R. v. Romanowicz (J.), (1999) 124 O.A.C. 100 (CA)

• Judge: Carthy, Doherty and Laskin, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 13, 1999
• Jurisdiction: Ontario
• Citations: (1999), 124 O.A.C. 100 (CA);1999 CanLII 1315 (NS CA);1999 CanLII 1315 (ON CA);45 OR (3d) 506;178 DLR (4th) 466;138 CCC (3d) 225;26 CR (5th) 246;[1999] CarswellOnt 2671;[1999] OJ No 3191 (QL);124 OAC 100;43 WCB (2d) 339;45 MVR (3d) 294

R. v. Romanowicz (J.) (1999), 124 O.A.C. 100 (CA)

MLB headnote and full text

Temp. Cite: [1999] O.A.C. TBEd. SE.002

Her Majesty The Queen (respondent) v. Jerzy Romanowicz (appellant)

(C28943)

Indexed As: R. v. Romanowicz (J.)

Ontario Court of Appeal

Carthy, Doherty and Laskin, JJ.A.

August 27, 1999.

Summary:

The accused was convicted of failing to stop at the scene of an accident (Criminal Code, s. 252). This was a hybrid offence and the Crown proceeded summarily. Pursuant to ss. 800(2) and 802(2) of the Criminal Code, the accused was represented by an agent, i.e., a non-lawyer. The accused appealed his conviction, arguing that the trial judge erred in permitting an agent to appear and that the agent was not competent.

The Ontario Court (General Division), in a decision reported 49 O.T.C. 58, dismissed the appeal. The accused appealed, raising the following issues:

(1) Assuming Part XXVII of the Crim­inal Code and specifically ss. 800 and 802 permit representation in criminal proceedings by an agent who is not a lawyer, are those provisions within the legislative competence of Parliament?

(2) Assuming the legislation is intra vires Parliament, does it permit agents who are not lawyers to represent persons on crim­inal offences prosecuted by way of sum­mary proceedings?

(3) Is there a constitutional right to ef­fective representation where an accused is represented by an agent who is not a lawyer?

(4) What duties, if any, are imposed on a trial judge where an accused is repre­sented by an agent who is not a lawyer in proceedings governed by Part XXVII of the Criminal Code. In particular, is the trial judge required to inquire into the competence of the agent?

(5) Does a trial judge have the authority to refuse to permit an agent who is not a lawyer to represent an accused person in a summary proceeding governed by Part XXVII of the Code?

The Ontario Court of Appeal dismissed the appeal. The court held as follows:

(1) Sections 800 and 802 of the Criminal Code are intra vires Parliament;

(2) Sections 800 and 802 permit agents who are not lawyers to represent accused in summary criminal proceedings brought under Part XXVII of the Code;

(3) There is no constitutional right to effective representation where an accused chooses to be represented by an agent who is not a lawyer. The accused does, however, retain the constitutional right to a fair trial;

(4) Where an accused is represented by an agent who is not a lawyer, the trial judge should satisfy herself that the accused's choice of representation was an informed one. However, there is no mandatory obligation on a trial judge to conduct a competency inquiry where an agent represents an accused in summary conviction proceedings; and

(5) A trial judge has authority to refuse to permit an agent to represent an ac­cused in summary conviction proceedings where the appearance of the agent would undermine the integrity of the proceed­ings. The trial judge's authority to dis­qualify an agent must be invoked when­ever it is necessary to do so to protect the proper administration of justice.

Barristers and Solicitors - Topic 1934

Paralegals - Competence of - [See Civil Rights - Topic 3157 , second and third Criminal Law - Topic 4294 , and sixth and seventh Criminal Law - Topic 4488 ].

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to just and fair trial - Pursuant to s. 800(2) of the Criminal Code, an accused who appeared in summary conviction court could be represented by an agent - Pursuant to s. 802(2), the agent could examine or cross-examine witnesses - An issue arose re­specting whether there was a constitutional right to effective assistance where an ac­cused was represented by an agent who was not a lawyer - The Ontario Court of Appeal held that an accused who chose to be represented by an agent and not a law­yer had no constitutional right to com­petent representation - However the consti­tutional right to a fair trial remained in full force and the absence of legally trained counsel put an added obligation on the trial judge to protect that right - See paragraphs 27 to 30.

Constitutional Law - Topic 6471

Federal jurisdiction (s. 91) - Criminal law -"Procedure in criminal matters" - General -Pursuant to s. 800(2) of the Criminal Code, an accused who appeared in sum­mary conviction court could be represented by an agent - Pursuant to s. 802(2), the agent could examine or cross-examine witnesses - The Ontario Court of Appeal held that ss. 800(2) and 802(2) were valid federal legislation - The court stated that each item referred to in ss. 800 and 802 was a matter of criminal procedure - See paragraphs 15 to 20.

Criminal Law - Topic 4294

Procedure - Trial judge - Duties and func­tions of - Where accused not represented (incl. representation by nonlawyer or agent) - The accused was convicted of failing to stop at an accident scene (Crim­inal Code, s. 252) - The Crown proceeded summarily - The accused was represented by an agent, i.e., a non-lawyer (Criminal Code, ss. 800(2) and 802(2)) - The accused appealed, arguing that the trial judge erred in permitting an agent to appear and that the agent was not competent - The appeal was dismissed - The accused appealed again - The Ontario Court of Appeal dis­missed the appeal, holding that the trial judge properly satisfied himself that the accused had made an informed decision to be represented by an agent - Also the agent's performance did not compromise the accused's right to a fair trial - Further the agent's conduct was not such that the trial judge was required to act on his au­thority to disqualify the agent - See para­graph 86.

Criminal Law - Topic 4294

Procedure - Trial judge - Duties and func­tions of - Where accused not represented (incl. representation by nonlawyer or agent) - The Ontario Court of Appeal discussed the obligations of a summary conviction court judge where an accused is represented by an agent who is not a lawyer - The court stated that a judge should ensure that an accused has made an informed decision to be represented by an agent - There was no mandatory re­quirement that a judge make a further inquiry into the competence of that agent -However, although the Criminal Code did not expressly authorize the court to dis­qualify agents, the court could do so by virtue of its power to control its own process in order to maintain the integrity of that process - See paragraphs 34 to 84.

Criminal Law - Topic 4294

Procedure - Trial judge - Duties and func­tions of - Where accused not represented (incl. representation by nonlawyer or agent) - The Ontario Court of Appeal discussed the obligations of a summary conviction court judge where an accused is represented by an agent who is not a lawyer - A judge should ensure that an accused has made an informed decision respecting representation by an agent - The judge should be satisfied that the accused is aware that the agent is not a lawyer and that the remedies available respecting an incompetent lawyer are not available against agents - Where the agent is to be paid, the accused might be told that such persons do not require any training - The accused could be advised that while the law expects certain minimum standards of competence from lawyers it imposed no such standards on nonlawyers - The exact details of the requisite inquiry will depend on the circumstances of each case - See paragraphs 34 to 42.

Criminal Law - Topic 4294

Procedure - Trial judge - Duties and func­tions of - Where accused not represented (incl. representation by nonlawyer or agent) - The Ontario Court of Appeal held that a summary convictions court judge could disqualify an agent from representing an accused by virtue of its power to con­trol its own process - The power to refuse audience to an agent must be invoked where necessary to protect the proper administration of justice - Concerns about a particular agent should be raised before trial either by Crown counsel, a third party (e.g., a law society) or by the trial judge - There may be times where the basis for a motion to disqualify does not become apparent until proceedings are under way -If the trial judge is satisfied that proper grounds for the inquiry exist, he or she must interrupt the trial and proceed with the necessary inquiry - A decision to dis­qualify the agent will, in many cases, produce a mistrial - See paragraphs 78 to 80.

Criminal Law - Topic 4294

Procedure - Trial judge - Duties and func­tions of - Where accused not represented (incl. representation by nonlawyer or agent) - The Ontario Court of Appeal held that a summary convictions court judge could disqualify an agent from representing an accused by virtue of its power to con­trol its own process - The power to refuse audience to an agent must be invoked where necessary to protect the proper administration of justice - The power to disqualify agents must be exercised judici­ally based on the circumstances - Concerns about a particular agent should be raised before trial either by Crown counsel, a third party (e.g., a law society) or by the trial judge - The court outlined the pro­cedure to be followed where concerns about an agent are raised - See paragraphs 53 to 84.

Criminal Law - Topic 4294

Procedure - Trial judge - Duties and func­tions of - Where accused not represented (incl. representation by nonlawyer or agent) - [See Civil Rights - Topic 3157 ].

Criminal Law - Topic 4488

Procedure - Trial - Representation of ac­cused - [See Civil Rights - Topic 3157 , Constitutional Law - Topic 6471 and first five Criminal Law - Topic 4294 ].

Criminal Law - Topic 4488

Procedure - Trial - Representation of ac­cused - Pursuant to s. 800(2) of the Crim­inal Code, an accused who appeared in summary conviction court could be repre­sented by an agent - Pursuant to s. 802(2), the agent could examine or cross-examine witnesses - It was argued that the word "agents" should be restricted to relatives and friends of a defendant and should not include those paid for their services - It was further argued that the Solicitors Act (Ont.) prevented the appearance of paid agents in summary conviction proceedings - The Ontario Court of Appeal rejected these arguments - See paragraphs 21 to 24.

Criminal Law - Topic 4488

Procedure - Trial - Representation of ac­cused - Pursuant to s. 800(2) of the Crim­inal Code, an accused who appeared in summary conviction court could be repre­sented by an agent - Pursuant to s. 802(2), the agent could examine or cross-examine witnesses - It was argued that s. 802(2), on a strict reading, permitted an agent only to examine or cross-examine - The Ontario Court of Appeal rejected this argument - The court stated that s. 800(2) permitted the appearance of an agent and con­templated a hearing without the attendance of the defendant - In this circumstance the agent must be capable of performing all defence functions - Likewise, a police constable appearing as agent for the prose­cutor gained authority from these same sections and could not sensibly be limited to examination of witnesses - See para­graph 25.

Criminal Law - Topic 4488

Procedure - Trial - Representation of ac­cused - Pursuant to s. 800(2) of the Crim­inal Code, an accused who appeared in summary conviction court could be repre­sented by an agent - Pursuant to s. 802(2), the agent could examine or cross-examine witnesses - It was argued that ss. 800 and 802 did not apply to hybrid offences, which remain in effect indictable offences even after the Crown has chosen to pro­ceed by way of summary conviction - The Ontario Court of Appeal rejected this argument - The court stated that the sum­mary conviction procedures described in Part XXVII of the Criminal Code were a package and applied to all offences that were prosecuted by way of summary pro­ceedings, whether they were straight sum­mary conviction offences or hybrid of­fences - See paragraph 26.

Criminal Law - Topic 4488

Procedure - Trial - Representation of ac­cused - Pursuant to s. 800(2) of the Crim­inal Code, an accused who appeared in summary conviction court could be repre­sented by an agent - Pursuant to s. 802(2), the agent could examine or cross-examine witnesses - The Ontario Court of Appeal held that an accused who chose to be represented by an agent and not a lawyer had no constitutional right to competent representation - However, it might be open to an accused to raise the conduct of the agent on appeal in support of a submission that the conviction constituted a miscar­riage of justice - Any such submission could not, however, be made on the basis that the miscarriage arose because the agent failed to meet the competent lawyer standard - Rather, the accused must dem­onstrate that the agent's conduct, perhaps combined with other events, produced a miscarriage of justice - See paragraphs 31 to 33.

Criminal Law - Topic 4488

Procedure - Trial - Representation of ac­cused - The Ontario Court of Appeal stated that "a person who decides to sell t-shirts on the sidewalk needs a licence and is subject to government regulation. That same person can, however, without any form of government regulation, represent a person in a complicated criminal case where that person may be sentenced to up to 18 months' imprisonment. Unregulated representation by agents who are not re­quired to have any particular training or ability in complex and difficult criminal proceedings where a person's liberty and livelihood are at stake invites miscarriages of justice. Nor are de facto attempts to regulate the appearance of agents on a case-by-case basis likely to prevent miscar­riages of justice." - See paragraph 88.

Criminal Law - Topic 4488

Procedure - Trial - Representation of ac­cused - The Ontario Court of Appeal stated that "some 13 years ago in R. v. Lawrie and Pointts Ltd. ... this court indicated that legislative attention to the status of agents and other paralegals appearing on behalf of accused persons was a matter of im­portance. The government of the day com­missioned a report and draft legislation followed. Unfortunately, however, no legislation was enacted. Since that time other courts have echoed the same con­cerns. Indeed, as the jurisdiction of the summary conviction court has expanded, the concern has increased. The matter has been thoroughly studied, debated and various options set out. Continued legis­lative inaction suggests indifference to the proper administration of criminal justice in summary conviction proceedings. The cynics among us will suggest that only some serious and highly publicized miscar­riage of justice will overcome that indif­ference. We hope not." - See paragraph 89.

Words and Phrases

Agent - The Ontario Court of Appeal interpreted the word "agent" as it appeared in ss. 800 and 802 of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 21 to 26.

Cases Noticed:

R. v. Lemonides (P.) (1997), 35 O.T.C. 23; 35 O.R.(3d) 611 (Gen. Div.), refd to. [para. 16].

Canadian National Transportation Ltd. and Canadian National Railway Co. v. Cana­da (Attorney General); Canadian Pacific Transport Co. and Paulley v. Canada (Attorney General), [1983] 2 S.C.R. 206; 49 N.R. 241; 49 A.R. 39, refd to. [para. 18].

Knox Contracting Ltd. and Knox v. Cana­da and Minister of National Revenue et al., [1990] 2 S.C.R. 338; 110 N.R. 171; 106 N.B.R.(2d) 408; 265 A.P.R. 408, refd to. [para. 19].

Kourtessis et al. v. Minister of National Revenue et al., [1993] 2 S.C.R. 53; 153 N.R. 1; 27 B.C.A.C. 81; 45 W.A.C. 81, refd to. [para. 19].

R. v. Lawrie and Pointts Ltd. (1987), 19 O.A.C. 81; 59 O.R.(2d) 161 (C.A.), refd to. [para. 23].

R. v. Maher (J.W.) (1986), 59 Nfld. & P.E.I.R. 91; 178 A.P.R. 91; 27 C.C.C.(3d) 476 (Nfld. C.A.), refd to. [para. 25].

R. v. Wilson, [1997] O.J. No. 459 (Prov. Div.), refd to. [para. 26].

R. v. Gougeon (1980), 55 C.C.C.(2d) 218 (Ont. C.A.), refd to. [para. 26].

R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1 (C.A.), refd to. [para. 27].

R. v. L.C.B. (1996), 88 O.A.C. 81; 104 C.C.C.(3d) 353 (C.A.), refd to. [para. 27].

R. v. Joanisse (R.) (1995), 85 O.A.C. 186; 102 C.C.C.(3d) 35 (C.A.), refd to. [para. 27].

R. v. Vescio, [1949] S.C.R. 139, refd to. [para. 28].

R. v. Littlejohn and Tirabasso (1978), 41 C.C.C.(2d) 161 (Ont. C.A.), refd to. [para. 28].

R. v. Harrison (G.A.) et al. (1998), 218 A.R. 188 (Q.B.), refd to. [para. 29].

R. v. McGibbon (1988), 31 O.A.C. 10; 45 C.C.C.(3d) 334 (C.A.), refd to. [para. 30].

R. v. Sumbler (D.) (1997), 33 O.T.C. 270 (Gen. Div.), refd to. [para. 32].

R. v. Hardy (1990), 111 A.R. 377; 62 C.C.C.(3d) 28 (Q.B.), affd. (1991), 120 A.R. 151; 8 W.A.C. 151; 69 C.C.C.(3d) 190 (C.A.), refd to. [paras. 38, 39].

R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81; 63 C.C.C.(3d) 481, refd to. [para. 47].

R. v. Taylor (D.R.M.) (1992), 59 O.A.C. 43; 77 C.C.C.(3d) 551 (C.A.), refd to. [para. 47].

Codina v. Law Society of Upper Canada (1996), 93 O.A.C. 214 (Div. Ct.), refd to. [para. 55].

Kopyto v. Ontario (Attorney General) (1997), 104 O.A.C. 128; 152 D.L.R.(4th) 572 (Div. Ct.), refd to. [para. 57].

Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; 203 N.R. 169; 182 N.B.R.(2d) 81; 463 A.P.R. 81; 110 C.C.C.(3d) 193, refd to. [para. 58].

R. v. Laws (D.) (1998), 112 O.A.C. 353; 128 C.C.C.(3d) 516 (C.A.), refd to. [para. 59].

MacIntyre v. Nova Scotia (Attorney Gen­eral) et al., [1982] 1 S.C.R. 175; 40 N.R. 181; 49 N.S.R.(2d) 609; 96 A.P.R. 609; 65 C.C.C.(2d) 129; 132 D.L.R.(3d) 385, refd to. [para. 59].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81; 94 C.C.C.(3d) 289, refd to. [para. 59].

R. v. Young (1984), 3 O.A.C. 254; 13 C.C.C.(3d) 1 (C.A.), refd to. [para. 60].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159; 21 C.C.C.(3d) 7; [1985] 6 W.W.R. 127; 20 D.L.R.(4th) 651; 47 C.R.(3d) 193, refd to. [para. 60].

R. v. Keyowski, [1988] 1 S.C.R. 657; 83 N.R. 296; 65 Sask.R. 122; 40 C.C.C.(3d) 481; 32 C.R.R. 269; 62 C.R.(3d) 349; [1988] 4 W.W.R. 97, refd to. [para. 60].

R. v. Doyle, [1977] 1 S.C.R. 597; 9 N.R. 285; 10 Nfld. & P.E.I.R. 45; 17 A.P.R. 45; 29 C.C.C.(2d) 177, refd to. [para. 66].

Milligan, Re (1991), 1 C.P.C.(3d) 12 (Ont. Gen. Div.), refd to. [para. 70].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 11(d) [para. 27].

Criminal Code, R.S.C. 1985, c. C-46, sect. 800, sect. 802 [para. 17].

Provincial Offences Act, R.S.O. 1990, c. P-33, sect. 50(3) [para. 54].

Solicitors Act, R.S.O. 1990, c. S-15, sect. 1 [para. 22].

Statutory Powers Procedure Act, R.S.O. 1990, c. S-22, sect. 23(3) [para. 55].

Authors and Works:

Ontario, Attorney General, Report of the Task Force on Paralegals, generally [para. 1].

Counsel:

Christopher J. Thiesenhausen, Irvin Van Otterlo and Richard Sherman, for the appellant;

David Allan Harris and Michelle Fuerst, for the intervener, Canadian Bar As­sociation;

Dean D. Paquette, for the intervener, On­tario Criminal Lawyers' Association;

Graeme Cameron, for the respondent;

R.W. Hubbard, for the intervener, Attorney General of Canada.

This appeal was heard on January 13, 1999, before Carthy, Doherty and Laskin, JJ.A., of the Ontario Court of Appeal. The following decision was released by the court on August 27, 1999.