Court Information

Ontario Court of Justice

Date: December 19, 2014

Court File No.: Toronto

Parties

Between:

Her Majesty the Queen (Respondent)

— And —

Bruce King (Appellant)

Judicial Officer and Counsel

Before: Justice Nakatsuru

Heard on: December 18, 2014

Reasons for Judgment released on: December 19, 2014

Counsel:

• E. Fernandez — counsel for the Respondent
• O. El Bey — agent for the Appellant

Judgment

NAKATSURU J.:

ENDORSEMENT

[1] This appeal illustrates the difficulty a court may encounter in fairly disposing of a case when faced with provocative behaviour by a litigant.

[2] The appellant was charged with failing to stop for a red light contrary to s. 144(18.1) of the Highway Traffic Act. On the trial date before His Worship Justice of the Peace S. Dudani, an individual who identified himself as Omar Shariff Eldey (sic) appeared and claimed he was representing "ex-relation Bruce King." When asked what the plea was, Mr. Eldey indicated that there was no plea and that he was looking for an answer to a number of writs he had filed before the court. There were documents styled "writs" filed with the court that ran a number of pages. When His Worship made further inquiries, Mr. Eldey stated that he did not know the appellant who was a "corporate construct" that did not exist, that his authority to represent the appellant was put on him, and that he was not defending anyone but looking for an answer to his writs. Mr. Eldey then asked the court for his authority. His Worship, understandably frustrated at this point, stated he was not going to get into a dialogue on this issue and ruled that Mr. Eldey had no legal authority to represent the appellant. When Mr. Eldey objected and stated he had some information on the appellant, His Worship asked the court officer to escort Mr. Eldey out of the courtroom on the basis he had no legal authority to be in court for the appellant. This whole exchange was relatively brief. I cannot comment on the tone of what took place.

[3] When Mr. Eldey was escorted from the courtroom, the appellant was paged by name. When no one answered the page, His Worship deemed the appellant not to have disputed the charge as he had failed to appear at his trial, convicted him, and fined him $260.

[4] With the greatest of respect to His Worship, he erred in conducting the proceeding in this fashion and the appellant was denied procedural fairness.

[5] This case proceeded by Certificate of Offence under Part I of the Provincial Offences Act. The appellant under the name of Bruce King properly filed a Form 8 Notice of Intention to Appear where he indicated he wished to challenge the Provincial Offences Officer's evidence and requested his attendance.

[6] On the trial date, Mr. Eldey appeared and was treated by His Worship as an agent for the appellant. This is something that s. 50(1) and s. 82 of the Provincial Offences Act permits. Of course, there is authority on the part of the court to disallow an individual to act as an agent for the defendant: see R. v. Romanowicz (1999), 45 O.R. (3d) 506 (C.A.). Given some of the responses of Mr. Eldey, I cannot say that His Worship erred in refusing to permit Mr. Eldey to act as an agent for the appellant.

[7] That said it was wrong to simply treat the case as if the appellant failed to appear for his trial and was deemed to not wish to dispute the charge after having been issued a notice of the time and place for trial. Essentially, the appellant did wish to dispute the charge and attempted to appear through his agent but that agent was disqualified by the court from acting. In such circumstances, fairness dictates that the trial be adjourned so that the appellant could attend personally or through another agent: see R. v. Sidhu, [2002] O.J. No. 2192 (C.J.). The Justice of the Peace should have treated the matter no differently from a case where a defendant sent an unknowledgeable and ill-instructed family member as an agent. The appellant should not suffer the consequences of any ill-advised conduct of the agent that resulted in the agent's disqualification.

[8] Unfortunately, the representations made by Mr. Eldey seemed to have influenced the court in treating the matter in a summary fashion. The appellant is entitled to his proverbial day in court. Therefore, the appeal is allowed and a new trial is ordered.

[9] Let me add that I am mindful that defendants should not be allowed to deliberately frustrate or obstruct Provincial Offences trials by resorting to frivolous or vexatious behaviour. Such conduct should not be tolerated: see for example of this Meads v. Meads (2013), 2012 ABQB 571, 74 Alta. L.R. (5th) 1 (Q.B.).

[10] There are provisions in the Provincial Offences Act that provide tools to ensure a fair but efficient trial. For instance, s. 45(3) provides that where a defendant refuses to plea, a plea of not guilty is entered. Section 51 and 54(1)(b) authorizes a summons being issued for the defendant's attendance even if the defendant has an agent. Section 52(1) gives the court the power to exclude the defendant if he interrupts proceedings such that his presence is not feasible. Finally, section 54(1)(a) provides for an ex parte trial in the absence of the defendant. This option has some attraction since the Provincial Offences Officer would be available to testify and the court would hear evidence of the offence and would have to be satisfied beyond a reasonable doubt before a finding of guilt is made.

[11] Finally, I would like to add that my decision is based upon the record of proceeding as it existed of the date of this trial, which was the first trial date for the appellant. It may be that on a future trial date, if the same situation arises, things can be treated differently. For example, it is not entirely clear to me whether Mr. Eldey was acting as an agent for the appellant like the Justice of Peace treated him to be. Given some of the representations made by Mr. Eldey and the materials filed in court, Mr. Eldey may well have been the appellant himself. He was simply insisting, for whatever motivation or reason, on being called something other than Bruce King. On the re-trial this can be clarified by determining whether the person who answers to the case on the docket is the person who received the material Certificate of Offence in the name of Bruce King, regardless of the nomenclature used by that person in court. If so, the court will have jurisdiction to proceed with the case.

[12] If it is actually an agent who attends on behalf of the appellant, then the presiding Justice of the Peace will have to be satisfied that the agent is appropriately qualified and instructed. That said, in my view, given the unique challenges presented in this case, it may be advisable in such circumstances to simply deal with any jurisdictional arguments in a straightforward and succinct manner on the merits rather than allowing the case to become unduly sidetracked by unproductive inquiries into the agent's status.

Released: December 19, 2014

Signed: Justice S. Nakatsuru