



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. OConnell 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 reliable. 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 judges analysis sits on a footing of speculation as to
    possibility of fresh mouth alcohol having been present. There was no breach of
    the appellants
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 judges 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.


