Peter Kell was tried for impaired operation of a conveyance and refusal to provide a breath sample.
He brought a Charter application under s. 10(b) seeking exclusion of the refusal evidence, arguing police failed to provide a "Prosper-style warning" upon his waiver of the right to counsel.
The court dismissed the Charter application, finding no breach of s. 10(b) as the accused had not been frustrated in attempts to reach counsel and clearly refused counsel.
The court found the accused guilty on both counts, concluding that the refusal was proven beyond a reasonable doubt and that the impaired operation was also proven by circumstantial evidence, even without the adverse inference from the refusal.
