Court Information
Ontario Court of Justice
Date: June 5, 2017
In the Matter of: An appeal under Subsection 135(a) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended
Parties
Between:
Her Majesty the Queen in Right of Ontario as Represented by Ontario Motor Vehicle Industry Council
Respondent
— AND —
Mehran Amini
Appellant
Court Details
Before: Justice S.R. Shamai
Heard on: April 7, 2017
Reasons for Judgment released on: June 5, 2017
Counsel:
- Brian Osler, for the Respondent/Prosecution
- Yaroslav Obouhov, for the Appellant/Defendant
On appeal from: Conviction by Justice of the Peace Triantifilopoulos on September 9, 2015
Reasons for Judgment
Shamai J.:
Background
[1] At an ex parte trial conducted on April 20, 21, 2015, Justice of the Peace Triantifilopoulos heard evidence concerning allegations under the Motor Vehicle Dealers Act, 2007, that the Defendant/Appellant acted as a motor vehicle dealer without being registered to do so between February 12, 2013 and May 16, 2013, contrary to Section 4(1)(a) of the Act.
[2] On September 9, 2015, Mr. Amini was represented by counsel Mr. Obouhov, but was not personally present in court. On that date, the learned justice of the peace delivered reasons for judgment. The conviction was entered that day. A sentence hearing was conducted on November 17, 2015, and sentence imposed on March 21, 2016. Again, Mr. Obouhov appeared for Mr. Amini, who was in custody serving sentence on another matter. Mr. Amini was sentenced to 300 days incarceration, consecutive to time serving on another matter.
[3] On this appeal, Mr. Obouhov appears on behalf of the Appellant and raises several grounds on which the conviction should be set aside. In addition, he appeals against sentence.
[4] The following grounds are set out in the factum of the Appellant:
- that His Worship erred in law in holding the trial in the absence of the accused
- that His Worship erred in law in allowing the investigator, David Wilson, to give evidence regarding the signature of the Appellant on documents presented to the court in the absence of a proper evidentiary foundation
- that His Worship failed to consider and apply the rule in Hodge's case, and
- that in sentencing the Appellant, Her [sic] Worship fashioned a sentence that was inconsistent with the applicable sentencing principles.
[5] I note that although the factum refers to the conduct of the trial by Justice of the Peace Gilani raises certain issues, it was in fact Justice of the Peace Triantifilopoulos who presided over the trial. Similarly, while part of the material refers to "Her Worship", I understand that the learned Justice of the Peace at trial is male, and can be referred to with the usual male pronouns.
[6] As I am of the view that the appeal succeeds on the first ground raised, I will not deal with the other issues.
The Ex Parte Trial Issue
[7] The Appellant argues that the procedure undertaken by the Justice of the Peace at trial in this case pays no heed to the rule in R. v. Jenkins (2010), 2010 ONCA 278, 99 O.R.(3d) 561, that on an ex parte trial, where the prosecution seeks a custodial disposition upon a finding of guilt, the prosecutor and the trial judge must turn their minds to the propriety of an ex parte trial. In this case, while it is plain that there were many adjournments for the purpose of procuring the attendance of the Appellant at his trial, there is nothing to show the consideration which this issue ought to have attracted. In particular, with Prosecutor seeking essentially ten months in custody, and the sentence imposed being 300 days notwithstanding the representations on behalf of Mr. Amini, it is significant that the Justice of the Peace, prior to commencing the trial, was never advised of the prosecution position should a conviction result, nor did he inquire into the matter, although he knew that on the one count under MVA, three days had been set aside for trial.
[8] The Respondent's position endeavours primarily to show that Mr. Amini had been successfully prosecuted many times for related fraudulent conduct, as if this might cure the fundamental issues. On the argument of the matter before me, counsel Mr. Osler raised no legal authority nor factual pattern to show that the Jenkins issue did not arise.
Jenkins Principles
[9] In the case of R. v. Jenkins, our Court of Appeal reviewed the issue of constitutionality of ex parte trials under the Provincial Offences Act, 1990, c. P.33 as amended, an issue which is not raised in the present appeal. The Court comments, in concluding as in a previous case, R. v. Felipa (1986), 55 O.R. (2d) 362, that Section 54(1)(a) of the Provincial Offences Act was constitutional. The Court says at paragraph 35:
The Court has jurisdiction to proceed with an ex parte trial when the conditions precedent under the statute are met. Where the court should do so will depend on the circumstances. (emphasis added)
[10] In the Jenkins case, the Court was concerned with the apparent lack of attention and possibly wilful decision of the Appellant to not be present for the trial. The Court in Jenkins concluded that in fact Mr. Jenkins was ignoring the process and chose to launch the appeal "when the outstanding fine… became an inconvenience to him". While Mr. Amini may not appear to be a stellar or responsible member of the community, given his record of unlawful and criminal conduct and the comments about his behaviour towards counsel for the Prosecution in this case, the facts in this case are significantly different from the ones relied on by the Court of Appeal in Jenkins. In fact, a review of the Jenkins decision provides guidance from the Court of Appeal with respect to the possibility of miscarriage of justice arising from ex parte trial. These are the circumstances referred to above. The Court provided the following guideline, in response to the position on appeal that there were no formal guidelines in place to assist prosecutors in deciding when to request an ex parte trial. Clearly the presiding trial judge "has the discretion to proceed ex parte or to take other steps, usually the issuance of a warrant, to compel the attendance of the defendant". (para 32).
[11] As to the prosecutorial role in minimizing the risk of miscarriage of justice through ex parte proceedings, the Court said:
In every case where the prosecutor will seek a custodial sentence upon conviction, the prosecutor would be well-advised to consider whether an ex parte proceeding is appropriate. The longer the period of imprisonment sought, the less inclined the prosecutor should be to request an ex parte trial. If the prosecutor ultimately decides that it would be proper to proceed ex parte, he or she should advise the trial judge, before the trial begins, of their intention to seek a custodial sentence and the range of sentence that they anticipate will be appropriate. The trial judge can use this information to decide whether to proceed with the trial or take other action, such as adjourn the hearing and issue a warrant for the defendant's arrest. (para. 33)
[12] This wisdom has been applied recently in an "over 80" trial, a criminal matter which proceeded ex parte in the Yukon Territory. In reviewing the judge's decision to proceed ex parte, Justice Gower of the Yukon Supreme Court concluded that the trial judge had acted arbitrarily and unreasonably in proceeding ex parte in the circumstances of that court, and that it amounted to a miscarriage of justice. Justice Gower viewed the events at trial in this way: the "immediate agreement that the Crown could proceed ex parte without any rationale given at all is almost tantamount to a delegation of the Court's discretion to the Crown. It is in that sense that I find the discretion was exercised arbitrarily and unreasonably."
[13] The Court in Stephens reviews the decision of my then-colleague, Justice Paciocco, now on our Court of Appeal, in the case of Yussuf, 2014 ONCJ 143. In that case, the defendant failed to appear upon the resumption of a trial that commenced in his presence. For detailed reasons provided, the Court continued the trial on an ex parte basis. The Court described the "tenor" of the Jenkins caution about proceeding ex parte as "trial courts should order trials in absentia reticently" (para 13).
[14] As will become clear, the record is utterly unclear that Mr. Amini wilfully failed to participate in his trial, and entirely clear that the Justice of the Peace at trial made no inquiry into the factors relevant to proceeding in the absence of the Defendant, in particular, with regard to any penalty sought by the prosecutor.
Chronology
[15] On a summons issued July 17, 2013, Mr. Amini was required to attend at court on September 23, 2013. He did not. Prosecutor advised the Court that Mr. Amini was in custody, that he has counsel, and is facing criminal charges in addition to the ones before the court. She advised further that she believed the charge before the court might be the subject of a "global resolution", which would take place in Newmarket. On that basis, the matter was set over to October 28. What jurisdiction there was to adjourn in that manner, without the concurrence or participation of Mr. Amini, and how Mr. Amini was to have known about the proceedings, is not apparent from the transcript on that date.
[16] On the next date, a different prosecutor addressed the charge in court, again referring to the prospect of global resolution in Newmarket. The presiding jurist was a different Justice of the Peace from the prior appearance. Again, on counsel's suggestion, this and other charges against Mr. Amini were set over to November 25. The issue of process and specifically the knowledge of the Defendant of the next court date were not addressed.
[17] For the following four court dates noted on the information, no transcript was provided. Mr. Amini did not appear personally or by agent. The information shows that on April 24, 2014, a "Full day special" was set for September 29, 2014, with confirmation date of June 23, 2014.
[18] The information shows further that on June 23, 2014, the Crown sought three days for the trial: September 29, November 14, and November 21. A confirmation hearing was noted for August 20, 2014.
[19] At the August 20 hearing, I infer from Prosecutor Ms Laviola's comments that a previous Justice of the Peace on July 8, 2014, endeavoured to have Mr. Amini attend for the confirmation hearing. He was not present. The proof of service of a summons was casual, by submission. Without any further consideration of whether a position for custody was involved, the three days were set for trial.
[20] On September 29, Mr. Amini attended at court. He did not come prepared for trial, nor did it appear that he came as a result of the bench summons referred to earlier. He said that he "found out when [I] was checking the system in downtown court and they told me there is court appearance for me for today… I did not know about this. Prosecutor replied further that she understood Mr. Amini had been served with a summons "when he was taken into custody by York Regional Police…" Whether that was before or after the summons referred to in earlier proceedings, apparently left with an adult at Mr. Amini's residence, is unclear.
[21] At that time, Prosecutor indicated that there were ongoing discussions with a view to global resolution and so she asked for some time to speak with Mr. Amini. Mr. Amini was belligerent and surly in his comments to the court, even in acknowledging the next appearance, November 14 (though there was some confusion whether it was November 14 or 21). Although Ms Laviola told the court that she believed it would be in Mr. Amini's "very best interests" to pursue discussions towards a global resolution, no mention was made of a possible period of incarceration on the charge for which the September 29 appearance was intended as first day of an ex parte trial.
[22] Next appearance, November 14, Mr. Amini did not appear. Ms Laviola told the court, the same jurist as on September 29, about her emails with Mr. Amini in the intervening time, her discussions with counsel at the time (now a member of this Bench) and much about her understanding of Mr. Amini's history and her opinion of what he ought to do in his own interest. Again, the matter was set to the next date with no apparent process, and though counsel and jurist acknowledged that an ex parte trial would take place if he did not attend, no mention was made of potential penalty.
[23] Next appearance, November 21, Mr. Amini did not attend. Counsel Ms Laviola acknowledged that some of her comments to the Court on the previous occasion might have contained more information than a trial judge ought to have. She also indicated that "There is a potential that he faces a jail term here if convicted"; her comments reflected on the "frustration, yelling and demonstrations of anger" she perceived in her dealings with the Appellant, Defendant at the time, but did not indicate that Mr. Amini had been advised of the position for jail. The jurist at that time decided that with the comments which were perhaps not appropriately made to a trier of fact on trial, a judicial pretrial might be the next appropriate step. She opined as well:
It would be advisable that a judicial pretrial be conducted and that the Defendant be notified about the repercussions and the consequences of the trial in case there is a guilty, you know, entered – conviction entered. (p.7)
There appears to have been no follow-up on the direction of the Justice of the Peace.
[24] The next time the information was addressed in court was January 26, 2016. Mr. Amini did not appear. The transcript suggests that several sets of charges were on the list against him that date. The presiding Justice of the Peace was not the same as on previous occasions. With regard to the charge, which is the subject of this appeal, an exchange took place between the Justice of the Peace, Her Worship Gilani, and the prosecutor, Ms. Samaroo, regarding the dates set aside for trial. Mr. Amini was not present, and no inquiry was made as to his whereabouts or any effort to procure his attendance. Asked if the Defendant was going to be present or if it would be an ex parte trial, Prosecutor commented "Looks like ex parte, it's set for ex parte". Asked if the Justice of the Peace was seized of the upcoming trial, Her Worship stated: "Even if I'm seized, I should unseize myself because I've already done one set of charges".
[25] Thus, even after the clear direction of the Justice of the Peace on November 21, and on the next appearance (with no one attending either time for the Defendant), the presiding Justice of the Peace having some prior knowledge of the Defendant, nothing was done either to procure the attendance of the Defendant, to conduct a judicial pretrial, or to ensure that in confirming three days for trial, a judicial consideration of ex parte trial was enabled by Prosecutor advising that it would seek a custodial disposition on conviction.
[26] On April 20, the prosecutor appeared to commence the trial herein before Justice of the Peace Triantifilopoulos. She advised him briefly of the history of the matter, as Mr. Amini was not in attendance. The court's only comment was "Everything appears proper". He was not advised of any consideration of custody as an outcome. He was advised of "multiple witnesses" who have travelled from throughout the province and one from out of province". The presiding Justice of the Peace said, "Well, let's proceed".
Analysis
[27] It is clear from this review of the history of this matter that only once did the prosecution express to the court that there was a possibility of custody, should the prosecution on the one count succeed. That possibility was not drawn to the attention to the Justice of the Peace who conducted the trial, nor did he inquire into it. Until November 21, 2016, on the dates first set for trial and prior, Prosecutor referred to her hope of a global resolution including this charge. Reference was made to Mr. Amini being in custody, but no explanation was given of that. The charges were set over in the absence of the Defendant on numerous occasions, and in fact when he did appear in court on the charges, on September 29, 2014, he told the Court that he had found out about the trial date only by happenstance. A summons had apparently been issued earlier to procure the attendance of the Defendant, but proof of its service was incomplete, and Mr. Amini did not attend in response to the summons. Indeed, with all that was said, prosecutor did acknowledge that "should the matter ever go on appeal, it might be the appropriate appearance for the Justice of the Peace who had heard some of the history to continue as trial judge". Acknowledging the possibility of a period of custody as an outcome of a successful prosecution, the Justice of the Peace at the time ordered that a judicial pretrial take place involving the Defendant. There is no indication that such a meeting took place. Nor is it clear how Mr. Amini might have been notified of it. Although reference was made to counsel representing Mr. Amini on related matters, in conjunction with which a "global resolution" was targeted by the Prosecutor, there appears to have been no contact with that counsel, with regard to the trial matters or the events prior to them.
[28] Without a transcript showing when the dates were secured for trial in April 2016, it appears nonetheless that between November 21, 2015 and January 26, 2016, three further dates were secured for trial, and the trial was somehow marked to proceed ex parte.
[29] Throughout this pretrial history, there are clearly irregularities with the information appearing from time to time in court, and no steps taken to ensure that Mr. Amini was advised. Nor does it appear that counsel for Mr. Amini was advised of the trial dates, of the wish to proceed ex parte, of the position on conviction, or the direction of the Justice of the Peace to conduct a JPT. Early comments of Prosecutor showed her knowledge of counsel's involvement. I note that counsel did attend on behalf of Mr. Amini to participate in the sentencing. Mr. Amini does not appear to be polite and attentive; indeed, the entire "compendium" filed by the prosecution on this appeal is replete with transcript and judgments against Mr. Amini in other proceedings, to the exclusion of any legal authority which might assist me address the issues he raises through counsel on this appeal. Be that as it may, the purpose of the judicial system is to ensure that even the most surly, unsavoury, manipulative and wily members of the community, too, are dealt with according to the highest standards of the law.
[30] I note that Appellant raises other grounds for appeal, regarding the proof of handwriting, and the rule for consideration of a circumstantial case, the rule in Hodge's case. These are not frivolous grounds, it appears on a review of the proceedings, and they are the type of issues which demonstrate how, even apart from any of the well-known benefits of cross-examination of witnesses, Mr. Amini would have benefitted by participation and potentially representation by counsel. It is clear from the record that Mr. Amini has taken steps in relation to this and other concurrent matters to retain counsel. I do not know why he was not present or represented at trial. I do know that his participation may well have yielded a different result. He may have chosen to not participate. The record here does not show that he was given an opportunity to make an informed choice, as the law requires. I note as well that Mr. Amini has now served the sentence imposed by the Justice of the Peace at trial. Thus it is not the case as in Jenkins, that this appeal is motivated by an improper motive, to seek relief from sentence years after the sentence was imposed.
[31] I return to the line of authority which counsel argues on behalf of Mr. Amini. Respondent argues that Mr. Amini cannot benefit by his wilful non-attendance at trial, by raising the fatal procedural flaw at this stage. The facts preceding the trial in this matter are far less than clear, that indeed, that is what happened. Mr. Amini was apparently actively involved in resolution discussions at some point, and counsel knew that he was represented. The procedural history left much to be desired, as indicated above, in terms of ensuring that Mr. Amini knew of the dates he was required to attend. When he did attend, it was apparently not as a result of any process, which should have flowed in conjunction with the many times the charge was addressed in Court.
[32] At no time did the presiding jurist, either in setting dates for ex parte trial or in commencing the ex parte trial, inquire into the prosecutor's position, should a conviction result. The detailed consideration by a trial judge, demonstrated in the Yussuf case, of whether to proceed in the absence of the Defendant was never undertaken by the Justice of the Peace commencing the trial. In fact, no consideration was taken on the record, nor was the Justice of the Peace offered the critical information needed to reach a judicial decision: what efforts had been made to procure the attendance of the Defendant, and would the Prosecutor seek a custodial disposition should a conviction result.
[33] In the absence of these inquiries and any consideration, I must conclude, as did Justice Gower in the Stephens case, that the decision to proceed in the absence of the Defendant in these circumstances amounts to an arbitrary and unreasonable exercise of discretion under Section 54(1)(a) of the Provincial Offences Act, and amounts to a miscarriage of justice. Section 120(1)(a)(iii) provides that a conviction obtained in circumstances amounting to a miscarriage of justice are grounds to set aside a conviction. In proceeding in the absence of the Defendant, without having given proper consideration to the fundamental right to be present at one's trial, especially a trial with a potential for significant deprivation of liberty, the Justice of the Peace erred. Given the serious consequences of that error, and the fundamental nature of it, I am allowing the appeal, setting aside the conviction, and ordering a new trial.
Released: June 5, 2017
Signed: Justice S.R. Shamai