Agatha Mapelli

The Ontario Court of Justice considered the lawfulness of a second Approved Screening Device (ASD) test conducted on Paul J. Foran after his initial roadside test failed.

The court examined whether the second test was lawful under sections 8 and 10(b) of the Charter, focusing on whether a new demand was required and whether the second test breached the accused's right to counsel.

The court found the second test was lawful, conducted for the accused's benefit to ensure accuracy, and that no breach of the right to counsel or lawful demand occurred.

The court also rejected the claim that police improperly steered the accused to duty counsel, finding the accused chose duty counsel voluntarily.

The charge of impaired driving with a blood alcohol concentration over the legal limit was proven beyond a reasonable doubt.

This decision addresses a breach of the accused's section 10(b) Charter right to counsel of choice during a DUI investigation.

The court found that the accused was denied proper access to his chosen lawyer due to lost audio and unclear police procedures, resulting in a serious breach.

Although the accused received advice from duty counsel, he was dissatisfied and maintained his right to speak to his own lawyer.

The breath test evidence was excluded under section 24(2) due to this breach.

On the merits, the Crown failed to prove impaired operation beyond a reasonable doubt, leading to dismissal of both charges.

An appellant sought to appeal a conviction for careless driving causing bodily harm and a Charter s. 11(b) application dismissal prior to sentencing.

The court determined it lacked jurisdiction to hear the appeal, as a trial is not legally concluded until sentencing, and the appeal filing clock commences at that point.

The court emphasized that jurisdiction cannot be conferred by consent and that procedural guides do not create statutory authority.