The defendant was charged with operating a conveyance with a blood alcohol concentration exceeding 80 mg within two hours of ceasing to operate it, contrary to s. 320.14(1)(b) of the Criminal Code.
The defendant brought a Charter application, arguing a violation of his s. 10(b) right to counsel for being denied re-consultation after providing the first breath sample.
The court dismissed the Charter application, finding no objective change in circumstances (new procedure, change in jeopardy, or deficient initial advice) as per R. v. Sinclair and R. v. Tahmasebi.
On the merits, the defence conceded all elements except the Crown's failure to prove the time the defendant ceased operating the conveyance.
The court held that the Crown must establish, directly or indirectly, whether the first breath sample was taken within two hours of driving ceasing to satisfy s. 320.14(1)(b) or to rely on the presumption in s. 320.31(4).
As the Crown failed to prove the time of driving, the charge was dismissed.
