Case information

None.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The Respondent was stopped by police officers as he was driving alone on March 12, 1999 at or about 10:30 p.m. The officers noted a strong odour of alcohol and demanded a breath sample for an ASD test pursuant to s. 254(2) of the Criminal Code.

The parties disagree as to the circumstances that occurred subsequent to the demand. This disagreement is mirrored in the decisions of the summary convictions appeal judge and the Court of Appeal which differ as to these particular facts. Specifically, the summary convictions appeal judge stated that the Crown argued that the Respondent, in wanting to speak to counsel, was, in effect, refusing to provide a sample of his breath. He noted that words were used that indicated that he was refusing. The summary convictions appeal judge stated: “it escapes me why people aren’t charged with refuse at that point, but that’s a different issue”. In contrast, the Court of Appeal stated that the Respondent was stopped by police officers who, at that time, made the demand. It stated that the Respondent refused and was then arrested for failing to comply with the demand and given his Charter rights counsel and the police warning. It found that the Respondent then indicated that he wished to call a lawyer.

The Respondent was given an opportunity to speak with counsel. Following that conversation, the Respondent intimated to police that he wished to give samples. The alcohol screening device (“ASD”) demand was read again to the Respondent and he replied ‘Okay’. After several unsuccessful attempts to produce a proper sample, a sample was obtained and registered a fail. The Respondent was then given a breathalyser demand pursuant to s. 254(3) of the Code and his Charter rights to counsel and the police warning. He spoke again with a lawyer and provided two breath samples, both of which registered 120 mg of alcohol in 100 ml of blood.

The Respondent was convicted of operating a motor vehicle while impaired over .08. The conviction was overturned by the summary convictions appeal judge who entered an acquittal. The Court of Appeal dismissed the appeal.