Court Information

Ontario Court of Justice

Date: July 21, 2016

Between:

Her Majesty the Queen (Respondent)

— AND —

Abdul Hadi (Appellant)

Before: Justice Nakatsuru

Heard on: July 18, 2016

Reasons for Judgment released on: July 21, 2016

Counsel

J. MacPherson — counsel for the Respondent

A. Hadi — the Appellant in person

NAKATSURU J.:

ENDORSEMENT

[1] The appellant appeals the convictions made on January 25, 2016, by Justice of the Peace G. Lau for improper right turn and failing to surrender his driving licence contrary to the Highway Traffic Act. He was unrepresented at his trial.

[2] On this appeal, the appellant has essentially argued one ground of appeal. He argues that he did not receive a fair trial because he did not receive proper disclosure of the audio portion of the arresting officer's dash-camera located in the police cruiser. Given the appellant was unrepresented and argued this appeal himself, I have also carefully considered the record to ensure that he did receive a fair trial and that the convictions were reasonable.

[3] At his trial, the appellant asked for the disclosure and also asked for an adjournment because he did not receive it. The case was marked pre-emptory for trial. When the Justice of the Peace denied his requests, the appellant essentially refused to participate in the trial. He refused to ask questions or make submissions. He just declared the trial to be unfair and although he remained, he refused to be involved despite being asked a number of times if he wanted to participate.

[4] I cannot agree with the appellant. The problem with the appellant's argument is that he did receive full disclosure. The DVD of the in-car recording had been given to him in advance. However, there was no audio on that recording. The appellant had been told this before the trial date but he kept asking for it. This was explained by both the prosecutor and the arresting officer to the Justice of the Peace. The arresting officer had forgotten to put the audio pack on before he left the car. The Justice of the Peace explained this to the appellant. However, the appellant simply refused to accept it. He claimed that he did not get what he was asking for. As a result, he simply refused to participate.

[5] The Crown has a duty to disclose what is in its possession. This obligation also applies to the police who must provide relevant disclosure to the Crown to be further disclosed to the defence. However, the Crown cannot disclose what it does not have. There was no issue in this case of any lost or destroyed disclosure. Here the disclosure issue was properly resolved by the Justice of the Peace. The Justice of the Peace explained to the appellant in plain terms that the audio was not there and he could not be given what was never created in the first place. Indeed, there could be no other possible decision the Justice of the Peace could have made. Therefore, no error or miscarriage of justice occurred due to this.

[6] The DVD was played in court at the appellant's trial. The fact that there was no audio on the recording was made apparent to the Justice of the Peace. It was also made clear to the appellant that his copy was the same as that in the possession of the Crown. Despite this, the appellant continued to refuse to participate.

[7] I understand that the appellant has a right to make full answer and defence. I also appreciate that given his refusal to participate in his trial the appellant may not have put his defence forward like he wanted. However, I am driven to the conclusion that this was his deliberate choice. The Justice of the Peace took pains to explain it to the appellant. There is nothing in the record or on this appeal to suggest he did not understand this simple explanation. Although the appellant did not accept it, I find this was not due to some problem in comprehension. Having a fair trial means that a defendant receives a fair opportunity to make full answer and defence. If the defendant chooses not to make use of this opportunity, there is little that the justice system can do.

[8] I have also considered the appellant's request for an adjournment. This case was marked pre-emptory for trial. Given the past history of this case and the position taken by the appellant on the audio issue, I cannot say that the Justice of the Peace erred in the exercise of discretion in dismissing that request.

[9] I also have reviewed the record to make sure that in these circumstances, the Justice of the Peace fulfilled the duty owed to an unrepresented accused. The Justice of the Peace explained the basic procedure to the appellant, asked a few questions of the arresting officer, consistently inquired of the appellant if he wanted to be involved in his trial despite his adamant refusal, and showed patience given what was transpiring. In addition, the Justice of the Peace acquitted the accused on the charge of failing to identify himself to the police officer based upon a legal technicality that was raised on the court's own motion. In conclusion, I find that there was no unfairness at the appellant's trial. Nor did the Justice of the Peace's conduct raise any concern about a reasonable apprehension of bias.

[10] Finally, in terms of the verdict itself, the Justice of the Peace accepted the police officer's testimony. The driving conduct was supported by the video recording. In the circumstances, the Justice of the Peace gave adequate reasons for conviction and these convictions were reasonable.

[11] As a result, the appeal is dismissed.

Released: July 21, 2016

Signed: "Justice S. Nakatsuru"