Court Information

Ontario Court of Justice

Date: 2018-11-06

Court File No.: 5334264B and 5334362B

Parties

Between:

Her Majesty the Queen

— AND —

Ninos Kanoon and 1362571 Ontario Ltd.

Before: Justice A.L. McLeod

Heard on: October 2, 2018

Reasons for Judgment released on: November 6, 2018

Counsel

Cathy Powell — counsel for the Crown

Michael A. McKee — counsel for both accused

Overview

[1] The appellants were charged on May 25, 2017, alleging that tobacco was sold to a person who was less than 19 years old, contrary to section 3(1) of the Smoke-Free Ontario Act, S.O. 1994, c. 10, on May 4, 2017. Each entered a guilty plea on September 25, 2017, before Justice of the Peace A. Johnson. This was the first appearance date. Neither was represented. The appellants were each fined $400 plus court costs; the corporation was prohibited from selling tobacco for six months.

Grounds of Appeal

[2] The appellants submit that the guilty pleas entered were not informed; that, in particular:

(1) the presiding justice of the peace had a duty to conduct a plea inquiry and to ensure that the appellants understood the implications and outcomes of a conviction, and not simply to recite the requisite components;

(2) the appellants' ability to understand fully was compromised by their lack of understanding of the English language. Each would have chosen to be assisted by an interpreter had they known that this service was available to them;

(3) the presiding justice of the peace had a duty to explain to the appellants that they had a right to have a trial, the essential elements that would need to be established for a conviction, and the onus and burden that the prosecution would carry in that regard;

(4) the presiding Justice of the Peace had a duty to inquire why the appellants were unrepresented and determine if the court could undertake any steps to assist them in obtaining representation – for example by granting an adjournment to retain counsel or an agent.

[3] The appellants argue that the guilty pleas should be quashed, and that they should be awarded costs. They also seek to admit fresh evidence.

[4] The respondent is opposed to the appeal, and submits:

(1) the offences are strict liability and there is no defence to be argued at a trial;

(2) the Provincial Offences Act, R.S.O. 1990, c. P.33, section 45(3) and 45(4) outline the requisite plea inquiry components and hold that the failure to conduct a plea inquiry does not affect the validity thereto;

(3) that the presiding justice of the peace did in fact conduct a plea inquiry including outlining the penalties;

(4) that the parties spoke in English and did not ask for an interpreter nor give cause for an inquiry as to whether or not an interpreter was required;

(5) the presiding justice of the peace is not required to outline the essential elements of the offences, nor the onus and burden at a trial as part of a plea inquiry;

(6) the presiding justice of the peace is not required to make inquiries regarding representation.

Background Facts

[5] The appellants were each given a Form 1, certificate of offence, when charged. The back of the document lists three options:

(1) Plea of guilty – voluntary payment of total payable;

(2) Plea of guilty – submission as to penalty;

(3) Trial Option;

(a) A box to be ticked that reads, "I intend to appear in court to enter a plea of not guilty at the time and place set for trial and I wish to have the trial conducted in the English Language."

(b) Beneath the box it reads, "I request a _______ language interpreter for the trial."

(c) Beneath this is a space for a telephone number and a signature.

[6] The file contains the certificate of offence; on the back neither the box for a trial to be conducted in English nor the blank space requesting an interpreter is filled in. There is a signature written below, but it is illegible.

Guilty Plea Facts

[7] A transcript was filed with respect to the guilty plea of September 25, 2017. The salient portions are as follows:

(1) Ninos Kanoon says his name for the record. Zai Kanoon says his name for the record and the justice of the peace hears 'Ian' instead of Zai, and then seeks clarification and spelling (pg. 2); The prosecutor advises the court that she has given the defendants a caution regarding the automatic suspension of the ability to sell tobacco, due to a prior conviction (pg. 3);

(2) The justice of the peace conducts a plea inquiry (pg. 3):

THE COURT: Now, do you understand by doing so you give up your right to have a trial? If I accept each of your guilty pleas, convictions are registered, fines will be imposed, and […] upon that conviction, there will be a six months suspension of your ability to sell tobacco. So, is that understood?

MR. N. KANOON: It is.

MR. Z. KANOON: Yes.

THE COURT: Do you each still wish to proceed?

MR. N. KANOON: Yes.

MR. Z. KANOON: Yes.

(3) The appellants were arraigned and each responded, "guilty" (pg. 4).

(4) The facts were read in and the following exchange took place (pg. 5):

THE COURT: So, gentlemen are those facts basically correct?

MR. N. KANOON: Yeah.

THE COURT: Yes? All right. Do you wish to add anything? You don't have to.

MR. N. KANOON: I already told them my side, yeah.

(5) Mr. Z. Kanoon never responded to the question of whether or not he accepted the facts as read.

(6) The justice of the peace found each appellant guilty (pg. 5).

(7) Regarding penalty, the following exchange took place between the justice of the peace and the appellants (pg. 5):

THE COURT: So, Mr. Kanoon is that agreeable? It's a $400 fine. Do you need time to pay that?

MR. N. KANOON: No.

THE COURT: No? and on behalf of the company, Mr. Kanoon senior, $400 fine agreed?

MR. K. KANOON: Yes.

THE COURT: And again, do you need time to pay that?

MR. K. KANOON: No, we going to pay that today.

(8) Regarding penalty, the following exchange took place between the justice of the peace and the appellants (pg. 6):

THE COURT: And so that six month suspension from the ability to sell tobacco – and is that tobacco products as well as tobacco?

MS. DOYLE: Yes.

THE COURT: Yes, okay – so that begins as of today does it?

MS. DOYLE: No, there is a process that they were informed about and the enforcement officer will follow up with them.

THE COURT: Will follow up with them. All right gentlemen, thank you very much.

Fresh Evidence on Appeal

[8] The respondent did not object to the tendering of the fresh evidence.

[9] Mr. Ninos Kanoon submitted a sworn affidavit wherein he attested that he was unfamiliar with court procedures, had not sought legal advice, did not understand that he could have a trial, and that having the assistance of an interpreter is constitutionally guaranteed.

[10] Mr. Zai Kanoon submitted a sworn affidavit wherein he attested that he was unfamiliar with court procedures, had not sought legal advice, did not know that he could seek an adjournment to obtain the advice of a lawyer, did not know that he could have requested the assistance of an interpreter, that he did not know that he could have a trial, and that having the assistance of an interpreter is constitutionally guaranteed.

The Law – Plea Inquiry

[11] Provincial Offences Act, R.S.O. 1990, c. P.33, section 45(3) reads:

A court may accept a plea of guilty only if it is satisfied that the defendant:

a) Is making the plea voluntary;

b) Understands that the plea is an admission of the essential elements of the offence;

c) Understands the nature and consequences of the plea; and,

d) Understands that the court is not bound by any agreement made between the defendant and the prosecutor.

[12] Provincial Offences Act, R.S.O. 1990, c. P.33, section 45(4) reads:

The failure of a court to fully inquire into whether the conditions set out in subsection (3) are met does not affect the validity of the plea.

The Law – Smoke Free Ontario Act

[13] Section 3(1) outlines the offence of selling tobacco to a person who is less than 19 years old. This is an absolute liability offence; however, sections 3(3) and 3(4) provide for a potential defence of due diligence, both to the person selling the tobacco at the time in question, and to the owner of the business.

The Law – Duty to Assist Unrepresented Defendants

[14] R. v. McGibbon, 45 C.C.C. (3d) 334 is the seminal case on point.

[15] In R. v. Rijal, 2010 ONCJ 329, Mr. Justice Libman speaks to the issue of applying accepted principles in a criminal trial to a provincial offences trial. He wrote:

[para. 2] … I do not think, with respect, that justices of the peace should be constrained by the time it takes to ensure that an unrepresented defendant received a fair trial … Trial justices, in other words, should not feel compelled to render less assistance to a person who chooses to defence himself/herself for a Part I or Part II offence, rather than under Part III, on the basis that there is less time for fairness.

[para. 3] Stated shortly, providing meaningful assistance through the trial process to an unrepresented defendant under the Provincial Offences Act, so that his/her defence is brought out with its full force and effect, should neither be subject to time constraints nor depend upon the nature of the provincial offences proceedings in question.

[16] Justice Bovard outlined what should be reasonable to do in a self-represented provincial offences trial, in R. v. Messina, 2005 ONCJ 560, para. 28. Among other things, to:

(a) Ask why the person is unrepresented. If they want to be represented, find out if there is any reasonable thing that could be done to assist them in getting representation. For example, granting an adjournment to retain counsel or an agent;

(b) Ensure that the defendant understands the charges, explain the onus of proof and the burden to be carried by the prosecution;

(c) Outline the trial process;

(d) Identify the role of the parties;

[17] Justice Trafford, in R. v. Zimmerman, [2005] O.J. No. 1647 (S.C.J.) para. 20, held that the "statutorily mandated informality of provincial offences proceedings was not intended to mandate a significant departure from principles of natural justice or procedural fairness. Rather, such statutory informality merely provides the context within which the essential fairness of the proceedings is to be maintained" (emphasis added).

[18] The Ontario Court of Appeal, in R. v. Winlow, 2009 ONCA 643, para. 71, recognized that "defendants who appear in traffic court are self-represented; many have little or no knowledge of the justice system; many are poorly educated or have but a rudimentary knowledge of English".

The Law – Right to an Interpreter

[19] Section 14 of the Canadian Charter of Rights and Freedoms provides that:

A party or witness in any proceeding 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.

[20] R. v. Tran, [1994] 2 S.C.R. 951 is the seminal case on point. The Supreme Court held at para. 48 that "as a general rule, courts should appoint an interpreter when either of the following occurs:

1. It becomes apparent to the judge that an accused is, for language reasons, having difficulty expressing him or herself or understanding the proceedings and that the assistance of an interpreter would be helpful; or,

2. An accused (or counsel for the accused) requests the services of an interpreter and the judge is of the opinion that the request is justified.

[21] The right to an interpreter is neither automatic nor absolute. R. v. Rybak, 2008 ONCA 354, para. 72.

[22] The onus is on the party asserting the violation. The standard of proof is on a balance of probabilities.

[23] Justice Felix, in Durham v. Aulakh, [2015] O.J. No. 1462, at para. 49, held that a court "should decline to accept a guilty plea if not satisfied that an accused understands the nature of the charge and appreciates what it is he or she is doing, so too should a court conduct, on its own motion, an inquiry into the need for an interpreter when it appears that an accused is having language difficulties".

Analysis and Findings

[24] Mr. Zai Kanoon did not accept the facts underpinning the guilty plea. Whether this was an oversight on the part of the justice of peace or not, the conviction should not have been registered. As such, the guilty plea made on behalf of 1362571 Ontario Ltd. will be quashed.

[25] As the case law above holds, the bulk of participants in the provincial offences court proceedings (I find this includes both trial and plea courts alike) are unsophisticated, and unfamiliar with court proceedings. In these instances, a more detailed plea inquiry is required than that which was undertaken by the presiding justice of the peace. This is especially so, when as was the case herein, Mr. Ninos Kanoon expressed that he had something to say about the facts, and had already relayed that information to someone. I find that it was incumbent upon the presiding justice of the peace to seek clarification and to ensure that the facts were truly being accepted as accurate and supportive of the guilty plea. Additionally, with respect to the specific offence alleged in this matter, the justice of the peace should have advised the parties that there is a potential defence of due diligence and incorporated this into the plea inquiry.

[26] The guilty plea of Mr. Ninos Kanoon will be quashed.

[27] As this is dispositive of the appeal, it is unnecessary for me to analyse the interpreter issue.

Conclusion

[28] Guilty pleas of both appellants quashed.

Released: November 6, 2018

Signed: Justice A.L. McLeod