Law360 Canada ( May 9, 2023, 6:16 AM EDT) -- Appeal by the Crown from the acquittal of Davis for having blood alcohol concentration over the legal limit within two hours of operating a conveyance. The arresting officer became concerned about the way the motor vehicle that Davis was driving was being operated. After approaching the motor vehicle, the arresting officer noted the smell of alcohol, and Davis admitted to having consumed alcohol. The arresting officer demanded that Davis provide a sample of his breath into an approved screening device. Davis failed this roadside test and was arrested. Davis was searched and placed in the back of the police vehicle, but the arresting officer failed to advise him of his right to counsel without delay. Davis was advised of his right to counsel eight minutes after the arrest. Davis spoke to duty counsel upon arrival at the police station before he provided evidential breath samples. These breath samples confirmed that his blood alcohol concentration moderately exceeded the legal limit. The Crown appeal focused on the appeal judge’s handling of the trial judge’s decision to exclude results of evidential breath samples from evidence because of police breach of Davis’s “informational right” to be informed of his right to counsel immediately upon being detained under s. 10(b) of Canadian Charter of Rights and Freedoms (Charter). Among other grounds on appeal, the Crown submitted that the appeal judge erred in failing to analyze whether the breath samples were “obtained in a manner” that violated Davis’s rights and in making unreasonable findings which impacted upon the first Grant inquiry, the seriousness of the breach....