



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 didnt get a chance to argue at that
    moment but I already filed with the prosecutor and with the Court the
Charter
motion.  I just dont (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.


