The appellant challenged a substituted conviction for driving-related alcohol offences on the basis that his right to counsel under s. 10(b) of the Charter was infringed when, after unsuccessful attempts to contact legal aid lawyers outside regular business hours, police proceeded with breathalyser testing.
The majority held that s. 10(b) does not constitutionally require governments to provide free and immediate duty counsel on request, but does require police to hold off from eliciting incriminatory evidence where a detainee has asserted the right to counsel, acted diligently, and remains unable to reach counsel because of institutional unavailability.
The court further held that the appellant had not validly waived the right to counsel and that the police were required to advise him of the continuing right to a reasonable opportunity to contact counsel before proceeding.
Applying s. 24(2), the majority excluded the breath samples as conscriptive evidence obtained in a manner that rendered the trial unfair.
The appeal was allowed, the conviction quashed, and an acquittal entered.
