Accused’s essential argument did not qualify for leave to appeal

Ontario criminal | Criminal Law

Appeal from conviction or acquittal

Accused’s essential argument did not qualify for leave to appeal

Accused was convicted of driving with excessive alcohol after she was stopped by police officer for speeding. Officer noted signs of impairment, including odour of alcohol, and accused admitted that she had been drinking. Accused’s summary conviction appeal was dismissed. Accused argued, for first time, that her rights under ss. 9 and s. 10(b) of Canadian Charter of Rights and Freedoms had been breached. Appeal judge refused to exercise his discretion to allow arguments not raised at trial to be advanced at appeal level, finding that evidence at trial amply justified decision of trial counsel not to pursue any Charter remedies. Accused applied for leave to appeal. Application dismissed. Accused’s argument at trial that breath tests were not taken as soon as practicable was rejected. Appeal from summary conviction appeal must involve question of law alone. Accused’s essential argument that she was treated unfairly did not qualify for leave to appeal as it did not raise question of law alone. Even if it did, circumstances were not such as to meet requirements in R. v. R. (R.).
R. v. Hart (2016), 2016 CarswellOnt 17367, 2016 ONCA 739, J.C. MacPherson J.A., Gloria Epstein J.A., and P. Lauwers J.A. (Ont. C.A.); leave to appeal refused (2016), 2016 CarswellOnt 3490, 2016 ONSC 1620, B.P. O’Marra J. (Ont. S.C.J.).

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