



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Allahyar, 2017 ONCA 345

DATE: 20170501

DOCKET: C59110

Gillese, van Rensburg and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mohammad Allahyar

Appellant

Gabriel Gross-Stein, for the appellant

Shawn Porter, for the respondent

Heard: April 3, 2017

On appeal from the judgment of Justice Gethin B. Edward
    of the Ontario Court of Justice, dated February 11, 2014, allowing an appeal from
    the order of Justice of the Peace Norman W. Mulloy, dated May 13, 2013.

van Rensburg J.A.:

A.

Overview

[1]

The appellant, Mohammad Allahyar, was charged
    with speeding, contrary to s. 128 of the
Highway Traffic Act
,
    R.S.O. 1990, c. H.8
. After several attendances before a
    justice of the peace where Mr. Allahyar was assisted by his brother-in-law,
    Ethan Miazad, the charge was stayed for breach of the appellants rights under
    s. 7 of the
Charter,
as a result of the
    failure by the prosecutor, the City of Simcoe, to provide proper disclosure.

[2]

The prosecutor appealed to the Ontario Court of
    Justice (OCJ). The appeal judge refused to permit Mr. Miazad to represent Mr.
    Allahyar, and ultimately set aside the stay.

[3]

Mr. Allahyar, with leave, appeals to this court.
    The Attorney General elected to intervene in these proceedings under s. 168 of
    the
Provincial Offences Act
, R.S.O. 1990, c.
    P.33 (
POA
), and is therefore the respondent
    to the appeal to this court.

[4]

The appellant asserts that the refusal to permit
    Mr. Miazad to represent him on his appeal to the OCJ occasioned a miscarriage
    of justice.

[5]

I agree. The appeal judge did not turn his mind
    to the proper considerations and unreasonably refused to permit Mr. Miazad to
    assist the appellant. I would allow the appeal and, in accordance with the
    Attorney Generals proposed disposition, enter a stay of proceedings.

B.

History of the Proceedings

[6]

The appellant, who is not a native English
    speaker, was in court with an interpreter. There were several attendances
    before a justice of the peace in which the subject of disclosure was addressed.
    On each occasion the appellant was assisted by Mr. Miazad, without objection by
    the prosecutor and with the agreement of the justice of the peace.

[7]

The attendances occurred over several months. On
    April 2, 2012, the appellant requested an adjournment so that the prosecutor
    could provide disclosure of the operating manual for the radar device that
    captured his speed. On June 11, 2012, a second adjournment was granted to allow
    the appellant to attend at the Ontario Provincial Police (OPP) station and
    photocopy the relevant passages from the operating manual. Mr. Miazad went to
    the OPP station on September 26, 2012 to obtain photocopies of the pages from
    the operating manual, however, the officer at the station told Mr. Miazad that
    he could only look at the manual and was not allowed to photocopy it.

[8]

On October 1, 2012, Mr. Miazad informed the
    court that he had not been permitted to make photocopies of the pages from the manual.
    The justice of the peace stated that the OPP should copy the relevant portions,
    and the matter was adjourned to allow the appellant to receive the relevant
    passages. On January 21, 2013, the matter was adjourned for a hearing of the
    appellants s. 7 and s. 11(b) motions. On May 13, 2015, the s. 11(b) motion was
    dismissed and the justice of the peace entered a stay of proceedings under s. 7
    because the OPP had not photocopied the relevant portions of the manual.

[9]

The prosecutor appealed to the OCJ. Both parties
    filed factums and were ready to argue the appeal. The prosecutor noted that Mr.
    Miazad had represented the appellant throughout and did not object to his
    continuing involvement. After questioning Mr. Miazad about his educational
    background and confirming that Mr. Miazad was not legally trained, the appeal
    judge stated:

Im not going to
    hear the matter with Mr. Miazad as agent for the appellant. At an appeal level,
    one would hope that [at] a minimum theres an agent and thats not Miazads
    situation. Im becoming more and more concerned about individuals representing
    individuals in criminal or quasi-criminal or
Provincial Offences Act
matters that arent properly trained. Its inappropriate,
    in my view, for the court to permit Mr. Miazad to represent the applicant on
    this appeal.

[10]

The appeal judge adjourned the matter so that
    the appellant could have a lawyer or paralegal attend. On the return date, the
    appellant represented himself, relying on the factum Mr. Miazad had prepared.
    The appeal was allowed. The appeal judge ordered the matter to trial and also
    ordered the prosecutor to produce copies of the pertinent pages of the radar
    manual.

C.

Discussion

(1)

The Relevant Principles

[11]

As a general rule, a representative is permitted
    to represent a defendant in certain proceedings in the OCJ. Section 50 of the
POA
provides for a defendant to appear and act personally
    or by representative at trial in provincial offences matters, while s. 118
    provides for an appellant or respondent in appeals of Part III matters to
    appear and act personally or by representative. A representative is defined
    in s. 1(1) as a person authorized under the
Law Society Act
to represent a person in that proceeding.

[12]

The
POA
does not stipulate who may appear or act on behalf of
    an appellant in an appeal of a proceeding commenced (as here) under Part I of
    the
POA
. However, the combined
    effect of ss. 1 and 26.1 of the
Law Society Act
,
R.S.O. 1990, c. L.8
, s. 62; and ss. 6
    and 30 of By-Law 4 of the By-Laws of the
Law
    Society of Upper Canada,
is that, in
    addition to a lawyer or paralegal holding a Class P1 license, a non-licensed family
    member or friend who does not expect or receive compensation for the provision
    of legal services, is authorized to represent a defendant in any proceedings
    under the
POA
before the
    OCJ.
[1]


[13]

The right of a representative to
    appear is subject to the courts authority to control its own process.
[2]

The leading case is
R. v. Romanowicz
(1999), 45 O.R. (3d) 506 (C.A.). In
Romanowicz,
an accused was represented in summary conviction proceedings by an
    agent who was alleged to have provided ineffective assistance.  The court
    considered whether and on what basis the court could preclude an agent who was
    not a lawyer from representing an accused person in a summary conviction
    proceeding.
[3]



[14]

In concluding that a trial judge has the
    authority to refuse to permit an agent who is not a lawyer to represent
an accused person in
summary conviction
    proceedings
, the court in
Romanowicz
explained that [s]everal provincial statutes that
    provide for representation by agents before various tribunals recognize the
    tribunals power to exclude agents (at para. 54). As an example, this court
    referred to s.
50(3) of
    the
POA
, which, at the time, stated:

50(3) The court may bar any person from appearing as an agent
    who is not a barrister and solicitor entitled to practise in Ontario if the
    court finds that the person is not competent properly to represent or advise
    the person for whom he or she appears as agent or does not understand and
    comply with the duties and responsibilities of an agent.

[15]

Section 50(3)
    continues to apply to proceedings commenced under the
POA
in the trial context. However, in 2006, with
    the coming into force
of
Bill 14, the
Access to Justice Act, 2006
,
    S.O.
2006, c. 21, Sched. C (which provided for, among other things, the
    licensing of paralegals by the Law Society), the section was amended to read:


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.

[16]

In
Romanowicz
, this court held that, although the
Criminal
    Code
does not expressly give the trial judge power to prohibit a specific
    agent (which it defined at para. 24 as meaning a representative) from
    appearing in a particular case, the court was satisfied that the power to do
    so along the lines found in the provincial legislation exists by virtue of the
    courts power to control its own process in order to maintain the integrity of
    that process (at paras. 53, 58).
[17]

The court set out the procedure to be followed when
a party attends with an agent as representative. The court should
    first determine whether the defendant has made an informed choice to be
    represented by the agent (at paras. 41-44). In appropriate cases, the court may
    also inquire into the propriety of the representation. After providing examples
    of circumstances that could result in an order disqualifying an agent
    (questions of competence, discreditable conduct, conflict of interest and a
    demonstrated intention not to be bound by the rules and procedures governing
    criminal trials), the court stated at para. 76:
[D]isqualification
    is justified only where representation would clearly be inconsistent with the
    proper administration of justice. It is not enough that the trial judge
    believes that the accused would be better off with other representation or that
    the process would operate more smoothly and effectively if the accused were
    represented by someone else.
Disqualification of
    an accuseds chosen representative is a serious matter and is warranted only
    where it is necessary to protect the proper administration of justice
. [Emphasis added.]
[18]

The court cautioned against adopting an
    arbitrary rule and emphasized the need to review the particular circumstances
    of the case, stating at para. 77:
The power to
    disqualify agents, like any other facet of the courts power to control its
    processes, must be exercised judicially on the basis of the circumstances
    present in a given case. Those circumstances may include the seriousness of the
    charge and the complexity of the issues raised in a particular case. A
    presumption, however, that all agents are incompetent to represent accused
    persons charged with certain summary conviction offences is not a proper basis
    on which to exercise that discretion.
[19]

In
Romanowicz
,

the agent in
    question was a paralegal who provided legal services at a time before paralegals
    could be licensed in Ontario. Questions respecting the standard of competence required
    of licensed paralegals have been addressed in recent cases such as
R.
    v. Khan
, 2015 ONCJ 221,

[2015] O.J. No. 2096 and
R.
    v. Bilinski
, 2013 ONSC 2824, [2013] O.J. No. 2984.

Nothing in
    this decision is intended to address representation by licensed paralegals in
    provincial offence matters.  The test in
Romanowicz
, however,

is
    clearly applicable in cases where a person seeks to be represented in such
    matters by an unpaid family member or friend.
(2)

Application of the Principles
[20]

The appeal judge erred when he disqualified Mr.
    Miazad. He failed to approach the question of whether Mr. Miazad could continue
    to represent Mr. Allahyar in a manner consistent with this courts direction in
Romanowicz.
He did not consider whether
    disqualifying the appellants choice of a representative was necessary to
    protect the proper administration of justice, or inquire into the particular
    circumstances of the case, but instead disqualified Mr. Miazad because of a
    general concern about persons without legal training representing individuals in
    quasi-criminal, criminal and
POA
proceedings.
[21]

Questions of competence must be addressed having
    regard to the context. Specialized training is not necessarily required before an
    unpaid family member or friend can represent an accused or defendant in a provincial
    offence appeal before the OCJ. Attending court can be difficult and
    intimidating for an accused at any level of court. Having a friend or family
    member attend and assist can be invaluable and is consistent with ensuring
    access to justice.
[22]

There was no question that Mr. Miazad was
    skilled and diligent in representing Mr. Allahyar. In the proceedings before
    the justice of the peace, Mr. Miazad identified case authority for his
    disclosure request, pursued the request in an appropriate manner, and brought
    motions under ss. 11(b) and 7 of the
Charter
,
    supported by an affidavit and factum, when such disclosure was not provided. He
    was successful in obtaining a stay of proceedings for the appellant. There was
    no basis for disqualifying Mr. Miazad out of concern for his competence in
    representing the appellant.
[23]

The Attorney General acknowledges that the
    appeal judge did not consider the appropriate factors and ought not to have
    disqualified Mr. Miazad based on general concerns about persons without legal
    training appearing on
POA
matters. He submits,
    however, that the appeal judge did not err in disqualifying Mr. Miazad because
    Mr. Miazad had a conflict of interest that would have prevented him from acting
    on the appeal.
[24]

The Attorney General contends that Mr. Miazads conduct
    in respect of the disclosure request - the efforts taken to obtain photocopied
    pages of the manual - was at issue in the appeal to the OCJ. As such, he was a
    potential witness and would not have been able to represent the appellant. The
    Attorney General says that Mr. Miazad, and not the prosecution, was responsible
    for the fact that photocopies of the pages from the manual were not provided.
[25]

There are two problems with this argument.
    First, the record shows that the prosecutor did not take the position that Mr.
    Miazad was a witness. Rather the appeal was argued on the transcripts of the
    attendances before the justice of the peace. The prosecutor never argued that
    Mr. Miazad had a conflict of interest, and did not object to Mr. Miazads
    representation of Mr. Allahyar on the appeal for any reason.
[26]

Second, the alleged misconduct by Mr. Miazad
    that might have led to him being a witness is simply not borne out on the
    record. Mr. Miazad was clear throughout the proceedings that he wanted copies
    of excerpts from the manual to be provided, and the matter was adjourned
    repeatedly so that this could occur. Although the prosecutor knew what was
    required, as the justice of the peace concluded on May 13, 2013, the disclosure
    did not happen. There is simply no merit to the argument that Mr. Miazad had a
    conflict of interest in continuing to represent Mr. Allahyar on the appeal.
[27]

Finally, the appellant contends that this case
    raises broader concerns about access to justice, and invites the court to
    expand upon the
Romanowicz
decision. I find it
    unnecessary to do so.
[28]

While
Romanowicz
was decided in the context of concern about representation by
    unlicensed paralegals in summary conviction proceedings, the principles it
    articulates are of broader application, and need not be reconsidered or
    expanded upon in this appeal. The appeal judge failed to consider the proper
    factors under
Romanowicz
and the
    disqualification of the appellants representative was not justified.
D.

Disposition
[29]

For these reasons I would allow the appeal and,
    in accordance with the Attorney Generals proposed disposition, enter a stay of
    proceedings.
Released: KvR  MAY 01 2017
K. van Rensburg
I agree. E. E. Gillese
I agree. David Brown J.A.

[1]

All persons who provide legal
    services in Ontario require a license, except if and to the extent permitted by
    a by-law of the Law Society of Upper Canada:
Law Society Act
,
s. 26.1. By-Law 4 of the Law Society of Upper Canada prescribes
    persons or classes of persons who are permitted to practise law or provide
    legal services in Ontario
without a licence
, the
    circumstances in which they may do so and the extent to which they may do so:
Law
    Society Act
, s. 62;
By-Law 4
.

Certain
    non-licensees may provide the legal services that paralegals (licensees holding
    Class P1 licences) are authorized to provide, including representing a party
    before the OCJ in the case of a proceeding under the
POA
:
By-Law 4, ss.
6, 30. Such persons include 
related persons (
as defined in
    s. 251 of the
Income Tax Act
, R.S.C. 1985, c. 1 (5th Supp.) and
friends or neighbours who provide legal
    services without expecting or receiving compensation.
A representative who is a friend
    or neighbour is limited to providing the legal services in respect of not more
    than three matters per year: Bylaw 4, s. 30.


[2]

The power is described as inherent in respect of superior
    courts and implied for statutory courts:
R. v. Cunningham
, 2010 SCC
    10, [2010] 1 S.C.R. 331, at paras. 18-19.


[3]

The provisions at issue
in
Romanowicz
were ss.
    800(2) and 802(2) of the
Criminal Code
, which govern who can appear in
    summary conviction court. Section 800(2) provides that a
defendant may appear personally or by counsel or
    agent and s. 802(2) provides the defendant may examine and cross-examine
    witnesses personally or by counsel or agent. Section 802.1 provides that a
    defendant may not appear or examine or cross-examine witnesses by agent if the
    maximum summary conviction punishment is imprisonment for a term greater than
    six months, unless the defendant is a corporation or the agent is authorized
    under a provincial program approved by the lieutenant governor in council. There
    is no such program in Ontario.
