On a summary conviction appeal from a conviction for failing to provide a breath sample, the court held that the trial judge erred in the s. 10(b) Charter analysis.
The trial judge improperly treated the appellant's response of 'yeah, yeah' as an implicit waiver of the right to counsel without the clear and unequivocal waiver required by Prosper, and failed to apply the proper forthwith analysis under Quansah to the roadside screening demand.
The court further held that the resulting statements should be excluded under s. 24(2) applying Grant, because the police conduct seriously infringed a fundamental right.
The conviction was set aside and a new trial ordered.