Court File and Parties

CITATION: R. v. Sauve, 2007 ONCA 129

DATE: 2007-04-03

DOCKET: C44748

COURT OF APPEAL FOR ONTARIO

LASKIN, MacPHERSON and CRONK JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN Applicant/Appellant

and

ROBERT SAUVE Respondent

Counsel: Philip Perlmutter, for the Appellant Mark S. Evans, for the Respondent

Heard: February 22, 2007

On appeal from the decision of the summary conviction appeal court dated December 19, 2005 by Justice G. William Dandie of the Superior Court of Justice, allowing the appeal from the conviction entered on June 24, 2004 by Justice Marth Zivolak of the Ontario Court of Justice.

AMENDED APPEAL BOOK ENDORSEMENT

[1] The summary conviction appeal court judge erred in law in failing to apply this court’s decision in R. v. George (recently affirmed in R. v. Thorsney) and the Supreme Court of Canada’s judgment in R. v. Woods.

[2] Had he applied these judgments, he would have been obliged to uphold the conviction. This court’s judgement in R. v. Coté, on which the respondent relies, is distinguishable. In this case, unlike Coté, the approved testing device was located nearby. The customs officials were in a position to administer and did administer the test within nine minutes of the original demand.

[3] Accordingly, leave to appeal is granted, the appeal is allowed and the conviction is restored.