The Court held that when a person was detained for the purpose of giving a breath sample under section 235(1) of the Criminal Code, they have the right to consult counsel.
He argued that the failure of the police to allow him to consult counsel at the police station infringed his right to be informed, upon arrest or detention, of his right to retain and instruct counsel without delay, as guaranteed by under section 10(b) of the Charter.
The Supreme Court observed that detention can arise from a reasonable perception of the detainee, stating “most citizens are not aware of the precise limits of police authority“.
It is reasonable that a person could “assume lawful authority and comply with the demand“ believing it to be a detention.
Failing to do so was a breach of his right to counsel, warranting exclusion of the breathalyzer certificate under s. 24(2).