CITATION: R. v. Quenneville, 2009 ONCA 325

DATE: 20090420

DOCKET: C47715

COURT OF APPEAL FOR ONTARIO

Rosenberg, Borins and Simmons JJ.A.

BETWEEN:

Her Majesty the Queen

Appellant

and

Marc Quenneville

Respondent

Counsel:

Roger A. Pinnock, for the appellant

Frank Miller, for the respondent

Heard and endorsed: April 17, 2009

On appeal from the order made by Justice J. G. Quinn of the Superior Court of Justice dated August 9, 2007, allowing the respondent’s appeal against the conviction entered by Justice Michael O’Dea of the Ontario Court of Justice dated December 13, 2005.

APPEAL BOOK ENDORSEMENT

[1] The line drawn in R. v. Milne (1996), 107 C.C.C. (3d) 118 (Ont. C.A.) as to the limitation on the use of evidence acquired at the roadside, is evidence obtained through the “compelled direct participation” in sobriety trials. The observations made as the respondent exited his vehicle, even in response to a direction from the officer, is not compelled direct participation in the roadside tests so as to attract the limitation on use. See R. v. Milne at para. 40 as approved in R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3 at para. 58.

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