M. Paramalingham

The accused, Doris Xhialli, was charged with failing to provide a breath sample contrary to s. 320.15(1) of the Criminal Code.

Police found the accused in the driver's seat of a vehicle with an open bottle of vodka.

After a breath demand, the accused repeatedly refused, arguing he was in a parking lot and not driving.

He was arrested.

Two minutes after arrest, while being searched, he quietly stated, "I can do it, I can do it now." The court considered whether this constituted a "last chance" offer within the same transaction and whether the accused's s. 10(b) Charter rights were breached by the officer not facilitating immediate access to counsel post-arrest.

The court found the accused's post-arrest offer to be insincere and not a genuine change of mind.

It also found no breach of s. 10(b) or s. 9 Charter rights, concluding the accused voluntarily waived his right to speak with counsel at the scene, preferring expeditious release.

The accused was found guilty.

The accused was charged with impaired driving and over 80.

The central issue was whether police officers' deliberate muting of body-worn cameras prior to an Approved Screening Device (ASD) demand constituted a breach of section 7 of the Charter.

The court found that the deliberate muting was a serious breach of the accused's section 7 Charter rights, as it amounted to the deliberate suppression of important investigative information that should have been disclosed.

Applying the Grant and McColman framework, the court determined that the seriousness of the breach and its impact on the accused's Charter-protected interests outweighed society's interest in adjudication on the merits.

Consequently, the breathalyzer results were excluded under section 24(2) of the Charter, leading to the acquittal of the accused on both counts.