COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rana, 2013 ONCA 738

DATE: 20131209

DOCKET: C56572

Cronk, Watt and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen Ex Rel. City of Toronto Respondent

and

Parvez Rana Appellant

Parvez Rana, in person

Amanda Ross, for the respondent

Heard in writing: December 9, 2013

On appeal from the decision of Justice Eric N. Libman of the Ontario Court of Justice, dated May 29, 2012, dismissing the appeal from the conviction entered and the sentence imposed on November 21, 2011 by Justice of the Peace Philomen Wright of the Ontario Court of Justice.

ENDORSEMENT

[1] At the hearing in the Ontario Court of Justice, the prosecutor advised the provincial offences appeal judge that she was satisfied that the appellant had a valid permit when the “no permit” offence was alleged to have been committed. She invited the appeal judge to enter an acquittal on the “no permit” charge.

[2] The appellant was represented by a paralegal who pointed out that he had prepared a s. 11(b) Charter motion to be advanced at trial, but was unable to do so. The paralegal asked the appeal judge:

…so is there any chance that this Court can take this into consideration and the defendant here can benefit out of his – there was a 19 month delay.

[3] The paralegal then expressed a preference to pursue the s. 11(b) motion. The following colloquy then ensued:

THE COURT: Just so that I understand, your view is that – your preference is to argue without notice the period of time?

[THE PARALEGAL]: Yes, I didn’t get a chance to argue at that moment but I already filed with the prosecutor and with the Court the Charter motion. I just don’t (inaudible).

THE COURT: Anything else you want to say?

[THE PARALEGAL]: Nothing, Your Honour, but I am asking the permission of the Court.

[4] Without offering any explanation about the redundancy of the s. 11(b) motion, or hearing any submissions on the motion itself, the appeal judge said:

This appeal will be dismissed. The defendant seeks on appeal to raise a new issue involving the length of trial [sic] that it took for the matter to come to court.

[5] The peremptory manner in which the appeal judge conducted these proceedings was an affront to the best interests of the administration of justice. Once advised that an essential element of the offence – the absence of a permit – could not be proven, the appeal judge should have allowed the appeal on that count, set aside the conviction, and, as requested by the prosecutor, entered an acquittal. The course adopted by the appeal judge – to dismiss without argument a redundant application to stay proceedings for delay and to dismiss the appeal – resulted in a miscarriage of justice. In the end, a conviction of a person whose guilt could not be proven was left to stand.

[6] The dismissal of the appeal also meant that no effect was given to another concession by the prosecutor – that the fine imposed for failure to stop should be reduced. To rectify this wrong, the respondent on appeal invites us to allow the appeal against sentence, set aside the fine imposed at trial, and suspend the passing of sentence.

[7] Accordingly, the appeal on the no permit charge is allowed, the conviction is set aside and an acquittal is entered on this charge. The sentence appeal on the failure to stop charge is also allowed and the penalty on this charge is reduced to a suspended sentence.

“E.A. Cronk J.A.”

“David Watt J.A.”

“K. van Rensburg J.A.”