R v. Soules 2011 ONCA 429: Are Statutorily Compelled Statements still Relevant in the New Impaired Driving Regime?

The title of this post contains what is known as a case citation (lawyers use case citations for quick reference). If a case is particularly remarkable and sets a precedent (essentially a ruling that evolves the law), the case gets reported and used in argument by lawyers in future cases. The “R” in the citation stands for Regina, and represents the State, i.e., “Her Majesty the Queen”, the “v.” stands for versus, and “Soules” is the name of the accused in the case. In the Criminal law subfield of impaired driving, the ruling in R v Soules set a precedent where Mr. Soules had no choice but to fashion details of what had happened to him in a motor vehicle accident.

Why was Mr. Soules acquitted? In sum, it was the result of the fact that the Highway Traffic Act compelled him to provide details to an officer following his admitting to being a party to a motor vehicle collision. From those details, the officer formed a suspicion that alcohol was involved and decided to administer a roadside alcohol screening device test which ultimately led to Mr. Soules failing the official breath tests back at the police station. If one MUST provide a statement then how should that be balanced against one’s right against self-incrimination?

The details of the case are summarized as follows: At the scene of an accident, Mr. Soules told the investigating officer that he was the driver of one of the involved vehicles. Based on Mr. Soules statement, the officer suspected that Mr. Soules had alcohol in his system and made an approved screening device demand (this is the roadside screening test which registers either a pass, warning range, or fail). Mr. Soules failed the roadside test. He was charged with operation of a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood (colloquially, “Over 80”). At Mr. Soules’ trial, the judge ruled that Mr. Soules' roadside statements were statutorily compelled under the Highway Traffic Act and as such, his statements were inadmissible according to other cognate cases and the logically attached breach of his right against self-incrimination. The judge excluded the breath results from evidence as a result of the breach of section 7 of the Charter - without the roadside statement there was no reasonable suspicion to allow for a proper roadside breath demand. Mr. Soules was acquitted. The Crown appealed but ultimately the Ontario Court of Appeal held true to the findings of the court of first instance.




As of December 18, 2018 - this interesting legal issue will have been made redundant. The former test for an investigating officer to administer a roadside screening device test was that he or she had ‘reasonable grounds to suspect’ that there was alcohol at play. This most commonly crystallized as “an odour of alcohol emanating” from an individual’s breath, the freely given admission of consumption of alcohol, and/or open alcohol readily available to a driver within a vehicle. Under section 320.27(2) of the Criminal Code of Canada, an officer no longer needs “reasonable grounds to suspect” the presence of alcohol in the context of making a roadside demand (so long as the roadside device is present with the officer at the time of the demand). Thus utterances made at roadside, like in Mr. Soules case, are no longer necessarily required to get to the stage of an officer validly requesting a roadside demand.

One of the greatest parts of being a criminal lawyer is that it is simply will not possible to be complacent. The law is always evolving. This new legislation will undoubtedly be tried for constitutionality and only time will tell where the Courts will lead us next.

If you would like to discuss your case, please do give me a call at 613-893-5673 or email me at jordan@tekenos-levy.com.