Accused charged with failing to provide a breath sample into a screening device. Following the roadside refusal, the police officer transported the accused to the detachment “to give him an opportunity to give breath samples into an evidentiary device.” After the officer was informed by his superior that his course of action was in error, he prepared the necessary paperwork and released the accused. Alleged s. 9 breach.

Held: Section 9 breach. Evidence of refusal not excluded.

The post roadside refusal of the accused did not accord with s. 497(1) CC. The accused was entitled to be released from the roadside: Sieben, 1989 ABCA 258. However, there was no temporal or causal link between the breach and the earlier act of refusal. Further, the Charter violation did not meet the criteria for a judicial stay. Only available remedy being a potential reduction in penalty.

K. Fagan – Defence Counsel