



COURT OF APPEAL FOR ONTARIO

CITATION: R v. DaFonte, 2016 ONCA 532

DATE: 20160705

DOCKET: C59811

Doherty, Feldman and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gina DaFonte

Appellant

Timothy E. Breen, for the appellant

John McInnes, for the respondent

Heard: June 22, 2016

On appeal from the conviction entered and sentence
    imposed on December 3, 2014 by Justice Lesley M. Baldwin of the Ontario Court
    of Justice.

BROWN J.A.:

Overview

[1]

The appellant, Gina DaFonte, a lawyer, appeals
    from the trial judges finding that she was guilty of criminal contempt of
    court and the sentence imposed of a $500.00 fine. The appellant is a sole
    practitioner. She was called to the bar in 2005. The finding of contempt arose
    from the appellants failure to attend a court hearing made peremptory to her
    client, Ms. Tracy Fleming.

[2]

I would uphold the finding of contempt. However,
    I conclude the trial judge erred by failing to afford the appellant an
    opportunity to make submissions on sentence. As a result, I would set aside the
    conviction and the sentence of a fine and would substitute, by way of sanction
    for the finding of contempt, an absolute discharge, coupled with the referral
    of the appellant to the Law Society of Upper Canada for practice mentoring.

Chronology of Events

[3]

In January 2013, Ms. Fleming had entered guilty
    pleas to charges of assault against her husband and failure to comply with
    recognizance. When Ms. Fleming retained the appellant in July 2013, she was
    awaiting sentencing. Once retained, the appellant advised the Crown that an
    application to set aside the guilty pleas might be sought.

[4]

Ms. Fleming was represented by different counsel
    in matrimonial proceedings which involved custody issues. Following the
    appellants retainer, the matrimonial proceedings were adjourned to await the
    outcome of the application to set aside the guilty pleas.

[5]

That application initially was scheduled to be
    heard on October 4, 2013. It was adjourned to January 28, 2014 to enable the
    appellant to obtain the necessary transcripts. In December 2013, the appellant
    filed an application record.

[6]

On January 28, the appellant informed Crown
    counsel she could not attend due to illness. As matters transpired, the presiding
    judge also was ill. The application to set aside was adjourned to February 4.

[7]

The appellant did not attend court on February 4,
    nor did she inform her client or Crown counsel that she would not be attending.
    The application was put over to February 20.

[8]

On February 6, the Crown served and filed an
    application to secure case managements orders, with the application returnable on
    February 10.

[9]

The Crowns application was brought on before
    the trial judge on February 10. The appellant did not appear. The trial judge
    adjourned the matter to the following day. The appellant did appear at that
    time. The trial judge put over to Monday, March 10 the application to strike
    the pleas, and made the matter peremptory.

[10]

On March 10, Ms. Fleming appeared in court; the
    appellant did not. Court staff called the appellants contact number and spoke
    to her answering service. The service advised that the appellant was not
    answering her phone; the court staff left a message with the service for the
    appellant to call. The trial judge thereupon cited the appellant for contempt,
    and proceeded to dispose of the application to set aside the guilty pleas in
    the absence of the appellant.

[11]

The appellant called court staff at 3:35 p.m.
    and asked staff to convey her apologies to the court for not appearing.
    According to the record of that call prepared by court staff, the appellant
    advised that she has been extremely ill lately and has been bedridden and due
    to her illness misread her diary and did not realize that she was required for court
    today.

[12]

When her husband came home from work, the
    appellant went to a clinic where she was prescribed an antibiotic. In a few
    days, she was feeling better.

[13]

The appellant appeared before the trial judge on
    March 17 and apologized for her absence the previous week. The trial judge set
    a date for the contempt hearing.

[14]

The trial judge held the contempt hearing on
    August 20, 2014. The appellant appeared and testified, as did her husband.

[15]

The appellant testified that she had not been
    feeling well over the weekend before the hearing. On the morning of March 10,
    she felt fuzzy, confused, and disoriented. She did not realize it was Monday.
    It was only after she got out of bed in the afternoon and checked her cell
    phone did she see the messages that had been left by court staff and by Ms.
    Flemings family law counsel who informed the appellant that the trial judge
    had cited her for contempt.

[16]

The appellant again offered her apology to the
    court, and said she had taken steps to ensure she would not miss a court attendance
    again.

Reasons of the trial judge

[17]

The trial judge correctly identified the
    applicable test for criminal contempt of court as that set out by this court in
R. v. Glasner
(1994), 93 C.C.C. (3d) 226 (Ont. C.A.). In
Glasner
,
    this court stated, at p. 242, that the
actus reus
of criminal contempt
    is conduct which seriously interferes with or obstructs the administration of
    justice or which causes a serious risk of interference or obstruction. The
    fault requirement calls for deliberate or intentional conduct, or conduct
    which demonstrates indifference akin to recklessness: p. 244.

[18]

The trial judge found that the appellants
    failure to attend the March 10 hearing had seriously interfered with the
    administration of justice, delaying not only the application to strike the
    pleas, but also the related family court proceedings.

[19]

Although the trial judge accepted the appellant had
    not deliberately failed to attend court, she concluded the appellants conduct
    demonstrated reckless indifference to her obligations to the court and her
    client. The trial judge held that the appellants conduct went far beyond mere
    discourtesy or inconvenience and interfered with the courts authority and its
    ability to administer justice. She found the appellant guilty of criminal
    contempt.

[20]

The trial judge found the appellants apology
    did not purge her contempt, but was a mitigating factor concerning sanction. She
    fined the appellant $500 for her contempt. The trial judge also wrote that she
    would refer the matter to the Law Society for any supervision or other action
    they deem appropriate.

[21]

Appellants counsel advised that the Law Society
    has opened a file on the matter, but he was not aware of the details, save that
    the Law Societys investigation was in abeyance pending the disposition of this
    appeal.

Issues on the appeal

[22]

The appellant advances several grounds of
    appeal:

(i)

The trial judge erred in concluding the
mens
    rea
for contempt had been established because the reason for her failure
    to attend was an honest mistake;

(ii)

The trial judge misapprehended the evidence
    about the availability of the appellants telephone records;

(iii)

The trial judge erred in holding the appellants
    apology could not purge her contempt; and

(iv)

The trial judge erred in determining sentence
    without allowing the appellant an opportunity to make submissions.

Analysis: Appeal from the contempt finding

[23]

The first three grounds of appeal relate to the
    issue of whether the trial judge erred in finding that the
mens rea
for criminal contempt had been proven beyond a reasonable doubt.

[24]

First, the appellant submits her illness caused
    her to make an honest mistake about the date of the court hearing and an honest
    mistake is incompatible with the subjective knowledge required for
    recklessness. The appellant contends the trial judge never rejected her
    evidence that she had not realized she was supposed to be in court on the
    Monday.

[25]

I do not accept this submission. When the trial
    judges reasons are read in their entirety, it is clear she considered and
    rejected the appellants explanation of an honest mistake. The trial judge did
    not believe the appellants explanation that flu medication had so disoriented
    and confused her that she did not know what day of the week it was. The trial
    judge emphasized the strong prior warnings given by the court to the
    appellant about the need to bring the strike plea matter to a final conclusion
    and the peremptory nature of the March 10 hearing. She also held that the
    appellants evidence about her illness and attendance at the doctor late on the
    Monday afternoon did not explain her failure to check her schedule and attend
    to her obligations. The trial judge found the appellants excuse for
    non-attendance in court to be part of a pattern of unreasonable excuses. The
    appellant does not contend the trial judge made any palpable and overriding
    error in making those findings of fact.

[26]

I also do not accept the appellants submission
    that the trial judges unfavourable view of her credibility was informed, in
    part, by a misapprehension of the evidence about the availability of her
    telephone records and the cell phone used at the time by the appellants
    husband. The trial judge clearly understood the appellants critical evidence
    that on March 10, 2014 she did not see the messages on her cell phone from her
    answering service, the court staff, and Ms. Flemings family law counsel until
    mid-afternoon because she did not check her phone that day until that time.

[27]

Finally, the appellant argues the trial judge
    erred in holding that her apology could not purge her contempt, contrary to the
    decision of this court in
R. v. Martin
(1985), 19 C.C.C. (3d) 248
    (Ont. C.A.), at p. 253, that a sincere apology can purge contempt.

[28]

I do not accept this submission. A court hearing
    a contempt charge must consider the accuseds explanation, including any
    apology, and then determine on all of the evidence whether the case has been
    made out beyond a reasonable doubt:
Glasner
, at p. 244;
R. v.
    Devost
, 2010 ONCA 459, 256 C.C.C. (3d) 374, at para. 45. However, a judge
    is not obliged to accept an explanation or an apology:
Devost
, at para. 45. In the present case, the trial judge did not take the
    position that a sincere apology could not purge contempt. Instead, having
    rejected the appellants explanation that an illness prevented her from
    attending to her court obligations, the trial judge was not prepared to accept
    that an apology based on the appellants explanation that she was ill raised a
    reasonable doubt. That conclusion was open to the trial judge on the evidence
    before her.

[29]

Accordingly, I would dismiss the appellants
    appeal from the finding of contempt.

Analysis: Sentence Appeal

[30]

During the August 20, 2014 contempt hearing, the
    parties did not make any submissions about sentence. The record of the hearing
    discloses counsel proceeded on the basis that the only issue at the hearing was
    whether the appellant had committed criminal contempt. However, in her reasons
    for judgment, the trial judge immediately proceeded from making a finding of
    contempt to imposing the sanction of a fine. The trial judge then requested
    submissions from counsel on the amount of the fine.

[31]

The appellant submits the trial judge erred in
    determining sentence without allowing her an opportunity to make submissions.
    The respondent argues that the flexibility of the summary procedure for
    criminal contempt allows a judge to determine sentence without seeking
    submissions from the parties.

[32]

I accept the appellants submission. Other than
    in exceptional circumstances where an
instanter
summary proceeding is
    justified, the summary procedure for contempt is subject to the requirements of
    natural justice, which include affording the parties an opportunity to make
    representations about an appropriate sentence following a finding of contempt:
R.
    v. Arradi
, 2003 SCC 23, [2003] 1
    S.C.R. 280
, at para. 30. The trial judge erred by failing to give
    the appellant such an opportunity. In light of that error, it falls to this
    court to consider what sanction is fit in the circumstances.

[33]

At the hearing of the appeal, we invited counsel
    to provide further submissions on sentence. Counsel filed a joint letter
    stating that in the event the court dismissed the appeal against conviction,
    there is a basis to conclude that an absolute discharge is in the appellants
    best interests and not contrary to the public interest. The Crown does not
    oppose a discharge. Counsel also advised that should the court grant a
    discharge, the Crown would be content if the court simply mentioned the trial judges
    referral to the Law Society in its decision and allow the Law Society
    investigation to take its course.

[34]

The purpose of criminal contempt is to punish
    conduct calculated to bring the administration of justice by the courts into
    disrepute:
United Nurses of Alberta v. Attorney-General for Alberta
(1992), 71 C.C.C. (3d) 225 (S.C.C.), per Sopinka J., dissenting, at p. 230.
    Sentencing in criminal contempt cases operates to repair the depreciation of
    the authority of the court:
International Forest Products v. Kern
,
2001
    BCCA 48, 149 B.C.A.C. 18, at para. 20
.

[35]

As the trial judge recognized, a wide variety of
    possible sanctions are available to a judge who has found a lawyer in contempt
    for failing to attend a court hearing, including a warning, reprimand, referral
    to the Law Society, costs, or a deterrent fine.

[36]

Since 2010, formal protocols have existed
    between the Law Society and all levels of Ontario courts under which a judge
    who experiences misconduct by a lawyer can refer the lawyer to the Law Society to
    be mentored, rather than investigated, for misconduct.
[1]
According to the
    protocols, where a judge refers a lawyer for mentoring, the Law Society will
    arrange for a senior member of a professional organization, such as the
    Criminal Lawyers Association, to conduct a mentoring meeting with the lawyer
    to discuss the lawyers conduct and mentor the lawyer about the conduct in
    question. A judicial referral for mentoring does not constitute a complaint of
    professional misconduct, but a request by the court that the professional
    regulator provide the member with the assistance needed to address and correct
    inappropriate conduct.

[37]

It is in the long-term interests of the
    administration of justice that lawyers who do not appreciate the full extent of
    their obligations to the courts are afforded the opportunity for mentoring,
    correction and improvement.  The courts referral of a lawyer to the Law
    Society for mentoring provides a practical means by which to achieve that
    result.

[38]

Given the existence of the mentoring referral
    protocol between the courts and the Law Society, a judge should consider
    whether the circumstances of a particular case would make a referral to the Law
    Society for practice mentoring a more proportional and effective solution to a
    lawyers failure to attend a scheduled court hearing than would resorting to
    the judicial contempt power.

[39]

The appellant is a young lawyer; in March 2014,
    she had been in practice for just under 10 years. Although she leased space from
    a group of lawyers, she did not make use of any of the administrative services
    available through that chambers arrangement. She ran her practice out of her
    cellphone without putting in place the administrative and technological safety
    nets needed to meet her professional obligations. It is obvious that the
    appellant would benefit from assistance in organizing and conducting her
    professional practice.

[40]

In my view, the goal of repairing the
    depreciation of the authority of the court caused by the appellants failure to
    attend court on March 10, 2014, can be achieved by granting an absolute
    discharge, coupled with a referral to the Law Society for practice mentoring. 
    Accordingly, I would set aside the conviction, the fine imposed by the trial
    judge, and the terms upon which she referred the appellant to the Law Society.
    In their place, I would grant an absolute discharge and refer the appellant to
    the Law Society for practice mentoring. To be clear, the referral is not a
    judicial complaint of professional misconduct against the appellant, but a
    request under the 2010 protocol that the Law Society provide the appellant with
    formal practice mentoring.

Disposition

[41]

For the reasons set out above, I would uphold the
    finding of contempt. However, I would set aside the conviction and sentence, including
    the terms of referral to the Law Society imposed by the trial judge. I would substitute
    an absolute discharge, coupled with the referral of the appellant to the Law
    Society for practice mentoring.

Released: July 5, 2016 (DD)


David Brown J.A.

I agree Doherty J.A.

I agree K. Feldman J.A.





[1]
The March 31, 2010 letter protocols are found on the website of the Law Society
    of Upper Canada, www.lsuc.on.ca, by searching Judicial and Tribunal
    Complaints.


