The Crown had conceded that there was a breach of Mr. Manchulenko's right to counsel. He had asked to call a lawyer when he was in the breath room. He went into the telephone room but came back out 40 seconds later and said "well, let's get this over with". The officer did not then read him the waiver of counsel (Prosper) warning. He was acquitted at trial. However the Ontario Court of Appeal ordered a new trial, repeating the Supreme Court's directions about dealing specifically with breath sample evidence:
Section 24(2) eschews presumptive rules. No overarching rule governs how the balance is to be struck. Each case requires a fact-specific evaluation of all the circumstances to determine whether the balance settles in favour of exclusion or of admission. Despite the requirement that each case requires consideration according to its own factual matrix, as a general rule, reliable evidence obtained by less egregious and invasive intrusions into privacy, bodily integrity, and dignity, such as the taking of breath samples, may be admitted: Grant, at para. 111.