DATE: 20060613

DOCKET: C44413

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – JEAN-PAUL NAJM (Appellant)

BEFORE:

SHARPE and JURIANSZ JJ.A. and LANE J. (ad hoc)

COUNSEL:

Jeffrey Langevin for the appellant

Lance Beechener for the respondent

HEARD & ENDORSED:

June 12, 2006

On appeal from the decision of Justice Lynn D. Ratushny of the Superior Court of Justice dated September 9, 2005.

A P P E A L B O O K E N D O R S E M E N T

[1] The trial judge correctly identified the issue before her as being, in the words of R. v. George (2004), 2004 6210 (ON CA), 187 C.C.C. (3d) 289 (Ont. C.A.), "whether the detainee had a realistic opportunity to consult counsel during the period of delay" between the time of the demand pursuant to s. 254(2) for a sample into an approved screening device and the time at which the device was available. While the trial judge's finding may have been generous in favour of the appellant, she applied the correct test and took the proper factors into account.

[2] The summary conviction appeal judge applied the same test and came to a different conclusion. In our view, in the absence of error on the part of the trial judge, the summary conviction appeal judge was not entitled to, in effect, retry the case.

[3] We do not agree with the Crown's submission that we should, in any event, reverse the trial judge's conclusion that the evidence should not be excluded under s. 24(2). Again the trial judge took all relevant factors into account and her decision is entitled to deference.

[4] Accordingly, the appeal is allowed and the trial judge's acquittal is restored.