Charter of Rights and Freedoms – right to counsel – refusal to comply with breathalyzer demand – police did not mention that free and immediate 24-hour legal advice was available to accused – accused refused to blow – accused convicted at trial, acquitted on appeal, Court of Appeal restored conviction – Held: Supreme Court reinstates acquittal – “A detainee is entitled under the information component of s. 10(b) of the Charter to be advised of whatever system for free and immediate, preliminary legal advice exists in the jurisdiction, if one indeed exists, and of how such advice can be accessed “.

The appellant was charged with unlawfully refusing to comply with a breathalyser demand. He had been stopped in the early morning by a police constable, who, based on his observations of the appellant and the appellant's acknowledgement that he had had a few beers, requested a roadside breath test. The appellant failed the test. The constable advised the appellant that he was under arrest for impaired driving and informed him of his s. 10(b) rights by reading from a card. The constable did not refer to the existence of free and immediate preliminary legal advice from duty counsel even though such a service was in place in Alberta at the time. He then made two breathalyser demands, both of which the appellant refused to comply with because appellant did not think the roadside machine was accurate.

The appellant testified that, while he knew he could speak to a lawyer, he did not know that 24‑hour, free legal advice from duty counsel was available to him. Had he been aware of this, he claimed he would have exercised his right to speak to duty counsel. The Crown did not cross‑examine or otherwise challenge the appellant on this assertion.