



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hart, 2016 ONCA 739

DATE: 20161012

DOCKET: C61906

MacPherson, Epstein and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Melissa Hart

Appellant

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. OMarra 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 appellants 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.


