Her Majesty the Queen v. Allahyar
[Indexed as: R. v. Allahyar]
Ontario Reports
Court of Appeal for Ontario
Gillese, van Rensburg and D.M. Brown JJ.A.
May 1, 2017
138 O.R. (3d) 233 | 2017 ONCA 345
Case Summary
Criminal law — Provincial offences — Procedure — Defendant assisted by his brother-in-law M on charge of speeding — Stay of proceedings granted on ground that prosecutor violated defendant's rights under s. 7 of Charter by failing to provide proper disclosure — Prosecutor appealing successfully after appeal judge refusing to let M represent defendant — Appeal judge unreasonably basing refusal to allow M to act as representative based on general concern about persons without legal training acting as representatives in prosecutions under Provincial Offences Act — No bar to permitting non-licensed family member or friend to represent defendant so long as competent and complies with duties and responsibilities of representative — M showing skill and diligence in representing defendant before justice of the peace — Appeal allowed and stay of proceedings reinstated — Canadian Charter of Rights and Freedoms, s. 7.
The defendant, who was not a native English speaker, was charged with speeding. He was assisted before the justice of the peace by his brother-in-law M. A stay of proceedings was granted on the ground that the prosecutor had violated the defendant's rights under s. 7 of the Canadian Charter of Rights and Freedoms by failing to provide proper disclosure. The prosecutor appealed to the Ontario Court of Justice. After confirming that M was not legally trained, the appeal judge refused to allow him to assist the defendant and adjourned the matter so that the defendant could have a lawyer or paralegal attend. On the return date, the defendant represented himself, and relied upon the factum M had prepared. The appeal was allowed, the judge ordered the matter be remitted to trial and ordered the prosecutor to make the requisite disclosure. The defendant appealed.
Held, the appeal should be allowed.
The appeal judge did not turn his mind to the proper considerations and unreasonably refused to permit M to assist the defendant on the basis of a general concern about persons without legal training acting as representatives in quasi-criminal, criminal and prosecutions under the Provincial Offences Act, R.S.O. 1990, c. P.33. He did not consider whether disqualifying the defendant's choice of representative was necessary to protect the proper administration of justice, or inquire into the particular circumstances of the case. Specialized training is not necessarily required before an unpaid family member or friend can represent a defendant in a provincial offence appeal before the Ontario Court of Justice. M was skilled and diligent in representing the defendant in the proceedings before the justice of the peace, and there was no basis for disqualifying him out of concern for his competence. The appeal is allowed and the stay of proceedings reinstated.
Cases Applied
Other Cases Referred To
R. v. Bilinski, [2013] O.J. No. 2984, 2013 ONSC 2824, 107 W.C.B. (2d) 432 (S.C.J.)
R. v. Khan, [2015] O.J. No. 2096, 2015 ONCJ 221, 121 W.C.B. (2d) 61
Statutes Referred To
Canadian Charter of Rights and Freedoms, ss. 7, 11(b)
Criminal Code, R.S.C. 1985, c. C-46, ss. 800(2), 802(2), 802.1
Highway Traffic Act, R.S.O. 1990, c. H.8, s. 128
Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), s. 251
Law Society Act, R.S.O. 1990, c. L.8, ss. 26.1, 62
Provincial Offences Act, R.S.O. 1990, c. P.33, s. 1(1), Part III, ss. 50(3), 118, 168
Procedural History
APPEAL from the judgment of Edward J. of the Ontario Court of Justice dated February 11, 2014 allowing an appeal from the order of Justice of the Peace Mulloy dated May 13, 2013.
Gabriel Gross-Stein, for appellant.
Shawn Porter, for respondent.
Judgment
The judgment of the court was delivered by
A. Overview
1The appellant, Mohammad Allahyar, was charged with speeding, contrary to s. 128 of the Highway Traffic Act, R.S.O. 1990, c. H.8. After several attendances before a justice of the peace where Mr. Allahyar was assisted by his brother-in-law, Ethan Miazad, the charge was stayed for breach of the appellant's rights under s. 7 of the Canadian Charter of Rights and Freedoms, as a result of the failure by the prosecutor, the City of Simcoe, to provide proper disclosure.
2The prosecutor appealed to the Ontario Court of Justice ("O.C.J."). The appeal judge refused to permit Mr. Miazad to represent Mr. Allahyar, and ultimately set aside the stay.
3Mr. Allahyar, with leave, appeals to this court. The Attorney General elected to intervene in these proceedings under s. 168 of the Provincial Offences Act, R.S.O. 1990, c. P.33 ("POA"), and is therefore the respondent to the appeal to this court.
4The appellant asserts that the refusal to permit Mr. Miazad to represent him on his appeal to the O.C.J. occasioned a miscarriage of justice.
5I agree. The appeal judge did not turn his mind to the proper considerations and unreasonably refused to permit Mr. Miazad to assist the appellant. I would allow the appeal and, in accordance with the Attorney General's proposed disposition, enter a stay of proceedings.
B. History of the Proceedings
6The appellant, who is not a native English speaker, was in court with an interpreter. There were several attendances before a justice of the peace in which the subject of disclosure was addressed. On each occasion the appellant was assisted by Mr. Miazad, without objection by the prosecutor and with the agreement of the justice of the peace.
7The attendances occurred over several months. On April 2, 2012, the appellant requested an adjournment so that the prosecutor could provide disclosure of the operating manual for the radar device that captured his speed. On June 11, 2012, a second adjournment was granted to allow the appellant to attend at the Ontario Provincial Police ("OPP") station and photocopy the relevant passages from the operating manual. Mr. Miazad went to the OPP station on September 26, 2012 to obtain photocopies of the pages from the operating manual; however, the officer at the station told Mr. Miazad that he could only look at the manual and was not allowed to photocopy it.
8On October 1, 2012, Mr. Miazad informed the court that he had not been permitted to make photocopies of the pages from the manual. The justice of the peace stated that the OPP should copy the relevant portions, and the matter was adjourned to allow the appellant to receive the relevant passages. On January 21, 2013, the matter was adjourned for a hearing of the appellant's s. 7 and s. 11(b) motions. On May 13, 2013, the s. 11(b) motion was dismissed and the justice of the peace entered a stay of proceedings under s. 7 because the OPP had not photocopied the relevant portions of the manual.
9The prosecutor appealed to the O.C.J. Both parties filed factums and were ready to argue the appeal. The prosecutor noted that Mr. Miazad had represented the appellant throughout and did not object to his continuing involvement. After questioning Mr. Miazad about his educational background and confirming that Mr. Miazad was not legally trained, the appeal judge stated:
I'm not going to hear the matter with Mr. Miazad as agent for the appellant. At an appeal level, one would hope that [at] a minimum there's an agent and that's not Miazad's situation. I'm becoming more and more concerned about individuals representing individuals in criminal or quasi-criminal or Provincial Offences Act matters that aren't properly trained. It's inappropriate, in my view, for the court to permit Mr. Miazad to represent the applicant on this appeal.
10The appeal judge adjourned the matter so that the appellant could have a lawyer or paralegal attend. On the return date, the appellant represented himself, relying on the factum Mr. Miazad had prepared. The appeal was allowed. The appeal judge ordered the matter to trial and also ordered the prosecutor to produce copies of the pertinent pages of the radar manual.
C. Discussion
(1) The Relevant Principles
11As a general rule, a representative is permitted to represent a defendant in certain proceedings in the O.C.J. Section 50 of the POA provides for a defendant to appear and act personally or by representative at trial in provincial offences matters, while s. 118 provides for an appellant or respondent in appeals of Part III matters to appear and act personally or by representative. A "representative" is defined in s. 1(1) as "a person authorized under the Law Society Act to represent a person in that proceeding".
The POA does not stipulate who may appear or act on behalf of an appellant in an appeal of a proceeding commenced (as here) under Part I of the POA. However, the combined effect of ss. 1 and 26.1 of the Law Society Act, R.S.O. 1990, c. L.8, s. 62; and ss. 6 and 30 of By-Law 4 of the By-Laws of the Law Society of Upper Canada, is that, in addition to a lawyer or paralegal holding a Class P1 license, a non-licensed family member or friend who does not expect or receive compensation for the provision of legal services, is authorized to represent a defendant in any proceedings under the POA before the OCJ.¹
The right of a representative to appear is subject to the court's authority to control its own process.² The leading case is R. v. Romanowicz (1999), 45 O.R. (3d) 506, [1999] O.J. No. 3191 (C.A.). In Romanowicz, an accused was represented in summary conviction proceedings by an agent who was alleged to have provided ineffective assistance. The court considered whether and on what basis the court could preclude an agent who was not a lawyer from representing an accused person in a summary conviction proceeding.³
12In concluding that a trial judge has the authority to refuse to permit an agent who is not a lawyer to represent an accused person in summary conviction proceedings, the court in Romanowicz explained that "[s]everal provincial statutes that provide for representation by agents before various tribunals recognize the tribunal's power to exclude agents" (at para. 54). As an example, this court referred to s. 50(3) of the POA, which, at the time, stated:
50(3) The court may bar any person from appearing as an agent who is not a barrister and solicitor entitled to practise in Ontario if the court finds that the person is not competent properly to represent or advise the person for whom he or she appears as agent or does not understand and comply with the duties and responsibilities of an agent.
13Section 50(3) continues to apply to proceedings commenced under the POA in the trial context. However, in 2006, with the coming into force of Bill 14, the Access to Justice Act, 2006, S.O. 2006, c. 21, Sch. C (which provided for, among other things, the licensing of paralegals by the Law Society), the section was amended to read:
50(3) The court may bar any person, other than a person who is licensed under the Law Society Act, from appearing as a representative if the court finds that the person is not competent properly to represent or advise the person for whom he or she appears, or does not understand and comply with the duties and responsibilities of a representative.
14In Romanowicz, this court held that, although the Criminal Code does not expressly give the trial judge power to prohibit a specific agent (which it defined, at para. 24, as meaning a "representative") from appearing in a particular case, the court was "satisfied that the power to do so along the lines found in the provincial legislation exists by virtue of the court's power to control its own process in order to maintain the integrity of that process" (at paras. 53, 58).
15The court set out the procedure to be followed when a party attends with an agent as representative. The court should first determine whether the defendant has made an informed choice to be represented by the agent (at paras. 41-44). In appropriate cases, the court may also inquire into the propriety of the representation. After providing examples of circumstances that could result in an order disqualifying an agent (questions of competence, discreditable conduct, conflict of interest and a demonstrated intention not to be bound by the rules and procedures governing criminal trials), the court stated, at para. 76:
[D]isqualification is justified only where representation would clearly be inconsistent with the proper administration of justice. It is not enough that the trial judge believes that the accused would be better off with other representation or that the process would operate more smoothly and effectively if the accused were represented by someone else. Disqualification of an accused's chosen representative is a serious matter and is warranted only where it is necessary to protect the proper administration of justice.
(Emphasis added)
16The court cautioned against adopting an arbitrary rule and emphasized the need to review the particular circumstances of the case, stating, at para. 77:
The power to disqualify agents, like any other facet of the court's power to control its processes, must be exercised judicially on the basis of the circumstances present in a given case. Those circumstances may include the seriousness of the charge and the complexity of the issues raised in a particular case. A presumption, however, that all agents are incompetent to represent accused persons charged with certain summary conviction offences is not a proper basis on which to exercise that discretion.
17In Romanowicz, the agent in question was a paralegal who provided legal services at a time before paralegals could be licensed in Ontario. Questions respecting the standard of competence required of licensed paralegals have been addressed in recent cases such as R. v. Khan, [2015] O.J. No. 2096, 2015 ONCJ 221 and R. v. Bilinski, [2013] O.J. No. 2984, 2013 ONSC 2824 (S.C.J.). Nothing in this decision is intended to address representation by licensed paralegals in provincial offence matters. The test in Romanowicz, however, is clearly applicable in cases where a person seeks to be represented in such matters by an unpaid family member or friend.
(2) Application of the Principles
18The appeal judge erred when he disqualified Mr. Miazad. He failed to approach the question of whether Mr. Miazad could continue to represent Mr. Allahyar in a manner consistent with this court's direction in Romanowicz. He did not consider whether disqualifying the appellant's choice of a representative was necessary to protect the proper administration of justice, or inquire into the particular circumstances of the case, but instead disqualified Mr. Miazad because of a general concern about persons without legal training representing individuals in quasi-criminal, criminal and POA proceedings.
19Questions of competence must be addressed having regard to the context. Specialized training is not necessarily required before an unpaid family member or friend can represent an accused or defendant in a provincial offence appeal before the O.C.J. Attending court can be difficult and intimidating for an accused at any level of court. Having a friend or family member attend and assist can be invaluable and is consistent with ensuring access to justice.
20There was no question that Mr. Miazad was skilled and diligent in representing Mr. Allahyar. In the proceedings before the justice of the peace, Mr. Miazad identified case authority for his disclosure request, pursued the request in an appropriate manner, and brought motions under ss. 11(b) and 7 of the Charter, supported by an affidavit and factum, when such disclosure was not provided. He was successful in obtaining a stay of proceedings for the appellant. There was no basis for disqualifying Mr. Miazad out of concern for his competence in representing the appellant.
21The Attorney General acknowledges that the appeal judge did not consider the appropriate factors and ought not to have disqualified Mr. Miazad based on general concerns about persons without legal training appearing on POA matters. He submits, however, that the appeal judge did not err in disqualifying Mr. Miazad because Mr. Miazad had a conflict of interest that would have prevented him from acting on the appeal.
22The Attorney General contends that Mr. Miazad's conduct in respect of the disclosure request -- the efforts taken to obtain photocopied pages of the manual -- was at issue in the appeal to the O.C.J. As such, he was a potential witness and would not have been able to represent the appellant. The Attorney General says that Mr. Miazad, and not the prosecution, was responsible for the fact that photocopies of the pages from the manual were not provided.
23There are two problems with this argument. First, the record shows that the prosecutor did not take the position that Mr. Miazad was a witness. Rather, the appeal was argued on the transcripts of the attendances before the justice of the peace. The prosecutor never argued that Mr. Miazad had a conflict of interest, and did not object to Mr. Miazad's representation of Mr. Allahyar on the appeal for any reason.
24Second, the alleged misconduct by Mr. Miazad that might have led to him being a witness is simply not borne out on the record. Mr. Miazad was clear throughout the proceedings that he wanted copies of excerpts from the manual to be provided, and the matter was adjourned repeatedly so that this could occur. Although the prosecutor knew what was required, as the justice of the peace concluded on May 13, 2013, the disclosure did not happen. There is simply no merit to the argument that Mr. Miazad had a conflict of interest in continuing to represent Mr. Allahyar on the appeal.
25Finally, the appellant contends that this case raises broader concerns about access to justice, and invites the court to expand upon the Romanowicz decision. I find it unnecessary to do so.
26While Romanowicz was decided in the context of concern about representation by unlicensed paralegals in summary conviction proceedings, the principles it articulates are of broader application, and need not be reconsidered or expanded upon in this appeal. The appeal judge failed to consider the proper factors under Romanowicz and the disqualification of the appellant's representative was not justified.
D. Disposition
27For these reasons, I would allow the appeal and, in accordance with the Attorney General's proposed disposition, enter a stay of proceedings.
Appeal allowed.
Notes
¹ All persons who provide legal services in Ontario require a licence, except if and to the extent permitted by a by-law of the Law Society of Upper Canada: Law Society Act, R.S.O. 1990, c. L.8, s. 26.1. By-Law 4 of the Law Society of Upper Canada prescribes persons or classes of persons who are permitted to practise law or provide legal services in Ontario without a licence, the circumstances in which they may do so and the extent to which they may do so: Law Society Act, s. 62; By-Law 4. Certain non-licensees may provide the legal services that paralegals (licensees holding class P1 licences) are authorized to provide, including representing a party before the O.C.J. in the case of a proceeding under the POA: By-Law 4, ss. 6, 30. Such persons include "related persons" (as defined in s. 251 of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.)) and friends or neighbours who provide legal services without expecting or receiving compensation. A representative who is a friend or neighbour is limited to providing the legal services in respect of not more than three matters per year: By-law 4, s. 30.
² The power is described as "inherent" in respect of superior courts and "implied" for statutory courts: R. v. Cunningham, [2010] 1 S.C.R. 331, [2010] S.C.J. No. 10, 2010 SCC 10, at paras. 18-19.
³ The provisions at issue in Romanowicz were ss. 800(2) and 802(2) of the Criminal Code, R.S.C. 1985, c. C-46, which govern who can appear in summary conviction court. Section 800(2) provides that "a defendant may appear personally or by counsel or agent" and s. 802(2) provides "the defendant . . . may examine and cross-examine witnesses personally or by counsel or agent". Section 802.1 provides that a defendant may not appear or examine or cross-examine witnesses by agent if the maximum summary conviction punishment is imprisonment for a term greater than six months, unless the defendant is a corporation or the agent is authorized under a provincial program approved by the lieutenant governor in council. There is no such program in Ontario.
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