



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:

1) The failure to swear the interpreter at his trial resulted
    in a miscarriage of justice.

2) The applicant did not receive full and complete disclosure.

3) 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:

139.  (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 applicants 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 applicants 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 officers testimony to be complete and precise. As
    such, she accepted the police officers 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 applicants 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 applicants 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:

[20]

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.

[21]

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.


[22]

As
    the Supreme Court explained in
Canada (Director of Investigation and
    Research) v. Southam Inc.,
[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.

[23]

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, a
t

para. 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.

[24]

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.


[25]

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 publics 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), 126 O.A.C. 348;
R. v. Harry
(1988),
    39 O.R. (3d) 673; see also
Biniaris
and
R. v. R.(R.)
,
2008
    ONCA 497, 238 O.A.C. 242, at paras. 32, 34.


[26]

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 applicants ability to earn a livelihood is
    in issue.

[27]

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.

[28]

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

[29]

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.

[30]

In
R. v. Tran,
[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.

[31]

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.

[32]

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.

[33]

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

[34]

I
    propose to deal with these two proposed grounds of appeal together because in
    my opinion they are interrelated.

[35]

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

[36]

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?

[37]

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.

[38]

The
    paralegals 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 theres an issue of
    whether Mr. Rashid was able to have a fair trial when disclosure, specifically
    the officers notes, and specifically this video evidence that the officer had
    told him about, was never made available to him.

[39]

In
    dismissing the applicants complaint on the issue of disclosure, the appeal
    court judge stated that it appeared that the defendant did not request
    disclosure.

[40]

In
R. v. Stinchcombe
, [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).

[41]

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.

[42]

The
    applicant raises the issue of whether and to what extent
Stinchcombe
applies
    to a Part I POA offence. The applicants 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
    applicants perspective, this video was an important aspect of his ability to
    make full answer and defence.

[43]

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), 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.

[44]

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 defendants 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), 55 O.R. (3d) 161 at para 33.

[45]

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.

[46]

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.

[47]

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).

[48]

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

[49]

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.


