Monday, December 23, 2013

Duty of disclosure and presiding Justice of the Peace in provincial regulatory matters

R. v. Ul-Rashid, 2013 ONCA 782 grants leave to the Court of Appeal to decide whether the Crown must ensure disclosure have been provided, regardless of request, and the presiding Justice must inquiry as to such delivery, for provincial regulatory matters. Additionally leave is granted to review the scope of assistance required of the presiding Justice for an unrepresented accused. 

Quaere, should not an unrepresented accused have some burden to investigate the nature of their rights before and during trial?

The Court holds:

[42]        The applicant raises the issue of whether and to what extent Stinchcombeapplies to a Part I POA offence. The applicant's 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 applicant's 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. InR. 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 defendant's 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.

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