agent for James Foord

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.

Summary conviction appeal from a conviction for driving over 80 arising from a roadside stop during a RIDE program.

The appellant argued that, after unsuccessful efforts to reach counsel of choice, police failed to provide the additional informational warning required when a detainee appears to change course on exercising the right to counsel.

The court held that the trial judge erred by not undertaking the required Prosper analysis and that the failure to give the warning breached s. 10(b) of the Charter.

Applying the Grant framework, the court excluded the Intoxilyzer readings and set aside the conviction, ordering a new trial before a different judge.