COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) –and– ROBERT J. CRESSWELL (Appellant)
BEFORE:
CATZMAN, WEILER and FELDMAN JJ.A.
COUNSEL:
Robert J. Upsdell, for the appellant
Beverly A. Brown, for the respondent
HEARD:
June 14, 2002
RELEASED ORALLY:
June 14, 2002
On appeal from the conviction imposed on September 14, 2001 by Justice Peter B. Hockin, sitting as a summary conviction judge, upholding the conviction imposed by Justice Michael P. O’Dea dated January 10, 2001.
E N D O R S E M E N T
[1] The appellant was convicted of the offence of having the care or control of a motor vehicle at a time when the concentration of alcohol in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(b) of the Criminal Code. His conviction was affirmed by the summary conviction appeal court. He now seeks leave to appeal to this court. The appellant raises two issues.
[2] The first relates to “as soon as practicable”; the second relates to “evidence to the contrary”.
[3] We do not accept the appellant’s first submission. Eight minutes passed between the time the appellant ended his telephone conversation with his father and the time the set-up by the breath technician began. In our view, there was no error in the conclusion reached both by the trial judge and by Hockin J. that the samples were taken as soon as practicable.
[4] We agree with the appellant’s second submission. The trial judge clearly erred in taking into consideration the roadside statements in his assessment of the appellant’s credibility: see R. v. Huff, [2000] O.J. No. 3487; leave to appeal to the S.C.C. denied March 22, 2001, [2000] S.C.C.A. No. 562 and R. v. Boothby, [2001] O.J. No. 5078, both decisions of this court. His consideration of those statements was inextricably bound up with his finding against the appellant’s credibility: see the trial judge’s reasons at pp. 125-126 of the Appeal Book. We disagree with the summary conviction appeal court that this is a case in which the curative proviso could be applied.
[5] Accordingly, leave to appeal is granted, the appeal is allowed and a new trial is ordered.
Signed: “M.A. Catzman J.A.”
“K.M. Weiler J.A.”
“Feldman J.A.”