The Crown appealed the acquittal of the respondent on a charge of operating a vehicle with a blood alcohol concentration over 80 mg, following a trial judge's decision to exclude breath samples due to a s. 10(b) Charter infringement.
The appeal court found that the trial judge erred in law by unreasonably assessing the police officer's safety concerns, concluding that the brief delay in informing the accused of his right to counsel was justified and did not constitute a Charter breach.
Alternatively, even if a breach occurred, the subsequent Charter-compliant conduct severed the connection to the breath samples, rendering them admissible under the "fresh start" principle.
The appeal was allowed, the acquittal set aside, a conviction entered, and the minimum sentence imposed.
