R. v. Mewhirter
Leave to appeal was refused because the contested issue—whether the trial judge could infer the officer's subjective belief—was, at best, a question of mixed fact and law and not a proper subject for leave on a question of law alone.
Source-derived case information.
- Citation
- C30840
- Parties
- Respondent: Her Majesty the Queen; Appellant: Kevin Mewhirter
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 11 May 1999
- Procedural Posture
- Criminal / Leave to Appeal Refused; Appeal From Conviction Previously Affirmed
- Outcome
- Leave to appeal refused
- Legal Topics
- Impaired Driving, Blood Alcohol Concentration, Standard of Review, Mixed Fact and Law, Leave to Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Her Majesty the Queen
Respondent
Kevin Mewhirter
Appellant
Procedural Posture
Criminal / Leave to Appeal Refused; Appeal From Conviction Previously Affirmed
Legal Issues
- 1 Whether the trial judge erred in finding the police officer subjectively had reasonable grounds to believe the appellant had consumed alcohol and driven within the preceding two hours
- 2 Whether the summary conviction appeal judge erred in making the same finding
- 3 Whether the issue is a question of law or a question of mixed fact and law
Ratio Decidendi
Leave to appeal was refused because the contested issue—whether the trial judge could infer the officer's subjective belief—was, at best, a question of mixed fact and law and not a proper subject for leave on a question of law alone.
Court Disposition
Leave to appeal refused
Orders
- Leave to appeal refused
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Mewhirter Collection Decisions of the Court of Appeal Date 1999-05-11 Docket numbers C30840 Judges Finlayson, George Duncan; Weiler, Karen Merle Magnuson; Charron, Louise Vivianne Subject Criminal Decision Content DATE: 19990511 DOCKET: C30840 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) -and- KEVIN MEWHIRTER (Appellant) BEFORE: FINLAYSON, WEILER and CHARRON JJ.A. COUNSEL: Glen F. Jennings, for the appellant Gary Trotter, for the respondent HEARD: May 6, 1999 On appeal from the judgment of Hamilton J. dated October 16, 1998 upholding the conviction by Babe J. dated April 30, 1998. ENDORSEMENT [1] The appellant was found guilty under s.253(b) of the Criminal Code of operating a motor vehicle with a blood alcohol concentration exceeding 80 mg of alcohol per 100 ml of blood. On appeal, the conviction was affirmed. [2] The appellant now seeks leave to appeal and, if leave is granted, appeals from that decision on a question of law alone. In particular, the appellant submits that the trial judge erred in finding that the police officer subjectively had reasonable grounds to believe that the appellant had consumed alcohol and driven within the preceding two hours. The summary conviction appeal judge, it is submitted, made a similar error. [3] The question of whether it was open to the trial judge to draw the inference that the police officer had a subjective belief is, at best, a question of mixed fact and law. [4] Accordingly, leave to appeal is refused. “G.D. Finlayson J.A.” “K.M. Weiler J.A.” “Louise Charron J.A.”