



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Van Ravenswaay, 2021 ONCA
    393

DATE: 20210604

DOCKET: C66787

Tulloch, Roberts and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Wim Van Ravenswaay

Appellant

Daniel Ciarabellini, for the appellant

Michael Malleson, for the respondent

Heard: May 14, 2021 by video
    conference

On appeal from the order of Justice David
    L. Edwards of the Superior Court of Justice dated September 12, 2018, with
    reasons at 2018 ONSC 5348.

REASONS
    FOR DECISION

[1]

The appellant appeals from the dismissal by
    Edwards J. (the application judge) of the appellants certiorari application
    to quash the order of Colvin J. (the appeal judge).

[2]

At the conclusion of the hearing of this appeal,
    we advised the parties that the appeal was dismissed with reasons to follow.
    These are those reasons.

[3]

At the commencement of the appellants appeal
    from his April 26, 2017 conviction under s. 186(1) of the
Environmental
    Protection Act
, R.S.O. 1990, c. E.19, and from his 45-day sentence imposed
    by Justice of the Peace K. Boon, the appeal judge refused to allow the
    appellants agent, Gary McHale, to represent him, and he refused to adjourn the
    appeal to allow the appellant to obtain other representation. The appeal was
    not completed, and a portion of the argument was adjourned. In the interim, the
    appellant applied for certiorari of the appeal judges decisions disqualifying Mr.
    McHale and refusing the appellants adjournment request. The application judge
    dismissed the appellants application for certiorari but, with the respondents
    support, permitted the appeal to be restarted in its entirety before the appeal
    judge.

[4]

The appellant submits that the application judge
    erred by dismissing the certiorari application because he failed to recognize
    and rectify the substantial wrongs or miscarriages of justice that the
    appellant argues were occasioned by the appeal judges disqualification of the
    appellants agent of choice and by his refusal to adjourn the appeal.

[5]

We are not persuaded by these submissions. We see
    no error justifying appellate interference.

[6]

We do not accept that the application judge and
    the appeal judge applied the wrong test. The application judge correctly framed
    his review of the appeal judges reasons for disallowing Mr. McHale to act as
    the appellants agent by reference to the governing principles articulated by this
    court in
R. v. Romanowicz
(1999), 178 D.L.R. (4th) 466 (Ont. C.A.), as
    interpreted and applied in
R. v. Allahyar
, 2017 ONCA 345, 348 C.C.C.
    (3d) 206.

[7]

Romanowicz
involved the competence of unlicensed paralegals to represent accused persons in
    summary conviction matters and was decided prior to the licensing of paralegals
    by the Law Society of Ontario. The court reiterated an accuseds constitutional
    rights to a fair trial and to competent representation by legally trained
    counsel, and recognized that accused persons have the right to choose their
    mode of representation as part of their constitutional right to control their
    own defence, namely, whether to be represented by a lawyer, an agent, or to
    represent themselves.

[8]

However, the court did not conclude that accused
    persons have a constitutional right to representation by the non-lawyer of
    their choice. On the contrary, the court highlighted a courts authority, by
    statute or pursuant to its inherent power to control its own processes, to bar
    any person from appearing as an agent who is not a barrister and solicitor if
    the court finds that the person is not competent to properly represent or advise
    the person for whom he or she appears as agent, does not understand and comply
    with the duties and responsibilities of an agent, or if competent, on whom the
    court cannot rely for their integrity, honesty, or forthrightness or ability
    to conduct a trial ethically and honourably:
Romanowicz
, at para. 74.

[9]

Indeed, the court in
Romanowicz
described
    a courts power to deny audience to an agent whose participation in proceedings
    would either damage the fairness of those proceedings, impair the ability of
    the tribunal to perform its function or otherwise undermine the integrity of
    the process, as part of the courts obligation to protect the integrity of
    the proceedings, including the accuseds right to a fair trial and the
    accuseds right, within the limits of the law, to choose a representative: at
    paras. 61 and 64.

[10]

This court in
Allahyar
concluded, at
    para. 28, that the principles articulated in
Romanowicz
are of
    broader application and apply in the context of the representation of accused
    persons by unlicensed representatives in provincial offences matters. Citing
R.
    v. Cunningham
, 2010 SCC 10, [2010] 1 S.C.R. 331, at paras. 18-19, the
    court confirmed, at para. 11, that [t]he right of a representative to appear
    is subject to the courts authority to control its own process.

[11]

Also in
Allahyar
, this

court
    detailed the procedure set out in
Romanowicz
to be followed when a
    party attends with an unlicensed representative. This includes determining
    whether the party has made an informed choice to be represented by the agent,
    followed by an inquiry into the propriety of the representation. This fact-specific
    inquiry involves the kinds of concerns suggested in
Romanowicz
, namely
    questions of competence, discreditable conduct, conflict of interest and a
    demonstrated intention not to be bound by the rules and procedures governing
    criminal trials:
Allahyar
, at para. 17. The court confirmed that
    disqualification of an accuseds chosen representative is a serious matter and
    is justified only where it is necessary to protect the proper administration of
    justice.

[12]

Returning to the particular circumstances of
    this case, the application judge noted that the appeal judge properly followed
    the
Romanowicz
principles and procedure to assess the propriety of the
    appellants representation by Mr. McHale, a non-lawyer and non-paralegal. Specifically,
    the application judge observed that, following a detailed discussion of these
    issues with Mr. McHale and the respondent, the appeal judge concluded that
    Mr. McHale did not understand and properly comply with the duties and
    responsibilities of an agent. The application judge also agreed that Mr.
    McHales 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. The application judge referenced the appeal judges example that
    as an admitted tactic, Mr. McHale and the appellant intentionally did not
    notify the court or the respondent that Mr. McHale would represent the
    appellant, knowing that the respondent would object because Mr. McHale had been
    disqualified from acting for the appellant in a previous, related proceeding.

[13]

Both the application and appeal judges viewed
    this conscious omission, correctly in our view, as a deliberate and improper attempt
    by the appellant and Mr. McHale to put the respondent at a disadvantage in a
    manner inconsistent with the obligations of litigants and their representatives
    to ensure the smooth operation of court proceedings so that precious court time
    is not wasted. Such deceitful misconduct is contrary to the proper
    administration of justice and undermines the purpose of the
Provincial
    Offences Act
, which is to provide a speedy, efficient and convenient
    method of dealing with [the] offences that it governs:
R. v. Sciascia
,
    2017 SCC 57, [2017] 2 S.C.R. 539, at para. 18, citing
R. v. Jamieson
(1981), 64 C.C.C. (2d) 576 (Ont. C.A.), at pp. 551-52. Whether or not Mr.
    McHale was simply following the appellants instructions in concealing his
    involvement, as the appellant argued he was, is a distinction without a
    difference. The fact is that he was knowingly engaged in misconduct that
    affected the due administration of justice. The appeal judges decision disqualifying
    Mr. McHale from acting for the appellant was therefore justified in these
    circumstances.

[14]

Finally, we agree with the application judges
    determination that the appeal judges refusal to grant an adjournment caused no
    substantial wrong or miscarriage of justice. As the application judge observed,
    it should have come as no surprise to the appellant that, having indicated on
    his court filings that he would represent himself, he would be required to
    proceed with the appeal if his stratagem to have Mr. McHale represent him
    failed. In any event, the appeal was adjourned and, noting the respondents support,
    the application judge stated that the appellant, either personally or with
    counsel or an agent who is not disqualified, could restart his appeal before
    the appeal judge. As such, there is no prejudice to the appellant and the
    adjournment issue has become moot.

[15]

Accordingly, the appeal is dismissed.

M. Tulloch
    J.A.

L.B.
    Roberts J.A.

Gary
    Trotter J.A.


