R. v. Hammoud, 2014 ABQB 108 per Bast, J:

Appeal from conviction on charge of refusal / failure to blow. Trial evidence revealed that after 50 minutes in the phone room, the accused was asked if he had contacted a lawyer, and he said “almost”. Accused was then asked by the officer if he was “going to?” and he replied “I just want to be released.” Trial judge, in finding no 10(b) breach, failed to address the accused’s comment “almost”.

Held: Appeal allowed, new trial ordered.

“The lack of discussion or mention by the trial judge that the accused had replied ‘almost’ following the second, fifty-minute interval in the phone booth goes to the requirement that the Crown prove an unequivocal waiver.” Accordingly, the trial

judge failed to consider key evidence, prompting appellate review.

R. Claxton – Defence Counsel