R. v. Agro, 2015 ONCJ 512

COURT FILE No.: 14-000821 Citation: R. v. Agro , 2015 ONCJ 512 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — ANGELA AGRO Before Justice Robert S. Gee Trial heard July 16 and 23, 2015 Reasons for Judgment released on September 23, 2015 K. Ornawka ................................................................................. for the Crown J.

Little …………........................................................................... for the Accused INTRODUCTION [ 1 ] On April 10, 2014 there was a collision between two motor vehicles at the intersection of Park Road North and Dunsdon Street in the City of Brantford. The accused, Angela Agro was the driver of one of the vehicles. During the course of the investigation into the accident, the police made a demand for a sample of Ms. Agro’s breath into an approved screening device (“ASD”).

She is alleged to have failed or refused to provide a proper sample of her breath which resulted in the charge before the court. [ 2 ] At her trial on this matter, Ms. Agro has applied to exclude all evidence concerning her failure or refusal to provide the sample of her breath as a result of what she asserts were violations of her s. 10(

b) rights to counsel as guaranteed by the Charter . [ 3 ] This matter proceeded as a blended voir dire on the Charter Application and trial on the charge. [ 4 ] These reasons explain why I have found that Ms. Agro’s s.10(

b) rights were violated. As a result of this violation I have found that the evidence of her failure or refusal to provide a sample of her breath is excluded from her trial pursuant to s. 24(2) of the Charter . The result of this finding has meant the Crown has failed to prove the charge against her. ISSUES [ 5 ] There were a number of issues raised in this matter that are intertwined, which make a discreet analysis of each somewhat difficult. However I have done my best to keep my analysis of them both logical and distinct. [ 6 ] An accused’s rights to counsel as enshrined by s.10(

b) of the Charter are triggered by a person’s detention. As such the first issue to be decided in this matter is when Ms. Agro was detained. [ 7 ] Officer Lee Black was the investigating officer. He did not have an ASD with him when he attended the scene of the accident. After formulating his grounds to make an ASD demand for a sample of Ms. Agro’s breath, he radioed for an ASD to be brought to the scene. However he held off making his demand until after the ASD had arrived. [ 8 ] The Crown contends that Ms. Agro was not detained until the demand was made of her.

The defence contends her detention arose earlier in the chronology. [ 9 ] This distinction is important. The law is well settled that although a person is detained when a demand for a sample of their breath into an ASD is made, their rights to counsel that otherwise would be triggered by such a detention, are suspended. [ 10 ] The procedure that has been established pursuant to s.254(2)(

b) of the Code to quickly and efficiently screen for drinking and driving cases at the roadside has been found to be a reasonable limit on a person’s 10(

b) rights. However this suspension of the detained person’s rights will only be reasonable if the police are in a position to require the person to provide the sample “forthwith”. The phrase “forthwith” does not mean “instantly”, but the provisions contemplate a timeframe whereby the time elapsed between the detention and the requirement to give the sample, is short enough that contacting counsel is unrealistic. The suspension of the 10(

b) rights is justified so long as the screening process can be undertaken quickly.

[11] Issues invariably arise in cases, like this one, when the investigating officer does not have an ASD with him or her, and there is adelay between the detention and the time when the police are in a position to require the detainee to provide the sample. [12] In these cases the issue becomes whether, during the period of delay, there was a realistic opportunity to consult counsel. Ifthere was, then the rationale for the suspension of the 10(

b) rights is no longer present. (See: R. v. Thomsen, (SCC),[1988] 1 S.C.R. 640 and R. v. George, (2004) (ON CA), 187 C.C.C. (3d) 289). [13] In this case, if the Crown is right and Ms. Agro’s detention arose at the time the demand was made of her, then there is noviolation of her 10(

b) rights, as the police were in a position to require she give her sample in a timely manner after the demand wasmade. [14] If the defence is correct though, and her detention arose earlier in the sequence of events, the issue becomes whether, from thepoint of detention until the police were in a position to require her to provide the sample, there was a realistic opportunity for her toconsult counsel. If there was then her s.10(

b) rights have been violated. [15] If her rights were violated, then the issue turns to the appropriate remedy pursuant to s.24(2) of the Charter. The defence hassought an exclusion of any evidence of Ms. Agro’s failure or refusal to comply with the demand. [16] A further issue arises in this context on this case. After Ms. Agro’s arrest, she was not released at the scene but taken to theBrantford Police station. After processing, she was given an opportunity to speak to counsel, ostensibly in private.

I say ostensiblybecause the video of her booking at the police station was played at trial, and the conversation she had with her lawyer, in a supposedprivate area of the police station, utilized specifically for detainees to contact counsel, could be readily heard. ANALYSIS [17] There were only two witnesses called at trial; the investigating officer Lee Black and Officer Grahame Lee, who answered thecall for the ASD to be delivered to the scene. Ms. Agro, as is her right, did not testify. The facts are not overly complicated nor werethey much in dispute.

As such I will relate them as necessary during my analysis of the issues. Issue 1 – Detention [18] Officer Black was dispatched to the scene of the collision at 3:19 p.m. on April 10, 2014. On arrival, he observed two motorvehicles in the intersection that had a moderate amount of damage. A passenger in one of the vehicles was complaining of chest pain. As a result he called for an ambulance and advised her one was on its way. Eventually the ambulance arrived and the passenger wastransported to the hospital. [19] At 3:23 p.m. Ms.

Agro approached Officer Black and advised him that she was the driver of the other vehicle involved and thatthere were three passengers in her vehicle. [20] At 3:24 p.m. Officer Black formally cautioned Ms. Agro. He advised her she may be charged as a result of his accidentinvestigation and that she was not obligated to say anything to him, but if she did, whatever she said may be given in evidence. [21] Officer Black then proceeded to speak to other witnesses at the scene. One witness he spoke to was Sherry Rinehart. He startedspeaking to Ms. Rinehart at 3:29 p.m. While he was speaking to Ms. Rinehart, Ms.

Agro approached and expressed some concerns abouthow long it would take, asking several times “how much longer it would be.” Officer Black does not have a specific recollection of whathe told her. [22] He testified though his standard practice in such a situation is to tell the drivers, and it is important to quote him directly, that “…it’s going to be 10 to 15 minutes once I get the information on the report and I’ll get you on your way.” [23] During this discussion with Ms. Agro, Officer Black testified he detected an odour of alcohol coming from her and when he againspoke to Ms.

Rinehart to complete his interview with her, she stated she had detected it too. [24] Approximately one minute later he completed his interview with Ms. Rinehart and went to speak to Ms. Agro to advise her he haddetected the odour of alcohol coming from her. He spoke to her this time at 3:33 p.m. Ms. Agro denied consuming any alcohol. [25] Ms. Agro’s cell phone then rang and she answered the call. In the meantime, Officer Black returned to his collision investigation. [26] By 3:40 p.m. Officer Black completed speaking to the witnesses. The injured passenger had been transported to the hospital.

Noone else in the vehicles involved required medical assistance. At this point he asked the two officers at the scene directing traffic ifeither had an ASD. Neither did, so he radioed for one to be brought to the scene. [27] He spoke again to Ms. Agro about towing her vehicle. While doing so she again inquired how much longer it was going to takeas she had been on her way to pick up her child from daycare when involved in the collision.

Officer Black told her he was going to hiscruiser to do paperwork. [28] Officer Lee testified he was at the Brantford Police Station when, at 3:39 p.m., he heard Officer Black’s request for an ASD. After a minute or so, when no one else responded to the request, he retrieved one and drove it to the scene, arriving at 3:50 p.m. Uponarrival he gave the ASD to Officer Black and brought Ms. Agro to Officer Black’s cruiser, as requested. [29] There was no direct evidence as to the precise time Officer Black made the ASD demand. After arrival of the device the

evidence was Officer Black noted the make and model, and when it was last tested, prior to making the demand. He demonstrated the device by doing a test himself at 3:54 p.m. He then inserted a new mouth piece and Ms. Agro commenced her attempts. Without direct evidence as to the time of the demand, I would place it at 3:54 p.m. when Officer Black demonstrated it to Ms. Agro. [ 30 ] From 3:54 to 3:57 p.m. Ms. Agro made five unsuccessful attempts to provide a sample.

Officer Black testified she would not exhale continuously for enough time for a proper sample, or that she would exhale outside of the mouthpiece. [ 31 ] At 3:57 p.m., after her fifth attempt, he cautioned her that she could be charged with refusing to provide a proper sample, and gave her several more opportunities to provide one. These further attempts were also unsuccessful, and at 4:01 p.m. Officer Black arrested Ms. Agro and provided her with her rights to counsel, for the first time. [ 32 ] It is the position of the Crown that Ms. Agro was not detained until Officer Black made his demand.

Given this detention was for the purpose of providing a sample of her breath into an ASD, her 10(

b) rights were suspended, and she was not required to be advised of such, until her arrest. [ 33 ] The defence position is that the interaction between Officer Black and Ms. Agro crystallized into a detention earlier during their encounter. [ 34 ] The type of detention the defence argues for is one that arose due to the reasonable perceptions Ms. Agro would have had of the encounter between her and Officer Black, and not one that arose due to any demand or physical restraint made by the police. [ 35 ] This type of detention, and what a court may look for to determine if one has been established was summarized by the Supreme Court in R. v. Grant , 2009 SCC 32 at par 44 as follows: 44 In

summary, we conclude as follows: 1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. 2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained.

To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia , the following factors:

a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication. [ 36 ] In the circumstances of this case, I agree with the defence, Ms. Agro’s detention crystalized prior to Officer Black making his ASD demand. I would find that the crystallization of this detention occurred at 3:32 p.m. [ 37 ] I find it was at this time because given the evidence, this is as precise as I can be. I find the detention arose at the time that Officer Black was interviewing Ms. Rinehart, and Ms.

Agro approached and spoke to him. [ 38 ] Officer Black testified after this encounter he spoke to Ms. Rinehart for a further minute then went and spoke to Ms. Agro at 3:33 p.m., so the best I can determine is that this earlier conversation in Ms. Rinehart’s presence occurred at 3:32 p.m. [ 39 ] It was during this conversation that Officer Black testified he detected an odour of alcohol coming from Ms. Agro.

That was when he testified he formed his suspicion she had been operating her vehicle with alcohol in her body, and he knew he would be making an ASD demand. [ 40 ] However, it is not this factor that leads me to conclude she was detained at that time. In coming to the conclusion that Ms. Agro was detained at that point, it is the entirety of the circumstances that has led me to this conclusion. [ 41 ] Ms. Agro was involved in what could be described as a moderately severe motor vehicle collision.

A passenger in one of the vehicles, although apparently not injured severely, was taken from the scene in an ambulance. [ 42 ] Aside from Officer Black, two other police officers were on scene throughout. In her first interaction with Officer Black, he cautioned her about making any statements as she may be charged with an offence. His caution he did not state that her jeopardy was limited to only Highway Traffic Act offences.

Hearing a caution such as this in these circumstances could reasonably lead a person to believe they may be charged with criminal offences as well. [ 43 ] This caution alone in these circumstances may very well have psychologically triggered a detention. However, I am unable to determine whether it did, as Ms. Agro did not testify so the effect the caution had on her is unknown. It would have been helpful to me if she had testified about the effect of this on her, but it is not up to her to make my job easier. [ 44 ] Their next interaction however does provide evidence of Ms. Agro’s perception.

When she approached and spoke to Officer Black at 3:32 p.m., she asked him how long it was going to take. Although he stated he does not recall how he responded, his standard

answer was that it would be 10 to 15 minutes before “he would have them on their way.” [ 45 ] This question implies she wished to be able to leave and his response implies that she was not free to leave at that time. The fact that some time later she asked again how long she would be there is evidence supportive of her belief she could not leave. [ 46 ] It is also during this 3:32 p.m. conversation where Ms. Agro’s jeopardy changed significantly.

Officer Black had detected the odour of alcohol on her at that time and knew he would be investigating her for a drinking and driving offence and would be making an ASD demand. [ 47 ] Although I have found from the evidence that Ms. Agro subjectively felt she was not free to choose to leave, this subjective belief will only amount to a detention if it is reasonably held. [ 48 ] I find that it was a reasonable belief. This was not a momentary encounter or a brief delay. Ms. Agro had been singled out for a focussed investigation into potential offences arising from the collision and later, for a criminal offence.

Officer Black had used the language of a formal caution and he had also advised her he had detected alcohol coming from her. Additionally he had advised her it would be at least some period of time before she would “be on her way.” [ 49 ] As well, although he never indicated this to Ms. Agro, Officer Black testified after 3:32 p.m. had she tried to leave, he would have prevented her from doing so. This is further evidence that I find supports the reasonableness of her belief. [ 50 ] It is for these reasons I find that she was detained at 3:32 p.m.

Issue 2 – Realistic Opportunity to Consult Counsel [ 51 ] The Application in this case was brought by Ms. Agro solely on the basis of an alleged s.10(

b) violation. Cases such as this, where an officer is without an ASD when the need for one arises, often raise several constitutional issues. These issues can become confused and conflated. [ 52 ] I have made a finding that Ms. Agro was detained by 3:32 p.m. It is only happenstance that this was the same time that Officer Black formulated his grounds to make an ASD demand. [ 53 ] What I have not found is that Ms. Agro was detained because Officer Black had the grounds to make a demand even though he chose not to make it at that time.

I have found her detention arose due to the constellation of factors throughout her encounter with the police. [ 54 ] There is a significant body of case law though that has held that an officer is required to make the ASD demand immediately upon forming his or her grounds for doing so. (See for example: R. v. Woods [2005] SCC 42, R. v. Quansah , 2012 ONCA 123 and R. v. MacMillan , 2013 ONCA 109 ). [ 55 ] In this case the Crown’s argument relied primarily on the MacMillan case.

The court in MacMillan found that the requirement that the ASD demand be made forthwith after the formulation of the grounds to make it, be given a more flexible approach. It held there will be cases where given exigent circumstances a delay from the formulation of the grounds to the making of the demand is justified.

In those circumstances, not making a demand when grounds for doing so exist but a delay is justified, does not trigger a detention simply because the grounds existed. [ 56 ] The Crown’s argument here was that Officer Black’s investigation of the collision and the need to get it resolved and cleared were exigent circumstances that justified a delay in making his demand. Since he was justified in delaying making the demand, Ms. Agro was not detained until it was made. [ 57 ] Had Officer Black made the ASD demand when he formulated his grounds, Ms.

Agro would have been clearly detained at that point by reason of the demand. Had he done so, the forthwith clock to the taking of the sample would have immediately began ticking and the issue would have been squarely one that focussed on s.10(

b) of the Charter . [ 58 ] However if the delay in making the ASD demand was not justified a s.10(

b) analysis would not be triggered unless, as here, the person was detained due to other circumstances. What an unjustified delay in making the demand where the accused has not been detained would perhaps do, is form the basis for a violation of the person’s s.8 Charter rights. If so found this would result in the delayed demand being unlawful and non-compliant with s.254(2)(

b) of the Code in which case the person would not be legally obligated to comply with it. [ 59 ] Given this case was not argued as a s.8 Charter violation, I will not delve greatly into an analysis of Officer Black’s decision to delay making his demand. However I would note the circumstances he was confronted with were far different from the circumstances confronting the officer in MacMillan . [ 60 ] In that case the officer attended the scene of a boating accident. Upon his arrival he found one person dead and another injured. Not long after his arrival he had a conversation with the accused.

In this conversation he determined she was very distraught, had been the operator of the boat in question, and that she had the strong odour of an alcoholic beverage on her breath. [ 61 ] This immediately gave him grounds to make an ASD demand. However he did not make the demand then as he had to deal with the deceased person’s brother, another extremely upset young woman, and the accused’s mother, who had arrived on the scene.

As well, during this time the accused fainted and was taken for treatment in an ambulance. [ 62 ] The court found that the delay in making the demand in these circumstances was justified and that the accused was not otherwise

detained by any other action by the officer. [63] In this case Officer Black was dealing with an otherwise routine traffic accident, the kind of which, as a collision investigator, hehad dealt with many times. There were no deceased victims, hysterical persons or fainting accused. [64] Although the Crown attempted to frame it as such, there were no exigent circumstances that would justify displacing OfficerBlack’s duty to immediately make the demand. In fact, during cross examination he was asked why, when he was speaking with her at3:33 p.m., he did not make his demand then.

His response was because her cell phone rang and she answered it, so he walked away tocontinue the collision investigation. [65] Later he was asked if there was a reason why he did not make the demand when Ms. Agro spoke to him after this, when theydiscussed the tow of her car, and she asked again how long it would be. His response was he could not think of a reason why he did notdo it then. [66] It is apparent what happened. Officer Black did not turn his mind to the timing of the demand.

He knew he did not have an ASDat the scene so, perhaps without engaging in a reasoned analysis, tacitly chose to await its arrival to make the demand. [67] Returning to the s.10(

b) analysis, since Ms. Agro was not detained as a result of an ASD demand, there was no automaticsuspension of her rights and she ought to have been advised of them. However this case was argued on the basis of whether there was, inthe circumstances, a realistic opportunity to consult counsel, so I will analyze it as such. [68] I find that there was a realistic opportunity for Ms. Agro to consult counsel at the scene. This analysis does not begin and endwith asking if the accused had a cell phone at the time. There are a variety of factors that have been identified by courts that ought to beconsidered.

These factors were listed and summarized by Justice Durno in R. v. Yamka, 2011 ONSC 405 at par 40 as follows: 40 Whether there was a reasonable opportunity to consult counsel requires a fact-specific analysis of all the circumstances. (Latour, atp. 287, Torsney, at para. 8.) Courts have considered the following non-exhaustive list of factors as relevant to the determination: thetime the officer believed it would take for the ASD to arrive (Singh, George, (ON CA), [2004] O.J.

No. 3287 at para.42), the time between the demand and the taking of the sample (Latour at p. 288), the time between the demand and the ASD's arrival (George, at para. 39), the time of day the call to counsel would have been made (R. v. Singh (2005), 24 M.V.R. (5TH) 19 (Ont.

C.A.),whether the detainee had a cell phone although having one is not in itself determinative (George at para. 42, Beattie), the amount of timeit actually took for the ASD to arrive (Latour at p. 288, George at para. 39), whether there was an explanation for the delay (Fildan)and whether the detainee's efforts to contact counsel at the station after providing the ASD sample and being arrested bore fruit(Torsney). [69] Applying the above factors to this case, Officer Black testified that to deliver the ASD from the police station to the scene of thecollision would take approximately 10 minutes.

However in this case there was a further delay between the time Officer Black formedhis grounds and when he requested the ASD be brought to the scene. [70] After forming the grounds, there was a further 7 or 8 minutes, depending on whose time notiation you prefer, before the ASDwas requested. Officer Black testified he called for the ASD at 3:40 p.m. while Officer Lee testified he heard the request for the ASD at3:39 p.m. It seems between 3:32 p.m. and the request for the ASD, Officer Black spoke to Ms.

Agro and then decided to interview thedriver of the other vehicle before he requested the ASD. [71] In this case instead of the time between the demand and the sample we are assessing the time between the detention of Ms. Agrowhich happened to coincide with the formulations of the grounds to make the demand and the taking of the sample. In this case it wasfrom 3:32 to 3:54 p.m., a period of 22 minutes. [72] Similarly, from the same time to the ASD arrival was 18 minutes; from 3:32 to 3:50 p.m. [73] As for the time of day, this was the middle of a Thursday afternoon and it was apparent to Officer Black that Ms.

Agro had a cellphone as she had answered a call on it in his presence. [74] Once the request for the ASD was made it took 10 or 11 minutes for it to arrive, again depending on whose time notations youprefer, which is consistent with the length of time Officer Black anticipated it would take. [75] In terms of an explanation for the delay one part of the delay came obviously from the fact Officer Black did not have an ASDwith him and another part resulted from his decision to interview a witness instead of immediately calling for it. [76] On the remaining above listed factor, once Ms.

Agro got to the station, she was able to contact her counsel, and in fact, she hadhis contact information stored in her cell phone. [77] Given this constellation of facts, I find that there was realistic opportunity for Ms. Agro to consult with counsel prior to thearrival of the ASD. It was the middle of the afternoon on a weekday; she had her cell phone on her with her counsel’s contactinformation accessible within it. As it turns out counsel was available, and there was sufficient time for her to make the call and consultwith him. [78] In these circumstances she should have been given that opportunity.

Since there was a realistic opportunity to consult counsel,there was no justifiable reason for the suspension of her s.10(

b) rights and I am satisfied that she has demonstrated they have been sobreached. Issue 3 – Remedy, s.24(2)

[ 79 ] The remedy sought by Ms. Agro for the breach of her rights is an exclusion of the evidence of her failure or refusal to provide a sample of her breath into the ASD. The question to be answered in this analysis is whether, in considering all the circumstances, the admission of the evidence could bring the administration of justice into disrepute. The exclusion of evidence as a result of a breach is not meant to punish the police.

Evidence is excluded in appropriate cases in order to maintain public confidence in the judicial system and to ensure respect for Charter protected rights and the values that underlie them are recognized and maintained. [ 80 ] The Supreme Court in Grant (supra) set out the following lines of inquiry a court must assess and balance when determining whether evidence ought to be excluded as a result of a Charter breach: 1. The seriousness of the breach, 2. The impact of the breach on the Charter protected interests of the accused; and 3.

Society’s interest in the adjudication of the case on its merits. (par. 71) [ 81 ] This balancing exercise is just that. It is not simply a mathematical calculation of which side won each of the three lines of inquiry. It is a more nuanced approach; the judge is required, after considering the three factors, to determine on balancing them, whether the admission of the evidence would bring the administration of justice into disrepute. [ 82 ] The first factor to be assessed, the seriousness of the breach is an inquiry into the conduct of the police.

The scale of behaviour under this inquiry can range from minor and trivial to egregious. The good or bad faith of the police is a relevant factor. However it should be noted a finding that the police lacked bad faith does not necessarily equate to a finding of good faith. [ 83 ] In this case, there were two incidents where Ms. Agro’s s.10(

b) Charter rights were violated. The first was at the scene, and which has been the focus of much of this decision so far. However, as mentioned at the outset, following her arrest and transport to the police station, she was ultimately allowed the opportunity to call counsel. [ 84 ] It was during this call to counsel that a second breach of Ms. Agro’s 10(

b) right occurred. The video of the booking area of the police station, taken during Ms. Agro’s processing, following her arrest, was played at trial. While she was standing in front of the counter in the booking area it was difficult from the video to make out any of the words she was speaking. The quality of the recording of that area was not ideal. [ 85 ] The camera angle for the video is from behind the counter and focusses outward. After processing at the counter, Ms. Agro was led down a hallway to her left and placed in a booth to allow her the opportunity to call her counsel supposedly in private.

Eventually the call was placed and she was put in touch with her lawyer. [ 86 ] On the video watched at trial, Ms. Agro’s end of the conversation with her lawyer was plainly audible. When the video was played in court, we were all able to hear what she was saying to her lawyer. In fact, I commented after the video was finished playing that I was able to hear her words much more clearly when she was ostensibly engaged in a private conversation with her lawyer than I was when she was standing at the counter, engaging in non-private conversation. [ 87 ] This is a further breach of her 10(

b) rights and although it occurred after the interactions at the scene, given its temporal connection to the events at the scene of the collision it ought to be viewed as one continuous investigation. [ 88 ] An additional factor I believe I am entitled to consider is the likely s.8 Charter breach that occurred when Officer Black chose to delay making the demand. [ 89 ] Dealing first with what happened at the scene, the jeopardy Ms.

Agro was in, whether she knew it at the time or not, was significant and was precisely the type of situation for which legal advice would be conducive. [ 90 ] Additionally, making the ASD demand immediately likely would have helped to trigger some contemplation of Ms. Agro’s 10(

b) rights. I am not implying that Officer Black was acting in bad faith. Conversely though, I cannot find that he was acting with good faith either. What I find is that Officer Black lacked an appreciation of Ms. Agro’s Charter protected rights. It seems the only officer who did demonstrate any appreciation of the rights of Ms. Agro was Officer Lee, who testified when he heard the call for the ASD he recognized the need for the test to be conducted forthwith, so he took it upon himself to deliver it as quickly as he could. [ 91 ] These are not novel legal principles.

The interplay between the forthwith requirement in terms of both the timing of and the taking of the sample after the demand and the s.10(

b) rights has been discussed in the case law for a long time. The George case itself, which brought these issues into sharp focus, was decided in 2004, some 10 years before Ms. Agro’s encounter with Officer Black. [ 92 ] What happened back at the station and the recording of Ms. Agro while she spoke to her lawyer can be described as nothing short of egregious. Solicitor and client privilege is sacrosanct and zealously guarded. It is one of the bedrocks of our legal system.

I can scarcely think of a situation where a person’s need for private and privileged legal advice is more crucial than when they are at a police station and under arrest. [ 93 ] That this was violated in this case is intolerable. The seriousness of this is not lessened by Officer Black’s testimony that he has not been able to hear conversations between detainees and counsel when he has been in the booking area. That assertion is irrelevant because as was obvious here, regardless of whether the officers in the area were able to hear her or not, there was a device somewhere in the area that was recording Ms. Agro.

Furthermore, he is not in a position to say whether this was an isolated incident since, as he stated, he does not review the booking videos. [ 94 ] What is equally or perhaps more, troubling, is the response, or lack thereof, to this issue by the Brantford Police Service. There was no evidence presented at trial that any steps have been taken to fix this problem or that any inquiry whatsoever has been made to find out how and why it occurred in the 15 months from Ms. Agro’s arrest to the trial of this matter. This as well reflects an institutional

indifference to the rights of an accused. [ 95 ] In all the circumstances, I would regard these as serious breaches that, on this branch of the inquiry, favour exclusion. [ 96 ] The next line of inquiry is the impact of the breach on the Charter protected interests of the accused. This is meant to assess the breach from the perspective of the accused and is meant to address the notion that admission may send the message that individual rights count for little. ( Grant , par 71 ) [ 97 ] Again since Ms. Agro did not testify there is no direct evidence from her as to the impact she felt from the breaches.

However, some reasonable inferences can be drawn from the facts. [ 98 ] Given that she expressed a desire to contact counsel when she was given her rights upon arrest, I can infer she would have made the same request at the time she was detained if so offered. Had she had legal advice it may have altered her actions and perhaps the outcome of her encounter with the police. [ 99 ] As well, I can infer that while at the police station she had an expectation that she would be afforded privacy and her solicitor client privilege would be respected. This expectation is reasonable and extraordinarily important.

I would put the expectation Ms. Agro had here on par with the expectation of privacy one has in the sanctity of their home. [ 100 ] The fact that her rights were violated in such a manner could only serve to make Ms. Agro feel her rights counted for little that day. [ 101 ] I find that this line of inquiry into the breaches also supports the exclusion of the evidence. [ 102 ] The final line of inquiry is society’s interest in the adjudication of the case on its merits.

Society generally expects that criminal charges will be tried on their merits. ( Grant par. 79 ) [ 103 ] This is especially so in the case of drinking and driving allegations. Despite years of efforts to change public attitudes toward drinking and driving, which to a large extent have been successful, there is still far too much carnage caused on our roads from those who choose to drive after consuming alcohol. [ 104 ] This case is no exception.

There was a motor vehicle collision in which someone suffered some level of injuries and in which alcohol may have played a role. [ 105 ] Society’s interest in having this case resolved on its merits, favours admission of the evidence. [ 106 ] Having reviewed these three lines of inquiry I must now decide whether, on balance, the admission of the evidence would bring the administration of justice into disrepute. I find it would. [ 107 ] As stated earlier, I am not simply adding up the results of the three lines of inquiry and finding in favour of Ms. Agro.

There was more than one serious breach in this matter that showed a lack of appreciation or indifference to Ms. Agro’s rights. I find that admitting the evidence in these circumstances, notwithstanding society’s interest in seeing the allegations tried on their merits, would send the message the courts share in this indifference to an accused’s rights, and as such, would bring the administration of justice into disrepute. [ 108 ] As a result of this finding, all evidence of Ms. Agro’s failure or refusal to provide a sample of her breath into the ASD will be excluded from her trial.

CONCLUSION [ 109 ] Having ruled the evidence of her failure or refusal to provide a sample of her breath into the ASD is excluded from her trial, there was no other admissible evidence presented at trial capable of supporting a finding of her guilt, and as such the charge against Ms. Agro is dismissed. Dated at Brantford, Ontario This 23 rd day of September, 2015 The Honourable Mr. Justice R.S. Gee