R. v. Threader
The summary conviction appeal judge erred by applying a correctness standard; the trial judge's factual finding that the officer lacked requisite grounds for a s.254(3) demand was reasonable and not open to interference on appeal, and because the Crown did not argue exclusion under s.24(2) at trial it would be...
Source-derived case information.
- Citation
- C37996
- Parties
- Respondent: Her Majesty the Queen; Appellant: Carrie Ann Threader
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 22 August 2003
- Procedural Posture
- Criminal / Appeal to Court of Appeal
- Outcome
- Leave to appeal granted; appeal allowed; acquittal restored.
- Legal Topics
- Impaired Driving, Breathalyzer, Reasonable Grounds for Demand Under S.254(3), Section 24(2) Exclusion of Evidence, Standard of Review, Summary Conviction Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Her Majesty the Queen
Respondent
Carrie Ann Threader
Appellant
Procedural Posture
Criminal / Appeal to Court of Appeal
Legal Issues
- 1 Whether the summary conviction appeal judge applied the correct standard of review to the trial judge's finding of no requisite grounds for a s.254(3) demand
- 2 Whether the trial judge's finding that the officer lacked requisite grounds was unreasonable
- 3 Whether the breathalyzer evidence would have been excluded under s.24(2) if argued at trial
Ratio Decidendi
The summary conviction appeal judge erred by applying a correctness standard; the trial judge's factual finding that the officer lacked requisite grounds for a s.254(3) demand was reasonable and not open to interference on appeal, and because the Crown did not argue exclusion under s.24(2) at trial it would be inappropriate to order a new trial to litigate that issue; accordingly the acquittal is restored.
Court Disposition
Leave to appeal granted; appeal allowed; acquittal restored.
Orders
- Leave to appeal granted
- Appeal allowed
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Threader Collection Decisions of the Court of Appeal Date 2003-08-22 Docket numbers C37996 Judges Doherty, David H.; Charron, Louise Vivianne; Armstrong, Robert Patrick Subject Criminal Decision Content DATE: 20030822 DOCKET: C37996 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent)- and - CARRIE ANN THREADER (Appellant) BEFORE: DOHERTY, CHARRON and ARMSTRONG JJ.A. COUNSEL: Gregory LaFontaine for the appellant Mary-Ellen Hurman for the respondent HEARD & ENDORSED: August 22, 2003 On appeal from the decision of Justice Hamilton dated March 7, 2002. APPEAL BOOK ENDORSEMENT [1] The summary conviction appeal judge (S.C.A. C.J.) erred by applying a correctness standard in reviewing the trial judge's finding that on the totality of the evidence the officer did not have the requisite grounds to make a s. 254(3) demand. [2] The trial judge's finding cannot be said to be unreasonable. Nor did he misapprehend the evidence or improperly apply the operative legal principles. There was no basis upon which to interfere with the trial judge's ruling. [3] The Crown did not argue s. 24(2) at the trial. In our view the evidence of the breathalyser results would in all likelihood have been excluded if the matter had been argued at trial. As it was not argued, apparently because it was assumed that the evidence would be excluded, it would not be appropriate to order a new trial so that the issue could be litigated for the first time. [4] Leave to appeal is granted, the appeal is allowed and the acquittal is restored. " D. Doherty. J.A."