impaired driving – reasonable grounds to make breathzlyzer demand – officer’s failure to form grounds that offence occurred within previous three hours results in finding that accused’s Charter rights violated – “One of the prerequisites of a proper demand relates to time, i.e., reasonable and probable grounds that the accused was committing a s. 253 offence within the preceding three hours… I have no evidence from the officer that he addressed his mind to this issue; nor is there any evidence from which I could infer he did so.  I find that the Crown has not met their onus to justify the warrantless seizure of breath samples, therefore, I find that the seizure of breath samples from the applicant in these circumstances was unreasonable and an infringement of the applicant’s s. 8 Charter rights – accused found not guilty.

The applicant alleged that the investigating officer infringed his s. 8 and s. Charter 10(b) rights.  Let me summarize in bullet form the submissions of the applicant, as I understand them.

When the officer arrived at the applicant’s house the officer ought to have accorded the applicant his s. 10(b) Charter rights.  Until the police complied with their duties under s. 10(b), any statements made by the applicant to the officer were an infringement of the applicant’s s. 10(b) Charter rights.  These statements could not be used by the officer as a basis for reasonable and probable grounds for a demand made pursuant to s. 254(3) of the Criminal Code.

The officer did not have reasonable and probable grounds to make a proper demand pursuant to s. 254(3) of the Criminal Code.  Specifically the applicant alleged that the officer did not have reasonable and probable grounds that the applicant was the operator of a motor vehicle; nor did the officer have reasonable and probable grounds that the operator had committed an offence under s. 253 of the Criminal Code as the result of the consumption of alcohol; nor did the officer have reasonable and probable grounds of the operation of a motor vehicle within the three hours preceding the demand.  Accordingly, the seizures of breath samples were unreasonable seizures and an infringement of the applicant’s s. 8 Charter rights.