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Can a Statement Made to an Alberta OHS Officer be used as Evidence in a Criminal Proceeding?

Submitted By Firm: McLennan Ross, LLP

Contact(s): Gerhard Seifner, Glenn D. Tait, Teresa R. Haykowsky

Author(s):

David G. Myrol

Date Published: 4/16/2012

Article Type: Legal Article

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For several years the following question has been asked: “Can a statement given
to OHS Officers investigating a workplace accident be used as evidence in a
criminal prosecution in Alberta?” In other words, can your own words, which are
compelled by provincial law on pain of jail for refusing, be used as evidence
against you in a criminal prosecution? The question has not been answered
definitively by Alberta courts but a recent case from Ontario suggests the answer
is “no”. The case is not binding on Alberta courts, and a different approach could
be taken in Alberta, but the reasoning from Ontario seems persuasive. The
analysis is not without complexity as one drills into the details, and with the state of law in Alberta
being uncertain, employers and in-house counsel would be well advised to take a few simple
precautions when employees are talking to OHS Officers regarding a serious workplace accident.

Section 19 of the Alberta Occupational Health and Safety Act (“OHS Act”) compels a person with
information relating to a workplace accident to provide that information to an OHS Officer when
requested to do so. If the person refuses to provide the information requested by the OHS Officer, or
the person knowingly gives a false statement or false information to the OHS Officer, then the
person can be charged and sentenced up to six months in jail if convicted. This requirement is
balanced by a “use immunity” clause in section 19 which provides that the statement is inadmissibleor any purpose in a trial or other proceeding. The wording of this “use immunity” clause is broad in scope. How then, in the face of this seemingly straightforward rule of evidence, can a statutorily compelled statement be used in evidence against its maker in a criminal proceeding?

The legal problem, like many in Canada, rests in our constitutional division of powers. Provinces
are not entitled to pass legislation on federal matters. The OHS Act is provincial legislation.
Criminal law is governed under federal legislation. Therefore, the rule of evidence in section 19 of
the OHS Act does not apply to a criminal proceeding. In simplistic terms, prosecutors could argue
the provincial rule of evidence in section 19 does not apply to criminal cases. This argument has
been used by prosecutors in other circumstances, in other jurisdictions.

For example, the Ontario Court of Appeal recently dealt with this issue in an analogous situation. In
R. v. Soules (2011), 273 C.C.C. (3d) 496 (Ont. C.A.), the main issue was whether a statement
compelled under the Highway Traffic Act (i.e. provincial legislation) was admissible in a trial under
section 253(b) of the Criminal Code for exceeding the legal blood alcohol limit (i.e. federal legislation). In that case prosecutors attempted to introduce the defendant’s compelled statement to
police officers which was given under the Highway Traffic Act. The compelled statement gave the
officer a suspicion that the defendant had alcohol in his body. This was important because once the
officer formed the suspicion that the defendant was operating a motor vehicle with alcohol in his
body, the officer was entitled to demand a roadside screening sample. The defendant failed the
roadside screening device which entitled the officer to escalate things by demanding breath samplesfrom an approved instrument. Accordingly, the compelled statement under the Highway Traffic Act became pivotal to the success of the prosecution. Without the statement, there was no suspicion; without the suspicion, there was no ability to demand a roadside sample; and without the roadside sample, there was no ability to demand breath samples from an approved instrument. Thus, without the evidence of the compelled statement, there would be no conviction.

In Soules, the defendant’s vehicle rear-ended another vehicle that was turning right into a driveway.
The roads were wet at the time of the accident. The defendant’s vehicle was also rear-ended by
another vehicle. The police investigated the accident and spoke with each driver. In speaking with
the defendant, he identified himself as the driver of his vehicle. The police officer, based on his
observations in speaking with the defendant, formed a suspicion that the defendant had alcohol in
his system. The police officer demanded a roadside screening sample. The defendant failed the
roadside test and subsequently provided breath samples of 143 and 136 milligrams of alcohol in 100 millilitres of blood (the legal limit is 80 milligrams) and was charged accordingly.

At trial the defendant argued that his rights under sections 7 and 10(b) of the Charter were violated.
He defended himself on the basis that the breath samples should be excluded as evidence because they were obtained in violation of his Charter rights. In particular, the defendant argued, amongst other things, that his right against self-incrimination under section 7 of the Charter was violated by having his compelled statement used against him in a criminal proceeding. The trial judge agreed, the evidence of the compelled statement was ruled inadmissible and with it the results of theoadside and breath samples, and the defendant was acquitted.

The Ontario Court of Appeal upheld the trial judge’s decision and affirmed the acquittal. The Court
summarized the applicability of provincial “use immunity” clauses to criminal proceedings in the
following manner at paragraphs 47-48:

46 Use immunity created by a provincial statute cannot extend to proceedings under the Criminal Code,because it would be ultra vires the province to restrict the admissibility of evidence in criminal matters: White at para. 35. As Iacobucci J. explains further in para. 72, the purpose of this type of provincial legislation is not to assist the police in the investigation of specific crimes; rather,

  • The provinces are entitled to inquire into factual circumstances that may involve the commission of a criminal offence, but their jurisdiction does not extend so far as to trench upon the federal power under s.1(27) of the Constitution Act, 1867 over the criminal law.

48 Use immunity therefore is limited to the jurisdiction of the provincial legislature and relates to whether or not there has been compliance with the legislated reporting requirement. Thus, although the Ontario Highway Traffic Act does not have similar use immunity provisions, this simply means that in Ontario the statutorily compelled accident report can be used to prove non-compliance as required by the Highway Traffic Act;nothing more.

In reviewing this passage one might be inclined to assume there is little risk of having a compelled
statement under the OHS Act used in a criminal proceeding. However, there are a few points to keep
in mind before this conclusion can safely be reached.

First, it is important to note that Soules is somewhat incomplete in the sense that the Crown did not
seriously advance an argument that any infringement of section 7 of the Charter was reasonably
justified under section 1 of the Charter. The Crown did not raise this issue at trial, nor at the first
level of appeal, and only raised the issue in a cursory fashion before the Ontario Court of Appeal.
On that basis the Ontario Court of Appeal gave the argument no consideration. Accordingly, the
door was left slightly open in the future for this type of argument.

Second, the immunity clause contained in section 19(5) of the OHS Act is only triggered when an
OHS Officer “requests” the information while investigating a serious workplace accident.
Accordingly, if the statement is voluntarily made, without being requested by the OHS Officer, then
arguably the immunity may not apply. The “use immunity” also does not apply to a police officer
conducting a criminal investigation who requests information in respect of a serious workplace
accident.

Third, one of the common elements in both Soules and White was that the defendants believed they
were compelled to provide the information requested by the police. Clearly, they both understood
their statutory obligations. Does the analysis change if the person has no knowledge of being
compelled to provide the information and simply offers the information freely and voluntarily? Will
section 7 of the Charter still apply? Will the statement still be excluded under section 24(2) of the
Charter? There are no clear answers to these questions but employers can avoid the confusion after
a serious workplace by advising their workers of their post-accident duties and responsibilities
under the OHS Act.

Finally, section 19(5) of the OHS Act is not a complete immunity clause. It is more accurately
described as a “limited use immunity” clause, meaning the statement can still be used for two
limited purposes. Under section 19(5) the compelled statement can still be used in a provincial OHS
prosecution to prove the person refused to provide the information requested, or the person
knowingly gave a false statement or false information to the OHS Officer. Accordingly, immunity
may not be granted to a person refusing to provide the information, or a person who knowingly lies
to OHS Officers.

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