The accused was charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 mg per 100 ml of blood (over 80) following a motor vehicle collision.
The Crown relied on breath samples obtained at the police station.
The defence challenged the admissibility of the breath samples on grounds of breaches of sections 7, 8, and 10(b) of the Canadian Charter of Rights and Freedoms.
The court found no breach of section 7 regarding the accused's initial admission of being the driver, as he was neither physically nor psychologically detained at the scene and did not establish statutory compulsion.
However, the court found breaches of both section 8 (unreasonable search and seizure) and section 10(b) (right to counsel).
The section 8 breach arose from the officer's failure to verify that the approved screening device had been properly calibrated and maintained.
The section 10(b) breach occurred when the officer failed to facilitate the accused's access to counsel of choice and instead unilaterally directed him to duty counsel.
The court excluded the breath samples pursuant to section 24(2) of the Charter, finding that the seriousness of the breaches and their impact on Charter-protected interests outweighed society's interest in adjudication on the merits.
