Court File and Parties

COURT FILE NO.: 5/2018 DATE: 20180912

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: R. v. Vanravenswaay

BEFORE: D.L. Edwards J.

COUNSEL: M. Boughs, D. Meuleman for the Crown W. Vanravenswaay in person

HEARD: September 11 2018

ENDORSEMENT

[1] The applicant brings this application for certiorari, specifically requesting:

a. An order quashing the ruling on April 26, 2018 by Justice Tory Colvin that disallowed the applicant’s choice of agent, namely Gary McHale;

b. An order removing Justice Colvin from hearing in the appeal of the applicant;

c. Failing the above, an order quashing in the ruling by Justice Colvin disallowing the applicant’s request to adjourn the proceeding in order to prepare to present his case. As such, an order to restart the appeal; and

d. An order granting the applicant the right to amend his appeal to include a violation of the applicant’s section 7 Charter rights and the abuse of process for the actions of the Crown and Judge during the first part of the appeal.

[2] The Crown resists the application, but does agree that should I return the matter to Justice Colvin, it supports the position that the oral argument of the appeal be re-argued in its entirety.

Overview

[3] The applicant was convicted on April 26, 2017 of obstructing the Ministry of the Environment (“MOE”) Provincial Officers contrary to the Environmental Protection Act and sentenced to 45 days of jail time.

[4] On August 11 2017 the applicant filed a Notice Appeal appealing his conviction and sentence. The appeal was set for oral argument on April 26, 2018 before Justice Colvin in the Ontario Court of Justice in Cayuga.

[5] The applicant sought to have Mr. Gary McHale, who is not a licensed paralegal or a lawyer, act as his agent on the appeal. Justice Colvin ruled that Mr. McHale could not appear as the applicant’s agent for that appeal. At that point the applicant requested an adjournment, which was not granted. Eventually the matter was adjourned because of time constraints.

[6] Although Justice Colvin made no further rulings that day, he did review with the applicant various aspects of the appeal and provided his opinion thereon.

[7] Finally, Justice Colvin stated: “Alright. Well, we’re 20 after 4, and the only thing we haven’t dealt with is the 11(b) issue that Mr. Vanravenswaay has raised on appeal. So, we’ll have to come back to argue that”.

The Law

[8] Certiorari is a discretionary remedy and only granted if “the court finds that a substantial wrong or miscarriage of justice has occurred”. (Section 141(4) of the Provincial Offences Act).

[9] The Ontario Court of Appeal stated:

[13]….It is now firmly established that a court should not routinely exercise that jurisdiction where the application is brought in the course of ongoing criminal proceedings. In such cases, it is incumbent upon the applicant to establish that the circumstances are such that the interest of justice necessity immediate granting of the prerogative or charter remedy by the Superior Court….

[14] Those policy concerns apply not only to criminal cases but also to proceedings under the Provincial Offenses Act…. (R. v. Arcand, 73 O.R. (3d) 758)

[10] I will turn to the first question.

Did Justice Colvin’s ruling that Mr. McHale could not act as the applicant’s agent on the appeal constitute a substantial wrong or miscarriage of justice?

[11] Both parties present the cases of R. v. Romanowicz, 45 OR (3d) 506 and R. v. Allahyar, 2017 ONCA 345 to support their positions.

[12] Romanowicz recognizes that section 50(3) of the Provincial Offences Act empowers the court to bar a person who is not a paralegal or a lawyer from appearing as agent in certain circumstances.

[13] The Court of Appeal stated that a judge may bar a person from acting as agent if that person is not competent or does not understand and comply with the duties and responsibilities of an agent.

[14] Where there is a concern, this must be raised in court. If the judge decides that the concerns form a basis for disqualifying the agent, he/she should then conduct an inquiry where all interested parties are given full opportunity to present their positions on the issue. If the judge determines that the representation by the agent would interfere with the proper administration of justice, the agent must be disqualified.

[15] Justice Colvin undertook a detailed discussion of this issue with Mr. McHale and the Crown. Mr. McHale made oral submissions, as well as provided the judge with cases he felt were relevant to his argument. When he delivered his reasons, the judge noted that he had not specifically asked the appellant for his position because the appellant was sitting beside Mr. McHale and appeared to adopt all of Mr. McHale’s comments.

[16] I find that based upon transcript that this was an appropriate conclusion.

[17] When the judge delivered his reasons, he noted three concerns:

a. Mr. McHale appeared to have a relationship with the appellant in that he was the representative for his corporation with respect to a different charge;

b. He found that there was no evidence that the appellant was incompetent or did not understand points he was trying to make and raise in his defence during the trial; and

c. The judge found that Mr. McHale may not understand and properly comply with the duties and responsibilities of an agent. Justice Colvin gave the examples of no advance warning to the courts or to the prosecution that he would be appearing and arguing matters before the court as agent, or that he was the one who drafted the Notice of Constitutional Issues.

[18] I find that the first two reasons are not relevant factors in the determination as to whether to disqualify an agent. The critical factor and the one upon which the judge’s ruling must stand or fall is whether Mr. McHale did not understand or failed to comply with the duties and responsibilities of an agent.

[19] I agree that Mr. McHale’s conduct prior to the trial was not one which would lead one to believe that either he understood or was complying with those duties and responsibilities.

[20] Our court proceedings have long ago banished trial by ambush. For example, we require notice of motions in a timely fashion. For our court system to run smoothly, advance notice of issues must be provided to all parties so that precious court time is not wasted.

[21] The appellant submits that it was his decision to not disclose Mr. McHale’s name until the day of the appeal, and therefore that should not reflect upon Mr. McHale in anyway.

[22] There is an expression amongst lawyers that one cannot suck and blow at the same time.

[23] An agent cannot argue that he/she understands and will comply with the duties and obligations of an agent, and then have the principal argue that certain actions were his, and not the agent’s.

[24] Mr. McHale clearly knew that this issue would arise. He came armed with case law and argument on this point. There is disagreement with respect to why Mr. McHale was not permitted to act for the appellant personally on another matter; however, both the appellant and Mr. McHale clearly knew that this would be an issue, and yet it was not until the case actually commenced that the appellant advised the court and the Crown that the appellant wished to have Mr. McHale act for him as an agent.

[25] The reasonable conclusion is that the appellant and Mr. McHale decided to ambush the Crown to put it at a disadvantage.

[26] I acknowledge that Justice Colvin’s review of the Law Society Act contained an error. However, that was not relevant to the factor upon which he made his decision.

[27] I therefore find that Justice Colvin’s decision to disqualify Mr. McHale from acting as an agent did not constitute a substantial wrong or miscarriage of justice.

[28] I decline to exercise my discretion to issue certiorari on this issue.

Did Justice Colvin’s refusal to grant an adjournment after his ruling regarding Mr. McHale constitute a substantial wrong or miscarriage of justice?

[29] It is clear that the appellant requested an adjournment immediately after Justice Colvin’s ruling to disqualify Mr. McHale. The Crown strenuously objected. This adjournment was not granted. Rather, Justice Colvin began to discuss the appeal with the appellant.

[30] The appellant knew that the issue of Mr. McHale being permitted to act as an agent would be a live issue at the appeal. He knew or should have known that it was possible that Mr. McHale would be disqualified, and therefore he should have been prepared to proceed on his own with the appeal at that time.

[31] Once again, the appellant cannot argue that he was surprised that he was required to proceed, when, in fact, he was the person who failed to give advance notice to the Crown, which notice would have resulted in the Crown advising in advance of its objection.

[32] I therefore conclude that Justice Colvin’s refusal to grant an adjournment did not constitute a substantial wrong or miscarriage of justice and decline to exercise my discretion to issue certiorari.

[33] In any event, it is clear that Justice Colvin made no rulings on the substantive aspects of the appeal, other than his disqualification of Mr. McHale.

[34] The Crown has indicated that it will support the position that the oral argument of this appeal be re-started.

[35] I see no reason why that cannot occur. The appellant, either personally or with counsel or an agent who is not disqualified, can make his submissions in their entirety to Justice Colvin.

[36] Based upon my findings I have no reason to remove Justice Colvin from hearing the appeal.

[37] If the appellant wishes to amend the terms of his appeal or file a recusal motion, he should do so in accordance with the applicable rules and Justice Colvin will deal with that in the normal course.

Summary

[38] I dismiss the appellant’s application for certiorari.

[39] By operation of law the stay is lifted.

D.L. Edwards J.

DATE: September 12, 2018