R. v. Cunningham (P.R.), (1995) 143 N.S.R.(2d) 149 (CA)

• Judge: Roscoe, Pugsley and Bateman, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 24, 1995
• Jurisdiction: Nova Scotia
• Citations: (1995), 143 N.S.R.(2d) 149 (CA)

R. v. Cunningham (P.R.) (1995), 143 N.S.R.(2d) 149 (CA);

  411 A.P.R. 149

MLB headnote and full text

Pamela Rose Cunningham (appellant) v. Her Majesty the Queen (respondent)

(C.A.C. No. 111122)

Indexed As: R. v. Cunningham (P.R.)

Nova Scotia Court of Appeal

Roscoe, Pugsley and Bateman, JJ.A.

July 10, 1995.

Summary:

Cunningham was convicted of operating a motor vehicle while having an excessive blood alcohol level. She appealed.

The Nova Scotia Supreme Court dis­missed the appeal. Cunningham appealed.

The Nova Scotia Court of Appeal granted leave to appeal and dismissed the appeal.

Criminal Law - Topic 7601

Summary conviction proceedings - Appeal to a Court of Appeal - General - [See Criminal Law - Topic 7603 ].

Criminal Law - Topic 7603

Summary conviction proceedings - Appeal to a Court of Appeal - Question of law - What constitutes - The Nova Scotia Court of Appeal stated that an appeal from a summary conviction appeal court under s. 839 of the Criminal Code required leave of the court and was limited to an error of law - The error of law must be the error of the summary conviction appeal judge, not the trial judge - An appeal on the basis that the decision of the summary con­viction appeal judge was unreason­able, was not an appeal on a question of law alone - See paragraphs 11 to 17.

Criminal Law - Topic 7659

Summary conviction proceedings - Appeals - Grounds - Verdict unreason­able or unsupported by evidence - The accused appealed her breathalyzer con­viction, alleging that the trial judge erred in failing to give reasons when rejecting evidence and in misapprehending evi­dence - The summary conviction appeal court judge concluded that the trial judge erred in not giving reasons - He reviewed the evi­dence, rejected the evi­dence of the defence witnesses and dis­missed the appeal - The Nova Scotia Court of Appeal held that the summary conviction appeal judge was entitled to review the evidence and assess the credi­bility of the witnesses and that it was not open to the Court of Appeal to review the sufficiency of the evidence and de­termine if the summary conviction appeal judge drew the proper inferences - See paragraphs 18 to 21.

Cases Noticed:

R. v. Emery (1981), 61 C.C.C.(2d) 84 (B.C.C.A.), refd to. [para. 12].

R. v. Kent (H.M.) (1994), 171 N.R. 231; 134 N.S.R.(2d) 81; 383 A.P.R. 81; 92 C.C.C.(3d) 344 (S.C.C.), refd to. [para. 16].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 18].

R. v. Surette (J.R.W.) (1993), 123 N.S.R.(2d) 152; 340 A.P.R. 152 (C.A.), refd to. [para. 21].

R. v. Barrett (D.) (1995), 179 N.R. 68; 80 O.A.C. 1; 96 C.C.C.(3d) 319 (S.C.C.), refd to. [para. 22].

R. v. Murphy (K.M.) (1995), 137 N.S.R.(2d) 236; 391 A.P.R. 236 (C.A.), refd to. [para. 23].

Counsel:

N. Blaise MacDonald and Lisa Fraser-Hill, for the appellant;

Robert C. Hagell, for the respondent.

This appeal was heard on May 24, 1995, at Halifax, Nova Scotia, before Roscoe, Pugsley and Bateman, JJ.A., of the Nova Scotia Court of Appeal. On July 10, 1995, Bateman, J.A., delivered the following rea­sons for the court.