DATE: 20030822

DOCKET: C37996

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – CARRIE ANN THREADER (Appellant)

BEFORE: DOHERTY, CHARRON and ARMSTRONG JJ.A.

COUNSEL: Gregory LaFontaine for the appellant Mary-Ellen Hurman for the respondent

HEARD: August 22, 2003

On appeal from the decision of Justice Hamilton dated March 7, 2002.

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

[1] The summary conviction appeal judge (S.C.A. C.J.) erred by applying a correctness standard in reviewing the trial judge’s finding that on the totality of the evidence the officer did not have the requisite grounds to make a s. 254(3) demand.

[2] The trial judge’s finding cannot be said to be unreasonable. Nor did he misapprehend the evidence or improperly apply the operative legal principles. There was no basis upon which to interfere with the trial judge’s ruling.

[3] The Crown did not argue s. 24(2) at the trial. In our view the evidence of the breathalyser results would in all likelihood have been excluded if the matter had been argued at trial. As it was not argued, apparently because it was assumed that the evidence would be excluded, it would not be appropriate to order a new trial so that the issue could be litigated for the first time.

[4] Leave to appeal is granted, the appeal is allowed and the acquittal is restored.

“ D. Doherty. J.A.”