A judge has ruled the breath samples taken from a Pembroke dentist on trial for impaired driving causing death are inadmissible because her Charter right to legal counsel was violated.
Dr. Christy Natsis is facing charges of impaired driving causing death, dangerous driving causing death and exceeding the legal blood-alcohol limit in the March 2011 Highway 17 crash that killed 50-year-old Ottawa man Bryan Casey.
Natsis's lawyer Michael Edelson argued breath samples of Natsis should be ruled inadmissible and that her right to counsel was compromised when the arresting officer repeatedly interrupted and ultimately ended her phone call to a lawyer on the night of the crash.
Ontario Superior Court Justice Neil Kozloff said on Monday the breathalyzer data would normally have been admissible, but the results cannot be introduced as evidence because her rights to counsel were violated.
In December, OPP Const. Joe Limlaw testified that on the night of the crash Natsis had showed a blood alcohol concentration more than twice the legal limit.
Edelson, however, objected to the blood alcohol levels being introduced in court, because Natsis's right to legal counsel had been violated. The defence lawyer notified the court in December he would challenge the infringement to her Charter right.
Officer interrupted call to lawyer 6 times
On Monday, Justice Kozloff threw out the evidence.
"It's axiomatic that the solictor-client relationship must take place in private," said Kozloff in his ruling. "The deliberate and systematic interruptions such as occurred are an unacceptable interference for a person's right to privacy, as in this case."
On the night in question OPP Const. Ryan Besner interrupted Natsis six times during her phone call to a lawyer. The call lasted more than 40 minutes, after which Besner took the phone from Natsis and hung up on the lawyer.
Kozloff said the interruptions ended any reasonable opportunity for Natsis to consult with counsel.
The judge also said Besner had erred earlier in asking Natsis potentially incriminating questions after she had requested to speak to a lawyer.
As a result of the ruling, the court has excluded the breathalyzer tests, testimony related to their results and any statement Natsis may have made from the time she requested to speak to a lawyer up until the call to her lawyer ended.
The observations of police and other witnesses about Natsis's state and appearance on the night in question would still be admissible, Kozloff ruled.
During the course of the trial, the court also learned that the other driver, Bryan Casey, had a blood alcohol level of 145 mg of alcohol per 100 ml of blood. The legal limit is 80 milligrams.