R. v. Buado, 2014 ONCJ 802

CITATION: R. v. Buado , 2014 ONCJ 802 DATE: June 4, 2014 Information No. 2811 999 3918163A ONTARIO COURT OF JUSTICE

HER MAJESTY THE QUEEN v. AMELIA BUADO 10 15 R E A S O N S F O R R U L I N G PROVINCIAL OFFENCES ACT APPEAL 20 BEFORE THE HONOURABLE JUSTICE G.R. WAKEFIELD on June 4, 2014 at OSHAWA, Ontario 25 APPEARANCES : 30 T. McKinnon Prosecutor for the Respondent

J. Smart Agent for Appellant Amelia Buado R. v. Buado Reasons for Ruling - Wakefield, J. WEDNESDAY, JUNE 4, 2014 R E A S O N S F O R R U L I N G WAKEFIELD, G.R. (Orally): 5

I note that I must defer to a presiding trial judge, a justice of the peace's finding of fact, however that finding can be undermined if there's something in the body of evidence that contradicts the finding. I can say that I see, 10 with respect to the 11(

b) issue, that there was no miscarriage of justice. I certainly view the interpreter issue as the main causation for the various delays, and that was clearly caused by the defence request for an interpreter who was 15 neither wanted nor, as it turned out, needed. In any event, firstly I must consider whether or not there was a miscarriage of justice.

A fair trial is not necessarily a perfect trial, 20 however here the presiding justice of the peace, as part of his reasoning, set out the testimony of the insurance adjuster regarding the rear bumper damage as being from a different 25 accident, which was not the explanation of Mr. Streef, S-T-R-E-E-F, who simply did not know when that damage occurred. The causation of the accident was a live issue. The oncoming vehicle, the vehicle's driver, could not assist 30 as to what happened to the defendant resulting in her crossing into the oncoming traffic. The crux of the prosecution was the testimony of Mr.

Ainsworth of the defendant's side mirror clipping his truck. The defendant's rear bumper damage would be corroboration for a defence of having been bumped from the back, and as such I am in a position to find that there was a 5 miscarriage of justice which occurred due to the incompetency of the paralegal in not preparing for those two competing theories of the case in a manner that any member of the public should expect to have as their representative, and 10 especially in these circumstances where the causation of the accident - the initial loss of control by the defendant was so important to the final verdict.

Similarly, I would find it reasonably probable that a different result 15 would have occurred with competent counsel.

I look at the various facts that gave rise to that determination. There would appear to have been no advice to the trier of fact at the very 20 inception of the trial in January 2013 of both paralegals being a defence team, and resulting in the justice of the peace having the second paralegal sit within the body of the courtroom. 25 And I'm left asking myself why Mr. Malik did not make it clear to the justice of the peace that both were working together in this matter at the inception of the trial.

That became a little bit clearer later on in the trial, but it is 30 only at that point that the justice of the peace became aware that both Mr. Malik and Mr. Wancho were licensed paralegals. The nature of bringing the 11(

b) application, notwithstanding the fact that there's no merit whatsoever in hindsight to it, was brought in a manner which left me confused as to what Mr. Malik was really trying to do. The fact of

5 requesting the justice of the peace to withdraw the charge, not using what is the appropriate procedure of seeking a stay and seeking short notice based on the lack of interpreter, which would have been, I think, the third time that 10 there were interpreter challenges in this trial. In any event, the discussions of withdrawal I did not read as essentially opening the door to the prosecutor exercising her discretion, but 15 rather as one indicator, that together with other aspects of the trial, ended up convincing me that there was a competency issue, indeed a lack of knowledge of the proper procedures within a quasi-criminal form. 20 There was, in any event, no formal 11(

b) application brought after the January refusal by the justice of the peace, which was certainly 25 within the right of Mr. Malik. I again, make no reference to that being a factor in that he had - Mr. Malik had an opportunity of bringing an 11(

b) application on formal notice for the June proceedings because I don't have the full record 30 of the interceding transcripts to know if there had been any waiver or any other reason why Mr. Malik did not bring the formal application.

Clearly however, Mr. Malik felt he had some 11(

b) basis to bring the issue up, albeit in such a confused manner, in the January proceedings. 5 There was the rather confusing submissions by Mr. Malik on the issue of exclusion of witnesses. Again, that by itself would not give rise to concern, but again, it's the constellation of these issues that cumulatively 10 become the factual basis for my finding that the defence has met its onus on the balance of probabilities of incompetency of the paralegal in these particular proceedings. 15 I'm still not clear what a document brief is. I infer from the various discussions that it is a process that might be followed in the Small Claims Court, though that has not been made

clear to me in the proceedings today. What is 20 clear is that there was no real appreciation by either Mr. Malik or Wancho as to whose responsibility it was to serve the documents and keep a record of who was served, when, with 25 what, which on the transcript would appear not to have been documented and indeed not clear to either paralegals as to who actually did, if either had actually done the appropriate service of the paperwork. The contents as described by 30 Ms. Joy (ph) in the transcript of the document brief leaves me confused as to whether there was any appreciation by Mr.

Malik of his obligations to his client in the quasi-criminal proceeding, and then add to that the lack of comprehension by Mr. Malik that the document brief, whatever that's supposed to be, was not already an exhibit in the trial, especially given that the 5

trial only just started. Again, I wonder if there was some confusion on the part of Mr. Malik with civil court proceedings. It's not clear to me, but what is clear to me is that his expectations of what had been accomplished 10 within a criminal court proceeding were not consistent with criminal court practice or quasi-criminal court practice. It is all very well for me to play armchair 15 quarterback to the trial process and the decisions that were made by Mr.

Malik in conducting the trial, and I instruct myself not to assess how I might have conducted the trial, but to look at any absences in what was done 20 that might have affected a fair trial process, I do note that there seemed to have been a lack of appreciation how to set up the making of the photographs as exhibits and the need for them to 25 be qualified. I note that the witness was often asked leading questions, but by itself, I too would - as would Mr.

McKinnon, not see that as an incompetency issue because even young lawyers easily fall into that trap, and for that matter 30 seasoned lawyers and paralegals can sometimes fall into that trap. But as a factor in the

constellation it's something I take into account. The fact that Mr. Malik did not realize that an interpreter was going to be an obstacle as 5 opposed to an aid to the defence, to my mind is a clear indicator either of a lack of preparation with Mr. Mammone or a lack of understanding of the process of what a witness does in the witness stand and communicating. 10 It's not clear to me how much time was spent preparing Mr. Mammone, but it's certainly an inference I draw as to a lack of preparation of Mr. Mammone that Mr. Malik was aware of the fact that an interpreter would have been an obstacle 15

to Mr. Mammone's ability to testify. As discussed, with dialogue with both Mr. Smart and Mr. McKinnon, the lack of redirect re- examination by Mr. Malik to try and repair 20 aspects of testimony gives cause for concern. The clarification of the rear bumper marks and whether they were a totally different accident or merely one that could not be testified to by 25 Mr. Streef as from this accident was, I think, a linchpin to one of the findings of fact by the presiding justice of the peace. And in my view is again, perhaps not singly, but in conjunction with all the other aspects of the manner in 30 which this trial was conducted, the lack of understanding of the procedures within the

quasi-criminal court, amounts to incompetency by Mr. Malik in these proceedings. Now again, I'm not embarking on a broader range of what is the standard of competency. It's an 5 issue best dealt with by the Law Society or far more comprehensive submissions and judgment by myself, but as of this moment I'm certainly allowing the appeal for those reasons. 10 **********

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FORM 2 Certificate of Transcript Evidence Act, Subsection 5(2) I, Vickie Foster, certify that this document (electronic copy) 5 is a true and accurate transcript of the recording of R. v. Buado , in the Ontario Court of Justice, held at Oshawa, Ontario, taken from Recording No. 2811-102-20140604-091123-10- WAKEFIG, which has been certified in Form 1. 10 Date Vickie Foster Authorize d C our t Transcriptionist

LEGEND (pursuant to directive of Court Reporting Services, December 2010 15 [sic] - Indicates preceding word has been reproduced verbatim and is not a typographical error, but is a spoken error (ph) - Indicates preceding word has been spelled phonetically as it was spoken and is not a typographical error. 20 Transcript Ordered: June 4, 2014 Transcript Completed: June 30, 2014 Receiving from Judiciary: June 10, 2014 Notified Ordering Party: July 14, 2014 25 PLEASE NOTE: Photocopies of this transcript are not certified and have not been paid for unless they bear the original signature in INK (unless noted as electronic copies) and accordingly are in direct violation of Ontario 30 Regulation 587/91, Court of Justice Act, January 1, 1990.