



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ul-Rashid, 2014 ONCA 896

DATE: 20141215

DOCKET: C58020

Strathy C.J.O., Tulloch and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Haroon Ul-Rashid

Appellant

Under Section 139

Of the
Provincial
    Offences Act

Mary Paterson and Michael Milne,
Amicus Curiae
,
    for the appellant

Matthew Asma, for the respondent, Attorney General of
    Ontario

Amanda Ross, for the respondent, City of Toronto

Heard and released orally: December 4, 2014

On appeal from the conviction entered on March 7, 2012
    and the sentence imposed on March 7, 2012 by Justice Erick N. Libman of the Ontario
    Court of Justice.

ENDORSEMENT

[1]

This is an appeal under s. 139 of the
Provincial Offences Act
,
    R.S.O. 1990, c. P. 33 (the 
POA
) in relation to a prosecution
    conducted by the City of Toronto (the City) on a charge of failing to stop at
    a red traffic light.

[2]

The appellant brought an unsuccessful appeal to the Ontario Court of
    Justice and then obtained leave to appeal to this court. An
amicus curiae
was appointed, who served a Notice of Constitutional Question.

[3]

The Attorney General has elected to participate in the appeal on the
    constitutional issues and has brought an application to file fresh evidence.
    The Attorney General takes no position on the merits of the appeal.

[4]

The appellant raises two grounds of appeal.  First, he submits that his
    right to make full answer and defence, both under ss. 28 and 46(2) of the
POA
and ss. 11(d) and 7 of the
Canadian Charter of Rights and Freedoms
(the 
Charter
), was violated because the prosecutor did not advise
    him, as a self-represented litigant, of his right to disclosure. Second, he
    submits that the Justice of the Peace failed to adequately assist him in his
    trial. Therefore, he argues that he did not receive a fair trial and his rights
    under s. 11(d) of the
Charter
were violated.

[5]

There is common ground among the parties that there is a duty of disclosure
    in trials conducted under Part I of the
POA
and that an unrepresented
    accused must be informed of his right to disclosure.

[6]

The City concedes that as a self-represented litigant, the appellant was
    not adequately informed of his right to disclosure and that significant
    evidence, in the form of a video recording, has now been lost. On the basis of
    these concessions, the City agrees that the appeal should be allowed.

[7]

We accept the Citys position and its underlying concessions. 
    Accordingly, the appeal is allowed, the order of the appeal judge is set aside,
    and an acquittal is entered.

[8]

Given our order, it is unnecessary to consider issues, including
    constitutional issues, regarding the method and timing of providing notice of
    the right to disclosure to unrepresented litigants in trials under Part I of
    the
POA
.  The proposed fresh evidence of the Attorney General on these
    issues is not required and will not be admitted. It is also unnecessary to
    consider the nature of the assistance required to be provided by Justices of
    the Peace to unrepresented litigants in trials under Part I of the
POA
.

[9]

The
amicus curiae
, the City, and the Attorney General take the
    position that, notwithstanding the fact that there is no
lis
among the
    parties, we should consider the issue of disclosure and the issue of assistance
    for unrepresented litigants in order to provide guidance to future courts on
    these issues. While we recognize that we have jurisdiction to hear these submissions,
    we decline to do so. Having regard to the factors enumerated in
Borowski v.
    Canada (A.G
.), [1989] 1 S.C.R. 342, we do not believe that it is
    appropriate to deal with these moot issues. We are not satisfied that, having
    regard to our adjudicative role and the lack of a
lis
, we should offer
    any guidance on these issues or, that if we did, it would have any
    jurisprudential value.

[10]

The
    appeal is allowed.

G. R. Strathy C.J.O.

M. Tulloch J.A.

C. William Hourigan J.A.


