Court File and Parties

Court File No.: Cayuga - 1111-998-12-451-00 Date: 2013-11-13 Ontario Court of Justice

Between: Her Majesty the Queen — and — Randy Fleming

Before: Justice D.A. Harris

Heard on: October 16, 2013

Reasons for Ruling released: November 13, 2013

Counsel:

• G. Smith, counsel for the Crown
• G. McHale, agent for the accused, Randy Fleming

Reasons for Ruling

HARRIS J.:

Background

[1] Randy Fleming was charged with obstructing a peace officer contrary to section 129(2) of the Criminal Code. Crown counsel elected to proceed summarily. The maximum sentence is imprisonment for six months.

[2] Mr. Fleming asked to appear by agent. That agent is Gary McHale.

[3] Crown counsel opposed this on the basis that Mr. McHale is neither a lawyer nor a licensed paralegal.

[4] The issues before me then were (1) whether Mr. McHale could act as an agent for Mr. Fleming, and (2) whether I should permit him to do so.

[5] I heard both sides on October 16, 2013. Following this, I found that the law was clear that Mr. McHale could act as an agent for Mr. Fleming. I also concluded that I should permit him to do so. I made my ruling accordingly.

[6] That ruling was, as follows:

Gentlemen, I will make an indication at this point, I will be ruling that Mr. McHale may appear as agent for Mr. Fleming in this particular matter. Reasons will follow at some time in the future.

I want to be able to deal with the other issue today, the other choice is, I can go in there and spend about two or three hours preparing reasons and then have to deal with the other on a different day. I would rather get everything dealt with now and you can get all the reasons later.

I will point out that my ruling will of course, be tempered by the fact that a trial is not a static matter. It is a dynamic matter and the case law makes it clear that if, during the course of proceeding, a judge has concerns with respect to competence or other issues as to whether or not somebody should be in such a position, they can be raised and dealt with at that time. I am not expecting this, however, to become something that we start dealing with every other day or every other witness.

The ruling will be that Mr. McHale can appear as agent. I will also indicate that my ruling will stand even if it turns out that Mr. McHale receives a subpoena from the Crown tomorrow.

[7] I indicated that I would provide further written reasons later. The following are those reasons.

Statutory Framework

[8] The relevant parts of sections 800, 802 and 802.1 of the Criminal Code provide that:

800 (1) Where the prosecutor and defendant appear for the trial, the summary conviction court shall proceed to hold the trial.

(2) A defendant may appear personally or by counsel or agent, but the summary conviction court may require the defendant to appear personally and may, if it thinks fit, issue a warrant in Form 7 for the arrest of the defendant and adjourn the trial to await his appearance pursuant thereto.

802 (1) The prosecutor is entitled personally to conduct his case and the defendant is entitled to make his full answer and defence.

(2) The prosecutor or defendant, as the case may be, may examine and cross-examine witnesses personally or by counsel or agent.

802.1 Despite subsections 800(2) and 802(2), a defendant may not appear or examine or cross-examine witnesses by agent if he or she is liable, on summary conviction, to imprisonment for a term of more than six months, unless the defendant is a corporation or the agent is authorized to do so under a program approved by the lieutenant governor in council of the province.

Legal Principles from *Romanowicz*

[9] In R. v. Romanowicz, [1999] O.J. No. 3191, the Ontario Court of Appeal concluded at para. 85 that:

• Sections 800 and 802 of the Criminal Code are intra vires Parliament.
• Sections 800 and 802 permit agents who are not lawyers to represent accused in summary criminal proceedings brought under Part XXVII of the Code.
• There is no constitutional right to effective representation where an accused chooses to be represented by an agent who is not a lawyer. The accused does, however, retain the constitutional right to a fair trial.
• Where an accused is represented by an agent who is not a lawyer, the trial judge should satisfy herself that the accused's choice of representation was an informed one. However, there is no mandatory obligation on a trial judge to conduct a competency inquiry where an agent represents an accused in summary conviction proceedings.
• A trial judge has authority to refuse to permit an agent to represent an accused in summary conviction proceedings where the appearance of the agent would undermine the integrity of the proceedings. Indeed, the trial judge's authority to disqualify an agent must be invoked whenever it is necessary to do so to protect the proper administration of justice.

Changes Since *Romanowicz*

[10] At least two things have changed since Romanowicz was decided.

[11] In 2002, Parliament enacted section 802.1 of the Criminal Code.

[12] Since 2007, the Law Society of Upper Canada has recognized a new category of licensed paralegals who can lawfully provide certain legal services in Ontario.

[13] Neither change affects the outcome here.

[14] If sections 800 and 802 were intra vires Parliament, then section 802.1 is too.

[15] This new section limits the right of those accused of summary conviction offences to be represented by an agent other than a licensed paralegal only when the maximum sentence does not exceed imprisonment for six months. As I noted right at the beginning of these reasons, that is the case here.

[16] If the provincial legislature lacked the authority to determine who could appear before a criminal court as an agent before these changes, the provincial government still lacks that authority to do so now.

[17] It is therefore unnecessary for me to determine whether Mr. McHale qualified for certain exemptions under the provincial regulations regarding licensed paralegals. That law does not apply in a criminal court. Only federal law does.

[18] So, just as Mr. Romanowicz was entitled to be represented by counsel or by agent or by himself, Mr. Fleming has the same choices along with the added option of being assisted by a licensed paralegal.

Informed Choice Requirement

[19] The Court of Appeal in Romanowicz made it clear that such a choice must be an informed one:

… a trial judge faced with an accused who has chosen to be represented by an agent should ensure that the choice is an informed one. The trial judge should be satisfied that the accused is aware that the agent is not a lawyer and that the accused will not have recourse to various remedies which might be available to him if the agent were a lawyer and performed inadequately.

… the trial judge would do well to inform the accused that the laws of Ontario do not require that persons receive any training or demonstrate any level of expertise before being allowed to take money in return for representing persons in criminal matters. It is also advisable that the trial judge advise the accused that while the law expects certain minimum standards of competence from lawyers it imposes no such standards on those who are not lawyers.

[20] I questioned Mr. Fleming at some length on these issues and was satisfied that his decision was a fully informed one.

Competence Assessment

[21] I note that with respect to any issue with regard to Mr. McHale's competence, the Court of Appeal in Romanowicz cautioned trial judges that not only were they not required to assess the competence of a proposed agent, the Court of Appeal discussed in detail five good reasons why a trial judge should not do so.

[22] For example, the Court of Appeal stated:

Neither Parliament nor the Legislature has seen fit to impose any standard on agents who are authorized to appear in summary conviction proceedings. The involvement of unregulated agents in summary conviction proceedings must be accepted as a fact of life. Judges cannot become regulators and restrict the appearance of agents on a case-by-case basis based on their personal assessment of the competence of each agent.

[23] The Court of Appeal stated clearly though that while the Criminal Code does not expressly authorize a trial court to disqualify agents in summary conviction proceedings, 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.

Grounds for Disqualification

[24] The Court of Appeal provided a partial list of situations where disqualification would be appropriate at paras. 75 and 76 stating:

75 In addition to the cases where the agent's ability or character would disqualify the agent from acting, there may be other situations where disqualification is appropriate. Representation by an agent who has a conflict of interest, for example, where the agent has a special relationship with the complainant or other witness, could well interfere with the proper administration of justice. An accused should not be represented by a relative of the complainant in a sexual assault case, or by a person who is charged in a separate information with an offence against that complainant. Similarly, representation by an agent who has demonstrated an intention not to be bound by the rules and procedures governing criminal trials would also be inconsistent with the proper administration of justice.

76 These are only examples of circumstances which could result in an order disqualifying an agent. They are provided to demonstrate that disqualification 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.

Application to This Case

[25] Crown counsel argued here that Mr. McHale was in a conflict of interest. The only reason advanced by Crown counsel that struck me as having any validity at this time was the suggestion that Mr. McHale might be a witness during the trial. I canvassed this issue with Mr. McHale and Mr. Fleming and both assured me that Mr. McHale will not be a defence witness in this case.

[26] At this time, he is not listed in the Crown disclosure as a Crown witness.

[27] I was satisfied that there was no other reason why I should disqualify Mr. McHale from acting as Mr. Fleming's agent.

[28] Accordingly, I made my ruling that Mr. McHale could appear as the agent for Mr. Fleming.

[29] As stated, that decision may be revisited if, during the proceedings, things change so as to cause concerns with respect to competence or conflict of interest. The ruling will stand however if the only change of circumstances is that Mr. McHale received a subpoena to appear as a witness for the Crown. I will otherwise allow him to appear as agent unless and until he is actually called to the stand by Crown counsel to give evidence.

Released: November 13, 2013

Signed: "Justice D.A. Harris"

Justice D.A. Harris