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The court admitted breath test results despite a minor s. 10(b) Charter breach and convicted the accused of impaired driving and driving over 80.
The accused was charged with driving with excess alcohol in his system and impaired operation of a motor vehicle following a motor vehicle collision at 2 a.m. on July 4, 2016.
The accused sought Charter relief on two grounds: first, that police lacked sufficient grounds for detention in violation of s. 9 Charter rights, and second, that police breached s. 10(a) and (b) Charter rights by delaying the provision of rights to counsel.
The court found that the initial arrest was lawful based on objective grounds including the smell of alcohol, red eyes, and the context of a severe collision.
The court found a breach of s. 10(b) rights due to a five-minute delay in providing rights to counsel after a second officer arrived on scene, but found the breath demand was lawful and the evidence admissible under s. 24(2) of the Charter.
The accused was found guilty of both charges.
Reasonable suspicion for ASD demand upheld; conviction for over 80 affirmed.
The appellant appealed a conviction for operating a motor vehicle with a blood alcohol concentration exceeding 80 mg under s. 253(1)(b) of the Criminal Code.
He argued that the police officer lacked reasonable suspicion to make an approved screening device demand and that the trial judge erred in rejecting his evidence regarding alcohol consumption.
The Summary Conviction Appeal Court held that the constellation of factors—including departure from a bar near closing time, admission of recent drinking, and bloodshot eyes—objectively supported reasonable suspicion.
The court also found no reversible error in the trial judge’s credibility findings or rejection of the defence theory that mislabelled beer bottles explained the elevated readings.
The appeal was dismissed.
