R. v. Euler
Because the Criminal Code does not mandate a seven-day replacement and the trial judge's factual finding that the slight deviation did not affect accuracy was supported by evidence, the appellate court erred in overturning that finding; the conviction was therefore restored.
Source-derived case information.
- Citation
- 2008 ONCA 526
- Parties
- Appellant: Her Majesty the Queen; Respondent: Nathalie Euler
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 27 June 2008
- Procedural Posture
- Criminal Appeal / Appeal to Court of Appeal From Summary Conviction Appeal Decision
- Outcome
- Leave to appeal granted; appeal allowed; conviction restored.
- Legal Topics
- Breathalyzer Maintenance, Admissibility of Breath Test Results, Standard of Review for Factual Findings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Her Majesty the Queen
Appellant
Nathalie Euler
Respondent
Procedural Posture
Criminal Appeal / Appeal to Court of Appeal From Summary Conviction Appeal Decision
Legal Issues
- 1 Whether the Criminal Code requires replacement of the alcohol test solution every seven days
- 2 Whether a deviation from a seven-day replacement recommendation vitiates the accuracy and admissibility of breath test results
- 3 Whether the appeal court may overturn a trial judge's factual finding on the accuracy of breath tests
Ratio Decidendi
Because the Criminal Code does not mandate a seven-day replacement and the trial judge's factual finding that the slight deviation did not affect accuracy was supported by evidence, the appellate court erred in overturning that finding; the conviction was therefore restored.
Court Disposition
Leave to appeal granted; appeal allowed; conviction restored.
Orders
- Leave to appeal granted
- Appeal allowed
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Euler Collection Decisions of the Court of Appeal Date 2008-06-27 Neutral citation 2008 ONCA 526 Docket numbers C47997 Judges Rosenberg, Marc; Simmons, Janet M.; Speyer, Christopher M. Subject Criminal Decision Content 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.