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Courts - Representation by Non-Licensees

Parties - Representation By Non-Licensees

Administrative Law - Representation By Non-Licensees

R. v. Allahyar (Ont CA, 2017)

In this case the Court of Appeal considered an appeal of a decision of an Ontario Court of Justice judge to refuse a person (the defendant's brother-in-law) not licensed by the Law Society of Upper Canada (ie. neither a lawyer nor a paralegal) to represent a person appealing the judgment of a justice of the peace respecting a charge under the Highway Traffic Act. The court usefully canvasses the issue expressly in the context of the fact that the brother-in-law was not a LSUC licensee, and the principles are extendable to other situations, such as non-licensee representation before administrative tribunals, where the competency or propriety of similar representation is an issue.
(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”.
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]
The right of a representative to appear is subject to the court’s authority to control its own process.[2] The leading case is R. v. Romanowicz (1999), 1999 CanLII 1315 (ON CA), 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]

[12] 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 tribunal’s 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:

[13] 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.

[14] 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:

[15] 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 court’s 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 accused’s 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 court’s 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 (CanLII), [2015] O.J. No. 2096 and R. v. Bilinski, 2013 ONSC 2824 (CanLII), [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.

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