A witness changes his story about who was behind the wheel in a catastrophic hit-and-run collision. Can prosecutors question him about whether learning about his Charter rights gave him a reason to lie? Kyla Lee and Paul Doroshenko examine that unusual issue in Episode 465 of Driving Law.
The Ontario Court of Appeal case involved a collision that left a cyclist with catastrophic injuries. A central question was who had been driving. A witness gave several conflicting accounts, at different points identifying the accused as the driver and claiming that he himself had been driving.
The case raised an unusual question involving section 13 of the Charter and the protection against self-incrimination. Generally, courts must be cautious about allowing a witness to be cross-examined about their knowledge of this protection because doing so could improperly suggest that someone who knows their testimony cannot later be used against them has a greater reason to lie. In this case, however, the witness’s story changed after he learned of the protection, and he had previously discussed taking responsibility for the accused. The Court of Appeal concluded that the circumstances justified the cross-examination.
The decision is also significant for sentencing. The accused received four years and six months in prison for the hit-and-run offence. The Court upheld the sentence, pointing to Parliament’s decision to increase the maximum punishment from 10 to 14 years and recognizing a range of approximately three to five years for hit-and-run offences causing bodily harm. The Court also considered aggravating circumstances, including prior driving-related convictions, breaches of court orders and what it characterized as a prolonged attempt to avoid responsibility.
The episode then turns to BC’s ongoing wildfire situation. Kyla and Paul discuss restrictions on off-road vehicles in fire zones and whether those restrictions could withstand a constitutional challenge. Given the potentially devastating consequences of wildfires, they see a strong public-safety justification for temporary restrictions intended to reduce additional fire risks.
Wildfire smoke also raises an interesting question about roadside alcohol testing. Approved screening devices rely on fuel-cell technology and draw in ambient air during their operation. Kyla and Paul question whether using those devices in areas blanketed by wildfire smoke has been adequately studied, particularly when manufacturers already warn about exposing devices to substances such as cigarette smoke.
Finally, the Ridiculous Driver of the Week features a Smart car driver stopped while transporting a very large ladder sticking out of the tiny vehicle, secured with what appeared to be loose ropes and a bungee cord.
