The appellant appealed his conviction for driving with excess alcohol, arguing that his s. 10(b) Charter rights were violated because the police delayed administering an approved screening device (ASD) test, creating a reasonable opportunity to consult counsel.
The trial judge held that the appellant failed to meet his onus of establishing that there was a reasonable opportunity to consult counsel.
On appeal, the Superior Court of Justice held that the trial judge erred in placing the onus on the appellant.
The court found that once an applicant establishes a prima facie Charter violation (detention without being advised of the right to counsel), the onus shifts to the Crown to justify the breach under s. 1 by proving the demand was made 'forthwith', which includes showing there was no reasonable opportunity to consult counsel.
The appeal was allowed and a new trial ordered.
