Anything you say may be used against you…, but not always!

In Ontario, there are two primary sets of laws that apply to motorists: the Highway Traffic Act (HTA) and the Criminal Code of Canada (CCC).

There is an interesting interaction that takes place between the Highway Traffic Act and the Criminal Code of Canada in circumstances where there is a motor vehicle collision.

In such cases, the police arrive at the scene to conduct their investigation. The parties involved in the collision normally ‘report’ the details of the collision to the officers at the scene or the officers at the scene ask the parties involved questions.

Most Canadians believe and feel that if they’ve been involved in a collision, they are under a duty to report it to the authorities, this is correct. Section 199(1) of the Highway Traffic Act, states:

199. (1) Every person in charge of a motor vehicle or street car who is directly or indirectly involved in an accident shall, if the accident results in personal injuries or in damage to property apparently exceeding an amount prescribed by regulation, report the accident forthwith to the nearest police officer and furnish him or her with the information concerning the accident as may be required by the officer under subsection (3). R.S.O. 1990, c. H.8, s. 199 (1); 2002, c. 17, Sched. F, Table.”

This is where a rather interesting interaction between the Highway Traffic Act and the Criminal Code of Canada takes place.

Assume, that in the course of reporting an accident, the officer smells alcohol on the breath of one of parties involved in the collision. Normally, the officer will ask the individual whether they have consumed alcohol. The individual responds that they have consumed alcohol, which gives the officer the grounds needed to demand that they provide a sample of their breath into an Approved Screening Device (roadside breathalyzer). For the sake of this example, let’s assume the person fails the test and is subsequently arrested for ‘Driving with Excess Blood Alcohol’.

This is where things get tricky. According to the HTA, when you’re operating a motor vehicle, you have to give up the right to remain silent and tell the police what happened. As a result, any statements you make that could incriminate you cannot be used for criminal prosecution.

In the example above, the individual’s admission of consumption of alcohol in the course of an accident investigation cannot be used as evidence at the criminal trial for driving with Excess Blood Alcohol.

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