Summary of R v. Korduner, 2025 ABCA 30

In R v. Korduner, 2025 ABCA 30, a majority of the Alberta Court of Appeal held that an incriminating statement compelled by Alberta’s Traffic Safety Act could be used by police as grounds for demanding a breath sample under s. 320.28 of the Criminal Code, because it would not violate the principle against self-incrimination protected by s. 7 of the Charter. Leave to appeal was recently granted to the SCC on this important issue.

Background

In Korduner, the accused was charged with impaired driving and refusing to comply with a demand for a breath sample following a motor vehicle collision. The accused had been driving in the wrong direction down a one-way street when her vehicle collided with a taxi.

At the scene, a police officer asked the accused what happened. The accused was emotional and told the police officer that she should not have been driving because she was drunk. Until that statement, the police officer had not formed the opinion that the accused was intoxicated. The accused was arrested for impaired driving and the officer made a demand for a breath sample pursuant to s. 320.28 of the Criminal Code. The accused refused, and the officer charged her with failure to comply.

At trial, the judge found that the accused’s statement that she was drunk was compelled by s. 71 of the Traffic Safety Act, which requires drivers to provide a report of an accident to police. The judge then considered whether the statement should be admitted pursuant to s. 320.31(9) of the Criminal Code, which provides that a statement made to a police officer, including a statement compelled by provincial statute, is admissible for the purpose of justifying a demand under s. 320.28. The trial judge concluded that s. 320.31(9) was unconstitutional, because it had the effect of violating an accused’s right against self-incrimination. Without this statement, the officer had no grounds to demand a breath sample, and the accused was acquitted for her failure to comply.

On Appeal

The issue on appeal was whether s. 320.31(9) of the Criminal Code violates s. 7 of the Charter.

Analysis

The Court’s analysis began with a review of R v. White, 1999 CanLII 689, in which an accused made an incriminating statement to police pursuant to BC’s Motor Vehicle Act. In White, the Supreme Court held that in determining whether a statement was “compelled”, the court must consider four key factors (1) the existence of coercion; (2) the existence of an adversarial relationship between the accused and the state; (3) the reliability of the statements; and (4) the relationship between the use of the statements and concerns about abuse of state power.

The Court distinguished White but applied the four factors to determine whether the admission of the accused’s compelled statement for the purpose of demonstrating reasonable grounds for the breath demand would violate her s. 7 right against self-incrimination.

     i. Existence of Coercion

The Court treated this as a neutral factor because drivers must accept they are subject to applicable regulations to be able to drive.

     ii. Adversarial Relationship

The Court found the accused was clearly in an adversarial relationship with the state when she gave the compelled statement. This factor weighed in favour of finding that the use of the statement would amount to a breach of s. 7, even if it was only used as grounds for the breath demand.

     iii. Increased Risk of Unreliable Statements

In White, the Supreme Court found there was a real risk that drivers would be tempted to provide false statements to police if those statements could later be used against them in criminal proceedings. The Supreme Court concluded the temptation to lie would be eliminated, and the effectiveness of the statutory reporting scheme enhanced, by ensuring that mandatory accident reports could not be used to incriminate the drivers in subsequent proceedings.

In Korduner, the majority found there were several countervailing points that had not been present in White.

• First, there was no material risk that the accused could be convicted of impaired driving based on a false compelled statement used as grounds for the breath sample demand. The objective result of the breath sample would override any false statement. While an individual could be convicted for refusing to provide a sample, the conviction would arise from the choices made after the compelled false statement, rather than the statement itself.
• Second, the limited admissibility of the evidence made it improbable that motorists would be more likely to provide false statements or fail to make a report to police following a collision.

Overall, the majority concluded that the risk of unreliable confessions did not weigh against admitting the statement.

     iv. Increased Risk of Abuse of Power

The majority concluded the compelled statement’s limited purpose reduced the risk of abusive state conduct as compared to the analysis in White. Two key differences in the law between White and the present case were noted.

• First, the law already permits the state to compel information about intoxication from a driver while their rights under s. 10(b) of the Charter are suspended.
• Second, the Charter also permits the state to use that compelled information for the limited purpose of forming reasonable grounds for demanding an evidentiary breath sample.

For example, s. 320.27(2) of the Criminal Code authorizes police officers to demand a breath sample for screening purposes, without reasonable suspicion, as long as the officer has an approved screening device and the individual is operating a motor vehicle. The results of this screening can then be used as reasonable grounds to demand an evidentiary breath sample, like the one demanded from the accused in this case.

In the context of Korduner, some of the concerns highlighted in White about officers using a statutorily compelled statement to acquire information that would otherwise be unavailable without the exercise of s. 10(b) rights were attenuated. In this context, any incentive to abuse the relationship between police and drivers established by the Traffic Safety Act is reduced because the compelled information can only be used to justify a breath sample demand, which in turn yields objective scientific evidence on impairment.

Overall, the majority of the Court concluded that this factor did not weigh against admitting the statement in this case.

In balancing the applicable factors and principles in the context of this case, the majority concluded that admitting the accused’s compelled statement for the purpose of justifying a demand for a breath sample would not violate s. 7 of the Charter. The majority held that in the circumstances, admission of the accused’s statement did not violate s. 7 of the Charter and concluded that the trial judge erred in finding that s. 320.31(9) of the Criminal Code was unconstitutional.

Conclusion

Korduner illustrates that the principle against self-incrimination is not absolute. To the extent that an individual makes a compelled statement that would provide reasonable grounds for a breath sample demand, police officers may be able to rely on it to make such a demand.

The Korduner decision has been appealed to the Supreme Court of Canada.