Court of Appeal for Ontario

Date: 2025-04-30
Docket: M55811 (C69106)
Coram: Monahan, Dawe and Madsen JJ.A.

Between

His Majesty the King
Respondent

and

Melissa Hart
Applicant (Appellant)

Appearances:
Melissa Hart, self-represented
Evan Akriotis, for the respondent

Heard: April 24, 2025

Reasons for Decision

[1] The applicant was convicted on April 2, 2015, in the Ontario Court of Justice of driving with a blood alcohol content over 80mg per 100 ml of blood. Her summary conviction appeal was dismissed on March 7, 2016, and an application for leave to appeal to this court was dismissed on October 12, 2016. A final order to that effect was issued on March 6, 2017.

[2] On May 16, 2024 the applicant brought an application to re-open her application for leave to appeal, on the basis of an alleged change of circumstances. She argued that her trial counsel had provided ineffective legal assistance when he abandoned a Charter application seeking to exclude certain evidence that was tendered at trial. She also sought to adduce what she described as fresh evidence, consisting of a video that had been introduced at her 2015 OCJ trial, along with transcripts of the trial. Assuming without deciding that we had jurisdiction to entertain an application to re-open a dismissal of a leave to appeal application when a final order had already been issued, we dismissed the application to re-open on June 17, 2024.

[3] The applicant now asks us to reopen our June 2024 dismissal of her application to reopen, by introducing the Charter application that was abandoned by her counsel at her 2015 OCJ trial. The applicant argues that this abandoned Charter application constitutes fresh evidence that was not considered by the panel in June of 2024.

[4] The application before us is without merit. The applicant raised her Charter arguments before the summary conviction appeal judge, who rejected them on grounds that these arguments had not been raised in the court below and, in any event, that there was no substance to the alleged Charter violations. Leave to appeal that decision was denied in October 2016. As such, there is nothing fresh or novel about the Charter arguments that the applicant now seeks to raise.

[5] We do not accept the applicant’s contention before us that the Charter application her trial counsel had filed in the trial court and then abandoned was fundamentally different from the Charter arguments she then sought to raise on appeal in 2016. As the summary conviction appeal judge noted in his reasons, the applicant was seeking to argue on appeal, among other things, that “the police did not have grounds to stop, arrest and make a breath demand on her”. The Charter application that her counsel filed at trial appears to have similarly involved a challenge to the lawfulness of the ASD demand and whether the police had grounds to arrest the applicant.

[6] Moreover, the applicant is incorrect in her assumption that we did not consider her proposed fresh evidence when we dismissed her application in June 2024. We did not expressly refer to it in our reasons because we did not see it as having any bearing on the result of the application. Given that the application has no merit, we need not consider whether we have jurisdiction to re-open a decision not to reopen a dismissal of a leave to appeal application that has been dismissed.

[7] The application is therefore dismissed.

Peter J. Monahan J.A.
Jonathon Dawe J.A.
Laura Madsen J.A.