R. v. Du, 2010 ONCA 703

CITATION: R. v. Du, 2010 ONCA 703

DATE: 20101022

DOCKET: C51453

COURT OF APPEAL FOR ONTARIO

Rosenberg, Cronk and Epstein JJ.A.

BETWEEN:

Her Majesty The Queen

Respondent

and

Vinh-Thanh Du

Applicant (Appellant)

Counsel: Nicholas A. Xynnis, for the applicant (appellant) David Friesen, for the respondent

Heard and endorsed: October 21, 2010 On appeal from conviction entered by Justice Murray of the Superior Court of Justice, sitting as Summary Conviction Appeal Judge, dated July 24, 2010,

APPEAL BOOK ENDORSEMENT

[1] We agree with the reasons of Murray J. that the evidence should not have been excluded under s. 24(2) of the Charter. This is not a case where the trial judge’s reasons on s. 24(2) were entitled to deference. The trial judge did not have the benefit of the reasons of the Supreme Court of Canada in R. v. Grant 2009 SCC 32, and in any event, did not conduct an analysis of the application of s. 24(2) to the breath test evidence. In particular, he failed to take into account the finding that the officers acted in good faith and the minimal intrusive nature of the breath test provided. See R. v. Grant at para. 111. Given our finding on a s. 24(2), we need not consider the Crown’s alternative argument that there was no s. 10(b) violation.

[2] Accordingly the appeal is dismissed.