Court of Appeal for Ontario

Citation: R v. Young, 2007 ONCA 342

Date: 2007-05-07

Docket: C45941

Before: WEILER, FELDMAN and JURIANSZ JJ.A.

Between:

HER MAJESTY THE QUEEN Respondent

and

TOMMY JOHN YOUNG Appellant

Counsel: Seth P. Weinstein, for the appellant Amanda Rubaszek, for the respondent

Heard: May 1, 2007

On appeal from the decision of the summary conviction appeal court dated August 9, 2006 by Justice Michael R. Meehan of the Superior Court of Justice allowing the appeal and ordering a new trial of the acquittal entered December 16, 2005 by Justice Gregory P. Rodgers of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1] The appellant was acquitted of failing to comply with a breath demand contrary to s. 254(2)(5)(a) of the Criminal Code. The Crown appealed and was successful. The Summary Conviction Appeal Court judge held that the trial judge found that the appellant had feigned to comply. He cited R. v. Weare, [2005] O.J. no. 2411 (C.A.) as holding that a feigned attempt is the equivalent of a refusal and overturned the trial judge, quashed the acquittal and ordered a new trial for other reasons.

[2] The appellant acknowledges that if there is a finding by the trial judge that the accused feigned or faked compliance, that is tantamount to a refusal such that the Crown is not obliged to prove the screening device was an approved screening device. The appellant also acknowledges that the first three attempts to blow by the appellant were feigned attempts. The only issue relates to the last two attempts and the findings of the trial judge.

[3] We agree with the Summary Conviction Appeal Court judge that the trial judge’s findings amounted to a feigned attempt to blow on the part of the appellant. Accordingly, leave to appeal is denied.