Charged with impaired driving, upon arrest a breath sample demand and was informed of his right to retain and instruct counsel; accused wished to speak to a particular lawyer but the lawyer was not available after the officer placed a call for him. Officer had advised him that the lawyer had not called back in an hour and 45 minutes time and if he would like to speak to duty counsel, but the accused only wished to speak to the particular lawyer. The officer told him that if he wishes to speak to a lawyer he sould before the breath sample and that duty counsel was present free of charge at all times. Accused disregarded the advice and breath samples were obtained. The accused was acquitted but under the appeal judge, the appeal should be dismissed.
The trial judge found that the accused's right to counsel of the Canadian Charter of Rights and Freedoms had been violated and that the evidence of the breath samples should be excluded. The accused had been acquitted. The appeal judge held that the accused's right to counsel had been violated but that the evidence was admissible and that he did not have much of a choice even if he did contact a lawyer he would have been advised to give a breath sample.