The Crown appealed the accused's acquittal on a charge of driving over 80mg.
The trial judge had acquitted the accused after finding the Crown failed to prove identity and that the accused's section 8 and 9 Charter rights were breached because the arresting officer misspoke the blood alcohol formula.
The Superior Court of Justice allowed the appeal, finding the trial judge made a palpable and overriding error by ignoring agreed statements of fact regarding identity, and erred in law in her section 24(2) analysis by excluding the breathalyzer evidence for a minor technical breach.
The accused's cross-appeal alleging a section 10(b) breach was dismissed, as the police exercised reasonable diligence in attempting to contact his counsel of choice.
A new trial was ordered.
