R. v. Euler, 2008 ONCA 526
COURT OF APPEAL FOR ONTARIO
ROSENBERG, SIMMONS JJ.A. and SPEYER J. (ad hoc)
BETWEEN:
HER MAJESTY THE QUEEN
Applicant/Appellant
and
NATHALIE EULER
Respondent
Philip Perlmutter for the appellant
Bernard Cugelman for the respondent
Heard and endorsed: June 26, 2008
On appeal from the order of Justice J.E. Ferguson of the Superior Court of Justice, sitting as a summary appeal court judge, dated October 19, 2007, allowing the appeal from conviction by Justice L.T. Montgomery of the Ontario Court of Justice, dated June 13, 2006.
APPEAL BOOK ENDORSEMENT
1The Criminal Code does not lay down that the alcohol test solution must be replaced every 7 days. Accordingly, whether the instrument was ascertained to be in proper working order was an issue of fact. To the extent that R. v. Morton, [2003] O.J. No. 279 (Sup. Ct.) may appear to hold to the contrary, it should not be followed.
2In our view, this case turned on the finding of fact by the trial judge that the slight deviation from the 7-day recommendation did not affect the accuracy of the tests. That finding was amply supported by the evidence and it was therefore not open to the appeal judge to interfere.
3Accordingly, leave to appeal is granted, the appeal is allowed and the conviction restored.