Keisha Athanas

The accused was stopped for a traffic violation and subsequently arrested for impaired driving.

At trial, the accused argued that his Charter rights under ss. 8, 10(a), and 10(b) were violated, seeking exclusion of the breath test results under s. 24(2).

The court found no breach of ss. 8 or 10(a), but concluded that a 7-minute delay in providing rights to counsel violated s. 10(b).

Applying the Grant framework, the court declined to exclude the evidence, finding the breach minimal and the evidence reliable.

The court found the accused guilty of both impaired driving and driving with excess blood alcohol, entering a conviction on the impaired driving count and a judicial stay on the excess blood alcohol count.

The Crown appealed the accused's acquittal on charges of impaired care or control and over 80.

The accused was found intoxicated in the driver's seat of a vehicle stuck in a ditch.

The trial judge acquitted the accused, finding no realistic risk of danger because the vehicle was immovable.

The Superior Court of Justice allowed the appeal, holding that the trial judge erred in law by misapplying the statutory presumption of care or control under s. 258(1) of the Criminal Code.

The court found that the accused's intention to set the vehicle in motion was established, meaning the presumption was not rebutted and a realistic risk of danger was embedded in the presumption.

A guilty verdict was entered for the over 80 charge.