The Alberta Court of Appeal in the recent case of R.
v. Porter, 2015 ABCA 279, has concluded that neither a
statement made to the police pursuant to the Traffic Safety
Act section 71, nor a statement provided to an insurance
adjuster is admissible in a police investigation or criminal
In June 2012, Mr. Green pulled over to aid another motorist with
a tire on Anthony Henday Drive in Edmonton. While standing on the
side of the road discussing the situation, Mr. Green was struck and
killed by a passing car. The passing vehicle did not pull over and
instead fled the scene.
The following morning, the accused, Porter, contacted a lawyer
regarding his involvement in an accident. At that point, the lawyer
advised Porter that he had an obligation to make a collision
statement to the police under the Traffic Safety
Act (the TSA) and an obligation to provide
a statement to his insurance company. Porter and his lawyer later
attended the police station to provide an accident report (the
"TSA Statement") at which point Porter was also arrested
Following the interview, the police swore an Information to
Obtain (an ITO) for a warrant to seize Porter's car. This ITO
was based on information provided in the TSA statement and with the
warrant, the police seized Porter's vehicle and found
Subsequent to the TSA Statement, Porter provided a written
report of the accident to his insurer (TD). In early August 2012,
TD opened a fatality file after it learned that the collision
caused Mr. Green's death. The independent adjuster in charge of
the file informed Porter that an additional statement was a
condition of his insurance policy, without which he may be denied
coverage. The adjuster also provided Porter with several assurances
that the statement would only be given to TD and the police would
not receive it without a court order. Porter then provided a
written statement for the file which did not mention a
The police learned of the insurance statements and obtained
production orders to access the statements based on, inter
alia, information provided in the TSA Statement.
The Alberta Court of Appeal considered whether the
TSA Statement and insurance statements may be used
by the police in an investigation and/or admissible at trial
against an accused.
Ultimately, the Court of Appeal upheld the trial judge's
decision that both statements were compelled statements and
therefore inadmissible at trial and unavailable for police use in
Following the Supreme Court of Canada in R v.
White, the Court of Appeal found that statutorily
compelled statements are inadmissible in a criminal proceeding,
regardless of the purpose to which it is used. The principle of
fundamental justice contained in section 7 of the Canadian
Charter of Rights and Freedoms protects a person against
self-incrimination. This principle relates to all information
contained in compelled statements thereby rendering the information
In the context of the TSA Statement, section 71 of
the TSA obliges a driver involved in an accident
to report the accident to peace officer. This statutory compulsion
paired with Porter's "honest and reasonably held belief
that he was required to make the report under
the TSA" rendered the statement inadmissible for
any purpose. Thus, the police were not authorized to use the
information in the TSA Statement for any purpose, including
gathering more information through the search warrant and
Similarly, the Court of Appeal highlighted that section 556 of
the Insurance Act places an obligation on the
insured to "promptly give to the insurer written notice, with
all available particulars, of any accident involving loss of damage
to persons or property...". Applying the contextual analysis
set in R v. White, the Court concluded that the
context of a criminal investigation of the insured brought the
insurance statements under the protection against
self-incrimination. This, combined with an insured's mandatory
obligation to provide written notice, rendered the insurance
statements inadmissible for any purposes.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Under B.C.'s former and current Limitation Act, the limitation period for a Plaintiff's claim can be extended on the basis of a Defendant having acknowledged in writing some liability for the cause of action.
Automobile drivers, like fine wine, tend to get better with age. Older drivers can draw on a wealth of experience from their years on the road to assist them when faced by a variety of dangerous conditions.
The insurance industry will be interested in Ledcor Construction Ltd v. Northbridge Indemnity Insurance Co because of principles the Supreme Court of Canada applied to the "faulty workmanship" exclusion in a Builders' Risk policy.
For the first time in BC, a Court has decided that an insured is entitled to special costs, rather than the lower tariff costs, solely because they were successful in a coverage action against their insurer.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).