Court File and Parties

Ontario Court of Justice

Date: 2018-01-08

Court File No.: Cornwall, Ontario 3960-999-16-517-00

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

Between:

Her Majesty the Queen Respondent

— And —

Alexa Denae Harper Appellant

Before: Justice D.A. Kinsella

Heard on: November 21, 2017

Reasons for Judgment released on: January 8, 2018

Counsel:

• Matthew Collins, counsel for the prosecution
• Peter Balatidis, agent for the defendant Alexa Denae Harper

On appeal from: A conviction by Justice of the Peace Rozon on October 18, 2016

Reasons for Judgment

KINSELLA J.:

Introduction

[1] This is an appeal pursuant to section 135(1) of the Provincial Offences Act ("POA"). Prior to the scheduled date for the appeal, agent for the appellant sought permission to make submissions in writing rather than appear in person. This permission was granted.

[2] As part of her appeal, the appellant also brought a motion to introduce fresh evidence. This evidence consisted of the affidavit of the appellant, Alexa Harper. Counsel for the respondent indicated that they would not seek to cross-examine the appellant on her affidavit. Submissions with respect to the admissibility of this fresh evidence were also made in writing.

[3] The appellant advances two, albeit interconnected, grounds on appeal. First, the appellant submits that the paralegal who represented her at trial entered a plea of guilty on her behalf without obtaining appropriate instructions. Further the appellant submits, relying largely on the proposed fresh evidence, that her plea was not informed.

[4] There are two issues for the court to decide. First, the court must determine the process which should be followed when a paralegal on appeal alleges that a paralegal at trial acted without instructions, an act which would amount to professional incompetence. Second, the court must determine whether or not the proposed evidence meets the test for fresh evidence.

[5] The grounds related to incompetent assistance are hardly novel and appear all-too-frequently in POA appeal courts. Despite clear guidance having been provided by the courts for at least the past decade, it would appear as if the correct process which should be followed when ineffective assistance of paralegals is alleged in POA matters need to be re-addressed.

Facts

[6] Ms. Harper was charged with stunt driving contrary to section 172(1) of the Highway Traffic Act ("HTA"). This offence carries with it (for a first offence) a minimum fine of $2000.00 and six demerit points, as well as a possible driving suspension for up to two years.

[7] Ms. Harper retained the services of X-Copper in Toronto, Ontario to represent her on this matter, which was first scheduled to be heard in Cornwall, Ontario on August 23, 2016. On that date, an agent (B. Kutlesa) appeared for Ms. Harper and sought a remand to October 18, 2016 in order to request and review disclosure.

[8] On October 18, 2016 that same agent appeared in front of Justice of the Peace Rozon. At that time, the Crown amended the charge to the lesser offence of speeding, 159 kilometers per hour in a 100 kilometers per hour zone, contrary to section 128 of the HTA. Mr. Kutlesa advised court that the amendment was done on consent and that he had Ms. Harper's instructions. He further entered a plea of guilty on her behalf indicating to the court that he was "satisfied that the facts would support the conviction." A conviction was registered and a fine of $575.25 plus costs and surcharge was imposed. Given the speed that was acknowledged, which was in excess of 50 kilometers over the posted speed limit, 6 demerit points were also automatically imposed.

Allegations of Incompetent Assistance

[9] In 2006, the province of Ontario determined that paralegals should be regulated and passed the Access to Justice Act, which required that paralegals undergo mandatory training, carry liability insurance, and answer to a public body to investigate complaints. That oversight was given to the Law Society of Upper Canada, which then enacted the Paralegal Rules of Conduct in 2007, along with the companion Paralegal Professional Conduct Guidelines. These rules and guidelines, which mirror those governing members of the bar, codify the expectations placed on those who are licensed paralegals.

[10] Paralegals, like lawyers, have a duty to "provide legal services and discharge all responsibilities to clients, tribunals, the public and other members of the legal professions honourably and with integrity" (Rule 2.01). While a paralegal must represent a client's interests diligently and competently, he or she must not do so in a manner which would bring disrepute to the profession or the administration of justice.

[11] Rule 7 governs the relationships between paralegals, noting that paralegals have an obligation to act with courtesy and good faith in their interactions with others including other licensees. In particular, Rule 7.04 states: "A paralegal shall not engage in ill-considered or uninformed criticism of the competence, conduct, advice or charges of other licensees, but should be prepared, when requested, to represent a client in a complaint involving another licensee."

[12] The courts have recognized that allegations of incompetent assistance create special difficulties. A defendant who has received a disappointing outcome may be all too quick to second-guess the assistance they have been provided. It is vital, therefore, that before any allegations of incompetency are made they have been properly vetted and considered. Such a process is necessary in order to avoid "the distorting effects of hindsight" and to ensure that the trial performance is given a "fair assessment" (see Strickland v. Washington, 466 U.S. 668 (1984).)

[13] The need for such a measured approach has been codified for both summary conviction and indictable appeals. Under the Superior Court of Justice Protocol for Allegations of Incompetence, before making any allegation of incompetence or ineffective assistance, 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." Furthermore, appellate counsel should "also 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."

[14] While no similar specific protocol exists for the Ontario Court of Justice, these same principles and processes should apply. This position was clearly stated by Justice Libman in Hill v. Toronto (City) [2007] O.J. No. 2232 (C.J.) in which he advocated adopting a similar protocol for provincial offences appeals. As he noted:

I consider that such a procedure or protocol, which places on the paralegal agent on appeal the obligation to investigate and furnish the paralegal trial agent with an opportunity to respond, and thus the appeal court with a proper basis to evaluate such allegations, reflects the need to ensure fairness, openness and transparency in the provincial offences court, which is so aptly regarded as the "people's court" given the pervasive nature of public welfare/regulatory offences. At the same time, it is in keeping with the new responsibilities of ethical behaviour now mandated by the Law Society of Upper Canada for paralegal practitioners, which include the required standard of a "competent paralegal,"… (at paragraph 5)

[15] In this case, no notice was provided to the paralegal who represented Ms. Harper at trial, nor is there any indication that Mr. Balatidis made any inquiries concerning the steps taken by the trial paralegal other than what he was told by Ms. Harper. For these reasons, I would dismiss the appeal. Although in my view the lack of proper notice and failure by the agent on appeal to follow the necessary steps should be dispositive of this appeal, in the event I am in error I will also address the nature of the proposed fresh evidence.

Test for Fresh Evidence

[16] In the case of R. v. Palmer, [1980] 1 S.C.R. 759, the Supreme Court of Canada dealt with the powers of an appellate court in support of an appeal. In it, the court sets the guidelines for the admissibility of "fresh evidence", which include:

i. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial;

ii. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

iii. The evidence must be credible in the sense that it is reasonably capable of belief; and

iv. It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[17] The final three criteria set out in Palmer are conditions precedent to the admission of "fresh evidence". While due diligence is not a condition precedent to admissibility, it is nonetheless an important factor which must be taken into account when determining whether or not it is in the interests of justice to admit this evidence (see R. v. Levesque, 2000 SCC 47, [2000] S.C.J. No. 47, at paragraph 19.)

[18] In those cases where an appellant is seeking to overturn a guilty plea, the proposed "fresh evidence" must be relevant to an issue at the trial and therefore relevant to an issue surrounding the plea of guilt. Such evidence will usually pertain to issues surrounding the validity of the plea, the competence of counsel, or the appellant's understanding of the proceedings (see R. v. T.(R.), [1992] O.J. No. 1914 (C.A.))

[19] A plea of guilty is both a formal admission of guilt and a waiver of the right to require the Crown to prove the case beyond a reasonable doubt. A valid guilty plea must be voluntary, unequivocal and informed. The defendant entering the plea must understand that the plea is an admission of the essential elements of the offence; the nature and consequence of the plea, and that the court is not bound by any agreement made between the accused and the prosecutor (R. v. T.(R.), supra.)

[20] The Court of Appeal has held that the Palmer principles apply to the admissibility of fresh evidence on a POA appeal (see R. v. 1275729 Ontario Inc., [2005] O.J. No. 5515.)

[21] The proposed fresh evidence in this case consists of two affidavits from Ms. Harper as well as attached exhibits. Those attached exhibits include the X-Copper retainer agreement she signed, which includes her information, the defendant's version of the events, her financial information as well as the specific details of the retainer. The exhibits also include the Crown brief which was provided to Mr. Kutlesa and subsequently obtained by the appellant after she retained Mr. Balatidis on unrelated matters.

[22] In her affidavits, Ms. Harper offers the following:

a) She retained X-Copper on August 2, 2016 to represent her on this matter and signed a retainer agreement;

b) She received no communication from the agent between the first appearance date and October 18, 2016 and was never asked to review disclosure or to give further instructions;

c) She received notification from X-Copper on October 19, 2016 via email providing her with the details as to what had happened in court on October 18, 2016;

d) After meeting with Mr. Balatidis, she requested disclosure from her former agents, and eventually obtained that disclosure from the prosecutor's office on July 13, 2017;

e) In reviewing the disclosure she was "taken aback" by the officer's version of events and was "appalled" that her former agent did not review the evidence with her;

f) Had she been aware of the facts as contained within the disclosure, she would have instructed her agent to dispute them and challenge the officer's evidence; and

g) The resolution by way of a guilty plea was done without her knowledge and was not an informed plea.

[23] There are some errors and/or omissions in Ms. Harper's affidavit. For example, the documentation makes it clear that she signed the retained agreement on August 4, 2016 not August 2. Although not stated in her affidavit, it seems clear that Ms. Harper paid the fine within the 90 days allotted. Also not in her affidavit, but elsewhere in the materials filed, it is noted that Ms. Harper went to see Mr. Balatidis on unrelated matters and it was during the course of that meeting that questions were raised regarding this event. Likewise, although not mentioned in her affidavit, in her factum Ms. Harper claims that X-Copper subcontracted services to Mr. Kutlesa without her knowledge.

[24] A review of the documents tendered as part of the proposed fresh evidence as well as those which make up the court record tell a different tale. The summons she was given by the officer on June 10, 2016 sets out the charge (stunt driving by speeding by 50 or more km/h), the location, the date and the time.

[25] Her account of what occurred as set out in the "defendant's version of events" was simple. She was driving on highway 401 when a police vehicle approached from the opposite way, made a U-turn, followed her for a mile or so and then pulled her over when it was safe. The officer then asked her "why [she] was going so fast" and told her she was charged with stunt driving and seized her car.

[26] The "retainer agreement" signed by her included the following:

a) X-Copper was authorized to "take such action as they may deem advisable or appropriate to best serve [her] interests" including retaining other licensed paralegals or agents;

b) Instructions from Ms. Harper to X-Copper to act as her legal service provider and to "enter a plea on [her] behalf to a lesser charge reflecting the specific signed instructions below, in order of preference: (1) withdraw the charge; (2) plea 4 demerit points or less; (3) plea to speeding at same speed or less [with] no suspension; or trial." Ms. Harper's initialed these specific instructions;

c) An acknowledgment from Ms. Harper that she understood a court could only accept a guilty plea if it was made voluntarily and that a plea was an admission of the essential elements of the offence;

d) An acknowledgment from Ms. Harper that she understood the court was not bound by any agreement made between the paralegal and the prosecutor;

e) A further acknowledgment by her that if she pled guilty she was giving up the right to the trial, wherein the charge could be proven beyond a reasonable doubt; and

f) Finally an acknowledgment that she was "entering an informed plea through my legal services provider".

[27] The Crown brief consists of a copy of the information sworn against her, a copy of the summons, and a short case file synopsis. That synopsis does not contain any surprises. The officer sets out the date, time and location of the offence, all of which were set out in the summons. His version of what occurred is almost identical to that provided by Ms. Harper in her defendant's version of events. The officer's version is that he was driving in the opposite direction of her vehicle on highway 401 and observed that she was travelling at a high rate of speed. Utilizing his vehicle mounted radar, he determined that she was travelling at speed of 159 kilometers per hour in a 100 kilometer per hour zone. He turned around to follow her and stopped the vehicle about 4 kilometers away from the location he first observed it at a safe location. He identified the driver as Ms. Harper, issued her a Part III summons for the offence of stunt driving, and impounded her vehicle.

[28] Nothing in the proposed fresh evidence suggests that Ms. Harper did not read the documents she was signing or that she did not understand them. It is clear from a review of the transcript of October 18, 2016 that the agent did in fact act on her instructions, namely to enter a plea to a charge of speeding at the same speed without a suspension. Nothing in the proposed fresh evidence would provide any basis to support Ms. Harper's bald assertion that she was "taken aback" at what was contained within the synopsis or any reason to believe that it was substantially different from the version she herself provided.

[29] Putting aside the issue of due diligence, in my view the proposed evidence falls far short of the Palmer criteria for admissibility. In particular, in my view there is no possible way that the proposed evidence, considered with the rest of the trial evidence, could be reasonably capable of having affected the result at trial. In fact, the opposite is true. The proposed evidence fully supports the conclusion that Ms. Harper's plea was completely voluntary and fully informed.

[30] There is a complete absence of merit with respect to the allegation being made of professional incompetence by the paralegal agent at trial.

[31] The appeal is therefore dismissed.

Released: January 8, 2018

Signed: Justice Kinsella