The appellant appealed a conviction for operating a motor vehicle with a blood alcohol concentration exceeding 80 mg under s. 253(1)(b) of the Criminal Code.
The appeal challenged both the grounds for the breath demand and the adequacy of the right to counsel advice under s. 10(b) of the Charter.
While the court found sufficient grounds existed for the breath demand based on the officer’s observations and circumstances of the collision, it concluded that the informational component of the right to counsel was not satisfied after the accused twice indicated he did not understand his rights.
The officer failed to make reasonable efforts to ensure comprehension before proceeding.
The resulting Charter breach required exclusion of the breath sample evidence under s. 24(2).
