The Crown appealed an acquittal on an “over 80” impaired driving charge following the exclusion of breath sample evidence for an alleged breach of the accused’s right to counsel under s. 10(b) of the Charter.
The trial judge held that police were required to permit the detainee to re-consult counsel after he repeatedly requested to speak with his lawyer during the breath testing process, despite already speaking with duty counsel.
The Superior Court held that the trial judge erred by failing to make positive factual findings establishing an objectively observable change in circumstances required under the Supreme Court of Canada’s trilogy in R v. Sinclair, R v. McCrimmon, and R v. Willier.
The court found there was no change in jeopardy and no objective indication the detainee misunderstood his rights.
The appeal was allowed and a new trial ordered.
