Durham (Regional Municipality) v. Aulakh, 2015 ONCJ 156

ONTARIO COURT OF JUSTICE DATE: 2015·March·24 Citation: Durham (Regional Municipality) v. Aulakh, 2015 ONCJ 156 BETWEEN: THE REGIONAL MUNICIPALITY OF DURHAM Respondent — AND — RAM AULAKH Appellant Before Mr. Justice M. Felix Heard on February 25, 2015 and March 19, 2015 Reasons for Judgment released on March 24, 2015 A. Rodriguez ............................................................................................................. Prosecutor P. Sutton .........................................................................................

Counsel for the Appellant Felix J.: Introduction [1] On February 20, 2014 the appellant was convicted of failing to drive in a marked lane contrary to section 154(1)(

a) of theHighway Traffic Act, R.S.O. 1990,

Chapter H.8 (Ontario). [2] There are two related grounds of appeal. The appellant submits that the learned Justice of the Peace should have inquired as towhether the appellant required the services of an interpreter. Further, the learned Justice of the Peace should have inquired into thesuitability of an adjournment of the trial. It is submitted that the grounds singularly, or in combination, caused a miscarriage of justice. Standard of Review [3] This is an appeal concerning a

Part I certificate governed by sections 135 and 136 of the Ontario Provincial Offences Act,R.S.O. 1990,

Chapter P.33 [Provincial Offences Act]. These sections provide broad appellate review jurisdiction (R v Stephenson, (ON CA), [1984] OJ No 88 (QL)(Ont.CA); R. v. Murray,[1983] OJ No 1170 (QL)(Ont.H.C.). The

Interpretation Issue [4] The appellant asserts that the learned Justice of the Peace had a duty to ask whether or not the appellant wished the services ofan interpreter. This assertion must be placed in proper context. Justices of the Peace preside over busy court lists every day in theprovince of Ontario. These are courts where the intention of the Legislature was that there be simple, expeditious, proceedings as mostlitigants are unrepresented. These busy courts appropriately rely on documentation and processes to assist with administration of

provincial offences matters. [5] The parties on this appeal have made submissions concerning the procedure for setting a trial on a

Part I matter in the Regionof Durham. I am reasonably familiar with the material aspects of the procedure thanks to the submissions of the parties and mutualagreement concerning the basic procedure relevant to the issues on this appeal. [6] The procedure involved in setting a trial date involves the preparation of a Notice of Intention to Appear – Form 7 of theProvincial Offences Act [Notice of Intention]. The relevant Notice of Intention concerning this case is attached to the appealdocumentation. The Notice of Intention contains a tick box to request trial in the English language.

There is a tick box to request that theinvestigating officer appear for trial. There is also a specified space to notify the court that an interpreter required. [7] The appellant is licenced to operate a tractor-trailer. While he was not cross-examined on his affidavit, I infer that as a truckdriver he had to qualify for a particular licence, he operates a truck on the road (as he did in this case), and he otherwise engages inactivities relating to the operation of a truck. In addition, I have the benefit of a transcript of the trial in this case.

While the appellantasserts in his affidavit that he was unfamiliar with the process, this evidence is somewhat tempered by other evidence on this appeal thathe had hired a lawyer to assist him with other matters.[1] [8] In this case, the appellant completed the Notice of Intention. He sought the attendance of the investigating officer andrequested a trial in English. He did not request an interpreter – that space is blank. At trial, he did not raise the issue of an interpreter. He went on to conduct the trial in the English language. He asked questions and had the opportunity to present his version of the events.

He indicated during the trial that he had a lack of familiarity with legal words. I suspect that many self-represented litigants share thatlack of familiarity. This stated lack of familiarity did not impact on the trial. While there is little doubt that a lawyer or a paralegalcould have conducted a more effective trial – this is not the test. [9] The Supreme Court of Canada in R v Tran, (SCC), [1994] SCJ No 16 (QL) at para 47-49 provided thefollowing guidance concerning assessing the need for

interpretation (in the context of

section 14 of the Canadian Charter of Rights andFreedoms): (

i) The Need for an Interpreter 47 The first step in the analysis as to whether a breach of s. 14 of the Charter has in fact occurred requires consideration of the needfor interpreter assistance. That is, the claimant of the right must demonstrate that he or she satisfies (or satisfied) the conditions precedentto entitlement to the right.

Section 14 of the Charter states clearly that, to benefit from the right, an accused must "not understand orspeak the language in which the proceedings are conducted". 48 While the right to interpreter assistance is not an automatic or absolute one, it stands to reason, particularly with the elevation of theright to the level of a constitutional norm, that courts should be generous and open-minded when assessing an accused's need for aninterpreter.

As a general rule, courts should appoint an interpreter when either of the following occurs: (1) it becomes apparent to the judge that an accused is, for language reasons, having difficulty expressing him- or herself orunderstanding the proceedings and that the assistance of an interpreter would be helpful; or (2) an accused (or counsel for the accused) requests the services of an interpreter and the judge is of the opinion that the request isjustified.

Importantly, neither the language of s. 14 of the Charter nor the legal-historical underpinnings of the right require courts to inform allaccused appearing before them of the existence of the right to interpreter assistance. Similarly, courts are not obliged to inquire, as amatter of course, into every accused's capacity to understand the language used in the proceedings. At the same time, however, there isno absolute requirement on an accused that the right be formally asserted or invoked as a pre-condition to enjoying it.

This is becausecourts have an independent responsibility to ensure that their proceedings are fair and in accordance with the principles of natural justiceand, therefore, to protect an accused's right to interpreter assistance, irrespective of whether the right has actually been formally asserted. 49 Just as a court should conduct a hearing into an accused's mental capacity if it appears that the accused may not be competent toparticipate fully in his or her own defence, or likewise should decline to accept a guilty plea if not satisfied that an accused understandsthe nature of the charge and appreciates what it is he or she is doing, so too should a court conduct, on its own motion, an inquiry into theneed for an interpreter when it appears that an accused is having language difficulties.

As I suggested above, the overridingconsideration is that of understanding. Failure to conduct an inquiry where there is some positive indication that the accused may notunderstand or cannot be understood for reasons related to language, and to appoint an interpreter where one may prove helpful, couldresult in a miscarriage of justice and the ordering of a new trial. [10] In my view the Justice of the Peace did not run afoul of this guidance from the Supreme Court of Canada. The learnedJustice of the Peace did an admirable job of explaining the process and providing guidance throughout the trial.

Nothing on the recordbefore me should have necessarily triggered an inquiry on the part of the learned Justice of the Peace. Provision of Disclosure [11] The Respondent and Appellant provided submissions concerning the disclosure process in the Region of Durham. While Idid not hear extensive evidence concerning this process the facts material to this appeal are agreed amongst the parties. [12] I undertand that there are at least several thousand

Part I - Certificate of Offence [Part I] matters each year. Those whoreceive a

Part I matter do not attend a “set-date” court or “first appearance” court. Such persons complete a Notice of Intention andNotice of Trial document is sent to the person by the Court. The Notice of Trial contains a coloured stamp alerting the recipient thatthere is disclosure available. The actual Notice of Trial relevant to this case is part of the appeal documentation. The text of the stamp in

this case indicates the following in prominent blue ink: You are entitled to disclosure of the officer’s notes, statements, etc. Requests for disclosure must be made in writing well in advance ofthe trial date to the prosecution office at 605 Rossland Rd. E., Whitby or by fax: 905-668-9776 or email: disclosure.request@durham.ca. [13] The Respondent submits that this process respects the legal requirements of disclosure. A simple request triggers thepreparation and provision of disclosure. It is submitted that given the volume of matters in the

Part I courts, this process avoids theunnessary expense of preparing disclosure in every single case. The Court heard submissions that a committee of persons involved inRegion of Durham created this disclosure process. [14] On the record before me, I am satisfied that this disclosure procedure properly balances the obligation to provide disclosurewith the reality that there are thousands of

Part I matters in the Region of Durham. I agree with the submissions of the respondent thatthis is in line with the legal authorities in this area including R v Stinchcombe (SCC), [1991] SCJ No 83 (QL). [15] While this procedure strikes a proper balance between the proper administration of disclosure and the rights of a defendant,there are some circumstances where the procedure could potentially impact negatively on the fair trial rights of a defendant. The processis not a balm for circumstances that impact in this manner.

What works generally in many circumstances may at times require someflexibility on the part of the court or the prosecutor in order to mitigate any negative impact on a fair trial. This appeal presents one ofthose circumstances. In this particular case the appellant did not request disclosure. Disclosure was provided on the day of trial. Theappellant asserts that the trial Justice did not canvass whether or not the appellant wished an adjournment to prepare his defence.

Theappellant did not request an adjournment or request time to consult with an agent or counsel. [16] I agree with the submissions of the appellant that the provision of disclosure on the trial date is a troubling issue. This is anexample where the procedure (that works well in general) could cause harm to the fair trial interest of a defendant. Where a defendant isprovided disclosure on the morning of trial, it would be a more cautious approach for the court to canvass whether the defendant isprepared to proceed and provide guidance on the appropriate remedy (e.g., adjournment, recess).

The appropriate mindset is a concernfor a fair trial – not a fault-finding exercise (i.e., the defendant did not request disclosure therefore it is his or her fault and there isnothing to be done). [17] In this particular case, the learned Justice of the Peace addressed the issue in an appropriate manner. The disclosure providedwas two pages of officer notes related a highway traffic offence. The court permitted a recess for the appellant to review this disclosure,speak with the prosecutor, and determine what he wished to do. A recess was one available appropriate option.

After the recess, thecourt asked the appellant what he wished to do. The appellant indicated he wished to have a trial because his side was different. Theappellant did not give any indication that he was not in a position to proceed. [18] It is important to note that a review of the entirety of this trial reveals numerous examples of the learned Justice of the Peaceproviding patient guidance and assistance to the appellant. There was no cavalier approach to the rights of the appellant. The appellantconducted a trial and was responsive to the assistance provided by the Justice of the Peace.

The “failure” of the presiding Justice of thePeace to specifically inquire as to the suitability of adjournment, on this record, did not work an injustice to the appellant. Conclusion [19] Mr. Sutton submitted during this appeal that justice must not only be done, it must be seen to be done. This appeal addressedserious considerations with respect procedure. He pointed out that the Provincial Offences Court is the court that most persons in societyhave some contact with (as opposed to criminal matters in the Ontario Court of Justice).

The citizen’s contact with this court informstheir perception of the justice sytem and notions of a fair trial and fair process. Although the appellant’s argument did not succeed on thisappeal, these are wise observations. [20] The appeal is dismissed. Released: March 24, 2015 Signed: “Justice Felix”