Impaired driving trial. After brief observations, the accused was asked by police to step out of his vehicle for further investigation. Issue regarding the admissibility of all indicia observed after the accused was directed to step from his vehicle (ie, while the right to counsel was suspended).

Held: Acquitted.

As per Visser, 2013 BCCA 393: ” … [if] the purpose of the investigator’s direction to a motorist to exit his vehicle was to determine whether grounds existed to make a breathalyzer demand, then the observational evidence obtained thereafter would not be available to prove the guilt for a criminal offence: Milne“. The officer testified that one reason for removing the accused from his vehicle was to make “further observations of possible impairment.” Evidence gathered during the period when the 10(b) right was suspended was not admissible to prove impairment.

S. Fagan – Defence Counsel