The appellant was arrested for impaired driving and asked to speak to a specific lawyer.
After waiting over an hour for the lawyer to return the call, the police offered the appellant the opportunity to speak with duty counsel, which he refused.
He subsequently provided breath samples.
The trial judge excluded the breathalyzer results, finding a breach of the appellant's s. 10(b) Charter rights, and acquitted him.
The summary conviction appeal judge set aside the acquittal and ordered a new trial.
The Court of Appeal dismissed the appellant's appeal, holding that the availability of duty counsel is a crucial factor in determining reasonable diligence, and the appellant failed to exercise his right to counsel diligently when he refused duty counsel.
