Reasons for Judgment on Contempt of Court Proceeding
In the Matter of Gina DaFonte
Ontario Court of Justice
Date: December 3, 2014
Regional Municipality of Halton
Before: Justice L.M. Baldwin
Heard on: March 17, 2014; April 3, 2014; April 29, 2014; June 5, 2014; and August 20, 2014
Reasons for Judgment released on: December 3, 2014
Counsel:
- Mr. Christopher Webb – MAG counsel acting as amicus
- Mr. Paul Calarco – counsel for the defendant Gina DaFonte
Table of Contents
- Brief History
- Summary of Evidence on the Hearing
- Testimony of Gina DaFonte
- Re: Gina DaFonte's Non-Attendance on January 28, 2014
- Re: Gina DaFonte's Non-Attendance on February 4, 2014
- Re: Gina DaFonte's Non-Attendance on February 10, 2014
- Proceedings on February 10, 2014
- Gina DaFonte's Compelled Attendance on February 11, 2014
- Gina DaFonte's Non-Attendance on March 10, 2014
- Tab 33 – Affidavit of Michelle Galloway
- Summary of the Testimony of Andre Hermanstyne
- Submissions by Mr. Calarco
- Submissions of Mr. Webb Acting as Amicus
- Decision
- Sanctions
- Appendix A - Relevant Sections of the Criminal Code
- Appendix B - Protocol - Allegations of Incompetence
- Appendix C - Rules of the O.C.J.
- Appendix D - Case Law
BALDWIN J.:
[1]
On March 10, 2014, I cited Gina DaFonte, counsel of record for Tracy Fleming in a Criminal Court proceeding, for Contempt of Court pursuant to s. 484 of the CCC.
[2]
It was agreed that this hearing relates to whether there has been Criminal Contempt in the face of the Court. It was agreed that I have the jurisdiction to determine the matter.
(Submissions were heard and authorities referred to including 'Some Guidelines on the use of Contempt Powers', prepared by the Canadian Judicial Council, dated May 2001)
Brief History
[3]
On January 28th, 2014, February 4th, 2014 and February 10th, 2014, Gina DaFonte did not attend court as counsel of record in the matter of R. v. Fleming.
[4]
On March 10, 2014, Gina DaFonte failed to attend Court contrary to a Court Order I made compelling her attendance as counsel of record on February 11, 2014. That Order was made on Application by the Crown in the presence of Gina DaFonte and her client, Tracy Fleming. I also ordered that the Tracy Fleming matter was now marked pre-emptory and would proceed on March 10, 2014. Special arrangements were made to secure one day of court time required to hear the matter in the Burlington Courthouse starting at 10:00 a.m.
[5]
On March 10, 2014, Gina DaFonte failed to attend Court. The Court Clerk tried to contact Gina DaFonte to no avail.
[6]
By 12:10 p.m. Court staff had still been unable to contact Gina DaFonte. Her answering service could not reach her. At that time, I cited Gina DaFonte for Contempt of Court on the record and ordered her to appear before me on March 17, 2014, in the Milton Courthouse to set a date for the Contempt Hearing. (Tr. March 10, 2014, pp. 8, 9)
[7]
The pre-emptory proceeding began on March 10, 2014, at approximately 12:30 p.m. Tracy Fleming had no option but to represent herself. The evidence on that hearing took the rest of the court day to complete. Judgment was reserved to May 27, 2014.
[8]
At approximately 3:35 p.m. Gina DaFonte returned the Court's messages and spoke to Mr. Nanes, Group Leader of Burlington Court Services (Exhibit #3).
[9]
Gina DaFonte advised Mr. Nanes that she was ill, bedridden, and had misread her diary and did not realize that she was required for court today. She asked for an opportunity to apologize to me in chambers as she did not wish to waste any more of the Court's time, nor suffer embarrassment in front of her peers.
[10]
Gina DaFonte was advised that she had been ordered to appear on Monday March 17, 2014, to set a date for a Contempt Hearing.
[11]
Gina DaFonte received formal written notice of the Contempt citation in a letter sent to her by the judicial secretary dated March 12, 2014 which reads:
Dear Ms. DaFonte:
This letter is to confirm that Her Honour Madam Justice Baldwin has ordered you to attend before her on Monday March 17th, 2014 in the Milton Courthouse, 491 Steeles Avenue East, Milton, ON, courtroom number 16 at 10:00 a.m. to set a date for a contempt of court hearing.
The matter concerns your failure to attend court on Monday March 10th, 2014 in the matter of R. v. Fleming, contrary to a Court Order made compelling your attendance on February 11, 2014, in your presence.
[12]
On March 17, 2014, Gina DaFonte appeared before me and was given an opportunity to retain counsel for this hearing.
[13]
The matter was spoken to again on April 3rd, April 29th and June 5, 2014.
[14]
On August 20th, 2014, a Joint Application Record was filed on consent. The Record Book is comprised of 33 documents, transcripts, Affidavits, correspondence and doctor's notes relevant to this hearing.
[15]
Mr. Webb and Mr. Calarco also filed written submissions and referred the Court to case law.
[16]
Evidence was called and final verbal submissions were received.
[17]
In order to understand the context in which these Contempt proceedings arise, it is necessary that the written Reasons for Judgment I released in Tracy Fleming's case be read. This Judgment was released May 27, 2014, and has been reported as follows: R. v. Fleming 113 W.C.B. (2d) 397; 2014 CLB 14509, 2014 ONCJ 259, 2014 CarswellOnt 7069, [2014] O.J. No. 2532. (On January 29th, 2013, Ms. Fleming entered guilty pleas on a trial date in domestic violence matters. Her husband, Ian Fleming, was the victim. Ms. Fleming represented herself on trial date with Mr. D. Hotz appointed as s. 486 counsel. Approximately 6 months later, Ms. DaFonte became counsel of record and began an Application to strike the pleas alleging ineffective assistance of counsel. The Application had no merit and was dismissed. The guilty pleas were validly entered. The matter proceeded to sentence 16 months after the guilty pleas were entered.)
Summary of Evidence on the Hearing
Exhibits:
- Exhibit #1 – Joint Application Record
- Exhibit #2 – Letter dated August 13, 2014, to Mr. Calarco from Dr. A. Keshavjee, M.D. re: Gina DaFonte's walk-in-clinic appointment sometime between 3:10 p.m. – 6:45 p.m. on March 10, 2014
- Exhibit #3 – Memo dated March 10, 2014, at 4:10 p.m. from Harvey Nanes to me re: call from Gina DaFonte
Testimony of Gina DaFonte
[18]
Ms. DaFonte was called to the bar in 2005. She practices Criminal and Family Law.
[19]
She has an office in Toronto.
[20]
Tracy Fleming retained her in August of 2013 to bring an Application to strike guilty pleas she had entered on January 29th, 2013. (The complainant/victim in the matter was her husband, Ian Fleming.)
[21]
On January 28, 2014 (when she did not attend court) she had been ill. She told her client a few days before.
[22]
On February 4, 2014, she did not receive the letter sent to her by the Crown. It was her inadvertence in not noticing the court return date.
[23]
She does not go into the office every day. She does not live in Toronto. She checks in with the receptionist to see if anything is urgent.
[24]
She only learned she was required to attend court on February 10, 2014, when duty counsel called her that day.
[25]
The week before the scheduled hearing in the Fleming matter, she felt ill. The illness got worse on the weekend. She had a fever. She did not realize it was Monday. She was feeling fuzzy, confused, disoriented. Her husband went to work that morning.
[26]
She stayed in bed until mid-afternoon when she got up for food. That is when she saw the messages on her phone about missing the Fleming case and that she was to attend court for Contempt proceedings.
[27]
She called the Burlington courthouse and spoke to Mr. Nanes per Exhibit #3.
[28]
When her husband came home from work, he took her to the Urgent Care Clinic where she got a prescription antibiotic. She thinks she attended the clinic sometime between 4:00 p.m. and 5:00 p.m.
[29]
In a few days she was feeling better.
[30]
She offers the sincerest apology that she missed Court and inconvenienced the Court staff and Ms. Fleming. She did not want this to happen. It was not her intention to miss Court. She takes her Court attendances seriously.
[31]
She has tried to take steps so this will not happen again. She is involving her husband more. He will pick up her mail more. He now has access to her schedule and work numbers.
[32]
She will check in with 'her receptionist' more.
Re: Gina DaFonte's Non-Attendance on January 28, 2014
[33]
In cross examination, Gina DaFonte was asked questions about her E-mail correspondence with Ms. Fleming concerning her absence from court on January 28th, 2014.
Exhibit #1 at Tab 11:
[34]
From Gina DaFonte to Tracy Fleming on Jan. 26:
Hello Tracy – I have been ill this weekend. I'm hoping to feel better by Tues., but I'm letting you know in advance, in case I'm not able to come in on Tues. I will let the Crown's office know if there's a problem tomorrow.
Tab 12:
[35]
From Tracy Fleming to Gina DaFonte on Jan. 27:
Hi Gina, I can understand that you're sick but you have to realize I need to take care of this it has been 2 years and I need to get out of here. The longer it's put off is the longer my life is in Limbo. Please keep this court date to keep things moving along. Thank you.
Tab 13:
[36]
From Tracy Fleming to Gina DaFonte on Jan. 28:
Good morning Gina. Will you be in Court today?
Tab 14:
[37]
Fax from Gina DaFonte to Halton Crown's Office/Trial Co-ordinator dated Jan.28th sent 07:42:16:
Re: Tracy Fleming, courtroom M2 at 10 am
Matter scheduled for a motion today. Materials on behalf of client were filed in December. No responding materials have been served.
Unfortunately, counsel has been ill this week and is unable to attend and without responding materials, matter cannot proceed and a new date would be needed.
Tab 15 – Transcript of Jan. 28:
[38]
Mr. A. Khoorshed appeared for the Crown. Ms. Fleming appeared in person. The matter was spoken to in the Milton Duty Court before Mr. Justice Forsyth.
[39]
The Crown advised the Court that this is Ms. Fleming's Application to strike guilty pleas entered before Mr. Justice Stead alleging ineffective assistance of counsel. The Crown referred to prior correspondence with Gina DaFonte with respect to her motion not being perfected. The Crown advised the Court of the fax received that day from Ms. DaFonte indicating that she was ill; that she had not received a Crown response to her Application; and that Ms. DaFonte had not provided any suggested return dates in her fax.
[40]
Mr. Khoorshed stated as follows:
I tried to call Ms. DaFonte's office this morning when I received this fax. It's just an answering service who doesn't know anything about the file at all. There's no way to reach Ms. DaFonte or any assistance, or anybody who actually knows something, and no dates have been provided. Mr. Fleming, the complainant on the matter…because she's pleaded guilty and she's presumed guilty at this point is here. He advises me that family court proceedings are ongoing and they are waiting until this happens so this is causing some significant prejudice while his family proceedings go on and on, waiting for criminal proceedings to come to a conclusion. (p. 3)
[41]
After some discussion concerning difficulties in getting the motion back before Justice Stead, a soon to retire per diem Judge, the matter was adjourned to February 4, 2014, in the Milton Duty Court to deal with defence counsel's obligations to perfect the motion to strike the pleas.
[42]
At this Contempt hearing Gina DaFonte testified that she could not reach Ms. Fleming on January 28th to tell her that she would not be in Court because Ms. Fleming did not have a cell phone.
Re: Gina DaFonte's Non-Attendance on February 4, 2014
Tab 16:
[43]
On January 28, 2014, Mr. Khoorshed faxed a letter to Gina DaFonte advising her what had happened in Court that day and told her the matter was returning February 4, 2014, in the Milton Duty Court for argument on whether she was required to comply with the 'Protocol' when alleging ineffective assistance of counsel.
Tab 17:
[44]
On January 30th Gina DaFonte had E-mail contact with Ms. Fleming.
Gina DaFonte wrote:
Hello Tracy. What happened in court on Tues. I'm sorry I just couldn't make it. I understand that you'd like this dealt with, but I just wasn't able. Also, although your charges may be almost 2 years old, I only came onto this case last summer and it has taken time to obtain all of the materials and file them. Further, the Crown is required to respond and had not, as of Monday. Thank you.
Tab 18:
[45]
Tracy Fleming responded on January 31st:
Oh I know Gina I'm sorry. Have to go back to Court in Milton Tuesday February 4th at 10am they just put it over but the crown certainly tore me apart and the judge literally stuck up for me. Will you be attending? Also the crown said the procedures were not done properly?
Tab 19:
[46]
Transcript of the February 4, 2014, proceedings before Mr. Justice Wolder; Ms. Fisher-Grant appearing for the Crown; Mr. R. Browne as Duty Counsel assisting Ms. Fleming.
[47]
The Crown states "…Ms. Fleming is in the body of the court…she doesn't have any information with respect to the whereabouts of her counsel."
[48]
Mr. Browne states "Left a message, left our number for a return call, have not received that."
[49]
The Crown states "there has been some difficulty with the Crown's office being able to contact counsel…"
[50]
The Court asked Ms. Fleming what efforts she has made to contact her counsel. Ms. Fleming stated:
E-mails, phone calls and nothing….the last time I heard from her, she asked me what happened…in court on the Tuesday and I haven't heard from her since.
[51]
Ms. Fleming told the Court that Ms. DaFonte has an office in Toronto. Ms. DaFonte has staff at this office. The Court advised Ms. Fleming to talk to Ms. DaFonte's staff to find out what was going on.
[52]
The matter was adjourned to February 20, 2014, for a hearing before Mr. Justice Stead. (This did not happen as explained later in these Reasons.)
[53]
Duty Counsel advised the Court that he would also leave a message for Ms. DaFonte that the next Court date would be February 20, 2014.
[54]
At this Contempt hearing, Ms. DaFonte testified that she was not aware that the next court date in the Fleming matter was February 4th.
[55]
Ms. Fleming's E-mail to her somehow ended up in her 'junk box' and she 'misread the Crown's letter'.
[56]
There was no reference at this hearing to the messages left with her answering service by Duty Counsel advising her of the February 4th court date.
Re: Gina DaFonte's Non-Attendance on February 10, 2014
Tab 20:
[57]
On Thursday February 6, 2014, Mr. Khoorshed on behalf of the Crown, sent a letter VIA OVERNIGHT PUROLATOR COURIER to Ms. DaFonte, addressed to Ms. Gina DaFonte, Barrister & Solicitor, 700 Bay St., Suite 405, Toronto, ON, M5G 1Z6.
[58]
The covering letter reads:
Dear Ms. DaFonte
Re: R. v. Tracy FLEMING
February 10, 2014 – Milton #2
TAKE NOTICE that the Crown will apply on February 10th, 2014 in Milton Courtroom 2 at 10:00 a.m. or as soon thereafter as the matter can reasonably be heard, for an order compelling defence counsel to appear and for orders to case manage the within matters, as set out below.
[59]
The Crown submitted at paragraph 19:
that the numerous delays caused by the actions and failures to act of the defence are causing:
a. Wastage of valuable court time
b. Emotional and financial prejudice to the victim
c. Detriment to the repute of the administration of justice.
[60]
At paragraph 20:
The Court must take a proactive step to prevent the continuation or aggravation of this harm.
[61]
The Crown asked that this Court, as the Local Administrative Judge, assume the role of Case Management Judge in this matter.
[62]
The Crown asked this Court to order that the defence comply with the Superior Court of Justice Protocol for Allegations of Ineffective Assistance of Counsel immediately.
[63]
The Crown asked this Court to compel by Court Order counsel Ms. DaFonte to attend court to ensure that this matter progresses.
[64]
In the event that the matter had not been completed by the time that Justice Stead reached the age of mandatory retirement, the Crown asked that the Application to strike the guilty plea be denied and the matter proceed to sentencing pursuant so s. 669.2(2) of the Criminal Code.
[65]
The Crown included an Affidavit detailing the history of the matter with their Application.
Proceedings on February 10, 2014
[66]
This Application returned before me as Halton's Local Administrative Judge.
The transcript of that day's proceedings, are at Tab 21 of the Record Book on this Contempt hearing.
[67]
Mr. Khoorshed appeared for the Crown. Ms. Butany addressed the matter as Duty Counsel.
[68]
Ms. Butany advised that she had "put a call into counsel Ms. DaFonte and left a very detailed message suggesting strongly that she attend as soon as possible."
[69]
The matter was held down to await the attendance or response from Ms. DaFonte.
[70]
In the afternoon the matter was addressed again. Ms. Butany advised:
Your Honour I believe Ms. DaFonte returned my call, I suppose, speaking to the duty counsel manager this morning, and her request is to ask this matter be remanded to tomorrow or Thursday here in courtroom number two to set a new hearing date. This is the full contents of the information I have.
[71]
On that date I assumed Case Management functions as set out in s. 551.1 of the Criminal Code.
[72]
I adjourned the matter to February 11, 2014 and made a Court Order requiring Ms. DaFonte to attend with her client to hear submissions on the Crown's Application and to Case Manage the matter.
[73]
Both Mr. Khoorshed and Ms. Butany undertook to advise Ms. DaFonte of the proceedings and the Court Order made compelling her attendance with her client.
[74]
In her testimony at this Contempt hearing, Ms. DaFonte said that she knew nothing about the February 10, 2014 hearing until she received Ms. Butany's message.
[75]
Gina DaFonte had no explanation as to why she did not get the Crown's Application material sent via overnight Purolator Courier on February 6, 2014, other than to say the receptionist in the office did not tell her about it and she did not go into the office to pick up her mail.
Gina DaFonte's Compelled Attendance on February 11, 2014
[76]
Tab 25 contains the transcript of proceedings on this date.
[77]
Mr. Khoorshed appeared for the Crown at 10:00 a.m. and Ms. Fleming was present. Mr. Khoorshed stated:
I have seen nothing, nor heard from Ms. DaFonte or Ms. Fleming. I sent them a letter. I sent Ms. DaFonte a letter yesterday indicating that Your Honour had ordered her personal attendance in this court today at ten o'clock.
[78]
The matter was stood down to await the appearance of Ms. DaFonte.
[79]
The matter was recalled later in the morning when Ms. DaFonte appeared.
[80]
She stated:
I'm sorry for the delay. By the time I had learned yesterday afternoon that this matter had gone over to today, I had to shift some things around. I'm also not a resident of the local jurisdiction, so it takes some time to get here. I understand that Ms. Fleming is enroute …I'm only now learning that my office was served with an Application as a return date for bring forward. I was not aware of this. The first I heard of it was yesterday morning…I have not picked it up.
[81]
Ms. DaFonte said she would need time to review the Application and discuss it with her client and respond "which will add delay to this given that I obviously am at a loss that I don't have anything to argue or read at this very moment before Your Honour."
[82]
I stood the matter down to await Ms. Fleming's attendance before any further submissions were made. The Crown agreed to provide a copy of their Application to Ms. DaFonte so she could read it before we returned to the matter.
THE COURT: And I just said I will hear further submissions in the presence of your client. This matter has had a tortured history. Yesterday I assumed Case Management functions under Section 555.1 of the Criminal Code. I am the Local Administrative Judge in Halton. I will also be making a ruling later this morning with respect to the rules of the OCA and SCJ with respect to the type of motion you have put before the Court and what applies, and that refers to Schedule 1 at Tab 4, paragraphs 1, 2 and 3, and that is it for now until your client gets here. Please make a copy. Please read it. This matter is stood down. I am continuing day six of another trial. Thank you.
[83]
The matter resumed with Ms. Fleming present.
[84]
Further submissions were made about the history of the proceedings and I stated to Ms. DaFonte, "I don't think you have been on top of this file." (Tr. p. 12)
[85]
Ms. DaFonte stated that she is in her 10th year of practice and she does not make it a practice to miss court appearances.
[86]
I made a ruling that the Protocol of procedures to be followed by an Applicant alleging ineffective assistance of counsel applies and required Ms. DaFonte to serve notice of the Application on Mr. D. Hotz (s.486 counsel only); to obtain a waiver with respect to solicitor-and-client privilege from her client; to give Mr. Hotz an opportunity to respond to the allegation of ineffective assistance of counsel; and to subpoena Mr. Hotz as a witness if necessary. This was all to be done in advance of the return before Justice Stead on February 20th, 2014, for the final hearing.
[87]
At this point, Ms. DaFonte stated she had "one other glitch, Your Honour, with respect to the date is that on February 20th I'm in a two day preliminary inquiry…an in-custody matter with multiple co-accused…" Ms. DaFonte went on to say she only learned that the Fleming matter was adjourned to February 20th from her client yesterday.
[88]
After further lengthy submissions on the scheduling issues in this matter, I offered to convert one of my Chambers days (reserved judgment writing days) and to preside in Court on either March 10th, 19th or 21st in the Burlington Courthouse to complete this case pursuant to section 669.2(2) of the Criminal Code given that Justice Stead would be unable to continue it.
[89]
Ms. DaFonte stated that her preference was March 10th. Mr. Khoorshed rearranged his court commitments and he confirmed that he was available for March 10th. Unfortunately Mr. Hotz could not be contacted by phone to see if he had any other commitments that day.
[90]
The matter was then set on a pre-emptory basis to proceed on March 10, 2014 at 10:00 a.m. in the Burlington Courthouse.
[91]
I made it clear to Ms. Fleming that her Application must be prepared and ready to proceed that day:
THE COURT: If it's not ready to go, it is going to be summarily dismissed and sentencing will proceed.
MS. FLEMING: Okay. I understand that.
[92]
At this Contempt Hearing, Ms. DaFonte had nothing to add with respect to the proceedings held on February 11, 2014.
Gina DaFonte's Non-Attendance on March 10, 2014
[93]
Tab 28 contains the transcript of proceedings.
[94]
The matter was addressed at 10:00 a.m. Mr. Khoorshed was present for the Crown; Ms. Fleming was present; Ms. Fleming's father was present; Mr Ian Fleming the complainant/victim was present; Mr. D. Hotz was present. Gina DaFonte was not present:
THE COURT: …You're expecting your counsel this morning I take it?
TRACY FLEMING: Yes.
THE COURT: Okay. Has she contacted you to say she's held up in traffic or anything like that?
TRACY FLEMING: No. I don't have a cell phone either….but she hasn't contacted me at all today.
[95]
I reminded Ms. Fleming that the matter was marked pre-emptory and would be going ahead today. I held the matter down to await the anticipated arrival of Ms. DaFonte.
[96]
The matter was addressed again at 12:10 p.m.
[97]
Mr. Khoorshed advised that his office had received no word from Ms. DaFonte.
[98]
The Clerk of the Court put on record the attempts made to reach Ms. DaFonte:
CLERK REGISTRAR: Yes. Your Honour, 11:10 I called the number 1-416-971-5959, which was the number listed for Ms. DaFonte on her Application. It was answered by an answering service. I was put on hold until 11:13 when the lady came back on the phone. I was asked who I was. I identified myself as calling at Your Honour's direction. I was then put on hold again for a couple more minutes and then the lady came back on and said that Ms. DaFonte was not answering and I left a message with the courtroom or the courthouse telephone number, extension 221, for Mr. Nanes and then if a call came in to have it directed to me in the courtroom.
THE COURT: And you've received no call?
CLERK REGISTRAR: And I've checked with Mr. Nanes in the office about 10 minutes ago at 5 after 12 and he had received nothing.
[99]
I asked Ms. Fleming when she had last spoken to Ms. DaFonte. Ms. Fleming stated that it was through e-mail on Saturday. Ms. DaFonte said she would meet her at the Courthouse at 10:00 o'clock today (Monday).
[100]
Pursuant to ss. 9 and 484 of the Criminal Code, I cited Ms. DaFonte for Contempt of Court.
[101]
In cross-examination at this Contempt hearing, Ms. DaFonte testified that she has had health issues over the years and she goes up and down.
[102]
She had not been feeling well before March 10, 2014. She thought she had a cold and could fight it off with over the counter medications.
[103]
She repeated a number of times that when her husband left for work that morning she did not know what day of the week it was. She was disoriented, fuzzy and confused.
[104]
She did not think to take a taxi and go to a doctor during the day. She waited for her husband to come home with the car. He took her to a nearby clinic sometime between 4:00 and 5:00 p.m.
[105]
Dr. A. Keshavjee saw her at the walk-in clinic and gave her Zithromax for an upper respiratory tract infection. She asked him for a sick note.
[106]
At Tab 29 of the Record Book the handwritten note reads: "The above was seen due to medical reasons and missed work as a result."
[107]
Ms. DaFonte testified that she uses her cell phone to manage her law practice. She does not have a land line.
[108]
Her answering service tells everybody that she is not available when she does not pick up their call.
[109]
She has no record of the answering service calling her on March 10, 2014. She cannot show the Court a screen specific to March 10, 2014.
[110]
The Blackberry Torch cell phone she was using at the time was not working as of March 14, 2014, so she stopped using it.
[111]
In re-examination, Ms. DaFonte testified that she first saw the messages on March 10, 2014, sometime between 2:30 p.m. and 3:00 p.m.
[112]
She does not keep her phone plugged in near her bed so it will not wake up her husband.
[113]
Her disorientation and confusion could have been caused by the Neocitran and cold/flu pills she was taking that day.
[114]
Ms. DaFonte testified that Michelle Galloway has a limited role as her receptionist.
Tab 33 – Affidavit of Michelle Galloway
[115]
This Affidavit was sworn August 14, 2014, to assist in these proceedings. I produce here in its entirety so that the testimony given at this Contempt hearing can be understood.
I am the office administrator in the offices of Caramanna, Friedberg, Barristers and Solicitors, which is located at Suite 405, 700 Bay Street. As such, I have knowledge of what is hereinafter deposed to.
I provide office administration, secretarial and reception services to Caramanna, Friedberg. I am the only person who provides such services.
Gina DaFonte rents space as a subtenant from Caramanna, Friedberg. She is not often at this office and her office is sometimes used by Caramanna, Friedberg or other lawyers who rent space to conduct an interview if that is a free space. I believe she works primarily from her home.
I do not book appointments for her or assist in the administration of her practice.
I do not provide reception or telephone answering services for Ms. DaFonte, except if a package or mail is delivered. If such an item comes in, I will place it on her desk or will put it on the rail of the reception desk. I do not call her to advise her of any deliveries or mail as this is not part of my employment.
I understand that on Friday, February 7th, a package was delivered to this office for Ms. DaFonte from the Milton Crown's office. I have no specific recollection of such a delivery. However, if the package arrived, following normal procedures, I would have put it on her desk and left it there. It is my understanding that the delivery of the package on February 6th is of concern to the Court. I can only indicate that I would not have taken steps to alert Ms. DaFonte of the presence of the package for the reason stated.
If a call is made to Ms. DaFonte, it will go to her own telephone or answering service. She does not have a telephone line in the Caramanna, Friedberg bank of phones which I answer and her telephone is not part of the office system.
Ms. DaFonte also does not keep business cards on the reception desk. Others lawyers who share space here do and the lawyers of Carammana, Friedberg all do.
I do not keep in touch with Ms. DaFonte as this is not part of my employment.
If I was told by the delivery person that a package for any person sharing space here was urgent or important I would have tried to contact the lawyer and let them know of this. If this was a normal package delivery, such as through Purolator Courier, I would take the package, give the delivery person my name, and sign for it. That would be my involvement in the matter. I would not open a package unless it was for one of the Caramanna, Friedberg lawyers. I do not open packages for the other lawyers here.
I am making this affidavit to inform the Court of my practice in dealing with deliveries to this office for Ms. DaFonte and for no improper purpose.
Summary of the Testimony of Andre Hermanstyne
[116]
He is Ms. DaFonte's husband of 3 years. They have been together since 2007.
[117]
He is employed as a social worker for the Black Coalition for Aids Prevention. He has a College Diploma and has worked in the social worker field for 5 years.
[118]
He testified that his wife's health is not the best. She has allergies and goes to the doctor frequently.
[119]
The weekend before Monday March 10, 2014, his wife was sick with maybe the flu. She felt nauseous and a bit light-headed. Over the weekend her condition got worse. She started to become incoherent and was really tired. There was no improvement after the third day.
[120]
He left for work between 6:45 and 7:00 a.m. He works on Mondays, Tuesday and Thursdays.
[121]
He spoke to his wife before he left. She seemed 'out of it'. They did not discuss her duties that day before he left. He figured she knows. She made no requests of him before he left. He may have texted her through the course of the day but he cannot remember. He lost the cell phone he was using at the time. He got a new cell phone in May that has nothing about contacts made on March 10th, 2014.
[122]
He got home at approximately 4:00 p.m. and took her to the walk-in clinic right away.
[123]
He had no discussion with his wife on March 10th about her missing court. He learned about it in the days around this time.
[124]
In cross examination, he testified that their family doctor is in Whitby. They need an appointment to see that doctor. He had never been to the Pickering Urgent Care and Family Practice walk-in clinic before.
[125]
He is not aware of his wife making any changes to her law practice since being cited for Contempt.
[126]
He now knows where her schedule and work numbers are in case he has to call a court or a Crown's office for her. He has not had to do that.
Submissions by Mr. Calarco
[127]
Mr. Calarco reviewed the evidence in his written submissions and again after testimony was called as referenced above.
[128]
He submits that based on the evidence, no Criminal Contempt took place due to the regrettable non-attendance of Ms. DaFonte before the court on March 10th, 2014, as the non-attendance was due to illness; and even if that particular failure to attend could somehow be contemptuous, it has been purged by way of apology and the citation should be dismissed.
[129]
With respect to the law, Mr. Calarco agrees that non-attendance by counsel may, in certain circumstances, constitute contempt of court. The Court of Appeal for Ontario has set out conditions precedent as to when non-attendance by counsel may rise to the level of contempt and when that power may be exercised:
(a) the contempt power is to be used only for serious cases, sparingly, with great restraint and only when its use is required to protect the rule of law;
(b) the actus reus of criminal contempt is conduct which seriously interferes with or obstructs the administration of justice or causes a risk of same;
(c) the conduct of the non-attending counsel must cause a serious, real, imminent risk of obstruction of the administration of justice accompanied by a dishonest intention of bad faith;
(d) the failure to attend cannot be the result of some unforeseen event;
(e) mens rea amounting to deliberate or intentional conduct or indifference akin to recklessness is required;
(f) mere inadvertence, or some degree of negligence, is insufficient. (R. v. Glasner)
[130]
Similarly, conduct which amounts to a discourtesy, or even that which is unprofessional, however worthy of reprimand, is not sufficient to constitute contempt as it is not sufficiently egregious to warrant the stigma of a criminal conviction. (R. v. Fox (1977), 13 O.R. (2nd) 246 (Ont. C.A.); R. v. Watkins, (2000), 51 O.R. (3d) 358 (Ont. C.A.))
[131]
It is submitted that, in this instance, Ms. DaFonte was ill. She has supplied documentation to support this. She sought medical assistance. On this basis alone, her acts could not constitute contempt as they were the result of unforeseen events and not calculated to bring the administration of justice into disrepute.
[132]
Further, Ms. DaFonte had every intention of attending before the Court on March 10th. She had subpoenaed prior counsel Darrel Hotz to court to give evidence on the motion. She stated to her client in advance that she would see her in court on March 10th. It is submitted that these are not actions of any counsel who is indifferent to the obligation to attend court. This also denies any culpability for contempt.
[133]
Upon realizing the situation, Ms. DaFonte called the Court. Although the contact was later in the day, contacting the court is not consistent with indifference to counsel's obligations.
[134]
It is submitted that there has been no prejudice, which means great detriment, to others in this case; only inconvenience.
[135]
It is submitted that no contempt exists in this case and the citation should be dismissed.
[136]
Further, on March 17, 2014, Ms. DaFonte attended before the Court and offered a sincere apology for her failure to attend. This alone should expunge any contempt, even if there could be a basis for contempt, it was expunged.
[137]
Alternatively, the Court could consider rebuking Ms. DaFonte and referring the matter to the Law Society of Upper Canada.
Submissions of Mr. Webb Acting as Amicus
[138]
In the written submissions, it is noted that the Superior Court of Justice has inherent jurisdiction over all species of contempt. In contrast, a Provincial Court Judge only has the power granted by s. 484 of the CCC: the power to preserve order in a court over which he presides.
[139]
In facie contempt has been held to include counsel's failure to appear in court; R. v. Anders, [1982] 67 C.C.C. (2d) 138 (Ont. C.A.)
[140]
Ms. DaFonte's non-attendance on March 10th, 2014, in the face of a court order (compelling her attendance) is prima facie contempt in facie.
[141]
Criminal Contempt is concerned with injuries to the administration of justice, and applied to conduct that interferes with the court's process or is "calculated to interfere with the proper administration of justice". (Canadian Judicial Council, 'Some Guidelines on the Use of Contempt Powers' [May 2001] at pp. 12-13.)
[142]
It is submitted that the mental element is set out in R. v. Glasner (supra):
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.
[143]
Whether counsel's conduct was part of a sustained course of conduct is relevant to the determination of whether an impugned non-attendance was intentional, or at least reckless, rather than inadvertent, and thereby interfered with the proper administration of justice. As the Ontario Court of Appeal noted in Glasner (at para 66), "as criminal cases fail to move forward because of the indifferent conduct of defence counsel, public respect for the administration of justice suffers."
Another relevant circumstance is whether counsel's conduct prejudiced her client's interests. (R. v. Anders at para. 4)
[144]
It could be found that Ms. DaFonte's non-attendance was criminal contempt in facie. This determination is subject to the explanation offered, acceptance of her apology and viability of alternative sanctions less than a finding of contempt.
[145]
It is submitted that actual prejudice has been suffered by Ms. Dafonte's non-attendances as follows:
(1) Ms. Fleming's matter did not move forward despite her wish to have the matter dealt with so she could move on with her life;
(2) Mr. Ian Fleming attended the court appearances in this matter and he as well wanted the matter dealt with as it was delaying the custody and access issues regarding their 2 young children in the SCJ;
(3) Mr. Hotz (private counsel) was subpoenaed to attend court and he did so; he had obligations to clients that day that he could not attend to;
(4) Mr. Khoorshed had re-arranged his Court commitments to be present on March 10, 2014;
(5) Your Honour converted a Chambers day into a presiding day on March 10, 2014 and stated on the record that accused persons awaiting judgment in their matters would be bumped to accommodate this case;
(6) The Court was dark for over 2 hours awaiting the arrival of Ms. DaFonte, which wasted expensive Court resources;
(7) Ms. Fleming was further prejudiced by having to represent herself as the matter was marked pre-emptory to be heard that day.
[146]
It is submitted that contempt in facie relates to the proceedings on February 10th and forward. However, the prior proceedings have evidentiary value to inform Ms. DaFonte's mens rea on March 10th, 2014. (R. v. Watkins)
[147]
Gina DaFonte's first appearance before Justice Stead on the Tracy Fleming matter was on July 10, 2013. The matter was adjourned to August 28, 2013 with Ms. DaFonte undertaking to "ensure that the Application (to strike the guilty pleas) is filed in the coming weeks and obviously my friend's office will also be in a position to review it and…take a position".
[148]
On August 19, 2013, Ms. DaFonte wrote to the Crown Attorney's Office advising she would be on a medical leave from August 21 until September 13, 2013 and, as a result, would be unable to attend on August 28, 2013, to bring the motion to quash Ms. Fleming's pleas.
[149]
Ms. DaFonte's next appearance before Justice Stead was on October 4, 2013, where she asked for an adjournment to perfect the Application.
[150]
The matter was adjourned to January 20, 2014, on which date Ms. DaFonte did not appear due to illness as discussed in the chronology of events referred to earlier.
[151]
It is submitted that the numerous failed attempts to contact Ms. DaFonte during the course of this matter is relevant; Crown counsel could not contact her; her client could not contact her; duty counsel on occasion could not contact her; the Court Clerk could not contact her.
[152]
It is submitted that Ms. DaFonte has not reasonably explained why she did not check her Blackberry the morning of March 10, 2014, to view her court commitments.
[153]
Further, her attendance at the walk-in clinic to ask for a sick note seems curious given the time of her attendance there, which is after she spoke with Mr. Nanes from the Court and became aware she had been cited for Contempt of Court.
[154]
If the Court is left in a state of reasonable doubt on whether Criminal Contempt of Court has been established, it is submitted that Ms. DaFonte should be rebuked for her conduct and that the matter be referred to the Law Society of Upper Canada.
Decision
[155]
I agree with counsel that the Glasner (supra) case from the Ontario Court of Appeal sets out the tests the Court must apply in determining whether Criminal Contempt of Court in facie has been established. [1]
[156]
The Court starts that judgment with the statement that criminal contempt power is to be used only for serious cases. The facts in Glasner dealt with a counsel's failure to attend on two occasions on in-custody matters 'marked to be spoken to'.
[157]
Gina DaFonte failed to attend Court on a most serious matter. This was a defence Application to strike guilty pleas in a domestic violence case where allegations of ineffective assistance of counsel were being made. Finality in the criminal case was unduly delayed. Related Family Court proceedings were delayed. The professional competence of a lawyer acting as s. 486 counsel was put into question. That Application was eventually determined to be meritless and was an unfounded attack on another lawyer's integrity.
[158]
The Court of Appeal states 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. When determining whether to make a finding of contempt of court, the Court should consider the consequences of failing to appear, such as prejudice to the client, inconvenience to all participants in the administration of justice, wasting the Court's time, and other similar considerations.
[159]
As stated in Glasner, failure to move criminal cases forward because of the indifferent conduct of defence counsel, leads to the public losing respect for the administration of justice. As stated by Cory J. in R. v. Askov (1990), 59 C.C.C. (3d) 449 at p. 475, 74 D.L.R. (4th) 355 at p. 381, [1990] 2 S.C.R. 1199 (S.C.C.): "The failure of the justice system to deal fairly, quickly and efficiently with criminal justice trials inevitably leads to the community's frustration with the judicial system and eventually to a feeling of contempt for court procedures."
[160]
I find that Gina DaFonte's non-appearance did seriously interfere with the administration of justice. The prejudice noted in the Crown's position above [para. 144] was significant, sustained and affected many participants in the justice system, including other accused persons whose judgments were delayed, the clients of Mr. Hotz who did not get his professional services on March 10th, the security of young children caught up in the related ongoing Family Court proceedings.
[161]
In Glasner the Ontario Court of Appeal states that the mens rea 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 if due to some component of negligence by counsel, this is not a sufficient mental element.
[162]
I am satisfied beyond a reasonable doubt on the facts of this case that Ms. DaFonte's conduct demonstrates reckless indifference to her obligations to the Court and her client. I accept that she did not deliberately fail to attend Court, however, that is not the sole requirement to find the required mens rea for this offence.
[163]
Ms. DaFonte did indeed subpoena Mr. Hotz to attend on March 10th, but it is significant that she had to be ordered to do this on February 11, 2014. Ms. DaFonte did indeed provide a waiver of solicitor/client privilege, but again she was ordered to provide that in advance of March 10th on February 11th, 2014.
[164]
At this Contempt Hearing Gina DaFonte testified about 'her office' and 'her receptionist'. Gina DaFonte testified that she does not go into the office every day to pick up her mail. Her client, Tracy Fleming, told the Court that Gina DaFonte had an office and staff there.
[165]
It is clear on the evidence that Ms. DaFonte does not have an office based on the Affidavit of Michelle Galloway. She rents space as needed at that location only. She does not have a receptionist of any kind at that location as stated in the Affidavit of Michelle Galloway.
[166]
It was apparent on the evidence that Ms. DaFonte runs her office from her cell phone. The phone number she provides to her clients and the Court go to an answering service who, in turn, try to contact her if she picks up her cell phone.
[167]
On March 10th, 2014, the evidence is that Ms. DaFonte did not look at her cell phone until sometime in the afternoon.
[168]
I reject Ms. DaFonte's evidence that due to over-the-counter chest cold/flu medications, she was so disoriented and confused that she did not know what day of the week it was. She was aware that her husband got out of bed and went to work that day. He works on Mondays, Tuesdays and Thursdays. Her husband could not recall if he checked up on her at all throughout the day. This in inconsistent with their testimony that she was seriously ill when he left for work. Curiously, both Ms. DaFonte and her husband no longer have the cell phones they used at the time so there is no record of any communication between them that day. Further, there was no medical evidence that would explain why Ms. DaFonte did not check her 'virtual' office cell phone on Monday morning. Dr. Keshavjee's typed note dated August 13, 2014 (Exhibit #2) states that her (self-reported) symptoms 'could possibly' have affected her ability to work that day (March 10th, 2014). This evidence does not explain her failure to check her schedule and attend to her obligations. I conclude that she was recklessly indifferent to her obligations to the Court and her client.
[169]
This was not a regular court hearing that Ms. DaFonte failed to attend. Ms. DaFonte had already been compelled by Court Order made on February 10, 2014, to attend on February 11th, 2014 to perfect her Application and get the matter to final conclusion. I used the rarely needed powers of a Case Management Judge to order Ms. DaFonte to perfect her Application and I assumed full carriage of the matter given all the urgent issues at stake.
[170]
On February 11th, 2014, I told Ms. DaFonte that I was concerned about the tortured history of the proceedings to date. I warned her that it did not appear to me that she was on top of this file.
[171]
Despite these strong prior warnings and compelling her to appear again on this pre-emptory matter, Ms. DaFonte did not appear due to a bad cold/upper respiratory tract infection. She did not contact the Court until 3:35 p.m. when the Application to strike the guilty pleas was well underway.
[172]
It is reasonable to infer, and I do, that when Ms. DaFonte heard from Court staff that she had been cited for Contempt of Court, that is when she decided to go to a walk-in-clinic and asked for a sick note in efforts to have the Court excuse her conduct.
[173]
Providing the excuse of illness for non-attendance in court is not an unfortunate, isolated occurrence for Ms. DaFonte in this particular case. There has been a pattern of unreasonable excuses in this matter including Ms. DaFonte's statements that she misread a letter from the Crown Attorney concerning court attendance and later found her client's E-mail to her regarding court dates in her 'junk' box. All of this informs both my assessment as to her credibility and is relevant to the mens rea element of her Contempt on March 10, 2014.
[174]
Her conduct went far beyond mere discourtesy or inconvenience.
[175]
Her conduct has interfered with the Court's authority and its ability to administer justice.
[176]
It is not my intention to embarrass or humiliate Ms. DaFonte. However, her unacceptable excuses for failing to attend serious court matters has offended the integrity of the justice system and has harmed the administration of justice.
[177]
Accordingly, I find Ms. DaFonte guilty of Criminal Contempt of Court.
[178]
As Ms. DaFonte's apology is linked to the unacceptable excuses in this case, I find that it does not purge her contempt. It is a mitigating factor I will consider with respect to sanction.
Sanctions
[179]
There are a wide variety of possible sanctions available to a judge in such circumstances. They range from a simple warning/rebuke; a report to the Law Society; costs and or deterrent level fines.
[180]
Both general and specific deterrence, as well as denunciation, are the most important factors to consider in the imposition of penalties for criminal contempt. The sanction must deter other officers of the court from being indifferent to their obligations. The impact that the act has had on others is a relevant consideration in determining the level of penalty. [2]
[181]
Given all the aggravating factors in this case, I have determined that a fine is appropriate. The fine is payable through the Clerk of the Court and is to be made payable to the Minister of Finance. I will hear any submissions counsel may wish to make as to the quantum of the fine and time required to pay it. Submissions on the applicability of the Victim Fine Surcharge would also be helpful.
[182]
In addition, I will refer this matter to the Law Society of Upper Canada by sending them a copy of this Judgment for any supervision or other action they deem appropriate.
Special Thank you to Counsel
[183]
I thank Mr. Webb and Mr. Calarco for their thorough research, thoughtful submissions and assistance in this matter.
Released: December 3, 2014
Signed: "Justice Lesley M. Baldwin"
Appendix A
Sections of the Criminal Code Referenced in This Judgment
Contempt of Court – s. 9, s. 484
Section 9:
Notwithstanding anything in this Act or any other Act, no person shall be convicted or discharged under section 730
(a) of an offence at common law,
(b) of an offence under an Act of the Parliament of England, or of Great Britain, or of the United Kingdom of Great Britain and Ireland, or
(c) of an offence under an Act or ordinance in force in any province, territory or place before that province, territory or place became a province of Canada,
but nothing in this section affects the power, jurisdiction or authority that a court, judge, justice or provincial court judge had, immediately before April 1, 1955, to impose punishment for contempt of court.
Section 484:
Every judge or provincial court judge has the same power and authority to preserve order in a court over which he presides as may be exercised by the superior court of criminal jurisdiction of the province during the sittings thereof.
Judge to Sentence After Verdict Rendered – s. 669.2(2)
Section 669.2(2):
Where a verdict was rendered by a jury or an adjudication was made by a judge, provincial court judge, justice or other person before whom the trial was commenced, the judge, provincial court judge, justice or other person before whom the proceedings are continued shall, without further election by an accused, impose the punishment or make the order that is authorized by law in the circumstances.
Case Management Functions – s. 551.1 through to 551.6(2); s. 795
Section 551.1(1):
On application by the prosecutor or the accused or on his or her own motion, the Chief Justice or the Chief Judge of the court before which a trial is to be or is being held or the judge that the Chief Justice or the Chief Judge designates may, if he or she is of the opinion that it is necessary for the proper administration of justice, appoint a judge as the case management judge for that trial at any time before the jury selection, if the trial is before a judge and jury, or before the stage at which the evidence on the merits is presented, if the trial is being heard by a judge without a jury or a provincial court judge.
Section 551.1(2):
The Chief Justice or the Chief Judge or his or her designate may order that a conference between the prosecutor and the accused or counsel for the accused or a hearing be held for the purpose of deciding if it is necessary for the proper administration of justice to proceed with the appointment.
Section 551.1(3):
In the case of a trial for an indictable offence, other than a trial before a provincial court judge, the application or appointment may only be made after the prosecution prefers the indictment.
Section 551.1(4):
The appointment of a judge as the case management judge does not prevent him or her from becoming the judge who hears the evidence on the merits.
Section 551.2:
The case management judge shall assist in promoting a fair and efficient trial, including by ensuring that the evidence on the merits is presented, to the extent possible, without interruption.
Section 551.3(1):
In performing his or her duties before the stage of the presentation of the evidence on the merits, the case management judge, as a trial judge, may exercise the powers that a trial judge has before that stage, including
(a) assisting the parties to identify the witnesses to be heard, taking into account the witnesses' needs and circumstances;
(b) encouraging the parties to make admissions and reach agreements;
(c) encouraging the parties to consider any other matters that would promote a fair and efficient trial;
(d) establishing schedules and imposing deadlines on the parties;
(e) hearing guilty pleas and imposing sentences;
(f) assisting the parties to identify the issues that are to be dealt with at the stage at which the evidence on the merits is presented; and
(g) subject to section 551.7, adjudicating any issues that can be decided before that stage, including those related to
(i) the disclosure of evidence,
(ii) the admissibility of evidence,
(iii) the Canadian Charter of Rights and Freedoms,
(iv) expert witnesses,
(v) the severance of counts, and
(vi) the separation of trials on one or more counts when there is more than one accused.
Section 551.3(2):
The case management judge shall order that a hearing be held for the purpose of exercising the power referred to in paragraph (1)(g).
Section 551.3(3):
When the case management judge exercises the power referred to in paragraph (1)(g), he or she is doing so at trial.
Section 551.3(4):
A decision that results from the exercise of the power referred to in paragraph (1)(g) is binding on the parties for the remainder of the trial — even if the judge who hears the evidence on the merits is not the same as the case management judge — unless the court is satisfied that it would not be in the interests of justice because, among other considerations, fresh evidence has been adduced.
Section 551.4(1):
When the case management judge is of the opinion that the measures to promote a fair and efficient trial that can be taken before the stage of the presentation of the evidence on the merits have been taken — including adjudicating the issues that can be decided — he or she shall ensure that the court record includes information that, in his or her opinion, may be relevant at the stage of the presentation of the evidence on the merits, including
(a) the names of the witnesses to be heard that have been identified by the parties;
(b) any admissions made and agreements reached by the parties;
(c) the estimated time required to conclude the trial;
(d) any orders and decisions; and
(e) any issues identified by the parties that are to be dealt with at the stage of the presentation of the evidence on the merits.
Section 551.4(2):
This section does not apply to a case management judge who also hears the evidence on the merits.
Section 551.5:
Even if the judge who hears the evidence on the merits is not the same as the case management judge, the trial of an accused shall proceed continuously, subject to adjournment by the court.
Section 551.6(1):
During the presentation of the evidence on the merits, the case management judge shall adjudicate any issue referred to him or her by the judge hearing the evidence on the merits.
Section 551.6(2):
For the purposes of adjudicating an issue, the case management judge may exercise the powers of a trial judge.
Section 795:
The provisions of Parts XVI and XVIII with respect to compelling the appearance of an accused before a justice, and the provisions of Parts XVIII.1, XX and XX.1, in so far as they are not inconsistent with this Part, apply, with any necessary modifications, to proceedings under this Part.
Judge Unable to Continue – s. 669.2(1)(a)
Section 669.2(1):
Subject to this section, where an accused or a defendant is being tried by
(a) a judge or provincial court judge,
as the case may be, and the judge, provincial court judge, justice or other person dies or is for any reason unable to continue, the proceedings may be continued before another judge, provincial court judge, justice or other person, as the case may be, who has jurisdiction to try the accused or defendant.
Appendix B
Protocol re: Ineffective Assistance of Counsel Allegations
Schedule 1
Superior Court of Justice Protocol – Allegations of Incompetence
1. Before raising the incompetence of ineffective assistance of counsel, or that counsel otherwise contributed to a miscarriage of justice, appellate counsel has an obligation to satisfy themselves as soon as possible, by personal inquiry or investigation, that there is some factual foundation for the allegation, apart from the instructions of the appellant: R. v. Elliott (1975), 28 C.C.C. (2d) 546 (Ont. C.A.), R. v. Hofung (2001), 154 C.C.C. (3d) 257 at paras. 47-48 (Ont. C.A.), R. v. Wells (2001), 139 O.A.C. 356 at para. 76.
2. Appellate counsel should provide trial counsel, including duty counsel, with informal notice of the general nature of the potential allegations concerning ineffective assistance, and give counsel a reasonable opportunity to respond to the potential allegations. While not essential to permit trial counsel to respond (R. v. Dunbar and Logan (1982), 68 C.C.C. (2d) 13 (Ont. C.A.)), appellate counsel should seek a waiver in writing of solicitor-client privilege with respect to communications between the Appellant and trial counsel, insofar as it is necessary to preserve the professional integrity of counsel, while responding to the allegation. The waiver should be filed with the Notice of Appeal, or Supplementary Notice of Appeal.
3. When appellate counsel decides to make the allegation public in a Notice of Appeal, Supplementary Notice of Appeal, Factum or affidavit, appellate counsel must first provide trial counsel with a copy of the document. Similarly, appellate counsel must provide trial counsel with a copy of subsequent documents that deal with the allegations.
Appendix C
Relevant Rules of the OCJ
RULE 1 - GENERAL
Fundamental Objective
1.1(1) The fundamental objective of these rules is to ensure that proceedings in the Ontario Court of Justice are dealt with justly and efficiently.
1.1(2) Dealing with proceedings justly and efficiently includes
(a) dealing with the prosecution and the defence fairly;
(b) recognizing the rights of the accused;
(c) recognizing the interests of witnesses; and
(d) scheduling court time and deciding other matters in ways that take into account
(i) the gravity of the alleged offence,
(ii) the complexity of what is in issue,
(iii) the severity of the consequences for the accused and for others affected, and
(iv) the requirements of other proceedings.
Duty of Counsel, Paralegals, Agents and Litigants
1.1(3) In every proceeding, each counsel, paralegal, agent and litigant shall, while fulfilling all applicable professional obligations,
(a) act in accordance with the fundamental objective; and
(b) comply with
(i) these rules,
(ii) practice directions, and
(iii) orders made by the Court.
Duty of Court
1.1(4) The Court shall take the fundamental objective into account when
(a) exercising any power under these rules; or
(b) applying or interpreting any rule or practice direction.
Scope of Rules
1.2 These rules apply to all proceedings before the Court.
RULE 4 – CASE MANAGEMENT
Hearing and Trial Management
4.1 When conducting a hearing or trial, the Court has the power to make any order or direction in relation to the conduct of the proceeding that would assist in ensuring that it is conducted in accordance with the fundamental objective set out in rule 1.1.
Appendix D
Cases Referred to in the Preparation of These Reasons
Ontario Court of Appeal Decisions:
R. v. Fox (1977), 13 O.R. (2d) 246 – Lawyer arriving approximately one hour late for criminal judge and jury trial – Lawyer explaining delay due to car trouble – Lawyer called court 20 minutes after Court was due to convene and explained he would be late due to car trouble – Lawyer agreeing he would have been slightly late even without car trouble – Found in Contempt of Court and fined $100.00; on appeal to the OCA – Lawyer's conduct was open to censure and was a discourtesy to the Court, not an act of contempt – Contempt conviction quashed and acquittal entered
R. v. Anders, 67 C.C.C. (2d) 138; 1982 CLB 382, 136 D.L.R. (3d) 316 – Lawyer failing to appear on a date set for sentencing of client – Lawyer informing Crown Attorney 13 minutes before scheduled appearance that he was unable to appear as in another trial - Judge ordering that lawyer attend on the following day – Lawyer again failed to appear and merely sent letter asking for further adjournment and apologizing for inconvenience - Contempt of Court entered and $400.00 Fine imposed; Finding of Contempt and Fine upheld by OCA
R. v. Glasner, 19 O.R. (3d) 739; [1994] O.J. No. 1892 – Lawyer failing to appear on two occasions on dates for which case to be spoken to – Lawyer's failure to appear result of double-booking – Lawyer appeared and attempted to explain absence on prior occasions and apologizing – Contempt of Court entered – Fine of $2,000.00 imposed; OCA appeal of Contempt finding and sentence allowed – show cause hearing flawed
R. v. Watkins 51 O.R. (3d) 358;, [2000] O.J. No. 4083 – Lawyer did not appear for pre-emptory date to represent client on a guilty plea with a joint submission for failing to file tax returns – Contempt finding entered- Lawyer ordered to pay $1,000.00 and to pay $200.00 to his client for costs thrown away; OCA Contempt finding quashed, acquittal entered – show cause hearing was flawed – Judge erred in considering prior occasions on other matters lawyers and other members of his firm had failed to appear
R. v. Devost, 2010 ONCA 459, [2010] O.J. No. 2611; 2010 ONCA 459; 256 C.C.C. (3d) 374; 78 C.R. (6th) 178; 2010 CarswellOnt 4042; 263 O.A.C. 169 – Inexperienced criminal lawyer in a sentencing hearing made a statement that misled the judge into thinking that her client was not presently serving time for any other offences – Judge erroneously passed a sentence which later had to be corrected – Lawyer apologized and explained her error -Contempt finding entered (sanction not discussed); OCA quashed contempt finding and acquittal entered – mens rea not established and the show cause hearing process was flawed
Ontario Superior Court of Justice Decision:
- R. v. Nicol, [2009] O.J. No. 4206 – Lawyer was late for Court on two occasions while representing his client in a criminal trial matter – Court found no excuse for habitual lateness – Lawyer always alleged he had a valid excuse and did not apologize to the Court – Lawyer's behaviour was disrespectful and not in compliance with professional standards - Contempt finding made – Lawyer ordered to personally pay the Crown $250.00
[1] Glasner was most recently referred to as the leading case by the Ontario Court of Appeal in their decision in R. v. Devost, [2001] O.J. No. 2611; 2010 ONCA 459, 256 C.C.C. (3d) 374; 78 C.R. (6th) 178; 2010 CarswellOnt 4042; 263 O.A.C. 169; for other cases considered see Appendix D)
[2] "Some Guidelines on the Use of Contempt Powers', Canadian Judicial Council, May 2001, p. 40)