Court of Appeal for Ontario

Citation: R. v. Hart, 2016 ONCA 739 Date: 2016-10-12 Docket: C61906

Before: MacPherson, Epstein and Lauwers JJ.A.

Between:

Her Majesty the Queen Respondent

and

Melissa Hart Appellant

Counsel: Melissa Hart, acting in person Jocelyn Speyer, for the respondent

Heard: October 4, 2016

On appeal from the decision of the Summary Convictions Appeal Court dated March 7, 2016 by Justice Brian P. O’Marra of the Superior Court of Justice, dismissing the appeal from the conviction entered on April 2, 2015 by Justice Lloyd M. Budzinski of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1] The appellant was convicted of driving with a blood alcohol content over the legal limit. Her summary conviction appeal was dismissed. The appellant now seeks leave to appeal to this court and, if leave is granted, appeals her conviction.

[2] At trial, the appellant’s only argument, that breath tests at the station were not taken a soon as practicable, was rejected. On appeal, the appellant did not challenge this finding. Instead she argued, for the first time, that her s. 9 and s. 10(b) Charter rights had been breached. The summary conviction appeal judge refused to exercise his discretion and allow arguments not raised at trial, to be advanced at the appeal level.

[3] Appeals to this court in summary conviction proceedings are not as of right or unrestricted in the nature of the grounds that may be advanced. This court, in R. v. R.R., 2008 ONCA 497, 90 O.R. (3d) 641, set out the factors that inform the exercise of discretion in granting leave. However, the starting point is s. 839(1) of the Criminal Code. This section provides that the ground of appeal must involve a question of law alone.

[4] Before this court, the appellant essentially argues that she was treated unfairly. This argument does not qualify for leave to appeal as it does not raise a question of law alone. Even if it did, while we appreciate that the implications of this conviction are serious for the appellant, the circumstances are not such as to meet the requirements set out in R. v. R.R.

[5] Leave to appeal is therefore dismissed.

“J.C. MacPherson J.A.” “Gloria Epstein J.A.” “P. Lauwers J.A.”