DATE: 20011227 DOCKET:C35526

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. RICHARD BOOTHBY (Appellant)

BEFORE:

McMURTRY C.J.O., ROSENBERG and MacPHERSON JJ.A.

COUNSEL:

Stephen Price

for the appellant

Beverly Brown

for the respondent

HEARD:

December 20, 2001

On appeal from the decision of Justice Blenus Wright, sitting as a summary conviction appeal court judge, dated November 30, 2000, dismissing the conviction and sentence imposed by Justice Michael Martin on March 20, 2000.

E N D O R S E M E N T

Released Orally: December 20, 2001

[1] This appeal is completely governed by this court’s previous decision in R. v. Huff. The first statement by the appellant made at the roadside before he had been advised of his right to counsel must, therefore, be excluded from the evidence available to the trial judge on the Carter defence, including assessing the credibility of the appellant.

[2] The Crown does not contend that this a case in which the proviso should be applied.

[3] Accordingly, the appeal is allowed and a new trial is ordered.

“R. Roy McMurtry C.J.O.”

“M. Rosenberg J.A.”

“J. C. MacPherson J.A.”