Court File and Parties

Court File No.: Dryden

Ontario Court of Justice

In the Matter of a Contempt Hearing

Between:

Her Majesty the Queen

— and —

Christopher Watkins

Before: Justice A. T. McKay

Heard on: June 8, 2012

Contempt Ruling released on: June 26, 2012

Christopher Watkins ........................................................................................... Self-represented

MCKAY J.:

Introduction

[1] Mr. Watkins is a lawyer practising in Thunder Bay, primarily in a criminal practice. He was ordered to appear before this Court to show cause why he should not be found in contempt of Court.

Background

[2] Mr. Watkins was counsel for an individual charged with sexual assault. On February 6, 2012, Mr. Watkins had an agent attend court in Dryden. The matter was set for a full day preliminary inquiry on April 13, 2012. Dryden is a single judge location with a single courtroom. When a full day is set aside for one matter, and that matter does not proceed, the day is wasted as nothing else can be scheduled. On April 13, 2012, neither Mr. Watkins nor his client appeared.

[3] There is some context to what occurred. Mr. Watkins has had trouble managing his court calendar in the past. On July 26, 2007, Mr. Watkins was counsel in a criminal matter in Fort Frances which was set for a two day trial. Fort Frances is also single judge location, and if a matter does not proceed, then the Court time is wasted as nothing else can be scheduled. Mr. Watkins failed to appear on the scheduled trial date, and as a result, I asked the Law Society of Upper Canada to investigate. Subsequently, the Law Society determined that Mr. Watkins failed to attend the trial because of confusion in his office and miscommunication between himself and his staff. There was a finding by the Law Society that there was no professional misconduct on the part of Mr. Watkins.

[4] Mr. Watkins has had difficulty managing his schedule in the Superior Court in Thunder Bay, and on occasion, has voluntarily made a donation to a charitable organization in the amount of one thousand dollars in order to demonstrate remorse. Mr. Watkins was found in contempt of court by Justice Lester of this Court in Thunder Bay for failing to appear before him when a disposition hearing was set. That decision was subsequently overturned by the Court of Appeal of Ontario November 2, 2000. That decision will be reviewed later in this decision.

The April 13th Non-Attendance

[5] As indicated, the preliminary inquiry was scheduled in Dryden April 13, 2012. Shortly before 6:00 p.m. April 10, 2012, an application for adjournment of the matter was sent by fax transmission to the Dryden Court office. The application was signed by Mr. Watkins and indicated the following grounds for the adjournment:

"Mr. Watkins has Provincial Offences trials in Thunder Bay that were scheduled prior to notification of Mr. Hemsworth's return date."

The application was signed by Mr. Watkins and the covering letter that went with it was signed by his criminal law clerk, Ms. Merritt. Court staff in Dryden was instructed on April 11th to make inquiries of the Provincial Offences Office in Thunder Bay regarding the matters which Mr. Watkins was scheduled to appear upon. They were advised by a representative of the Provincial Offences Office that Mr. Watkins did not have any matters set for trial in their Court on April 13, 2012. He did have four matters on the list which were either to be spoken to or endorsed to set a trial date. Accordingly, the application for adjournment filed by Mr. Watkins in the Dryden criminal matter was false and misleading.

[6] Mr. Watkins retained an agent attend Court on his behalf on April 13th in Dryden. The agent indicated to the Court that instructions from Mr. Watkins were to abandon the request for adjournment and proceed as his agent to conduct the preliminary inquiry. At that point, the Crown Attorney raised an issue of a conflict of interest on the part of the agent. In addition, it became apparent the accused was not present. In addition, the Crown pointed out that Mr. Watkins had indicated that identity was an issue at the preliminary inquiry.

[7] After some delay, Mr. Watkins' agent obtained further instructions and indicated that she was to waive the preliminary inquiry and consent to committal. Given the fact that the accused was not present, the Court would not allow that. Mr. Watkins was subsequently advised that he would be required to attend before the Court and show cause as to why he should not be held in contempt.

The Law Regarding Contempt

[8] The contempt power of this Court is restricted to contempt in the face of the Court. Appellate Courts have cautioned that great care should be taken in exercising that power. The burden on the accused is only evidential. If, at the end of the hearing, there is a reasonable doubt, the defendant must be acquitted. The facts taking place before the presiding judge amount to prima-facia proof, leading to a conviction unless the accused produces evidence amounting to a proper defence.

[9] As indicated, the Court of Appeal for Ontario, in R. v. Watkins, 51 O.R. (3d) 358, overturned a decision of Justice Lester of this Court finding Mr. Watkins in contempt. That decision provides a useful review of the law with respect to contempt. In that case, Mr. Watkins failed to attend a disposition hearing in which he was representing a client on charges under the Income Tax Act. The Court of Appeal held that the trial court had erred in two ways. First, the court excluded relevant evidence by not allowing Mr. Watkins to explain that he had arranged to have an associate appear at the disposition hearing. Secondly, the court also erred by taking into account the course of conduct of Mr. Watkins and his firm over the previous several months. The Court of Appeal took issue with the following statements by the trial court:

"It doesn't matter who spoke to who in the office. It is your job, you are on the record. Nobody was here. That is the fifth time this summer that I can think of about involving your office...Your firm, Mr. Watkins, if you will allow me to say so, is out of control. This is the fifth time, the fifth time this summer alone that your firm has to answer for similar problems. Fifth time. It has to stop."

The Court of Appeal reviewed the high procedural standards associated with the process of a contempt hearing. By referring to the course of conduct over the previous several months, the trial court had raised the question of whether Mr. Watkins could be found criminally liable for the failings of other members of the firm. In addition, the Court of Appeal held that the court should have advised Mr. Watkins of the specific non-appearances that the Court was referring to and given him an opportunity to address the particulars of those non-appearances and his responsibility for them. Accordingly, the contempt finding was overturned. This court will confine itself to consideration of the events surrounding the filing of the false and misleading application for adjournment April 10th, and the non-attendance April 13th.

[10] The Court of Appeal pointed out that counsel's failure to appear in a matter is not per se criminal contempt, but may constitute criminal contempt in certain circumstances. The relevant cases distinguish between conduct which is discourteous or even unprofessional, and conduct which is sufficiently egregious to warrant the stigma associated with a criminal conviction. Other appellate decisions point out that the fault requirement for criminal contempt calls for either deliberate or intentional conduct, or conduct which demonstrates indifference which is akin to recklessness. If the conduct shows inadvertence, even due to some component of negligence by counsel, this is not a sufficient mental element.

Evidence at Contempt Hearing

[11] The evidence at the contempt hearing consisted of the testimony of Mr. Watkins. In addition, prior to the hearing, his Office Manager, Ms. Seguin, filed a lengthy affidavit with numerous documents attached. Ms. Seguin was also available to testify at the contempt hearing. Much of the evidence of Ms. Seguin related to the nature of the practice of Mr. Watkins. She indicated that he has practiced poverty law and human rights advocacy for the past seventeen years. His practice is predominately in the Thunder Bay area, but he takes a small number of cases outside of Thunder Bay area, including the Kenora and Dryden areas. Her description of his practice can be summarized by these passages from her affidavit:

"Mr. Watkins in his representation of impoverished (LAO) clients devoted himself to this representation when many lawyers turned away out of a sense of a humanitarian purpose. Due to his decision he developed a significant client base when there was no real additional financial incentive to do so. The amount of work has been a significant drain on him and his staff. During the last six years he has a twelve staff turnover (Exhibit B). It is his experience that when staff become trained they move on to better paying or government staff positions. …. As a result, due to the higher requirements of his Court practice Mr. Watkins finds himself relying on under trained staff."

[12] Ms. Seguin's evidence also indicated the she had conducted a full internal review of the files related to this matter and that her understanding was that Mr. Watkins was unaware that the matter in Dryden was scheduled for a preliminary hearing on April 13 until April 10, 2012. Her evidence is also that the client in the matter had been advised that he needed to attend Court in Dryden on April 13. It was also her evidence that most of the scheduling on the matter was carried out by Ms. Merritt. Her description of Ms. Merritt is as follows: "Ms. Merritt is a relatively new assistant, starting in the criminal department in April 2011, and is not fully trained in the processes, which will be rectified with future matters".

[13] Mr. Watkins evidence was very similar to Ms. Seguin's in terms of describing the operations of his office and the nature of his practice. He indicated that he relies heavily upon his clerks. With respect to setting the date for the preliminary inquiry in Dryden, he indicated that Ms. Merritt provided a series of dates to his agent. He believes that she was working from an older list of available dates which had not been updated, and did not reflect the fact he had other commitments in the Provincial Offences Court and the Superior Court in Thunder Bay on April 13th. His agent attended Court in Dryden on February 6th and set the date for the preliminary inquiry. His agent immediately notified his office of that date. Somehow, Ms. Merritt did not provide him with that date so that it was entered into his calendar. On February 17, 2012, a number matters in the POA court in Thunder Bay where adjourned to April 13th, none of them for trial. However, Mr. Watkins' evidence is that a paralegal at his firm had left the office with very little notice earlier in the year, and accordingly Mr. Watkins was required to deal with some of the POA matters which normally would have been dealt with by the paralegal. Mr. Watkins mistakenly thought that the matters set for April 13th were set for trial. On April 10, 2012, when corresponding by e-mail from the courthouse to Ms. Merritt he learned that the matter in Dryden was set for preliminary inquiry on April 13th. He looked at his on schedule and mistakenly thought the POA matters where set for trial on April 13, and instructed Ms. Merritt to draft an application for adjournment of the preliminary inquiry on that basis. She did so, and Mr. Watkins signed the application for adjournment and Ms. Merritt served it on the Crown and filed it with the court office in Dryden.

Documentation

[14] There were a number of documents filed as part of the evidence on the contempt hearing, including copies of the e-mail messages between Mr. Watkins and Ms. Merritt, and various items of correspondence. Included was an e-mail message dated March 29, 2012, from Ms. Merritt to Mr. Watkins. That e-mail apparently enclosed a draft letter of instructions to the agent retained by Mr. Watkins and indicated the following: "Please revise. Need to know what it is to be set for as well." The response from Mr. Watkins dated April 4, 2012 simply said "Preliminary". Also filed was a letter dated April 4, 2012, from Mr. Watkins to his agent. It indicated the following: "this letter is to confirm our discussion with respect to appointing you to act as agent on this date. The above client has a preliminary discovery hearing on the 13th day of April, 2012 in Dryden, Ontario, I have Provincial Offences trials on that date and am required in Thunder Bay".

[15] The series of email messages which began March 29, 2012, continued on April 10, 2012. Ms. Merritt wrote to Mr. Watkins indicating the following: "for Mr. Hemsworth's matter...his appearance this Friday is a preliminary hearing...we have hired an agent (Karen Seeley) I have provided numerous dates. Will he have to attend on this date...and will it be acceptable to have an agent handle this" Mr. Watkins responded with the following message: "is it to set the preliminary date? If yes send a designation of counsel allowing our agent as well add his name". Ms. Merritt's response to that message is as follows: "no it is set for preliminary hearing".

[16] Mr Watkins apologized for the filing of the application for adjournment, and his non-attendance. His evidence was that he would never intentionally mislead a court. He also testified that he would never knowingly fail to attend a scheduled trial date. He testified that, in part because of this incident, he is modifying his practice to decrease the volume of files which he handles by focussing on personal injury and class action litigation.

Finding

[17] Both the testimony and the documentation show a great deal of disorganization and confusion regarding what the matter was set for in Dryden. It shows inattention to obligations to both the Court and the client. It also, in my view, shows negligence on the part of Mr. Watkins. However, the documentation does not support any inference that the conduct was deliberate or intentional. On the evidence as a whole, I have a reasonable doubt as to whether the conduct demonstrates indifference which is akin to recklessness. Therefore, the evidence does not establish a basis for contempt finding against Mr. Watkins.

Released: June 26, 2012

Signed: Justice A. T. McKay