COURT OF APPEAL FOR ONTARIO

CITATION: R v. DaFonte, 2016 ONCA 532

DATE: 20160705

DOCKET: C59811

Doherty, Feldman and Brown JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Gina DaFonte Appellant

Timothy E. Breen, for the appellant

John McInnes, for the respondent

Heard: June 22, 2016

On appeal from the conviction entered and sentence imposed on December 3, 2014 by Justice Lesley M. Baldwin of the Ontario Court of Justice.

Brown J.A.:

Overview

[1] The appellant, Gina DaFonte, a lawyer, appeals from the trial judge’s finding that she was guilty of criminal contempt of court and the sentence imposed of a $500.00 fine. The appellant is a sole practitioner. She was called to the bar in 2005. The finding of contempt arose from the appellant’s failure to attend a court hearing made peremptory to her client, Ms. Tracy Fleming.

[2] I would uphold the finding of contempt. However, I conclude the trial judge erred by failing to afford the appellant an opportunity to make submissions on sentence. As a result, I would set aside the conviction and the sentence of a fine and would substitute, by way of sanction for the finding of contempt, an absolute discharge, coupled with the referral of the appellant to the Law Society of Upper Canada for practice mentoring.

Chronology of Events

[3] In January 2013, Ms. Fleming had entered guilty pleas to charges of assault against her husband and failure to comply with recognizance. When Ms. Fleming retained the appellant in July 2013, she was awaiting sentencing. Once retained, the appellant advised the Crown that an application to set aside the guilty pleas might be sought.

[4] Ms. Fleming was represented by different counsel in matrimonial proceedings which involved custody issues. Following the appellant’s retainer, the matrimonial proceedings were adjourned to await the outcome of the application to set aside the guilty pleas.

[5] That application initially was scheduled to be heard on October 4, 2013. It was adjourned to January 28, 2014 to enable the appellant to obtain the necessary transcripts. In December 2013, the appellant filed an application record.

[6] On January 28, the appellant informed Crown counsel she could not attend due to illness. As matters transpired, the presiding judge also was ill. The application to set aside was adjourned to February 4.

[7] The appellant did not attend court on February 4, nor did she inform her client or Crown counsel that she would not be attending. The application was put over to February 20.

[8] On February 6, the Crown served and filed an application to secure case managements orders, with the application returnable on February 10.

[9] The Crown’s application was brought on before the trial judge on February 10. The appellant did not appear. The trial judge adjourned the matter to the following day. The appellant did appear at that time. The trial judge put over to Monday, March 10 the application to strike the pleas, and made the matter peremptory.

[10] On March 10, Ms. Fleming appeared in court; the appellant did not. Court staff called the appellant’s contact number and spoke to her answering service. The service advised that the appellant was not answering her phone; the court staff left a message with the service for the appellant to call. The trial judge thereupon cited the appellant for contempt, and proceeded to dispose of the application to set aside the guilty pleas in the absence of the appellant.

[11] The appellant called court staff at 3:35 p.m. and asked staff to convey her apologies to the court for not appearing. According to the record of that call prepared by court staff, the appellant advised that “she has been extremely ill lately and has been bedridden and due to her illness misread her diary and did not realize that she was required for court today.”

[12] When her husband came home from work, the appellant went to a clinic where she was prescribed an antibiotic. In a few days, she was feeling better.

[13] The appellant appeared before the trial judge on March 17 and apologized for her absence the previous week. The trial judge set a date for the contempt hearing.

[14] The trial judge held the contempt hearing on August 20, 2014. The appellant appeared and testified, as did her husband.

[15] The appellant testified that she had not been feeling well over the weekend before the hearing. On the morning of March 10, she felt fuzzy, confused, and disoriented. She did not realize it was Monday. It was only after she got out of bed in the afternoon and checked her cell phone did she see the messages that had been left by court staff and by Ms. Fleming’s family law counsel who informed the appellant that the trial judge had cited her for contempt.

[16] The appellant again offered her apology to the court, and said she had taken steps to ensure she would not miss a court attendance again.

Reasons of the trial judge

[17] The trial judge correctly identified the applicable test for criminal contempt of court as that set out by this court in R. v. Glasner (1994), 1994 CanLII 3444 (ON CA), 93 C.C.C. (3d) 226 (Ont. C.A.). In Glasner, this court stated, at p. 242, that the actus reus of criminal contempt is conduct which seriously interferes with or obstructs the administration of justice or which causes a serious risk of interference or obstruction. The fault requirement “calls for deliberate or intentional conduct, or conduct which demonstrates indifference… akin to recklessness”: p. 244.

[18] The trial judge found that the appellant’s failure to attend the March 10 hearing had seriously interfered with the administration of justice, delaying not only the application to strike the pleas, but also the related family court proceedings.

[19] Although the trial judge accepted the appellant had not deliberately failed to attend court, she concluded the appellant’s conduct demonstrated reckless indifference to her obligations to the court and her client. The trial judge held that the appellant’s conduct “went far beyond mere discourtesy or inconvenience” and interfered with the court’s authority and its ability to administer justice. She found the appellant guilty of criminal contempt.

[20] The trial judge found the appellant’s apology did not purge her contempt, but was a mitigating factor concerning sanction. She fined the appellant $500 for her contempt. The trial judge also wrote that she would refer the matter to the Law Society “for any supervision or other action they deem appropriate.”

[21] Appellant’s counsel advised that the Law Society has opened a file on the matter, but he was not aware of the details, save that the Law Society’s investigation was in abeyance pending the disposition of this appeal.

Issues on the appeal

[22] The appellant advances several grounds of appeal:

(i) The trial judge erred in concluding the mens rea for contempt had been established because the reason for her failure to attend was an honest mistake;

(ii) The trial judge misapprehended the evidence about the availability of the appellant’s telephone records;

(iii) The trial judge erred in holding the appellant’s apology could not purge her contempt; and

(iv) The trial judge erred in determining sentence without allowing the appellant an opportunity to make submissions.

Analysis: Appeal from the contempt finding

[23] The first three grounds of appeal relate to the issue of whether the trial judge erred in finding that the mens rea for criminal contempt had been proven beyond a reasonable doubt.

[24] First, the appellant submits her illness caused her to make an honest mistake about the date of the court hearing and an honest mistake is incompatible with the subjective knowledge required for recklessness. The appellant contends the trial judge never rejected her evidence that she had not realized she was supposed to be in court on the Monday.

[25] I do not accept this submission. When the trial judge’s reasons are read in their entirety, it is clear she considered and rejected the appellant’s explanation of an honest mistake. The trial judge did not believe the appellant’s explanation that flu medication had so disoriented and confused her that she did not know what day of the week it was. The trial judge emphasized the “strong prior warnings” given by the court to the appellant about the need to bring the strike plea matter to a final conclusion and the peremptory nature of the March 10 hearing. She also held that the appellant’s evidence about her illness and attendance at the doctor late on the Monday afternoon did not explain her failure to check her schedule and attend to her obligations. The trial judge found the appellant’s excuse for non-attendance in court to be part of “a pattern of unreasonable excuses”. The appellant does not contend the trial judge made any palpable and overriding error in making those findings of fact.

[26] I also do not accept the appellant’s submission that the trial judge’s unfavourable view of her credibility was informed, in part, by a misapprehension of the evidence about the availability of her telephone records and the cell phone used at the time by the appellant’s husband. The trial judge clearly understood the appellant’s critical evidence that on March 10, 2014 she did not see the messages on her cell phone from her answering service, the court staff, and Ms. Fleming’s family law counsel until mid-afternoon because she did not check her phone that day until that time.

[27] Finally, the appellant argues the trial judge erred in holding that her apology could not purge her contempt, contrary to the decision of this court in R. v. Martin (1985), 1985 CanLII 3618 (ON CA), 19 C.C.C. (3d) 248 (Ont. C.A.), at p. 253, that a sincere apology can purge contempt.

[28] I do not accept this submission. A court hearing a contempt charge must consider the accused’s explanation, including any apology, and then determine on all of the evidence whether the case has been made out beyond a reasonable doubt: Glasner, at p. 244; R. v. Devost, 2010 ONCA 459, 256 C.C.C. (3d) 374, at para. 45. However, a judge is not obliged to accept an explanation or an apology: Devost, at para. 45. In the present case, the trial judge did not take the position that a sincere apology could not purge contempt. Instead, having rejected the appellant’s explanation that an illness prevented her from attending to her court obligations, the trial judge was not prepared to accept that an apology based on the appellant’s explanation that she was ill raised a reasonable doubt. That conclusion was open to the trial judge on the evidence before her.

[29] Accordingly, I would dismiss the appellant’s appeal from the finding of contempt.

Analysis: Sentence Appeal

[30] During the August 20, 2014 contempt hearing, the parties did not make any submissions about sentence. The record of the hearing discloses counsel proceeded on the basis that the only issue at the hearing was whether the appellant had committed criminal contempt. However, in her reasons for judgment, the trial judge immediately proceeded from making a finding of contempt to imposing the sanction of a fine. The trial judge then requested submissions from counsel on the amount of the fine.

[31] The appellant submits the trial judge erred in determining sentence without allowing her an opportunity to make submissions. The respondent argues that the flexibility of the summary procedure for criminal contempt allows a judge to determine sentence without seeking submissions from the parties.

[32] I accept the appellant’s submission. Other than in exceptional circumstances where an instanter summary proceeding is justified, the summary procedure for contempt is subject to the requirements of natural justice, which include affording the parties an opportunity to make representations about an appropriate sentence following a finding of contempt: R. v. Arradi, 2003 SCC 23, [2003] 1 S.C.R. 280, at para. 30. The trial judge erred by failing to give the appellant such an opportunity. In light of that error, it falls to this court to consider what sanction is fit in the circumstances.

[33] At the hearing of the appeal, we invited counsel to provide further submissions on sentence. Counsel filed a joint letter stating that in the event the court dismissed the appeal against conviction, there is a basis to conclude that an absolute discharge is in the appellant’s best interests and not contrary to the public interest. The Crown does not oppose a discharge. Counsel also advised that should the court grant a discharge, the Crown would be content if the court simply mentioned the trial judge’s referral to the Law Society in its decision and allow the Law Society investigation to take its course.

[34] The purpose of criminal contempt is to punish conduct calculated to bring the administration of justice by the courts into disrepute: United Nurses of Alberta v. Attorney-General for Alberta (1992), 1992 CanLII 99 (SCC), 71 C.C.C. (3d) 225 (S.C.C.), per Sopinka J., dissenting, at p. 230. Sentencing in criminal contempt cases operates to “repair the depreciation of the authority of the court”: International Forest Products v. Kern, 2001 BCCA 48, 149 B.C.A.C. 18, at para. 20.

[35] As the trial judge recognized, a wide variety of possible sanctions are available to a judge who has found a lawyer in contempt for failing to attend a court hearing, including a warning, reprimand, referral to the Law Society, costs, or a deterrent fine.

[36] Since 2010, formal protocols have existed between the Law Society and all levels of Ontario courts under which a judge who experiences misconduct by a lawyer can refer the lawyer to the Law Society to be mentored, rather than investigated, for misconduct.[^1] According to the protocols, where a judge refers a lawyer for mentoring, the Law Society will arrange for a senior member of a professional organization, such as the Criminal Lawyers’ Association, to conduct a mentoring meeting with the lawyer to discuss the lawyer’s conduct and mentor the lawyer about the conduct in question. A judicial referral for mentoring does not constitute a complaint of professional misconduct, but a request by the court that the professional regulator provide the member with the assistance needed to address and correct inappropriate conduct.

[37] It is in the long-term interests of the administration of justice that lawyers who do not appreciate the full extent of their obligations to the courts are afforded the opportunity for mentoring, correction and improvement. The court’s referral of a lawyer to the Law Society for mentoring provides a practical means by which to achieve that result.

[38] Given the existence of the mentoring referral protocol between the courts and the Law Society, a judge should consider whether the circumstances of a particular case would make a referral to the Law Society for practice mentoring a more proportional and effective solution to a lawyer’s failure to attend a scheduled court hearing than would resorting to the judicial contempt power.

[39] The appellant is a young lawyer; in March 2014, she had been in practice for just under 10 years. Although she leased space from a group of lawyers, she did not make use of any of the administrative services available through that chambers arrangement. She ran her practice out of her cellphone without putting in place the administrative and technological safety nets needed to meet her professional obligations. It is obvious that the appellant would benefit from assistance in organizing and conducting her professional practice.

[40] In my view, the goal of repairing the depreciation of the authority of the court caused by the appellant’s failure to attend court on March 10, 2014, can be achieved by granting an absolute discharge, coupled with a referral to the Law Society for practice mentoring. Accordingly, I would set aside the conviction, the fine imposed by the trial judge, and the terms upon which she referred the appellant to the Law Society. In their place, I would grant an absolute discharge and refer the appellant to the Law Society for practice mentoring. To be clear, the referral is not a judicial complaint of professional misconduct against the appellant, but a request under the 2010 protocol that the Law Society provide the appellant with formal practice mentoring.

Disposition

[41] For the reasons set out above, I would uphold the finding of contempt. However, I would set aside the conviction and sentence, including the terms of referral to the Law Society imposed by the trial judge. I would substitute an absolute discharge, coupled with the referral of the appellant to the Law Society for practice mentoring.

Released: July 5, 2016 (“DD”)

“David Brown J.A.”

“I agree Doherty J.A.”

“I agree K. Feldman J.A.”

[^1]: The March 31, 2010 letter protocols are found on the website of the Law Society of Upper Canada, www.lsuc.on.ca, by searching “Judicial and Tribunal Complaints”.