Having found that the accused did not give his consent to the taking of the blood sample, the trial judge excluded the blood alcohol evidence. The Court of Appeal reversed the acquittals and ordered a new trial. This appeal, accordingly, is of right. This provision is mandatory not consensual. To consent means to agree and to cooperate and connotes a decision to allow the police to do something which they could not otherwise do.
Compliance has a more subtle meaning involving the failure to object.
The current standard merely requires the Crown to establish that there were reasonable and probable grounds to believe that the accused had committed the offence of impaired driving, that it was impracticable to obtain a breathalyzer sample, and that a demand to obtain a blood sample was made. However, a person cannot be forced, physically or otherwise, to submit to a blood sample. Moreover, compliance can be vitiated by certain circumstances such as those involving trickery. The taking of the sample absent these assurances would contravene ss. 7 and 8 of the Canadian Charter of Rights and Freedoms .