Lucia Favret

The accused was charged with impaired operation of a motor vehicle and operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood.

A sergeant responded to a radio call about a possible impaired driver at an LCBO store and followed the accused's vehicle into an underground parking garage of an apartment building without attempting to stop him first.

The court found that the sergeant breached the accused's Charter rights under sections 8, 9, and 10(b) by: (1) following the accused into the underground parking garage without legal authority or exigent circumstances; (2) delaying the administration of the approved screening device demand beyond the "forthwith" requirement of section 254(2) of the Criminal Code; and (3) failing to provide the accused with a reasonable opportunity to consult counsel.

The evidence of the breath samples was excluded under section 24(2) of the Charter, and both charges were dismissed.

The accused was charged with operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood contrary to the Criminal Code.

The accused applied to exclude breath sample evidence, arguing the police breached his section 8 Charter rights by failing to make a statutory demand for breath samples and by failing to obtain samples as soon as practicable.

The court found that the arresting officer did not make the required statutory demand and that a 21-minute delay in obtaining samples was unreasonable, as the accused had clearly and unequivocally waived his right to counsel.

The Crown could not rely on the statutory presumption in section 258 of the Criminal Code without proving these preconditions.

The charge was dismissed.