Court File and Parties

Ontario Court of Justice

Date: 2019-07-31

Court File No.: Brampton 17-13593

Between:

Her Majesty the Queen

— and —

Robin Agnihotri

Before: Justice M.M. Rahman

Heard: June 17 and 18, 2019

Reasons for Judgment released on: July 31, 2019

Counsel:

• Patrick Quilty, counsel for the Crown, respondent
• Carson Hurley, for Robin Agnihotri, the defendant/applicant

Reasons for Judgment

1. Overview

[1] On November 8, 2017, two Peel Regional Police officers attended a school in Mississauga. They were responding to a call about a domestic dispute. When they arrived, they spoke with a student who explained she had an argument with her father the night before. The officers went outside the school to speak with her father, the defendant/applicant, Robin Agnihotri. When officers went outside to speak with the applicant, he was sitting in the driver's seat of his car. Officers asked him to step out of the car so they could speak with him. Within several minutes, one of the officers, Cst. Wedzik, smelled alcohol from the applicant's breath. He also noticed that the applicant's mouth seemed dry and that his speech was slurred. Based on these observations, and his prior conversation with the applicant's daughter, he arrested the applicant for being impaired while in care and control of his car. The applicant was taken to 12 Division where Intoxilyzer tests revealed he had excess blood alcohol (over 80). He was charged with having care and control while impaired and while being over 80.

[2] The applicant applied to exclude his breath samples and test results based on breaches of his ss. 8, 9, and 10(b) Charter rights. The applicant says that the police lacked reasonable grounds to believe that he was impaired and therefore lacked authority to arrest him and demand samples of his breath. The applicant also argued that, because the Intoxilyzer tests were not conducted as soon as practicable, the police did not comply with s. 254(3)(a) of the Criminal Code rendering the seizure of his breath samples unlawful. With respect to s. 10(b), the applicant says that he was not informed of his right to retain and instruct counsel immediately, either when he was initially questioned by police, or after his arrest for impaired care and control. He also says that his s. 10(b) rights were violated because the police did not provide him with the means to access counsel of choice.

[3] I agree that the applicant's ss. 8 and 9 Charter rights were violated because the police did not have reasonable grounds to arrest him and demand samples of his breath; however, I do not find that any of the applicant's other Charter rights were breached.

2. Section 10(b): Informational Breach

[4] Cst. Wedzik and Cst. McKenna spoke to the applicant's daughter after arriving at the school. They both testified that, after speaking to her, they went to speak to the applicant to get his side of the story. Cst. Wedzik testified that he asked the applicant to step out of his car, and that they walked a short distance away, towards the school, so they could speak privately. Cst. McKenna added that it was not safe to stand where the applicant's car was because of traffic.

[5] In cross-examination, when asked whether the applicant would have been free to leave during their discussion if he wanted to, Cst. Wedzik said he had no basis to detain him. Cst. McKenna was less certain, and simply said he was unsure what would have happened and that they would have crossed that bridge if they had to. Neither officer felt that the applicant was detained and neither felt that they had grounds to arrest the applicant for anything.

[6] The applicant argues that he was detained from the moment he was asked to get out of his car. He says that the police were conducting an investigation of him, and questioning him about an incident with his daughter, which could have resulted in an assault charge. He says that a reasonable person in these circumstances would have felt detained. Consequently, he says that the police breached the informational component of s. 10(b) of the Charter by not advising him of his right to counsel immediately. He also argues that the four-minute delay in informing him of his right to counsel, after he was arrested, breached the immediacy requirement of s. 10(b).

[7] I cannot agree with the applicant that he was detained while speaking with the police. As the Supreme Court made clear in R. v. Suberu, not every encounter with the police constitutes a detention. Even when the police approach someone with the purpose of investigating them, that person is not necessarily detained. Someone who is detained in the colloquial sense because they have been delayed by an encounter with the police is not necessarily detained in the legal sense.

[8] In this case, two school resource officers were trying to learn about an incident between a student and her father. They wanted to hear both sides of the story. The officer who took the lead, Cst. Wedzik, had no grounds to arrest or even detain the applicant. He simply wanted to speak to him to get his side of the story. I accept his evidence that he believed he had no basis to stop the applicant had he decided to leave and not talk to the police. The fact that Cst. McKenna was less certain about whether the applicant was free to go does not cause me any concern. It was Cst. Wedzik who led the encounter, and Cst. Wedzik who ultimately made the decision to arrest the applicant for impaired care and control. Cst. McKenna did say that he did not believe the applicant was detained and that they were just getting his side of the story. This interaction simply does not rise to the level of a detention within the meaning of s. 10 of the Charter. The police were not required to inform the applicant of his right to counsel.

[9] Further, the four-minute delay in advising the applicant of his right to counsel after he was arrested did not breach the immediacy requirement of s. 10(b). The requirement to read a detained person his or her right to counsel immediately does not mean it must happen instantaneously after arrest. Context matters. The officer explained that he wanted to place the applicant in the cruiser where there was some peace and quiet. While it is true that he briefly called for assistance to have the car towed, one minute before advising the applicant of his right to counsel, that does not mean it was not done immediately. This is not a case where the officer did several non-urgent, administrative tasks before advising the applicant of his right to counsel. In the context of this arrest, the four-minute delay did not fall afoul of the immediacy requirement. There was no breach of s. 10(b) of the Charter.

3. Sections 8 and 9 of the Charter

3.1. Did Cst. Wedzik have Reasonable Grounds?

[10] Cst. Wedzik made the decision to arrest the applicant. He said that he arrested the applicant because he believed his ability to drive was impaired by alcohol. He based that belief on an odour of alcohol from the applicant's breath, his watery eyes, dry mouth, and slurred speech. Cst. Wedzik said he considered the conversation he had with the applicant's daughter in which she discussed her father's drinking and that he would drink and drive.

[11] The applicant argues that, while Cst. Wedzik may have had grounds to demand an approved screening device test, he did not have objectively reasonable grounds to believe the applicant was impaired. At the most, Cst. Wedzik had suspicion that the applicant was impaired, but he did not have reasonable grounds.

[12] The respondent argues that the police only need to have a reasonable belief that a driver is impaired, even slightly, by alcohol. Because alcohol is a substance that causes impairment, and because the signs the applicant showed slight impairment, the police had grounds to arrest the applicant for impaired care and control.

[13] I agree with the applicant that the police lacked reasonable grounds. Most of the signs of impairment that Cst. Wedzik relied on are not signs of impairment. The odour of alcohol and watery eyes do no more than confirm that someone has consumed alcohol. Although slurred speech may demonstrate that alcohol has affected someone, Cst. Wedzik did not say much about the applicant's speech except asserting it was slurred. Moreover, the information he received from the applicant's daughter was not sufficient to determine if the applicant was impaired at the time they dealt with him. The applicant's daughter's very general statement expressing concern about her father did not speak to the applicant's state at the time he was at the school. If the applicant's daughter had told police that she called them because she was concerned he was impaired or had been drinking a lot at the time, that might have given the police enough to have a reasonable belief.

[14] Because Cst. Wedzik lacked reasonable grounds to arrest the applicant, and make the breath demand, I find that there was a breach of the applicant's ss. 8 and 9 Charter rights.

3.2. The Failure to Take Samples as Soon as Practicable

[15] The applicant argues that the police's failure to take his breath samples as soon as practicable renders the seizure of his breath samples, and his detention, unlawful. The applicant says that the only statutory authority to seize his breath samples was s. 254 of the Criminal Code. Because that section requires breath samples to be taken as soon as practicable, the police's failure to take them in a timely way renders the seizure of his breath unlawful and his continuing detention unlawful. The applicant focused mainly on the delay in taking him from where he was arrested to the ultimate site of his Intoxilyzer tests at 12 Division.

[16] I cannot agree that there was any breach of ss. 8 or 9 because of the alleged failure to take samples as soon as practicable. I say that for two reasons. First, as a matter of statutory interpretation, s. 254(3) does not require that the police seize breath samples as soon as practicable. Second, even if s. 254(3) requires such reasonably prompt seizure of the samples, the police complied with that requirement here.

3.2.1. The Statutory Interpretation Point

[17] I recognize that some cases have found that the failure to take samples as soon as practicable is a breach of ss. 8 and 9 of the Charter. Other cases have come to the opposite conclusion. In R. v. Fancey, my colleague Fiorucci J. conducted a thorough review of both lines of authority. Fiorucci J. concluded that the summary conviction appeal decision in R. v. Mawad answered the question and is binding on this court. In Mawad, Andre J. held that failure to take breath samples as soon as practicable does not constitute a Charter breach.

[18] Mr. Hurley argues that Mawad referred only to the presumption in s. 258(1)(c), which is the pre-requisite for the Crown's reliance on the presumption of identity. Therefore, he says it is not binding. Strictly speaking, as Mr. Hurley observed, Mawad dealt with the timeliness requirement in s. 258(1)(c) of the Criminal Code. Andre J. did not refer specifically to s. 254(3), although he did refer generally to the as soon as practicable requirement.

[19] Whether or not Mawad is binding authority against the applicant's position, I reject his position simply based on the words of the provision. The provision reads as follows:

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

(a) to provide, as soon as practicable,

(i) samples of breath that, in a qualified technician's opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood.

[20] The words "as soon as practicable" appear twice in s. 254(3). The first refers to the timing of the demand. The second, at issue in this case (highlighted above), says that a peace officer may require a person to provide breath samples as soon as practicable. I agree with Mr. Quilty that the second appearance of "as soon as practicable" refers to the obligation on the driver to provide breath samples as soon as practicable. The language of the section does not require that the samples be taken as soon as practicable for them to be lawfully seized, since the timely provision of the samples is the obligation of the driver, not the officer.

3.2.2. The Samples Were Taken as Soon as Practicable

[21] Even if s. 254(3) requires that samples be taken as soon as practicable, I find that they were. The applicant has raised this issue as a Charter breach due to an unlawful, warrantless seizure. That means the Crown need only demonstrate a timely seizure on a balance of probabilities, rather than beyond a reasonable doubt (as is the case where it seeks to rely on the presumption of identity in s. 258(1)(c)). The Crown has met that threshold here. Even on the higher standard of proof, the Crown need not account for every minute of delay. The question is whether the police acted reasonably and whether the tests were taken reasonably promptly.

[22] To be sure, there were some delays in this case; however, they are all explained. The applicant complains about three periods of delay. First, he takes issue with Cst. Wedzik's decision to wait at the scene until Cst. Lee arrived to have the car towed. Second, he takes issue with the delay caused when the police had to change their destination from 22 Division to 12 Division because the former had bed bugs. Finally, the applicant complains that the breath technician's approach to helping him contact counsel led to a further delay.

[23] The applicant's first and third complaints essentially blame the police for looking out for his interests. Cst. Wedzik's decision to wait for another officer to look after towing the applicant's car was a reasonable one. As the officer explained, he could not simply leave the applicant's car at the scene unattended and unlocked, and he could not lock the keys in the car. He had no option but to wait for Cst. Lee to arrive. I also cannot accept that Cst. Kosher's approach to find counsel for the applicant was unreasonable or caused any unnecessary delay. As I will explain further below, when I discuss the alleged breach of s. 10(b), Cst. Kosher's efforts to find the applicant a lawyer were reasonable and were the result of an officer trying to ensure that the applicant properly exercised his right to counsel. Finally, I cannot accept the applicant's argument that Peel Police's failure to issue a general announcement about bed bugs at 22 Division caused an unnecessary delay. The existence of bed bugs at a police division is likely an exceptional occurrence. I cannot find that the police force's failure to broadcast this widely means that the delay occasioned by the change in directions was unreasonable. The police are held to a standard of reasonableness, not perfection.

4. Section 10(b): Implementational Component

[24] There is no question that the applicant triggered the police's obligation to provide him with a reasonable opportunity to consult counsel. Mr. Hurley says that the police breached his client's right to counsel because they did not provide him with the means to contact counsel of choice. He also argues that Cst. Kosher's statement that all lawyers are qualified to give advice was improper because the applicant was already confused about his options.

[25] I cannot accept that there was any breach of s. 10(b) here. If anything, I find that Cst. Kosher went to great lengths to find the applicant a lawyer he could speak to. A review of the chronology of events demonstrates that Cst. Kosher's efforts were more than what s. 10(b) required.

[26] After the applicant was arrested, Cst. Wedzik advised him of his right to counsel. When asked if there was a specific lawyer he wanted to call, he said "I don't have one." Consequently, when he arrived at 12 Division, he was put in touch with duty counsel. He spoke to duty counsel between 5:45 pm and 5:48 pm.

[27] When the applicant entered the breath room, Cst. Kosher followed what appears to be standard practice by again advising the applicant of his right to counsel. Cst. Kosher asked the applicant if he had a lawyer of his own. The applicant said he did not. Cst. Kosher then confirmed with the applicant that he had spoken to duty counsel. The applicant said he had. Cst. Kosher then asked the applicant if there were any other lawyers that he wanted to call. The applicant first said he did not know any others. The applicant then disclosed that he had two friends who are lawyers, but he was unsure if they could give him advice in his situation. Cst. Kosher then explained that all lawyers are, in theory, educated in criminal law, but whether they practice criminal law is a different issue. Cst. Kosher then said that the only way to know if they could give advice would be to call them.

[28] Cst. Kosher made it clear that it was the applicant's decision whether to call one of the lawyers he knew. The officer retrieved the applicant's phone to let him find a number. Cst. Kosher looked up both names himself and determined one was a paralegal. He then asked the applicant if he wanted to speak to the lawyer he knew, Mr. Jassal. After not getting through to Mr. Jassal, Cst. Kosher called the paralegal that the applicant knew to see if she could put him in touch with a lawyer. Cst. Kosher then called the lawyer to whom the paralegal had referred him. Though that lawyer refused to give the applicant advice, the lawyer did refer the applicant to a criminal lawyer, Mr. Singh. The applicant then had a consultation with Mr. Singh. After that consultation, he expressed no dissatisfaction with the advice he had received. Between the two breath tests, Mr. Jassal called and the applicant was given an opportunity to speak with him too.

[29] It is difficult to understand the applicant's s. 10(b) complaint. As Crown counsel observed, the police's obligation to afford the applicant a reasonable opportunity to consult counsel was complete after he had spoken to duty counsel. I cannot agree with the applicant that he expressed any dissatisfaction with his consultation with any of the lawyers he talked to. Moreover, this is not really a counsel of choice case. The only reason the counsel of choice issue arose is that Cst. Kosher asked the applicant if he knew any lawyers and whether he wanted to call them. There is some irony to the applicant's submission that Cst. Kosher's efforts to go further than s. 10(b) required could have resulted in a breach of the Charter.

[30] However, even if the applicant's consultation with duty counsel had not been enough, I cannot agree that Cst. Kosher's approach was in any way unreasonable. Where, as here, the police assume control over a detainee's ability to contact counsel, they must exercise diligence in contacting counsel. As Stribopoulos J. observed in Maciel:

[42] Quite obviously, it is not my role to second-guess police operational procedures. And, to be clear, I do not believe there is anything constitutionally objectionable with the police assuming the responsibility of contacting counsel on behalf of those in their custody. That said, it is very much the function of the courts to assess the adequacy of police efforts in the discharge of their constitutional obligations. It follows that if the police assume the responsibility of contacting counsel of choice on behalf of a person who is in their custody, then it is for the courts to assess the adequacy of those efforts. Of course, this begs the question as to what standard should be used in evaluating the adequacy of police efforts.

[43] If the police did not assume this responsibility, those in detention would be expected to exercise reasonable diligence in contacting their lawyer of choice. Where the police take on this function on behalf of the detainee, it seems eminently sensible to subject their efforts to the same standard. Anything less would encourage token efforts by the police and imperil the right of those in detention to consult a lawyer of their choosing. In that regard, I completely agree with the comments of Justice Horkins, who noted:

When the police, as an institution, decide to take control of the accused's means of accessing counsel of choice, they also assume the obligation to pursue that constitutional right with all the same effort and diligence that the accused himself would apply.

I believe this standard is in keeping with the duty upon the police to facilitate contact with a detainee's counsel of choice. I therefore intend to apply it in assessing the adequacy of the police efforts in this case.

[31] Cst. Kosher was very diligent in trying to help the applicant find a lawyer. Cst. Kosher spent over an hour calling three different lawyers and one paralegal. I have no reason to believe that the applicant would have acted differently. He expressed no dissatisfaction about his consultation with counsel. Nor did he testify about what he would have done differently in exercising his right to counsel. It is up to the applicant to demonstrate that his s. 10(b) right was breached. I have nothing on this record to suggest that the Cst. Kosher's actions prevented the applicant from a reasonable opportunity to consult counsel.

[32] I also cannot accept the argument that the police were required to provide the applicant with a list of lawyers, or the means to do his own search. There is no constitutional requirement for the police to provide a detainee with the means to search for a lawyer. Failure to do so is not a breach of the right to consult counsel of choice. It is one thing if the applicant had expressed clear dissatisfaction with his consultation with counsel. That might oblige the police to take further steps. But that is not what happened here. Also, as Crown counsel observed, it is difficult to understand how the applicant would have been better served by being handed a list of lawyers he did not know, than being provided a reference (albeit indirectly) through a paralegal whom he did know.

[33] This is not a case where the police's control over the applicant's means to contact counsel violated s. 10(b). If anything, this case involved an officer who was both well-schooled in the application of s. 10(b), and one who was willing to spend over an hour with the applicant trying to contact somebody. There was no breach of s. 10(b) here.

5. Section 24(2) Analysis

[34] Because I have found that the applicant's ss. 8 and 9 Charter rights were breached, I must consider whether his breath samples and Intoxilyzer results should be excluded under s. 24(2) of the Charter.

[35] The first step of the R. v. Grant inquiry requires a court to consider the seriousness of the breach. The grounds in this case were not objectively reasonable. Cst. Wedzik's grounds came up short of the required standard of credibly-based probability. However, I cannot say he was so lacking in grounds that this was an egregious breach of the applicant's Charter rights. Rather, this was an officer knowing the right standard, and making the wrong judgment call. In the final analysis, although it is a close case, I find that it constitutes a serious enough breach that this stage of the Grant inquiry favours exclusion, although not strongly.

[36] The second step of the Grant inquiry requires a court to determine the impact of the breach on the claimant's Charter-protected interests. As the Supreme Court recognized in Grant, the seizure of breath samples is minimally intrusive. I do not accept the applicant's argument that the s. 9 breach changes the minimally intrusive breach. I also consider that the police had grounds to detain the applicant briefly anyway to perform an ASD test. This stage of the Grant inquiry favours admission.

[37] The third step of the Grant inquiry considers the impact that the exclusion of the evidence will have on the truth-seeking process. The evidence of the Intoxilyzer results is reliable and without it, the Crown has no case on the over 80 charge. The third step of the Grant inquiry favours admission.

[38] When balancing the three factors, I find that the evidence should not be excluded. Although the first step of the Grant inquiry favours exclusion, it does not favour exclusion enough to overcome the other two steps that favour admission. The impact of the breach here was minimal compared to the relative lack of seriousness of the breach.

6. Conclusion on the Over 80 Count

[39] The toxicologist's report makes clear that the applicant's blood alcohol content would have been well above the legal limit at the time he was found in care and control of his vehicle by the police. Moreover, because the applicant was in the driver's seat when police initially approached him, he is presumed to be in care and control of his vehicle. I did not understand Mr. Hurley to take any issue with his client's liability should the Charter application fail. Consequently, I find the applicant guilty of driving over 80.

7. Impaired Driving Count

[40] Crown counsel argues that the applicant showed signs of impairment on the breath room video. The Crown also argues that the toxicologist's report itself makes a case for finding the applicant guilty. The report says that impairment begins at 50 mg of alcohol in 100 ml of blood. The applicant's blood alcohol content was over four times that level, and between three and four times the legal limit.

[41] The applicant says that, despite his high alcohol content that there is insufficient evidence to find that he was impaired. The applicant says that he did not show any visible signs of impairment either when he was arrested or when he was in the breath room. In the absence of any such signs, the applicant argues I cannot find that he was impaired.

[42] I agree with the Crown that, given the toxicologist's report and the applicant's extremely high readings, I can be satisfied beyond a reasonable doubt that he was at least slightly impaired when he was in care and control of his car. I agree with Mr. Hurley that the applicant did not show any signs of impairment on the breath room video. However, simply because the applicant's speech and walking were not affected by alcohol does not mean that his ability to drive was not impaired. As the toxicologist's report notes, driving a car "requires the integrity of a variety of sensory, motor and intellectual faculties including divided attention, choice reaction time, judgment of speed and distance, risk assessment, vigilance, and vision." It is for that reason, as the report states, that impairment "may occur in the absence of visible signs of alcohol intoxication, which may be due to tolerance."

[43] Given his blood alcohol concentration, and the toxicologist's opinion, I am satisfied beyond a reasonable doubt that the applicant was at least slightly impaired when he was behind the wheel of his car at his daughter's school. I find him guilty of having care and control of a vehicle while impaired.

Released: July 31, 2019

Justice M.M. Rahman