in the charge or under the control of any such person or which has recently been or is suspected of having been in the charge or under the control of any such person or in which any such person is a passenger; and

(c) may refuse permission to any person to enter a public work and use such force as is necessary to prevent any such person from so entering. R.S.O. 1990, c. P.55, s. 3.
How is that going to work? How is that relevant?
You got me confuse now.
PWPA Definitions:
“highway” means a common or public highway or a part thereof, and includes any street, bridge and any other structure incidental thereto and any part thereof; (“voie publique”)

“public work” includes,

(a) any railway, canal, highway, bridge, power works including all property used for the generation, transformation, transmission, distribution or supply of hydraulic or electrical power, gas works, water works, public utility or other work, owned, operated or carried on by the Government of Ontario or by any board or commission thereof, or by any municipal corporation, public utility commission or by private enterprises,

(b) any provincial and any municipal public building
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Unread post by Radar Identified on

WOW this is making me dizzy

:shock:
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Unread post by hwybear on

Radar Identified wrote:WOW this is making me dizzy

:shock:
next step... "The CENTRIFUGE".....muhaaaaaaaaaaaaaaaaa :wink:
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Unread post by Radar Identified on

hwybear wrote:next step... "The CENTRIFUGE".....muhaaaaaaaaaaaaaaaaa
Centrifuge?! Uh-oh... :shock:
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Keroba
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Unread post by Keroba on

I thought that a R. v. White exclusion was only allowable in a criminal offence context?

See Toronto v. Baillie, 2007 ONCJ 244.

J.P. Quon did a pretty comprehensive overview of the "principle against self-incrimination" caselaw to that point, including R. v. White.

It says that in a regulatory offence context, self-incriminating evidence can be used at trial if that evidence was collected before any offence investigation started (i.e. the cop has shown up at the scene of an accident, has no idea what has happened, and asks both parties to fill out an accident report). If such reports were not able to be used, the whole regulatory regime would collapse on itself. Driving is not a right, it's a privilege, and in return for that privilege motorists have signed themselves up in a sort of "social contract" wherein they agree to fill out accident reports if and when the need arises.


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Unread post by Biron on

.
JUST AN OPINION, NOT LEGAL ADVISE
Keroba wrote:J.P. Quon did a pretty comprehensive overview of the "principle against self-incrimination" caselaw to that point, including R. v. White.

It says that in a regulatory offence context, self-incriminating evidence can be used at trial if that evidence was collected before any offence investigation started (i.e. the cop has shown up at the scene of an accident, has no idea what has happened, and asks both parties to fill out an accident report). If such reports were not able to be used, the whole regulatory regime would collapse on itself. Driving is not a right, it's a privilege, and in return for that privilege motorists have signed themselves up in a sort of "social contract" wherein they agree to fill out accident reports if and when the need arises.
Well, you better read R. v. White and you'll see that Quon J.P. is wrong.
http://www.canlii.org/en/ca/scc/doc/199 ... ii689.html

I read his decision and it really makes no sense as he mixes concepts and law principles in a manner that lacks reasonable and rational connection with his final postulate.

In my respectful opinion -and I may be wrong of course- His Worship places all of his arguments at the service of the conviction and not that of justice.

He quotes himself several times and yet can not rationally demonstrate that he was correct in the first place.

Let me put just and example of his misplaced rational:
Quon J.P. wrote:In my test in R. v. Visuvalingam, I had divided those conscripted statements made at the accident investigation stage, which is the stage where the officer has not formed reasonable and probable grounds to believe that an offence has occurred, from conscripted statements given to an officer at the offence inquiry or penal investigation stage, which is the stage where the officer has or ought to have formed reasonable and probable grounds to believe that the actus reus of a regulatory offence had occurred. Once the officer enters the offence inquiry stage then an adversarial relationship crystallizes between the individual and the state, and the individual’s Charter rights are engaged. Using the objective criteria of reasonable and probable grounds to believe that an offence had been committed, will prevent officers from simply relying on or abusing the use of the statutory requirement of motorists to report the particulars of an accident, for obtaining incriminating evidence to be used against a motorist, and will also provide the appropriate balance between competing societal and individual interests.
However, when a statement provided to complete a MVC is the grounds to form reasonable and probable grounds to believe that the actus reus of a regulatory offence had occurred and later such statement is introduced in evidence in support of a conviction, the the entire statement becomes an essential part of an adversarial system. You cannot escape from that.

The distinction between a regulatory system and a quasi-criminal system is clearly defined by the Supreme Court in R. v. White.

In my opinion, "conveniently", Quon J.P. does not mention the distinction of a regulatory scheme, such as the fisheries industry, and s. 61 of the British Columbia Motor Vehicle Act, the equivalent to our HTA in clear and direct terms and ignores the Supreme Court cautions respecting the mental state of an individual who is giving a statement to a police officer.

On the other hand:
The Supreme Court in R. v. White wrote: 52 In my view, the Crown’s argument that the factual and legislative context of this case parallels that which was at issue in Fitzpatrick is incorrect. Several of the self-incrimination concerns which were absent in Fitzpatrick are acutely present here. It will be helpful to address these concerns individually.

D. Inadmissibility of a Statement Made Under Section 61 of the Motor Vehicle Act

(1) Existence of Coercion

53 In Fitzpatrick, La Forest J. emphasized that the obligations created by the provincial fisheries regulations at issue in that case were imposed upon the accused with his free and informed consent. The accused had a free choice whether or not to participate in the commercial fishery. When he did choose to participate in the fishery, he was informed of his reporting obligations, of the penalties for non-compliance with fisheries regulations, and of the possibility that any reports he might make could be used against him. He was properly deemed to be aware of this information. It could not be said that, by regulating the commercial fishery as it did, the state was coercing the accused to incriminate himself.

54 In this case, the Crown makes submissions to the same effect. Driving is a regulated activity. All drivers are required to obtain a licence to drive. In so doing, the Crown states, they give free and informed consent to all of the rules of the road, including the requirement to report a motor vehicle accident. In such a context, the Crown submits, it cannot be said that a driver is coerced to provide an accident report when the occasion to do so does arise. In support of this proposition, the Crown relies upon, inter alia, statements regarding the voluntary nature of driving contained in the decisions of this Court in Dedman v. The Queen, 1985 CanLII 41 (S.C.C.), [1985] 2 S.C.R. 2, Hundal, supra, and R. v. Finlay, 1993 CanLII 63 (S.C.C.), [1993] 3 S.C.R. 103.

55 I agree with the Crown that drivers are deemed to be aware of their responsibilities on the road, and that driving is properly understood as a voluntary activity in the sense described by this Court in the cases cited by the Crown. However, driving is not freely undertaken in precisely the same way as one is free to participate in a regulated industry such as the commercial fishery. Driving is often a necessity of life, particularly in rural areas such as that where the accident occurred in this case. When a person needs to drive in order to function meaningfully in society, the choice of whether to drive is not truly as free as the choice of whether to enter into an industry. While the state should not be perceived as being coercive in requiring drivers to report motor vehicle accidents, the concern with protecting human freedom which underlies the principle against self-incrimination cannot be considered entirely absent in this context. As I view the matter, the issue of free and informed consent must be considered a neutral factor in the determination of whether the principle against self-incrimination is infringed by s. 61 of the Motor Vehicle Act.

(2) Adversarial Relationship

56 A key factor in the Court’s reasoning in Fitzpatrick was that the accused and the state were not in an adversarial relationship at the specific time that the self-incriminatory statements were made. The hail reports and fishing logs were made in a context that was entirely free of psychological or emotional pressure for the accused, at a time when the accused was not under investigation by fishing authorities. Moreover, the hail reports and fishing logs were required by the state for the useful purpose of calculating fish stocks in order to determine appropriate fishing quotas. As noted by La Forest J., the accused and the fishing authorities could properly be seen, in exchanging information about the quantity of harvest in this way, as partners in the greater collective endeavour of conserving fish stocks and correspondingly conserving the commercial fishery. La Forest J. emphasized that the hail reports and fishing logs were an essential component of this conservation scheme.

57 The situation is very different under the Motor Vehicle Act. It is true, as the Crown suggests, that drivers and the state do participate in a form of partnership aimed at securing safe roads for the benefit of all citizens. The reporting requirement in s. 61 of the Act has the valid purpose of permitting the compilation of road safety information and accident statistics: see, e.g., Walker v. The King, 1939 CanLII 2 (S.C.C.), [1939] S.C.R. 214, at p. 220. Yet the driver who provides an accident report under s. 61 is not in the same situation as the commercial fisher who radios in or documents the quantity of the day’s catch.

58 The provincial decision to vest the responsibility for taking accident reports in the police has the effect of transforming what might otherwise be a partnership relationship into one that is potentially adversarial. Very often, the police officer who is receiving the accident report is simultaneously investigating a possible crime, in relation to which the driver is a suspect. At the same time that the officer is required by s. 61(4) of the Motor Vehicle Act to obtain information about the accident from the driver, the officer may equally be required or inclined to inform the driver of possible criminal charges and of the driver’s legal rights under the Charter, including the right to remain silent. The result is seemingly contradictory instructions from police. Importantly, also, the driver is generally in the officer’s immediate physical presence. The result is, quite unlike the situation in Fitzpatrick, a context of pronounced psychological and emotional pressure.

59 The facts of this appeal provide a clear illustration of the problem. The police arrived at the respondent’s home immediately after she phoned them, suggesting a sense of urgency. Upon hearing the news of the victim’s death, the respondent was extremely upset and accordingly vulnerable. Although the police did not interrogate her in a rigorous fashion, the respondent knew that Sgt. Tait was attending at her home in anticipation of receiving information about the accident. She also felt that she was required to speak to him, a feeling that was reinforced by Sgt. Tait’s having waited outside her home while she spoke to a lawyer, and by his statement to her after she spoke to a lawyer that she remained under an obligation to provide an accident report, notwithstanding her right to remain silent and the advice of her lawyer.

60 Another important distinction between this appeal and Fitzpatrick, in so far as the existence of a partnership relationship is concerned, is that there is no suggestion in this case that the use of accident reports in criminal proceedings is an essential component of the regulatory partnership created by the Motor Vehicle Act. Under the fisheries regulations that were at issue in Fitzpatrick, the use of reports of daily fish harvests in the prosecution of overfishing was found to be essential to the integrity of the entire regulatory regime -- a regime that was beneficial to both the state and the accused as a commercial fisher. In contrast, under the Motor Vehicle Act, it is clear that the province of British Columbia does not consider the use of accident reports in subsequent legal proceedings to be essential at all. The inclusion of s. 61(7), extending use immunity in relation to the contents of an accident report in subsequent proceedings against the driver, reveals an intention to use accident reports in order to gather information only for non-litigious purposes. In other words, the partnership between the individual driver and the state does not encompass the use of the compelled accident report to incriminate the driver. The fact that the statements in this case are sought to be introduced in criminal rather than regulatory proceedings simply serves to accentuate the fact that the Crown seeks to use the statement for a purpose that was never contemplated as being a component of the regulatory regime.
I could go through Quon J.P.'s decision step by step, but frankly, it is just too boring and tedious. It reminds me of the sophists who through a series of contradicting and confusing statements were able to prove anything they wanted.

Anyway, it appears to me -just a personal perception- that the man is in love with himself, which makes me wary from the beginning.

Cheers.
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Unread post by Radar Identified on

JP Quon's decision is not binding on any other court, either...
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Unread post by Tekinter on

I have been researching R. v White as a possible defense at trial for a friend that has a drive suspended case. His initial statement was the only thing that identified him to police. He was handcuffed and placed in the back of the police car which I think most would call being placed under arrest. I have read disclosure in this specific case and nowhere does it say in disclosure that the officer read him his rights 10a 10b.
So my question is can the crown use my friends statutorily compelled statement at trial. The statement is incriminating plus this is not just a liability case this is liability and imprisonment case. Does he have grounds for using his S 7 charter rights in this specific case?


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Unread post by hwybear on

Tekinter wrote:I have been researching R. v White as a possible defense at trial for a friend that has a drive suspended case. His initial statement was the only thing that identified him to police.
R v White is different as in the driver's are outside the vehicle upon police arriving at scene.
Appears your friend is behind the wheel, when stopped, therefore must identify himself as per the HTA.
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Unread post by Tekinter on

Yes I believe he understood that he has to identify himself.
That id is statutorily compelled.
The question is can the crown use a statutorily compeled statement as evidence at trial?
Assuming that statement incriminates this individual?






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