J. Brennan Smart

The appellant appealed a summary conviction for operating a motor vehicle with blood alcohol exceeding 80 mg under s. 253(1)(b) of the Criminal Code.

He argued that his roadside admission that he was the driver was statutorily compelled under the Highway Traffic Act and therefore inadmissible under s. 7 of the Charter, and that his s. 10(b) right to counsel was infringed when police refused his request to call his parents.

The court held that, given the statutory obligation under ss. 199–200 of the Highway Traffic Act to report an accident and identify oneself to police, the appellant’s admission that he was the driver was compelled and should not have been admitted.

The court rejected the trial judge’s reliance on hypothetical cross‑examination suggesting the appellant would have made the admission anyway.

However, the court found no reversible error regarding the right to counsel analysis.

The conviction was set aside and a new trial ordered.

The applicants, charged with unlawful production of marijuana, brought a pre-trial application alleging breaches of their ss. 8 and 9 Charter rights following a warrantless police search of their apartment.

Police had responded to a report of a domestic disturbance and, despite the applicants' explanations and lack of apparent distress, entered and searched the apartment based on a general police policy, discovering a small marijuana grow operation.

The court found that the police lacked reasonable grounds to believe anyone else was in the apartment requiring assistance, rendering the search unreasonable and the detention arbitrary.

Applying the Grant framework, the court excluded the evidence under s. 24(2) of the Charter.