Fourth-year paralegal student Karen Fair takes a look at two recent POA Court of Appeal matters, and the “common ground” that links them.
The Court of Appeal for Ontario recently released two decisions, R. v. A.E., 2013 ONCA 713 and R. v. Ul-Rashid, 2013 ONCA 782, dealing with appeals of Provincial Offences Act decisions. Both decisions highlight the importance of public interest grounds for leave to appeal for accommodation, disclosure, and duty of the Justice of the Peace to assist. Public interest is a broad ground for appeal available when representing clients in Provincial Offences matters.
Public Interest: Accommodation
In R. v. A.E., the Court of Appeal relies on public interest grounds to grant an extension of time to appeal, and leave to appeal.
The applicant had four convictions for driving without insurance. He faced substantial fines, totalling more than $21,250.
Motion to Extend Time
In October 2007, the applicant had brought a motion to extend time in which to appeal three of his four convictions. His motion was dismissed. In February 2011, he brought another motion for an extension to appeal all four of his convictions.
The Provincial Court justice granted an appeal from sentence for the fourth conviction, but dismissed the request to extend time in which to appeal the other three.
Although the lower courts were not aware of the applicant’s mental illness, the Court of Appeal considered his mental illness to be a significant factor. Justice Lauwers found, “It is nonetheless, in my view, in the public interest to determine whether in the particular circumstances of any individual defendant or appellant, some accommodation should be made for individuals with significant personal disabilities.”
The appeal court held that the lower court may not have considered all appropriate factors in dismissing the appeal.
Justice Lauwers wrote: “From my review of the transcript of that proceeding, it is at least arguable that the court did not consider the appropriate factors in determining the issues before it, and perhaps more importantly, closed off any opportunity for the broader public interest issue to be raised,” and that “While the test for leave is a high one, it should not, in my view, be inflexible. In the circumstances of this case… I find there is an important public interest in this case, and there is an arguable issue that relates to the due administration of justice.”
Justice Lauwers agreed with Justice Nadel, in R. v. Monrad, that, in the provincial offences appeal context: “In the final analysis, the principal consideration is whether the applicant has demonstrated that justice requires that the time be extended.”
R. v. A.E. demonstrates that “public interest,” based on accommodation for disabilities, is a ground for appeal under Part III of the Act.
Public Interest: Disclosure and Unrepresented Individuals
In R. v. Ul-Rashid, the Court of Appeal for Ontario relies on public interest and due administration of justice grounds to grant leave for appeal. The Court granted leave to appeal for incomplete disclosure, and failure to assist an unrepresented defendant.
Section 139 Appeal to Court of Appeal
Justice Weiler applied the two-part test under s. 139, considering public interest and due administration of justice. Section 139 applies to “exceptional circumstances” and creates a high threshold. Specific requirements must be met. Analyzing the section and applying it to the appeal, Justice Weiler found that “[t]he applicant must convince a judge of this court that leave is essential in the public interest or for the due administration of justice,” in addition to a question of law.
Two-part Test under s. 139
Considering the two parts of the test to determine whether to allow the appeal, Justice Weiler adopted a “holistic approach.” The Court found: “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.”
Justice Weiler found that, when “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.” She cites Canada (Director of Investigation and Research) v. Southam Inc.,  1 SCR 748, in which the Supreme Court held that, when considering whether a question of law is raised, the court should consider such factors such as “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.”
The Court dismissed the first unsworn interpreter ground for appeal, noting that the applicant had not raised an objection to the interpreter during the trial, and was able to participate meaningfully at trial.
Disclosure and Duty to Assist
The applicant had testified that a police officer led him to believe that he would obtain video evidence of the accused failing to stop for a red light. The applicant did not request disclosure of the alleged video and none was produced at trial.
Justice Weiler referred to R. v. Stinchcombe, in which the Supreme Court held that “[t]he obligation to disclose will be triggered by a request by or on behalf of the accused.” Furthermore, “[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.”
However, the Court found that it is unclear to what extent the Stinchcombe decision applies to a Part I offence.
The Court found some conflict between authorities regarding assisting unrepresented parties. In the criminal context, R. v. McGibbon, 1988 CanLII 149 (ONCA) discusses the obligation of trial judges to assist unrepresented individuals. There have been additional decisions that have affirmed and provided more comments regarding what information judges should provide unrepresented defendants.
Justice Weiler cited Durham (Regional Municipality) v. Saeed, in which Justice Bellefontaine 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.”
This decision reiterates the importance of disclosure in the name of public interest and for the due administration of justice. Unrepresented individuals require assistance and it is the duty of the Justice of the Peace to assist them.
R. v. Messina, 2005 ONCJ 560
R v. Monrad 2012 Carswell 1129, 99 WCB (2d) 281
R. v. Rybak, 2008 ONCA 354
R. v. Tran, 2001 CanLII 5555 (ONCA)
Legal Word of the Day: Stinchcombe
Highway Traffic Act, R.S.O. 1990, c. H.8
Provincial Offences Act, R.S.O. 1990, c. P.33