R. v. Euler, 2008 ONCA 526

CITATION: R. v. Euler, 2008 ONCA 526

DATE: 20080627

DOCKET: C47997

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

[1] The 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.

[2] In 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.

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