R v Kosch

R. v. Kosch

[1998] O.J. No. 3512
Ontario Court of Justice (Provincial Division) — Smith Prov. J. | June 24, 1998

Background

Eva Kosch was driving south on Main Street in Brampton on January 8, 1997, when she allegedly ran a red light at the intersection with Church Street. Her vehicle collided with another car, causing substantial damage to her van and a head injury to herself. A police officer in a Crimestoppers vehicle was sitting at the red light facing north and witnessed the collision, but couldn't investigate because police rules required a sergeant or above to handle accidents involving police vehicles.

Sergeant Paradis was called to investigate. By the time he arrived, Kosch had been taken to Peel Memorial Hospital. He went to the hospital, found her in a cubicle, and asked if she was driving the vehicle. She responded 'yeah.' Kosch was charged with failing to stop at a red light under the Provincial Offences Act. At trial, she didn't remember the accident due to her head injury and wasn't present in court — her agent defended the case.

Issues

1. Was Kosch's statement to Sergeant Paradis made voluntarily despite her head injury?
2. Did the Crown need to call Constable Stansbury, who spoke to Kosch at the accident scene?

The Voluntariness of Hospital Statements

The defence argued that Kosch's head injury meant her statement wasn't voluntary or made with an 'operating mind.' The trial judge held a voir dire and found the statement voluntary. On appeal, Smith Prov. J. upheld this finding, explaining that everyone is presumed to have an operating mind unless there's evidence suggesting otherwise — like being 'drunk standing there, falling down, wetting his pants, flailing about on the floor.'

The court found no evidence that Kosch was so badly injured that she couldn't understand what she was saying. While she had a head injury and was in pain, there was no proof she lacked mental capacity when she answered the sergeant's question. The Crown didn't need to prove she had an operating mind — the defence would need to prove she didn't.

Missing Police Officers

The defence also argued that the Crown should have called Constable Stansbury, who spoke to Kosch during her rescue from the vehicle. The court rejected this, citing the principle from R. v. Garfield that 'the prosecution is not obliged to call or to tender every witness who has had anything to do with an accused.' The Crown only needs to call officers who had 'investigative contact' with the accused. Since Stansbury couldn't investigate due to his rank and there was no evidence he questioned Kosch about the accident (only incidental conversation during rescue), his absence didn't affect the statement's admissibility.

Key Takeaway

A brief statement made while injured can still be voluntary if the person understood the question and could respond coherently.

Medical issues alone don't automatically make statements involuntary — courts look for evidence the person truly couldn't understand what was happening. Also, the Crown doesn't need to call every officer who was at the scene, only those who actually investigated or interrogated the accused.