The accused, Anthony Fanone, was charged with impaired operation of a conveyance by alcohol or drug, and operating a conveyance with a blood alcohol concentration over 80 mg.
The central issue was the lawfulness of a single breath sample "rule-out test" administered during a Drug Recognition Expert (DRE) examination.
The court found that the single sample "rule-out test" was not authorized by law, constituting a breach of the accused's s. 8 Charter rights.
However, the court found no s. 10(b) Charter breach regarding the right to counsel.
Applying the s. 24(2) Grant analysis, the court admitted the breathalyzer results, finding the Charter breach was committed in good faith and had minimal impact.
The accused was found guilty of both impaired driving and the "80 and over" offence, but due to the Kienapple principle, a conviction was entered for the more serious "80 and over" offence, and a conditional stay was entered for the impaired driving charge.
