Court Information

Ontario Court of Justice

Date: 2019-04-16

Court File No.: Newmarket 4911 16 4578T

In the Matter of: An appeal under s. 116(2)(a) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Parties

Between:

Town of Aurora Respondent

— AND —

Anne-Marie Finn Appellant

Judicial Information

Before: Justice David S. Rose

Heard on: March 29, 2019

Reasons for Judgment released on: April 16, 2019

Counsel:

• Ms. L. Angus, counsel for the Respondent
• The Appellant Anne-Marie Finn was self-represented

On appeal from: The conviction by Justice of the Peace DeBartolo on May 18, 2018

Judgment

Rose J.:

Overview

[1] Ms. Finn was convicted of offences under the Building Code Act, and given a fine in the amount of $2,000.00. The trial lasted several days. At her trial, Her Worship Justice of the Peace DeBartolo made an order barring Ms. Finn's husband Denis Van Decker from appearing at the trial as Ms. Finn's agent. Ms. Finn has launched an appeal against her conviction and now asks me to rule that Mr. Van Decker be allowed to appear as her agent on the appeal.

Factual Basis for the Motion

[2] The trial before Her Worship lasted several days. On the third day, Her Worship barred Mr. Van Decker from being agent. Ms. Finn then represented herself. The issues raised at the trial included abuse of process allegations of various stripes. There were various interlocutory appeals to the Superior Court during the course of a related trial and the appeal on another matter which was before both Oliver J. and then Armstrong J. for the purpose of case management on this matter.

[3] In ruling that Mr. Van Decker be barred from appearing as Ms. Finn's agent on the appeal, Her Worship said she relies on a ruling by Oliver J. in a different proceeding. Oliver J.'s ruling was in 2016, approximately 2 years before Justice of the Peace DeBartolo rendered her ruling.

[4] In the Court proceedings before Justice of the Peace DeBartolo, several instances stand out.

[5] When this Appeal appeared before Armstrong J. on November 16, 2018 for Motions to file the Appeal without paying the fine, he ordered that Mr. Van Decker not speak to the Appeal.

[6] Ms. Finn referred me to other litigation on different charges which resulted in an acquittal. In that litigation J.P. Mews had similar concerns about Mr. Van Decker appearing on the trial. In that previous trial, on December 3, 2015 at page 48, Her Worship said to Mr. Van Decker:

I can only conclude that you do not have the faintest ideas of the duties of a representative or the complexities of the decision making involved in bringing such a challenge or running a trial.

[7] In a previous status hearing on this appeal, I asked Ms. Finn to file a revised Notice of Appeal so that I could get a sense about what the Appeal issues were. She did.

[8] Ms. Finn filed a written argument in the Motion. It runs 48 paragraphs and refers to cases which are leading authorities on the issue of representation by agents in summary conviction proceedings, namely R. v. Romanowicz (1999), 45 O.R. (3d) 506 (C.A.). She also filed a supplementary written argument which runs 44 paragraphs over 8 pages. In the supplementary argument, Ms. Finn addresses R. v. Allahyar, 2017 ONCA 345. The supplementary argument also makes clear that from Ms. Finn's perspective, there is animosity between the Municipal prosecutors in this case and Mr. Van Decker.

[9] I asked Ms. Finn in submissions if Mr. Van Decker had legal education. He has none, and neither does Ms. Finn. I also raised with Ms. Finn an incident in the Courthouse on February 21, 2019 when the matter was up before me for purposes of scheduling this motion. At that point, Mr. Van Decker insisted, I am told, in attending at the trial coordinator's office to play a part of the scheduling process, despite the Order which barred him from acting as agent. I also raised with her the fact that Mr. Van Decker has been at counsel table in proceedings before me even if he has been barred from appearing in the proceedings. Ms. Finn took the position in submissions that Mr. Van Decker is tenacious but not disrespectful.

[10] In the instant trial proceedings before J.P. DeBartolo, Mr. Van Decker was cited for contempt by Her Worship on the second day of the trial. In making that finding, she said:

Let me give you the reasons why I have held you in contempt. Throughout the day I have tried to give you time, courtesy, patience and throughout the day your demeanor was very dismissive of anyone here. Your sly comments have been very rude to whoever you were aiming them at so to all and your disrespect for this Court and for the justice system has been appalling. It came to a point where it got out of control…

[11] At that point, the Prosecutor moved to have Mr. Van Decker barred from the proceedings. Mr. Van Decker apologized to the Court and promised to behave himself. He was then permitted to continue as agent. In doing so, Her Worship said:

The Court: The moment you veer from your promise to this Court I will make a decision on the motion that Mr. Bendick has brought forward. Is that clear to Mr. Bendick and – because you brought the motion.

Mr. Bendick: I understand the ruling.

The Court: And is it clear to you Mr. Van Decker?

Mr. Van Decker: Yes.

[12] On the next day, Mr. Van Decker continued to be disruptive as agent. As Her Worship said, "I've cautioned you so many times already throughout the morning and now and we're at a point now where caution is no longer available." The transcript reflects Her Worship's numerous attempts to reign him in. After giving Mr. Van Decker notice that she was then reconsidering Mr. Bendick's motion to bar him from the proceedings, she said:

I am barring you from these proceedings. I find you incompetent to represent the accused Anne-Marie Finn. So, therefore, sir, from this point on, you're barred from these proceedings.

[13] While Mr. Van Decker asked to make submissions on that Motion, he was not permitted. While it may have been preferable if he had, it is not fatal to Her Worship's ruling. By the time Her Worship barred Mr. Van Decker, she had cited him for contempt and made many genuine attempts to reign him in qua agent for Ms. Finn. Notably, she had told him that if he was disruptive again she would rule on the Motion to bar him. By the time Her Worship barred him from the trial, he had been continuously and seriously disruptive to the Court over 3 days of trial. This was not a fleeting spur of the moment issue.

[14] When the Appeal was launched, it appeared before Armstrong J. as part of the usual status hearing process. Mr. Van Decker appeared for Ms. Finn even though he had been barred by Justice of the Peace DeBartolo one year previously. He asked to bring a new motion to reverse that order that very day, which Armstrong J. viewed as hijacking the list.

[15] When the case was brought before me for case management, Mr. Van Decker occupied counsel table with Ms. Finn despite Armstrong J. telling him that he was barred from the proceedings. I had to tell him that he could occupy the public galleries because he was not an agent. On February 21, 2019, he attended at the trial coordinators office with Ms. Finn despite the fact that he was not a litigant or agent. Court security had to be called.

[16] The record before me is therefore replete with instances of Mr. Van Decker disrupting these proceedings to such an extent that two different Justices have made serious comments about his competence to be an agent before this Court. That extended to an appearance before Armstrong J. and then before me. In short, he has shown himself to be invested in the case to the extent that he regularly disrupts the proceedings and has attracted the sharpest of rebukes available from two different trial justices.

[17] I also would comment that in submissions, Ms. Finn has shown herself to be clearly articulate. She filed written submissions on this Motion which included a copy of the leading decision on the matter. She was candid that she got help with the written submission from Mr. Van Decker. In oral submissions, she had no real difficulty buttressing her written argument. While neither Mr. Van Decker nor Ms. Finn have legal education, I would describe her as an able self-represented litigant. She seems quite able to represent herself in the Appeal.

[18] In submissions, Ms. Finn placed great reliance on a ruling by my brother Oliver J. on April 29, 2016 which permitted Mr. Van Decker to appear at the previous trial before J.P. Mews. Because of her reliance on that ruling, I want to address that submission.

[19] On April 29, 2016, Mr. Van Decker appeared before Justice Oliver to pursue an interlocutory appeal during the course of the trial proceedings before J.P. Mews. Oliver J. ruled, not surprisingly, that an appeal prior to verdict was premature. There is no precedent value to the ruling. Justice Oliver was not asked to rule on a motion under s. 50(3) of the POA. On the transcript provided to me, it does not appear that Oliver J. was alerted to J.P. Mews' clear comments about Mr. Van Decker's lack of competence. I also find that the matter before Oliver J. was Mr. Van Decker's request to file an interlocutory appeal, which is not allowed. Mr. Van Decker therefore managed to bring a matter before the POA Appeals Court which was entirely frivolous. Rather than assist Ms. Finn, I find that the proceedings before Oliver J. provide an additional basis for a finding that Mr. Van Decker lacks sufficient understanding of the court process to appear as an agent.

Permitting an Agent to Appear

[20] Those charged with offences under the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended (POA) have the right to defend themselves or be represented by an agent. But it is not an absolute right. The trial court may prevent representation by those who are not members of the Bar. Part IV of the POA makes this clear:

s. 50(3) The court may bar any person, other than a person who is licensed under the Law Society Act, from appearing as a representative if the court finds that the person is not competent properly to represent or advise the person for whom he or she appears, or does not understand and comply with the duties and responsibilities of a representative.

[21] The decision to bar an agent from appearing at a POA appeal must not be made arbitrarily. Rather, that decision must be grounded in the facts of the particular case. Sometimes a family member can be of great assistance in the trial and/or appeal of a POA matter, particularly where the defendant has limited English comprehension or where the family member is helpful in narrowing the issues before the Court. The list is in no way fixed. See R. v. Allahyar (supra). At the other end of the spectrum, disqualification of an agent who is not a member of the Law Society of Ontario is warranted if it is necessary to protect the proper administration of justice, see R. v. Romanowicz (supra). What is clear is that barring family members from appearing at a POA trial or appeal cannot be a decision grounded in generalized concerns or policy.

[22] In Romanowicz, the Court of Appeal at paragraphs 78–80 outlined a procedure whereby the parties could address the matter:

79 When the issue is raised, the grounds for the potential disqualification of the agent should be clearly articulated. The trial judge should first decide whether those grounds provide any basis upon which to disqualify the agent. If satisfied that they do, the trial judge should then conduct an inquiry in which all interested parties are given a full opportunity to present their positions on the issue. Although the rules of evidence would not necessarily apply to this inquiry, the dictates of procedural fairness must.

[23] I would therefore make the following findings. Mr. Van Decker has shown himself to be incompetent to represent Ms. Finn. While it would have been preferable if Justice of the Peace DeBartolo had permitted him to make additional submissions on the Section 50(3) ruling, she had given him plenty of opportunity to address the issue when it first came up. He promised to behave before the Court and he broke that promise. Her Worship had no option but to bar him from the proceedings. She risked losing control over her Courtroom if she didn't. I can find no real fault in her ruling. On the case on Appeal, nothing has really changed. Lastly, Ms. Finn seems quite capable of making written and oral submissions on her own behalf.

[24] Under the circumstances, I find that the reasons for barring Mr. Van Decker from the proceedings have not changed. He is barred from appearing on the Appeal.

Released: April 16, 2019

Signed: Justice Rose