R. v. Antone, 2016 ONCJ 316

Court File and Parties

Court File No.: 14-P1113 County of Middlesex Date: 2016-05-06 Ontario Court of Justice

Between: Her Majesty the Queen — and — Hubert Antone

Before: Justice Wayne G. Rabley

Heard on: May 6th, 2016

Reasons for Judgment released on: May 6th, 2016

Counsel:

• L. Tuttle for the Crown
• A. Orlov for the Defendant

Reasons for Judgment

RABLEY J.:

Background

1The Appellant, Hubert Antone appeals his conviction for Driving While Suspended. A plea of guilty was entered on his behalf by Ms. N. Fayad, who was appearing as Mr. Antone's agent. This was done on November 25th, 2014 before His Worship Chaput.

2The reading of the charge was waived and the facts were admitted to by Ms. Fayad. At the time of the plea, Mr. Antone was not present. No plea inquiry was done by the Justice of the Peace as Mr. Antone was not present and there was no discussion regarding the authority of Ms. Fayad to enter a plea on behalf of her client. In fairness to His Worship Chaput, he would have assumed that the agent was acting on the instructions of her client and that the plea had been arranged on Mr. Antone's behalf with his knowledge and consent.

3It is clear from the information that has been presented to me and which I accept, that such was not the case. Upon finding out that he had been found guilty of the offence, Mr. Antone took steps to set aside the conviction and explain his circumstances. Eventually, he hired Mr. Orlov as his agent and this appeal was brought before me.

The Defendant's Position

4In his Affidavit, Mr. Antone stated that after retaining Ms. Fayad and paying her fees that:

"5. To the best of my knowledge Ms. Fayad appeared on this matter as my court agent, which eventually resulted in a guilty plea to the charge as laid. This became known to me as a result of my personal court inquiries, Notice of Suspension mailed to me by the Ministry as a result of said conviction, and independent legal assistance.

6. However, at no point in time did I review disclosure with Ms. Fayad nor was I invited to review said [disclosure]. Also I was not advised of the trial date that my matter was set for.

7. At no point in time did I provide an informed consent to enter a guilty plea to the charge of "Drive while licence is suspended" since at no point in time were the possible consequences of the conviction for said offence explained to me, specifically as related to six months of driving suspension. I realized it only by reviewing the Notice of Suspension mailed to me."

5It would appear that there is merit in Mr. Antone's claim. There were notes in the Crown file that were disclosed to him showing that the Prosecutor had been prepared to negotiate a guilty plea to the reduced offence of Drive With No License if he paid his outstanding fines, which he had already done. I can only speculate that Ms. Fayad did not attend a pre-trial or resolution meeting with the Prosecutor and since no discretion was sought on behalf of the Defendant, none was offered by the Crown.

6A number of attempts were made to have Ms. Fayad attend before the Court to testify about Mr. Antone's case. She did not do so for a variety of reasons and the matter was made peremptory on the Appellant to proceed on today's date. Ms. Fayad did not appear before me but prepared an Affidavit to be provided to the Court. In it, she offered no explanation for her conduct and stated:

"On November 25, 2014 I have entered an uninformed plea of guilty to the charge as laid without explaining to my client the nature and consequences of such plea."

Analysis

7It is clear to me that Ms. Fayad was completely negligent in conducting matters on behalf of Mr. Antone. It would appear that she did not:

1. review disclosure with her client;
2. advise him of his trial date;
3. conduct a pre-trial or resolution meeting;
4. seek instructions;
5. prepare her client for trial;
6. report to Mr. Antone the result of her attendance at trial.

Disposition

8In my view, it would be a miscarriage of justice to allow the conviction to stand in these circumstances and I would therefore order that the Appeal be allowed and that a new trial be ordered.

Concluding Comments

9For whatever value they may be, I would also make the following comments:

i) consideration ought to given to having the Law Society investigate the conduct of the agent in this case. No doubt Mr. Antone has suffered a lot of stress and unnecessary expense because of the negligence of one who is supposed to be licensed to act as a paralegal in this Province. Hopefully, others can be saved this needless expense and anxiety in the future;

ii) those who sit in the Provincial Offences Court might wish to inquire of agents whether they have written instructions to enter pleas of guilty on behalf of their clients when those defendants are not in attendance. It is good practise to do so and it is regularly done by counsel and agents who take their responsibilities (and potential liability) seriously. When I sat, only last month, in the Provincial Offences Appeal Court, there were a number of matters on the docket where the appellants were asserting that counsel were acting without their authority. It seems to me that although matters in the Provincial Offences Court are intended to be dealt with summarily and with some expediency that a few moments delay to ensure that the agent is acting with appropriate instructions would benefit all in the long run.