Accused did not have burden of establishing the reasonable opportunity to consult counsel

Accused was stopped for speeding, and officers made approved screening device (ASD) demand. Sample was provided 10 minutes after office made demand. Accused was convicted of driving with excessive alcohol. Accused appealed. Appeal allowed. Trial judge erred in assuming that burden of establishing that there was reasonable opportunity to consult counsel rested with accused. It could not be concluded that any reasonable trier of fact would inevitably have come to same conclusion that there was no reasonable opportunity to consult counsel.

R. v. Menezes (2019), 2019 CarswellOnt 12572, 2019 ONSC 4497, P.A. Schreck J. (Ont. S.C.J.).

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