The accused was convicted, at trial, despite expert evidence suggesting evidence to the contrary, of over 80. The trial judge relied on the evidence of the failed roadside screening device as evidence that the blood alcohol level of the accused exceeded 80 milligrams of alcohol in 100 millilitres of blood. The summary conviction appeal court judge found that use of the roadside screening device for the purpose of dismissing an evidence to the contrary defence was incorrect.
The evidence obtained from the roadside screening device was in violation of s.10(b) of the Charter. However, s.1 of the Charter allows for this violation of these rights in certain circumstances. s.1 of the Charter does not apply to the evidence gained from the roadside screening device for any purpose other than the purpose of establishing grounds needed to justify a demand under s. 254 of the Criminal Code. Specifically, the use of the roadside screening device to impeach evidence to the contrary falls outside the constitution protection afforded by s. 1 of the Charter and the use of such evidence would "render the trial unfair". The unfairness arises as the accused had been compelled to give evidence that was being tendered beyond that envisioned by s.254(2) of the Criminal Code.
When officer approached accused, he detected an odour of alcohol from his breath. He then demands a sample of his breath. The accused failed the test and his readings were 120 and 110. The accused was placed under arrest, and cautioned after the breath test was taken.