Court Information

Ontario Court of Justice

Date: 2015-08-28

In the Matter of: An appeal under subsection 135(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Parties

Between:

The Regional Municipality of York Respondent

— And —

Michael McGee Appellant

Hearing Details

Before: Justice Joseph F. Kenkel

Heard on: August 28, 2015

Reasons for Judgment released on: August 28, 2015

Counsel:

• Ms. Lorinda Angus, agent for the Respondent
• Ms. Fatema Dattu, agent for the Appellant

On appeal from: The conviction by Justice of the Peace R. Zito on March 17, 2015

Judgment

KENKEL J.:

Introduction

[1] Mr. McGee was convicted at trial of driving while using a hand-held communication device contrary to s.78.1 of the Highway Traffic Act RSO 1990 c.H-8. He appeals his conviction on the ground that the ineffective assistance of his paralegal agent deprived him of his right to be present at his trial and resulted in an unfair trial.

[2] The Municipality submits that the agent should not be appearing on an appeal where she also gives evidence about her own conduct at trial. Further, the respondent submits that while the agent made errors at trial this court does not have the jurisdiction under the Provincial Offences Act to grant a new trial on any basis other than an error identified in the reasons of the Justice of the Peace.

Ineffective Assistance of the Paralegal Agent

[3] I agree with the respondent that Ms. Dattu should not have appeared to argue this matter on behalf of the Appellant where it is her conduct at trial that is at issue. In Hill v. Toronto 2007 ONCJ 253 Justice Libman provided instruction on the procedure to be followed when ineffective assistance is alleged in a provincial offences matter. However, given that both parties agree that the agent's decisions at trial amount to ineffective assistance and given that Mr. McGee is here in person participating in this hearing I find it's not necessary to adjourn the appeal.

[4] Ms. Dattu explained that on the day of trial she was given this matter by another agent in her office. It seems she had little direct contact with the appellant but she was under the impression that he was nervous and may not wish to testify at his trial. The matter was called, and Ms. Dattu conducted the trial in the absence of the Appellant even though at the time he was in her office in the same building just steps away. She did not advise the presiding Justice of the Peace that Mr. McGee was in the building nor did she request that the matter be held down while she determined whether he wished to participate.

[5] Mr. McGee wanted to be present at his trial. He had a right to be present and the right to give evidence if he chose to do so. While the competency standard for now regulated paralegals in provincial offences matters has not been fully determined, either in provincial offence matters R. v. Khan 2015 ONCJ at para.39 or criminal matters R. v. Bilinski 2013 ONSC 2824, on any measure the breach of the accused's right to be present at his trial results in a miscarriage of justice.

Remedy

[6] The respondent argues that this court's power on appeal is limited by statute to a review of the decision at trial. I agree this court's powers are prescribed by statute. Section 138 of the Provincial Offences Act states in relation to Part I and II appeals, "…the court may affirm, reverse or vary the decision appealed from or where, in the opinion of the court, it is necessary to do so to satisfy the ends of justice, direct a new trial."

[7] I do not agree that section 138 precludes a remedy for a miscarriage of justice. Under that section I find it necessary to satisfy the ends of justice that a new trial be ordered before a different Justice of the Peace. Further, I order that Ms. Dattu not be permitted to represent the Appellant further in this matter.

Released: 28 August 2015

Justice Joseph F. Kenkel