The accused was charged with operating a motor vehicle with a blood alcohol concentration over 80.
The accused argued that his Charter rights under s. 7 and s. 8 were breached due to a delay in taking breath samples and lack of a proper demand.
The court found no Charter breach, as the delay was reasonable and the demand was properly made.
However, the Crown relied on a toxicologist's extrapolation, which assumed no bolus drinking.
The court found that the evidence raised the issue of bolus drinking, and the Crown failed to prove beyond a reasonable doubt that bolus drinking did not occur.
Consequently, the toxicologist's evidence could not establish the blood alcohol concentration at the time of driving, and the charge was dismissed.
