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The Supreme Court of Canada (“SCC”) has granted leave to appeal [41737] the decision in R v Korduner, 2025 ABCA 30 [Korduner], a split decision from the Alberta Court of Appeal (“ABCA”) that examines the extent of use immunity for statutorily compelled statements. In particular, the SCC may wish to examine whether a statement given by a motorist who has an honest and reasonably held belief that they are statutorily compelled can be used as the reasonable grounds necessary to compel an evidentiary breath test pursuant to s.320.28 of the Criminal Code, RSC 1985, c C-46 [Code].
At first glance, Korduner is seemingly yet another case at the intersection of impaired driving policing and upholding individual protections against self-incrimination, as stipulated by s.7 of the Canadian Charter of Rights and Freedoms, The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11, [Charter]. However, the reach of this case goes beyond the roadside investigation. The SCC decision will hopefully clarify the extent to which the principle against self-incrimination applies, what it means to use a compelled statement “against” someone, and how legislatures may create statutory compulsion frameworks by balancing reporting requirements with Charter principles.
Facts
On March 22, 2019, Calgary police attended to a serious two-car accident near Downtown Calgary. A black Nissan was driving the wrong way down a one-way street and collided with a taxi. Upon police arrival, the accused, Megan Rae Korduner (“Ms. Korduner”), was located in an ambulance, being attended to for the airbag dust in her eyes. The officer who arrived on scene had no additional information and, crucially, established no overt signs of impairment, such as smell of alcohol, slurred speech, or other physical manifestations of intoxication (Korduner, para 5).
When questioned on what happened, Ms. Korduner responded that she lost control of the car. She continued to state that she was “in a lot of trouble.” To this, the officer asked why three times; first, she said because she should not have been driving; upon further inquiry as to why she was in trouble, she stated: “you know I’m drunk” followed by “I’m telling you right now that I am.” This was the first and only reason for the officer to conclude that she was driving under the influence (Korduner, para 8).
The officer subsequently arrested Ms. Korduner for impaired driving contrary to section 320.14(1)(a) of the Code. He additionally “informed her of her Charter rights and demanded a breath sample pursuant to section 320.28(1) of the Criminal Code” (Korduner, para 9).
Ms. Korduner maintained at trial that she held an honest and reasonably held belief that she was statutorily compelled to respond to the officer’s questions per s.71 of the Traffic Safety Act, RSA 2000, c T-6 which “requires the driver to provide a report to a police officer regarding the circumstances of the accident.” The trial judge agreed with Ms. Korduner, finding that the Crown failed to demonstrate that the officer had successfully compartmentalized accident-reporting from investigatory questioning. Accordingly, under R v White, 1999 CanLII 689 (SCC), [1999] 2 SCR 417, any incriminating statements made by Ms. Korduner were deemed to be compelled and inadmissible pursuant to s.7 of the Charter.
At trial, the judge held that accident statements made in response to a statutory requirement receive use immunity at the highest level and cannot be used for any reason to investigate a related crime, even for a breath demand. As this was the only reasonable ground the police had to suspect intoxication, the breath demand was therefore unlawful. The charges were ultimately dismissed; on summary conviction appeal, The Alberta Court of King’s Bench upheld the decision of the lower court. The Crown subsequently appealed the holding to the ABCA.
The ABCA Decision
Issues
The ABCA granted leave to appeal on two issues:
- Did the summary conviction appeal judge err in law in finding that section 320.31(9) contravenes section 7 of the Charter?
- If not, did the summary conviction appeal judge err in law in concluding that any contravention is not justified under section 1 of the Charter? (Korduner, para 2).
Given that the Majority ruled on the first issue in the affirmative, the second issue was not assessed.
The Majority Reasoning
To contextualize the ABCA’s divide in Korduner, it is important to turn to R v White [White], where the SCC set out four factors to balance the importance of investigative searches with freedom against undue compulsion by the state. These four factors, stipulated by La Forest J. as he then was, are:
- real coercion by the state in obtaining the statements;
- an adversarial relationship between the accused and the state at the time the statements were obtained;
- an increased risk of unreliable confessions as a result of the statutory compulsion; and
- an increased risk of abuses of power by the state as a result of the statutory compulsion. (White, para 51)
In their majority reasoning, Crighton and Grosse J.J ruled that White governs accident statements that are compelled but found that the record did not amount to a breach of s.7. While White prohibited the use of a compelled statement to establish the necessary elements for a finding of guilt, the majority in Korduner rejected this logic from extending to exclude an investigatory step from being assessed. When regarding the second White factor, the majority agreed that Ms. Korduner “was clearly in an adversarial relationship with the state when she gave the statement in issue”, and that the second factor would weigh in favour of a s.7 breach finding (Korduner, para 60). Nonetheless, the majority did not accept factors 3 and 4. The majority firmly held that there is a significant distinction between the use of compelled statements for establishing a finding of guilt, as opposed to prompting an investigative test.
The decision held that the rationale for White’s bright line is not entirely applicable to the realities of Korduner. The majority highlighted the inherent concern in White as a danger that an individual under legal compulsion may fabricate unreliable statements, explanations, or confessions in response to statutory compulsion, thus leading to an increase in motor vehicle accident statements being falsified, as a form of self-protection. They found that the statement at issue in Korduner was different. The comment was only relied upon to justify a breath demand, not to establish guilt. The breath demand itself—had she complied—would have created scientifically reliable evidence. In Ms. Korduner’s case, even a false admission of intoxication would not jeopardize trial fairness, as the scientific evidence generated through the breath test would either prove or disprove her statements, regardless of truth. For the majority, this significantly reduced the typical reliability concern that motivates s.7 protection.
Furthermore, the majority placed significant weight on the reality of impaired driving investigations, noting that Parliament has authorized significant intrusions in this regulated field. Mandatory alcohol screening allows officers to demand a breath test at the roadside without any demand for reasonable suspicion—this is upheld under other frameworks of the Charter. Therefore, with the justification of preventing impaired driving, and a history of state power in this area, allowing a compelled accident statement does not expand investigative power and grounds. Rather, it seamlessly fits within the policing regime of road safety; a regime which is already characterized by robust policing authority and can be corroborated by scientific evidence in breath tests.
The Dissent Reasoning
Fagnan J.’s dissent interprets White quite differently. Relying on a plethora of case law, the dissent maintained an exclusionary rule: if a motorist has an honest and reasonably held belief that they are being compelled to provide information regarding an accident that could amount to self-incrimination, that piece of information will not be used for any purpose in a subsequent criminal matter.
Fagnan J. was unpersuaded by the Crown’s attempt to distinguish White on the basis that Ms. Kurdoner’s statements were only used to commission an investigative measure. In her dissent, Fagnan J. firmly held that the use of a compelled statement to facilitate an arrest, justify a demand for a breath sample, or further compel an individual into investigate techniques, unlawfully uses said statements against them, even if it is done during a voir dire for the purpose of justifying the demand, as was in this case. The s.7 protection is triggered by the act of compulsion itself, not the downstream and eventual evidentiary use of said statement.
Furthermore, the dissent stressed concern over the effect of the provision on statutory reporting compliance. If drivers know their reports to a compelled question might one day become a criminal charge, they would be less likely to report an accident in the first place. Thus, the dissent upheld that s.320.31(9) breaches s.7 of the Charter, is not minimally impairing, and is not rationally connected to the legislation’s goals. She would have dismissed the Crown’s appeal (Korduner, para 147).
Analysis
Korduner fundamentally questions how far the protection of s.7 for compelled statements should extend in a world where the distinction between regulatory processes and criminal proceedings is continuously blurred. Though the majority and the dissent both embrace the authority of White, their varied applications expose a greater fissure of jurisprudential uncertainties.
The first relates to the rationale for use immunity. For the dissent, the protection against self-incrimination is one that is rooted in autonomy: the government should not exploit statements that were made when an individual does not feel free to remain silent. White affirmed that “the spontaneous utterances of a driver, occurring very shortly after an accident, are exactly the type of communication that the principle against self-incrimination is designed to protect.” For the majority, the protections aim to prevent wrongful convictions that directly stem from unreliable compelled statements. Per the majority reasoning, where independent, downstream evidence is objective and scientific, the reliability rationale concern is not as potent.
The second contention relates to what it means to use a statement “against” someone. Fagnan J. considers any utilization of an incriminating statement that places the individual in increased jeopardy as a violation of s.7 Charter protections. The majority, however, would not extend use immunity to the realm of “the limited purpose of justifying the breath demand.” This difference is nuanced but critical; in the dissent, a compelled statement is unconstitutional from the start, whereas the majority holds them as potentially usable depending on its “limited purpose” and context (Korduner, para 13).
The final major difference in legal reasoning concerns the nature of the statutory reporting schemes. Fagnan J. posits that if statements that were perceived to be compelled might be usable in later criminal proceedings, then such provisions are no better than an investigatory purpose, because they would “allow the state to do indirectly what it may not do directly”. Yet the majority does not align with this structural concern, and ultimately focuses on the evidentiary consequences of a compelled statement in their specific investigative context (Korduner, para 79).
Ultimately, it is up to the SCC to decide whether the constitutional protection in White is absolute or situational. The eventual decision will determine how compelled statements can and cannot be used moving forward in impaired driving cases as well as other regulatory regimes.
Conclusion
In granting leave in Korduner, the SCC has acknowledged some room for clarification in the self-incrimination and road-safety regime. The ABCA majority considered White through the lens of compelled statements when risk of wrongful conviction is negligible, and supported by scientific evidence, while the investigative burden is high. Inversely, the dissent upholds White as a bright-line rule meant to prevent the state from leveraging compliance into criminal charges.
Personally, I am eager to see how the SCC will position s.7’s Charter protections against self-incrimination within the complex overlap of criminal investigative needs, personal autonomy, and the deeply regulated sphere of motor vehicles.