COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Ul-Rashid, 2013 ONCA 782
DATE: 20131220
DOCKET: M42640
Weiler J.A. (In Chambers)
BETWEEN
Her Majesty the Queen
Respondent (Respondent)
and
Haroon-Ul-Rashid
Applicant (Appellant)
Haroon-Ul-Rashid, in person
Mary Paterson, amicus curiae for the applicant
Amanda Ross, for the respondent
Heard: August 28, 2013
On appeal from the order of Justice Eric (Rick) N. Libman of the Ontario Court of Justice, dated May 29, 2013, dismissing the appeal from the acquittal entered by Her Worship Justice of the Peace Karin Dresher, dated March 7, 2012.
A. Introduction
[1] The applicant, a taxi driver who was self-represented at his trial before a justice of the peace, was found guilty of failing to stop at a red light contrary to s. 144(18) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (HTA) and fined $350. He appealed both his conviction and sentence to the Ontario Court of Justice and his appeal was dismissed by a judge of that court.
[2] The applicant now seeks leave to appeal to this court on three grounds of appeal:
The failure to swear the interpreter at his trial resulted in a miscarriage of justice.
The applicant did not receive full and complete disclosure.
The justice of the peace did not fulfill her duty to assist the applicant as a self-represented defendant.
[3] An appeal lies to this court with leave, on special grounds, upon any question of law alone. For leave to appeal to be granted, a judge of this court must be satisfied that it is essential that leave be granted in the public interest or for the due administration of justice. More specifically, s. 139 of the Provincial Offences Act, R.S.O. 1990, c. P.33 (POA) which governs leave to appeal from Part I POA offences such as this one, states:
- (1) An appeal lies from the judgment of the Ontario Court of Justice in an appeal under section 135 to the Court of Appeal, with leave of a judge of the Court of Appeal, on special grounds, upon any question of law alone.
(2) No leave to appeal shall be granted under subsection (1) unless the judge of the Court of Appeal considers that in the particular circumstances of the case it is essential in the public interest or for the due administration of justice that leave be granted.
[4] For the reasons that follow, I am of the opinion that leave to appeal should be granted with respect to the second and third proposed grounds of appeal. I refuse to grant leave on the first ground.
[5] A brief summary of the factual background will be of assistance in appreciating the proposed grounds of appeal. I will then address the leave requirements in s. 139 of the POA and apply them to this case.
B. Background
(1) Facts and Decision at Trial
[6] The applicant had the assistance of an interpreter from Urdu to English at his trial. The interpreter was not sworn. Notwithstanding the presence of the interpreter, the applicant primarily addressed the court in English.
[7] The applicant’s version of the facts is straightforward. He was travelling eastbound on Broadway Avenue in the City of Toronto and made a right turn on a red light onto Bayview Avenue going southbound. A police officer pulled him over and alleged that he had failed to stop at the red light before turning. The applicant responded that he had in fact stopped. Both the applicant and the officer testified at trial as to whether the officer had a clear view of the intersection, and their evidence conflicted.
[8] The applicant also testified as follows:
I did stop there [on Broadway at the intersection of Broadway and Bayview] and took the right turn. The officer told me that he will give me the proof, because there was a gas station in the corner. He said that there are cameras placed there and I will give you the proof. I told him that I am prepared to take the proof if there are cameras there and, if you will provide me with the proof that I did not stop, then I will plead guilty. Then he said okay, I will provide you with the proof in the court, saying that you did not stop.
[9] The justice of the peace found the applicant’s evidence as to where he stopped to be “very hazy”. The applicant testified that he stopped approximately two car lengths from the intersection, but at another time testified that it was only one car length. In contrast, the justice of the peace found the police officer’s testimony to be “complete and precise”. As such, she accepted the police officer’s evidence that the applicant had failed to stop and entered a conviction without addressing his evidence that the police officer indicated that there was a video tape of the incident.
(2) Appeal
[10] On his appeal to the Ontario Court of Justice, the applicant had the assistance of a paralegal. He raised the following grounds on appeal: 1) the failure to swear the interpreter was a miscarriage of justice; 2) he did not receive full and complete disclosure; and 3) the justice of the peace did not fulfil her duty to assist the applicant as an unrepresented defendant.
[11] The appeal court judge first dealt with the issue of the unsworn interpreter. He found that the interpreter stated on the record that he spoke both required languages, Urdu and English, and that the commentary of the applicant seemed responsive to the translation of the questions. He therefore held that no miscarriage of justice or prejudice to the applicant had occurred.
[12] On the disclosure issue, the appeal court judge held that there appeared to have been no meaningful complaint about disclosure at first instance. He stated: “this defendant did not request disclosure in advance of the trial, and made no complaint about it during the trial.”
[13] With respect to the applicant’s complaint about the lack of assistance at the trial, the appeal court judge held that while the justice of the peace could have done more to assist the applicant, “not so little was done that he was not able to mount a defence with full force and have his day in court.”
[14] The same issues are now raised on the leave application. The amicus submits on behalf of the applicant that both the justice of the peace and the appeal court judge failed to appreciate the applicant’s argument respecting the video tape. A reading of the transcript indicates that he expected the police officer to bring the video tape to court. The inference is that he was unaware he needed to request disclosure.
C. The requirements for leave to appeal to this court
[15] In interpreting the requirements of a statute, the court should consider the scheme of the Act, the object of the Act, and the intention of the legislator: see R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381,at para. 25.
[16] The POA is intended to provide a mechanism for the speedy resolution of regulatory offences, sometimes referred to as quasi-criminal offences, charged under a variety of provincial statutes. In R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, at para. 78, the Supreme Court of Canada described the function of provincial offences courts as follows:
The function of a provincial court operating under the POA is to try provincial offences. While the majority of these offences involve minor regulatory infractions, they also concern important matters like environmental protection and, as here, workplace health and safety. These offences carry penalties ranging from significant fines to terms of imprisonment. The public and penal nature of such prosecutions suggests they are more criminal than civil in nature: see W. D. Drinkwalter and J. D. Ewart, Ontario Provincial Offences Procedure (1980), at pp. 4-7. Provincial offences courts are, for practical purposes, quasi-criminal courts, determining guilt and innocence and imposing commensurate criminal penalties.
[17] The POA envisages that, at the first level of appeal, the applicant may raise any ground of appeal: ss. 135, 136. That appeal is intended to be a final resolution of the issues raised unless the exceptional circumstances in s. 139 are met. Section 139 does not give a judge of this court unfettered discretion as to when leave to appeal should be granted. It contains specific requirements that create a high threshold. Any further appeal to this court is an appeal from the decision of the appeal court judge and the grounds of appeal are limited to questions of law. Furthermore, even if a question of law is raised, that alone will not be sufficient to merit a second appeal. The applicant must convince a judge of this court that leave is essential in the public interest or for the due administration of justice.
(1) A Question of Law and the Special Grounds Criteria in s. 139
[18] Determining what constitutes a question of law is sometimes difficult. Courts have often taken a case-by-case approach to analyzing whether an appeal raises a question of law: for a list of examples, see E.G. Ewaschuk, Criminal Pleadings & Practice in Canada, 2d ed., looseleaf (Toronto: Thomson Reuters, 2013) vol. 3 at 23:1010. This approach was discouraged by the Supreme Court in Biniaris in the context of determining access to appellate review.
[19] The issue in Biniaris was whether the reasonableness of a verdict is a question of law for the purposes of Crown rights of appeal to the Supreme Court of Canada. Arbour J. wrote, at para. 22:
The sole purpose of the exercise here, in identifying the reasonableness of a verdict as a question of fact, law or both, is to determine access to appellate review. One can plausibly maintain, on close scrutiny of any decision under review, that the conclusion that a verdict was unreasonable was reached sometimes mostly as a matter of law, in other cases predominantly as a matter of factual assessment. But when that exercise is undertaken as a jurisdictional threshold exercise, little is gained by embarking on such a case-by-case analysis. Rather, it is vastly preferable to look at the overall nature of these kinds of decisions, and of their implications. Ideally, threshold jurisdictional issues should be as straightforward and free of ambiguity as possible. Otherwise, as these and many similar cases illustrate, courts spend an inordinate amount of time and effort attempting to ascertain their jurisdiction, while their resources would be better employed dealing with the issues on their merits.
[20] In my view, a holistic approach should be taken to the leave requirements in POA matters. What constitutes a question of law must be considered concurrently with the requirement that it be essential that the matter be resolved in the public interest or for the due administration of justice. The two parts of the test for leave under s. 139 of the POA are inextricably linked: questions that raise issues requiring resolution in the public interest or for the due administration of justice can properly be viewed as raising questions of law.
[21] As the Supreme Court explained in Canada (Director of Investigation and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, at para. 39,a question of mixed fact and law can become a pure question of law where the decision maker failed to consider an essential legal requirement and therefore in effect applied the wrong law to the facts.[^1] Similarly, where the issue is whether the facts in question fulfill a requirement contained in a statute, and the issue may be relevant to other cases in the future, the question is considered to be an issue of interpretation and is a question of law[^2]: see Southam, at para. 36.
[22] In contrast, questions that have no significance beyond the parties, or factual circumstances that are unlikely to arise again in exactly the same way, or issues in relation to which the jurisprudence is well-settled, will not raise questions of law requiring resolution in the public interest. The following example was offered in Southam, atpara. 37:
If a court were to decide that driving at a certain speed on a certain road under certain conditions was negligent, its decision would not have any great value as a precedent. In short, as the level of generality of the challenged proposition approaches utter particularity, the matter approaches pure application, and hence draws nigh to being an unqualified question of mixed law and fact. See R. P. Kerans, Standards of Review Employed by Appellate Courts (1994), at pp. 103-108.
[23] Where the issue is such that a multitude of factors weigh in the balance and a duplication of the circumstances in the future is unlikely, the issue is one of mixed fact and law: see Southam,at para. 44.
[24] Even if the case does not have significance beyond its particular facts, the “due administration of justice” aspect of s. 139 requires that leave be granted in another category of cases. In this category of cases, a question of law is deemed to be raised because it is necessary to remedy a miscarriage of justice in order to maintain the public’s confidence in the judicial system or it is necessary to ensure that a defendant is not deprived of his or her procedural rights: see R. v. Belanger, [2006] O.J. No. 3453; R. v. Inco Ltd. (1999), 1999 3033 (ON CA), 126 O.A.C. 348; R. v. Harry (1988), 1998 3605 (ON CA), 39 O.R. (3d) 673; see also Biniarisand R. v. R.(R.), 2008 ONCA 497, 238 O.A.C. 242, at paras. 32, 34.
[25] In deciding whether leave to appeal should be granted based on the due administration of justice, the court will consider the likelihood of success on appeal, including whether there has been a clear or manifest error in the decisions below, and the impact of the outcome of the proceedings on the individual, including whether the applicant’s ability to earn a livelihood is in issue.
[26] To summarize, in deciding whether to grant leave under s. 139, categorizing the question as one of mixed fact and law is not the end of the exercise. As Southam illustrates, the court must go on to consider whether a question of law is nonetheless raised. The court does so bearing in mind the importance of the issue to the public, its precedential value, the need for certainty and predictability in the law and whether the integrity of the administration of justice requires that leave be granted.
[27] I now apply the test for granting leave to appeal to the three issues raised by the applicant in this case.
D. Application of s. 139 to the Proposed Grounds of Appeal
(1) The Unsworn Interpreter
[28] The appellant asserts that a miscarriage of justice occurred because the interpreter was not sworn. Section 14 of the Charter provides:
A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.
[29] In R. v. Tran, 1994 56 (SCC), [1994] 2 S.C.R. 951, the Supreme Court of Canada held that in the context of a criminal proceeding, the proper remedy for a breach of s. 14 of the Charter would normally be a new hearing. However, the court was clear that its comments were restricted to criminal proceedings and that different rules may apply in administrative or civil proceedings.
[30] The effect of an interpreter not being sworn in the context of HTA proceedings was considered in R. v. Messina, 2005 ONCJ 560, [2005] O.J. No. 4663. In that case the court held that the failure to swear the interpreter was a serious error. However, in the absence of any complaint as to the accuracy of the interpretation, the court declined to order a new trial.
[31] Messina is consistent with the later decision of this court in R. v. Rybak, 2008 ONCA 354, 90 O.R. (3d) 81, leave to appeal to S.C.C. refused, [2008] S.C.C.A. No. 311. Watt J.A., writing for the court, held that the interpretation provided to a person must be sufficient to ensure that he or she had the same opportunity as a person who was proficient in the language used in court to understand and be understood in the proceedings.
[32] The legal standard described in Messina and Rybak is well-established. There is nothing about the circumstances of the present case that make the unsworn interpreter ground of appeal a question of law warranting leave to appeal either because the public interest or the due administration of justice so requires. The appeal court judge correctly held that the mere fact the interpreter was not sworn in this case does not give rise to a miscarriage of justice. The evidence suggests that the applicant was able to meaningfully participate in the proceedings and he has not complained about the quality or the adequacy of the translation. Therefore, I refuse to grant leave to appeal on this ground.
(2) Disclosure Obligations and the Duty to Assist an Unrepresented Defendant
[33] I propose to deal with these two proposed grounds of appeal together because in my opinion they are interrelated.
[34] The paralegal who represented the applicant on his appeal in the Ontario Court of Justice submitted:
Mr. Rashid was not provided with full and complete disclosure prior to the beginning of his trial. According to R. v. Stinchcombe, the Crown has a duty to provide full and complete disclosure of all relevant evidence, whether they intend to use the evidence at trial, or not. In fact…
[35] At this point the appeal court judge intervened and stated:
Well, R. v. Stinchcombe is a Criminal Code decision. The Attorney General of Ontario has issued a directive that applies to all members of the Province, including professional licenced individuals, like your client, who drive a motor vehicle for a living. The disclosure directive, which is available to all, requires the individual in question to request disclosure for these minor regulatory matters. Where in the transcript do you see any complaint about disclosure?
[36] The paralegal made two further complaints about the lack of disclosure. First, he complained that the police officer referred to his notes during his trial testimony, but the applicant had not been provided with a copy of the notes. The justice of the peace asked the applicant if he had any objection to the officer using his notes, but she did not explain why the officer would want to use his notes or explain to the applicant that the officer wished to refresh his memory from his notes. Nor did she ask the applicant whether he wished to ask any questions about the circumstances surrounding the making of the notes.
[37] The paralegal’s second complaint involved the alleged video recording. He said:
Now at trial the video evidence was never addressed by Her Worship, Justice of the Peace Dresher. She did not ask if it existed nor did she ask if it had been provided to Mr. Rashid. So here there’s an issue of whether Mr. Rashid was able to have a fair trial when disclosure, specifically the officer’s notes, and specifically this video evidence that the officer had told him about, was never made available to him.
[38] In dismissing the applicant’s complaint on the issue of disclosure, the appeal court judge stated that it appeared that the defendant did not request disclosure.
[39] In R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, at para. 28, the Supreme Court of Canada held that the disclosure obligation is triggered by a request by or on behalf of the accused. The court added, however, that “[i]n the rare cases in which the accused is unrepresented, Crown counsel should advise the accused of the right to disclosure and a plea should not be taken unless the trial judge is satisfied that this has been done” (emphasis added).
[40] Persons charged under the POA are often self-represented at their trial. When an accused person is unrepresented in a criminal matter, Stinchcombe places the onus on the prosecution to advise the accused of the right to disclosure. The Ontario Court of Justice Guide for Defendants in Provincial Offences Cases reverses that onus and places the onus on the self-represented individual to request disclosure. Insofar as I am aware, the validity of that aspect of the Guide has never been the subject of commentary by this court.
[41] The applicant raises the issue of whether and to what extent Stinchcombeapplies to a Part I POA offence. The applicant’s testimony indicates that he was under the impression that the police officer would provide him with the proof of his offence in court by bringing the videotape without him needing to make a request for production. The applicant does not appear to have been aware that he had an obligation to request disclosure. Counsel for the City admitted during oral argument there is nothing on the ticket advising the person charged with an offence that disclosure is available upon request or where to obtain disclosure. Nothing in the record indicates that prior to the plea being taken the justice of the peace satisfied herself that the applicant was advised that he had a right to obtain disclosure provided he requested it. From the applicant’s perspective, this video was an important aspect of his ability to make full answer and defence.
[42] This court has rendered several decisions regarding the obligation of trial judges to provide assistance to unrepresented litigants in the criminal context. In R. v. McGibbon (1988), 1988 149 (ON CA), 45 C.C.C. (3d) 334 (Ont. C.A.), this court stated, at p. 347:
Consistent with the duty to ensure that the accused has a fair trial, the trial judge is required within reason to provide assistance to the unrepresented accused, to aid him in the proper conduct of his defence, and to guide him throughout the trial in such a way that his defence is brought out with its full force and effect. How far the trial judge should go in assisting the accused in such matters as the examination and cross-examination of witnesses must be of necessity a matter of discretion.
[43] Additional decisions have affirmed and expanded upon these comments and have held that a trial judge should explain to an unrepresented defendant the mechanics of the trial such as the arraignment, the calling of witnesses, the defendant’s right to examine witnesses and to object to irrelevant evidence, the risks inherent in testifying, and the right to make closing arguments: see R. v. Tran (2001), 2001 5555 (ON CA), 55 O.R. (3d) 161, at para 33.
[44] However, the Court of Appeal has not ruled on the applicability in the provincial offences context of McGibbon and subsequent cases on the duty on trial judges to assist self-represented accused. Some provincial appeal court judges have applied the principles from McGibbon and ensuing cases to provincial offence trials: see, for example, R. v. Novelo, 2009 ONCJ 346, at paras. 6-8; R. v. Rijal, 2010 ONCJ 329, 259 C.C.C. (3d) 227, at paras. 30-31.
[45] In contrast, in Durham (Regional Muncipality) v. Saeed, 2010 ONCJ 251, 213 C.R.R. (2d) 74, the appeal court judge,Bellefontaine J., held that a justice of the peace has no obligation to ask a self-represented defendant about disclosure or to explain the significance of a police officer using his notes in relation to Part I offences under the POA. In doing so, Bellefontaine J. acknowledged, at para. 14, that he was departing “from the majority of justices who have held that accused in the Provincial Offences courts are entitled to a more fulsome panoply of procedural explanations and the purposes of those procedures.”
[46] Justice Bellefontaine listed six reasons for refusing to follow these decisions, including the following reasons: requiring a justice of the peace to provide the full panoply of legal information would be inconsistent with the object of the legislation to provide speedy and efficient trials; the penalty for offences under Parts I and II of the POA is limited to a fine of $500; and there are broad rights of appeal under ss. 135 and 136 of the POA to a judge of the Ontario Court of Justice (at para. 14).
[47] Thus, there is conflicting authority on the issues of disclosure obligations in the provincial offences context and the nature of the duty on justices of the peace to assist self-represented defendants. Having regard to the test for leave, I conclude that it would be in the public interest for this court to decide whether any right to disclosure was breached in this case, and to clarify the extent of any assistance that a justice of the peace is expected to provide to unrepresented defendants in trials of offences under Part I of the POA.
E. Conclusion
[48] For the reasons given above, I would grant leave to appeal on the second and third grounds of appeal. I am indebted to the amicus in this case for her very able assistance on this leave application. No doubt the panel hearing the appeal would appreciate the assistance of amicus to argue the appeal.
Released: December 20, 2013
“KMW" “Karen M. Weiler J.A.”
[^1]: An example would be where a judge mischaracterizes and treats an offence as one of absolute liability when a defence of due diligence is permitted. See R. v. Maharaj (12 November 2013), M42491 (Ont. C.A.).
[^2]: An example of the latter situation can be found in R. v. Araujo, 2000 SCC 65, [2000] 2 SCR 992, where the issue was not the interpretation of a section of the Criminal Code, but rather the meaning to be given to the requirement of investigative necessity for obtaining a wiretap pursuant to s. 186(1) Criminal Code and whether the trial judge correctly applied the standard of review for a wiretap authorization, including the correct approach on amplification.