The accused, charged with having excess blood alcohol within two hours of driving, conceded the Crown's case on the merits but sought exclusion of the breath samples on the basis of an alleged breach of s. 10(b) of the Charter.
The court held that the police failed to make reasonable efforts to contact counsel of choice and improperly assumed that a non-criminal lawyer could only provide a referral rather than legal advice, thereby undermining the accused's right to counsel of choice.
The court rejected allegations that police steered the accused to duty counsel or were obliged, absent a request, to provide internet or phonebook resources to locate another lawyer.
Applying the Grant framework, the court found the breach serious but its impact attenuated, and held that the reliable and crucial breath evidence should not be excluded given the strong societal interest in adjudicating the impaired driving charge on the merits.
The application was dismissed and a finding of guilt entered.
