Court of Appeal for Ontario

Date: 2021-06-04 Docket: C66787

Before: Tulloch, Roberts and Trotter JJ.A.

Parties

BETWEEN

Her Majesty the Queen Respondent

and

Wim Van Ravenswaay Appellant

Counsel

Daniel Ciarabellini, for the appellant Michael Malleson, for the respondent

Heard: May 14, 2021 by video conference

On appeal from the order of Justice David L. Edwards of the Superior Court of Justice dated September 12, 2018, with reasons at 2018 ONSC 5348.

Reasons for Decision

[1] The appellant appeals from the dismissal by Edwards J. (“the application judge”) of the appellant’s certiorari application to quash the order of Colvin J. (“the appeal judge”).

[2] At the conclusion of the hearing of this appeal, we advised the parties that the appeal was dismissed with reasons to follow. These are those reasons.

[3] At the commencement of the appellant’s appeal from his April 26, 2017 conviction under s. 186(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, and from his 45-day sentence imposed by Justice of the Peace K. Boon, the appeal judge refused to allow the appellant’s agent, Gary McHale, to represent him, and he refused to adjourn the appeal to allow the appellant to obtain other representation. The appeal was not completed, and a portion of the argument was adjourned. In the interim, the appellant applied for certiorari of the appeal judge’s decisions disqualifying Mr. McHale and refusing the appellant’s adjournment request. The application judge dismissed the appellant’s application for certiorari but, with the respondent’s support, permitted the appeal to be restarted in its entirety before the appeal judge.

[4] The appellant submits that the application judge erred by dismissing the certiorari application because he failed to recognize and rectify the substantial wrongs or miscarriages of justice that the appellant argues were occasioned by the appeal judge’s disqualification of the appellant’s agent of choice and by his refusal to adjourn the appeal.

[5] We are not persuaded by these submissions. We see no error justifying appellate interference.

[6] We do not accept that the application judge and the appeal judge applied the wrong test. The application judge correctly framed his review of the appeal judge’s reasons for disallowing Mr. McHale to act as the appellant’s agent by reference to the governing principles articulated by this court in R. v. Romanowicz (1999), 178 D.L.R. (4th) 466 (Ont. C.A.), as interpreted and applied in R. v. Allahyar, 2017 ONCA 345, 348 C.C.C. (3d) 206.

[7] Romanowicz involved the competence of unlicensed paralegals to represent accused persons in summary conviction matters and was decided prior to the licensing of paralegals by the Law Society of Ontario. The court reiterated an accused’s constitutional rights to a fair trial and to competent representation by legally trained counsel, and recognized that accused persons have the right to choose their mode of representation as part of their constitutional right to control their own defence, namely, whether to be represented by a lawyer, an agent, or to represent themselves.

[8] However, the court did not conclude that accused persons have a constitutional right to representation by the non-lawyer of their choice. On the contrary, the court highlighted a court’s authority, by statute or pursuant to its inherent power to control its own processes, to bar any person from appearing as an agent who is not a barrister and solicitor if the court finds that the person is not competent to properly represent or advise the person for whom he or she appears as agent, does not understand and comply with the duties and responsibilities of an agent, or if competent, on whom the court cannot rely for their “integrity, honesty, or forthrightness” or ability “to conduct a trial ethically and honourably”: Romanowicz, at para. 74.

[9] Indeed, the court in Romanowicz described a court’s power to deny audience to an agent “whose participation in proceedings would either damage the fairness of those proceedings, impair the ability of the tribunal to perform its function or otherwise undermine the integrity of the process”, as part of the court’s obligation “to protect the integrity of the proceedings, including the accused’s right to a fair trial and the accused’s right, within the limits of the law, to choose a representative”: at paras. 61 and 64.

[10] This court in Allahyar concluded, at para. 28, that the principles articulated in Romanowicz “are of broader application” and apply in the context of the representation of accused persons by unlicensed representatives in provincial offences matters. Citing R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at paras. 18-19, the court confirmed, at para. 11, that “[t]he right of a representative to appear is subject to the court’s authority to control its own process”.

[11] Also in Allahyar, this court detailed the procedure set out in Romanowicz to be followed when a party attends with an unlicensed representative. This includes determining whether the party has made an informed choice to be represented by the agent, followed by an inquiry into the propriety of the representation. This fact-specific inquiry involves the kinds of concerns suggested in Romanowicz, namely “questions of competence, discreditable conduct, conflict of interest and a demonstrated intention not to be bound by the rules and procedures governing criminal trials”: Allahyar, at para. 17. The court confirmed that disqualification of an accused’s chosen representative is a serious matter and is justified only where it is necessary to protect the proper administration of justice.

[12] Returning to the particular circumstances of this case, the application judge noted that the appeal judge properly followed the Romanowicz principles and procedure to assess the propriety of the appellant’s representation by Mr. McHale, a non-lawyer and non-paralegal. Specifically, the application judge observed that, following a detailed discussion of these issues with Mr. McHale and the respondent, the appeal judge concluded that Mr. McHale did not understand and properly comply with the duties and responsibilities of an agent. The application judge also agreed that Mr. McHale’s conduct prior to the trial “was not one which would lead one to believe that either he understood or was complying with those duties and responsibilities”. The application judge referenced the appeal judge’s example that as an admitted tactic, Mr. McHale and the appellant intentionally did not notify the court or the respondent that Mr. McHale would represent the appellant, knowing that the respondent would object because Mr. McHale had been disqualified from acting for the appellant in a previous, related proceeding.

[13] Both the application and appeal judges viewed this conscious omission, correctly in our view, as a deliberate and improper attempt by the appellant and Mr. McHale to put the respondent at a disadvantage in a manner inconsistent with the obligations of litigants and their representatives to ensure the smooth operation of court proceedings so that precious court time is not wasted. Such deceitful misconduct is contrary to the proper administration of justice and undermines the purpose of the Provincial Offences Act, which is to provide a “speedy, efficient and convenient method of dealing with [the] offences” that it governs: R. v. Sciascia, 2017 SCC 57, [2017] 2 S.C.R. 539, at para. 18, citing R. v. Jamieson (1981), 64 C.C.C. (2d) 576 (Ont. C.A.), at pp. 551-52. Whether or not Mr. McHale was simply following the appellant’s instructions in concealing his involvement, as the appellant argued he was, is a distinction without a difference. The fact is that he was knowingly engaged in misconduct that affected the due administration of justice. The appeal judge’s decision disqualifying Mr. McHale from acting for the appellant was therefore justified in these circumstances.

[14] Finally, we agree with the application judge’s determination that the appeal judge’s refusal to grant an adjournment caused no substantial wrong or miscarriage of justice. As the application judge observed, it should have come as no surprise to the appellant that, having indicated on his court filings that he would represent himself, he would be required to proceed with the appeal if his stratagem to have Mr. McHale represent him failed. In any event, the appeal was adjourned and, noting the respondent’s support, the application judge stated that the appellant, either personally or with counsel or an agent who is not disqualified, could restart his appeal before the appeal judge. As such, there is no prejudice to the appellant and the adjournment issue has become moot.

[15] Accordingly, the appeal is dismissed.

“M. Tulloch J.A.” “L.B. Roberts J.A.” “Gary Trotter J.A.”