COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Su, 2016 ONCA 58

DATE: 20160119

DOCKET: C59484

Weiler, Tulloch and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Yunhua Su

Applicant/Appellant

Peter Lindsay, for the appellant

Jeffrey Pearson, for the respondent

Heard: January 18, 2016

On appeal from the decision of the Summary Convictions Appeal Court dated September 12, 2014 by Justice Hugh K. O’Connell of the Superior Court of Justice, allowing the appeal from the acquittal entered on March 5, 2013 by Justice Peter N. Bourque of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1] This is an application for leave to appeal from summary conviction pursuant to s. 675(1)(a) of the Criminal Code. If leave is granted, the appellant appeals her conviction for driving over .80 contrary to s. 253(1)(b) of the Criminal Code.

[2] Assuming that the test for leave to appeal has been met, we would dismiss the appeal. The officer is obliged to administer the approved screening device without delay unless the officer has a concern that the reading obtained by administering the test will be unreliable. If the officer has a concern about fresh mouth alcohol, the officer may briefly delay in administering the test. Despite the submissions of the appellant, we are of the opinion that in this case there was no evidence that the officer had such a concern. We agree with the SCAJ that the trial judge’s analysis sits on a footing of speculation as to possibility of fresh mouth alcohol having been present. There was no breach of the appellant’s Charter rights. While it is not necessary to deal with the s. 24(2) analysis based on our conclusion, we also agree with the SCAJ that the trial judge’s analysis respecting s. 24(2) was faulty and that even if there had been a Charter breach the evidence ought not to have been excluded.