Accused was charged with operating a conveyance with blood alcohol over the legal limit and impaired driving. In a s 8 Charter voir dire, defence argued the police, in obtaining one failed ASD reading, did not meet the requirements of s 320.27(2) of the Code and therefore a warrantless search took place. Defence sought exclusion pursuant to s 24(2) of the Charter.
Held: No section 8 breach.
The Court held that only one sample was required: “I find that the proper interpretation of s. 329.27(2) [sic; Editor’s note: this is a typo in the case; should read “s 320.27(2)”] requires only one suitable sample on the approved screening device and that doing so would constitute a lawful search…the only logical interpretation, the one that does not create absurd possibilities, the one that is consistent with the Charter and the legislative scheme is that a single sample is sufficient to meet the requirements of s. 320.27(2).”
T. Foster – Defence Co