Ontario (Electrical Safety Authority) v. Broomfield, 2018 ONCJ 640

CITATION: Ontario (Electrical Safety Authority) v. Broomfield , 2018 ONCJ 640 DATE: September 19, 2018 IN THE MATTER OF the Electricity Act, 1998, S.O. 1998, c. 15,

Schedule A and the Licensing Of Electrical Contractors And Master Electricians Regulation ( Electricity Act, 1998 ), O. Reg. 570/05 Between Her Majesty the Queen in Right of Ontario (Electrical Safety Authority) prosecutor and Paul Broomfield defendant Ontario Court of Justice Brampton, Ontario Quon J.P. Reasons for Judgment Charge : “ operate an electrical contracting business without holding a valid elec​trical contractor license” , contrary to s. 3 of the Licensing Of Electri​cal Contractors And Master Electricians Regulation ( Electricity Act, 1998 ), O. Reg. 570/05 , and did thereby commit an offence under s. 113.20(1) (

d) of the Electricity Act, 1998, R.S.O. 1998, c. 15, Sched. A. Trial held : January 25 and 26, 2017; February 1 and 2, 2017; June 28 and 29, 2017; September 7, 2017; October 24, 2017; November 1, 2017; November 23, 2017; March 8, 2018; and May 2, 2018. Ruling on abuse of process application and written judgment released on : September 19, 2018.

Counsel: Ian Johnston, Phillip Wright, and David Cowling, counsel for the Electrical Safety Authority. Paul Broomfield, self-represented until he retained legal counsel for the November 23, 2017; March 8 and May 2, 2018, trial dates. David North, legal counsel for the defendant, appeared on the November 23, 2017; March 8 and May 2, 2018, trial dates. Cases Considered Or Referred To: Maves v. Grand Trunk Pacific Ry. Co., [1913] A.J. No. 53 (Alta. C.A.). R. v. 974649 Ontario Inc., 2001 SCC 81 , [2001] S.C.J. No. 79 (S.C.C.). R. v. Albright, (SCC), [1987] S.C.J. No. 56 (S.C.C.). R. v. Biddle, (SCC), [1995] S.C.J.

No. 22 (S.C.C.). R. v. Chamandy, [1934] O.J. No. 235 (Ont. C.A.), per Latchford, C.J., Riddell and Macdonnell, JJ.A. R. v. Cyr, 2012 ONCA 919 , [2012] O.J. No. 6148 (Ont. C.A.), per Weiler, Watt and Epstein JJ.A. R. v. Deslauriers, (MB CA), [1992] M.J. No. 502 (Man. C.A.). R. v. deKock, [2009] A.J. No. 628 (Alta. C.A.). R. v. Fitzpatrick, (SCC), [1995] S.C.J. No. 94 (S.C.C.). R v Handy, 2002 SCC 56 , [2002] S.C.J. No. 57 (S.C.C.). R. v. K.T. (2013), 2013 ONCA 257 , 295 C.C.C. (3d) 283 (Ont. C.A.), per Juriansz, Watt and Epstein JJ.A. R. v. Levogiannis, (SCC), [1993] S.C.J. No. 70 (S.C.C.) R. v.

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The Queen, (SCC), [1954] S.C.J. No. 54 (S.C.C.). Canada (Minister of Citizenship and Immigration) v. Tobiass, (SCC), [1997] 3 S.C.R. 391 (S.C.C.). R. v. Anderson, 2014 SCC 41 , [2014] S.C.J. No. 41 (S.C.C.). R. v. Babos, 2014 SCC 16 , [2014] S.C.J. No. 16 (S.C.C.). R. v. Bellusci, 2012 SCC 44 , [2012] 2 S.C.R. 509 (S.C.C.). R. v. Bjelland, 2009 SCC 38 , [2009] 2 S.C.R. 651 (S.C.C.). R. v. Boudreau, 2012 ONCA 830 , [2012] O.J. No. 5597(Ont. C.A.), per MacPherson, Cronk and Blair JJ.A. R. v. Conway, (SCC), [1989] 1 S.C.R. 1659 (S.C.C.). R. v. I.B., [2014] O.J. No. 3786 (Ont. C.J.), per Otter J.

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C.(R.) (1999), 1999 BCCA 411 , 137 C.C.C. (3d) 87 (B.C.C.A). R. v. Cavan, (ON CA), [1999] O.J. No. 4181, (Ont. C.A.), per Osborne A.C.J.O., Abella and MacPherson JJ.A. (adhoc). R. v. Charest (1990), (QC CA), 76 C.R. (3d) 63 (Que. C.A.). R. v. Drover, [2000] N.J. No. 36 (N.L.C.A.).

R. v. Dvorak (2001), 2001 BCCA 347 , 156 C.C.C. (3d) 286 (B.C.C.A.). R. v. Gratton, [1985] O.J. No. 36 (Ont. C.A.), per Dubin, Thorson and Cory JJ.A. R. v. Henderson, (ON CA), [1999] O.J. No. 1216 (Ont. C.A.), per McMurtry C.J.O., Finlayson, Osborne,Labrosse and Charron JJ.A. R. v. Labarre (1978), (QC CA), 45 C.C.C. (2d) 171 (Que. C.A.). R. v. Logiacco, (ON CA), [1984] O.J. No. 15 (Ont. C.A.), per Dubin, Goodman and Cory JJ.A. R. v. Mallory, 2007 ONCA 46 , [2007] O.J. No. 236 (Ont. C.A.), per Sharpe, Simmons and Lang JJ.A. R. v. McDonald, [1958] O.J. No. 604 (Ont. C.A.), per Laidlaw, Lebel and Morden, JJ.A. R. v.

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Electrical Distribution Safety Regulation (Electricity Act, 1998), O. Reg. 22/04. Electricity Act, 1998, S.O. 1998, c. 15, Sched. A, ss. 1, 1(f), 113.2(1), 113.13(4)(b), 113.13(6), 113.13(7), 113.20(1)(d), 113.20(7), andPart VIII. Law Society of Ontario’s Rules of Professional Conduct, s. 5.1-3. Licensing Of Electrical Contractors And Master Electricians Regulation (Electricity Act, 1998), O. Reg. 570/05, ss. 1(1), 2, 2(10), 3, 4,8, 9, and 33(2). Provincial Offences Act, R.S.O. 1990, c. P.33, s. 34. Reference Material Considered or Cited: Van Duzer, J.A.

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Exhibits entered: Exhibit "1" - copy of a SAP Notification Printout document (printed on Jan. 11, 2016) which states that the notification date was July 18, 2014, indicating a “Z7” hazard investigation was required to be conducted at 22 Vespahills Cres., Brampton, and that there had been an attendance at the location on July 21, 2014, by ESA Inspector Shaun Smith, which is contained in TAB 13, pages 043 and 044, of the Prosecution’s Book of Documents. Page 043 states that “NO PERMITS IN OUR SYSTEM FOR THIS WORK” and that Gary Corbett has been notified and that a permit had been taken out by LEC on AUG. 13 2014.

Page 044 list the defects for 22 Vespahills Cres., Brampton, which includes “Only a Licensed Contractor can take out a notification and complete this work”. (2 pages). Exhibit "2" - copy of a “Notification” document dated July 18, 2014, that was sent by ESA Inspector Shaun Smith to Paul Broomfield, PB Construction, 1329 Martin Grove Road, Rexdale, Ontario indicating there is no permit in the ESA system for 22 Vespahills Cres., Brampton, and that Paul Broomfield’s company (PB Construction) is not licenced by ECRA/ESA to perform electrical work.

The notification also indicates that Shaun Smith conducted the inspection of 22 Vespahills Cres. was done by Shaun Smith on July 21, 2014. The notification also informs Paul Broomfield to stop all electrical work immediately and leave the installation in a safe condition. This notification document is contained in TAB 14, pages 045, 046, 047, of the Prosecution Book of Documents (3 pages).

Exhibit "3" - copy of a SAP Notification Printout document dated Jan. 11, 2016, sent to JAY POWER SYSTEMS INC. at 32 Westowanis Dr., Etobicoke indicating a permit had been taken out for the residential house at 22 Vespahills Cres., Brampton, Ontario, which is contained in TAB 15, pages 048 and 049 of the Prosecution’s Book of Documents (2 pages). Exhibit "4" - photograph of the residential house that is located at 22 Vespahills Crescent, Brampton, which is contained in TAB 17, page 051, of the Prosecution’s Book of Documents (1 page).

Exhibit "5" - copy of P & B Construction Business Card, which is contained in Tab 1 (Pages 001 and 002) of the Prosecution’s Book of Documents. The front of the business card has the defendant’s name “Paul Broomfield” printed under the business name of “PB Construction”. It also states the address of the business is at 1329 Martin Groove Road, Rexdale – Etobicoke ON M9W 4X5 and a telephone number of (647) 839 -9096. The back of the business card states “Renovations”, “Commercial”, “Residential”, “Tiles & Drywall”, and “Electrical” (2 pages).

Exhibit "6" - copy of handwritten document of an agreement between Ahmed Khan and Paul Broomfield dated September 9, 2013, detailing additional work for 291 Boon Avenue, Toronto, that was not part of the original agreement dated March 24, 2013, as well as work to be deleted from the original agreement, which is contained in Tab 3, page 008, of the Prosecution’s Book of Documents (1 page). Exhibit "7" - copy of handwritten document containing WSIB number and Gore Mutual Insurance policy number, which is contained in Tab 3, page 009, of the Prosecution’s Book of Documents (1 page).

Exhibit "8" - Copies of 14 cheques with 12 cheques payable to P and B Construction; 1 cheque payable to Paul Broomfield; and 1 cheque payable to Ahmed Khan re: drywall, which are contained in Tab 4, pages 010 to 022, of the Prosecution’s Book of Documents (13 pages). Exhibit "9" - copy of Excel spreadsheet document with a list of payments or advances totaling $115,900 paid to Paul Broomfield, which is contained in Tab 4, page 023, of the Prosecution’s Book of Documents (1 page).

Exhibit "10" - copy of Wiztronic Inc. invoice document for rewiring of house and for electrical work performed at 291 Boon Ave., Toronto for the amount of $1695.00 ($1500 and HST of $195) addressed to Hensey Khan, dated Jan. 16, 2014, which is contained in Tab 5, page 024 of the Prosecution’s Book of Documents. The invoice also indicates that Wiztronic Inc. of 198 Cabana Drive, Toronto is an “Electrical & Communication Contractor”. The invoice document has handwriting that states, “See sheet 192 for scope of work done on house” and “Run new wires in attic for lighting.” (1 page).

Exhibit "11" - copy of two-page document showing itemized work done by WIZTRONIC Inc., a “Electrical & Communication Contractor” for residential, commercial, and industrial, that is part of the Wiztronic Inc. invoice dated Jan. 16, 2014, for electrical work performed at 291 Boon Ave., Toronto, Ontario, which is contained in Tab 5, pages 025 and 026 of the Prosecution’s Book of Documents. The two-page document lists the itemized work performed at 291 Boon Ave., Toronto as:

(1) Installation of 200 amp panel,

(2) Wiring of basement washroom,

(3) Installing 8 plugs in basement,

(4) Installing 15 pot lights in basement,

(5) Washer circuit,

(6) Dryer circuit,

(7) Furnace Circuit,

(8) Hot Water tank circuit,

(9) Lights and Utility room (10) stairwell light, (11) smoke detector circuit, (12) stove circuit,

(13) Refrigerator circuit, (14) dishwasher circuit, (15) countertop circuit,

(16) Range hood circuit,

(17) Install 26 pot lights, (18) outside front and rear lights,

(19) Feeder circuits for upstairs (6). Page 026 of the document also stated, “Removed all old wiring”. (2 pages). Exhibit "12" - copy of renovation contract between Paul Broomfield and P & B Construction (contractor) of an address of 1534 Evenside Cres., Mississauga, and Ahmed Khan (owner) of 291 Boon Ave., Toronto, Ontario which is contained in Tab 2 of the Prosecution Book of Documents (pages 003 to 007). The contract is dated March 20, 2013 and signed by Paul Broomfield and Ahmed Khan on March 24, 2013. In addition the contract states that the Contract price is $87,000.00 inclusive of HST.

The contract also states that “Unless otherwise stated, the Contractor agrees to supply all materials, labour and supervision to perform the WORK. Under the heading “Sub trades” in handwriting, the parties agreed that “As per contractor all trades work for him and he wont Subcontract any work. All work top to bottom are guaranteed as warranted by P and B Construction for one year Part and Labour”.

However, the contract does not specifically refer to doing any electrical work and only specifically mentioned demolishing “all three floors inside complete, garbage and clean including cast iron, and existing heating system, electrical, plumbing, all drywalls, ceilings etc. nothing is excluded. Remove existing kitchen cabinets to be installed in kitchenette downstairs”. (5 pages).

Exhibit "13" - copy of ESA printout documents of ESA inspections of 291 Boon Avenue, Toronto, prepared by ESA Inspector Timothy Berry, indicating a notification date of September 26, 2014, with a listing of defects which is contained in Tab 8, pages 032 to 036 of the Prosecution’s Book of Documents (5 pages).

Exhibit "14" - copy of document entitled “General Inspection” prepared by ESA Inspector Timothy Berry indicating a notification date as September 30, 2014, that indicates that Ahmed Khan of 291 Boon Avenue, Toronto, had contacted ESA about having hired someone to do electrical work with no permit, which is contained in Tab 6, page 027 of the Prosecution’s Book of Documents (1 page).

Exhibit "15" - copy of a document with the heading, “ElecCheck Inspection”, indicating a notification date as September 30, 2014, prepared by ESA Inspector Timothy Berry, which lists dates of inspections and defects in the electrical work at 291 Boon Avenue, Toronto, which is contained in Tab 7, pages 028 to 031 of the Prosecution’s Book of Documents (4 pages). Exhibit "16" – copy of “Credit Voucher – Non Negotiable” for the amount of $20,000 that is dated August 8, 2011, that was issued to Paul Broomfield from Razeka Bacchus, Tab 12, page 042 of the Prosecution’s Book of Documents (1 page).

Exhibit "17" – copy of affidavit of Scott Eason, ESA Project Coordinator, Contractor Licencing, sworn on January 8, 2016, and addressed to ESA Investigator Gary Corbett, stating that he had done a search of ESA records on January 6, 2015 at 9:55 a.m. and that the ESA records indicate that Paul Broomfield is not registered as a Licenced Electrical Contractor with the ESA and had never been registered since January 2, 2007. (1 page) Exhibit "18" - copy of “Business Names Report” for “P & B Construction”, printed on March 2, 2013, at 14:31:31, which is found in Tab 16, page 050, of the Prosecution’s Book of Documents.

The report states that a business named P & B Construction (B.I.N.: 220191787) had been registered on February 21, 2012, under the Business Names Act as a general partnership. It also indicates that the principal place of business in Ontario for P & B Construction is 32 Pebblestone Circle, Brampton, Ontario, and its activity carried out is stated as construction. The report also indicates that the registration would expire on February 20, 2017 (1 page).

Exhibit "19" - copy of invoice document for electrical work issued to Ahmed Khan of 291 Boon Ave., Toronto, from VK Electric Services of Oakville Ontario dated November 17, 2014, for the amount of 4135.80 (which includes $200 for ESA permit and inspection), which is contained in Tab 10, page 039 of the Prosecution’s Book of Documents (1 page).

Exhibit "20" - copy of “SAP Notification printout” document, prepared by ESA Inspector Timothy Berry for 291 Boon Ave., Toronto, indicating a notification date of October 3, 2014 and a completion date of November 17, 2014, and also indicating that the licenced electrical contractor had completed the defects inside the house, which is contained in Tab 9, pages 37 and 38 of the Prosecution’s Book of Documents (2 pages).

Exhibit "21" – original affidavit of Scott Eason, ESA Project Specialist, Contractor Licencing, sworn on June 21, 2017, and addressed to ESA Investigator Gary Corbett, stating that he had done a search of ESA records on June 21, 2017 at 8:43 a.m. into the names “Ken Roy”, “Roy Ken”, or “Kenroy” and did not find anyone with those names in the ESA records that are registered as a Licenced Electrical Contractor with the ESA and those names have never been registered since January 1, 2007 (1 page). Table of Contents Paragraph No. 1. INTRODUCTION 1 2. THE CHARGES 13 3. BACKGROUND (

A) SUMMARY OF THE FACTS 14 (

B) HISTORY OF THE PROCEEDINGS 43 4. APPLICABLE LAW 62 5. ISSUES 71 6. ANALYSIS AND DECISION (

A) PROSECUTION’S APPLICATION TO AMEND THE START DATE FOR THE CHARGE IN COUNT #3 75 (

B) THE ABUSE OF PROCESS APPLICATION

(1) The Position Of The Parties

(

a) The defendant’s position 79 (

b) The prosecution’s position 83

(2) The Abuse of Process Doctrine 87 (

a) The burden of proof for establishing an abuse of process. 91 (

b) The test for determining whether a stay of proceedings is appropriate when there is an abuse of process. 92 (

c) Available remedies for an abuse of process. 97

(3) Provincial Offences Trials (

a) The purpose of a trial. 101 (

b) Provincial offences trials involving strict liability offences are, for the most part, different from criminal trials substantively and procedurally, especially in respect to the mental element to be proven and in respect to evidential burdens of proof. 104 (

i) The present trial was not a jury trial. 106 (ii) Trial judges are able to disabuse their minds of irrelevant or inadmissible prejudicial evidence. 108 (iii) For strict liability offences, the prosecution can elicit rebuttal evidence during its case-in-chief which would anticipate the due diligence defence or other defences being raised. 110

a) There is a duty in certain circumstances for a person to produce documents and provide assistance and information to ESA inspectors. 118

(4) Duties And Role Of An ESA Prosecutor 124

(5) The Defendant Is Entitled To A Fair Trial But Not A Perfect Trial 128

(6) Duty Of A Trial Judge When Dealing With An Unrepresented Accused 132 (

a) The amount of assistance provided by the trial judge to a self-represented accused is at the discretion of the trial judge. 136 (

b) How can trial judge deal with misconduct of legal counsel in a trial? 139 (

c) The application of evidence rules in a trial. 141 (

i) The prosecution’s blanket objection to the defendant’s hearsay testimony and to the defendant’s testimony that offends the Rule in Browne and Dunn. 145

(7) Was There Prosecutorial Misconduct During The Trial? 153 (

a) T he prosecutor's actions or conduct during the trial that the defendant contends would constitute misconduct. 154 (

i) The prosecutor had asked leading questions of his own witnesses in the trial. 159 (ii) The prosecutor had elicited hearsay and lay opinion evidence from prosecution witnesses. 167

a) The prosecutor had elicited hearsay evidence from prosecution witnesses . 170 1) Investigative hearsay is permitted to rebut a claim of an inadequate investigation . 177

b) The prosecutor had elicited lay opinion evidence from the ESA Investigator. 195 (iii) The prosecutor had elicited or had presented irrelevant bad character evidence. 211 (iv) The prosecutor gave evidence. 223 (

v) The prosecutor got the defendant to comment on the veracity of prosecution witnesses. 233 (vi) The prosecutor had cross-examined or questioned the defendant about his relationship with his counsel and made suggestive commentary about the reasons why his legal representative may have stopped acting for the defendant. 249 (vii) The prosecutor had attacked and inappropriately commented on the defendant’s lifestyle and associations with unsavory persons. 261 (viii) The prosecutor had inserted editorial commentary into his cross-examination of the defendant by providing his personal opinion about the merits of the case against the defendant, on the merits of the defendant’s defence, and on the credibility or veracity of the defendant’s testimony. 270 (ix) The prosecutor had used sarcastic and demeaning language when cross- examining the defendant. 279 (

x) The prosecutor had grilled the defendant on the witnesses he intended to call and his efforts to contact and get the witnesses to court and whether the defendant had brought any of the documents that the defendant said he had and which he had promised to bring. 286 (xi) The prosecutor had led evidence regarding the defendant’s failure to cooperate with the authorities, in particular the defendant’s refusal to speak with authorities, and the prosecutor had also cross-examined the defendant on his failure to assert his innocence when confronted by investigators. 291

a) Statutes governing regulated industries sometimes compel participants to cooperate with inspectors. 297 (xii) The prosecutor had argued with the defendant directly rather than speaking or making submissions through the court. 301 (xiii) The prosecutor had threatened to request the maximum penalty available for the defendant for arbitrary reasons. 307

(8) The Main Category: Did The Prosecutor’s Conduct During The Trial Prevent The Defendant From Having A Fair Trial 313

(9) The Residual Category: Did The P rosecutor’s Conduct During The Trial Cause Prejudice To The Integrity Of The Judicial Process? 319

(10) Disposition Of The Abuse Of Process Application 324 (

C) DID THE PROSECUTION PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT HAS COMMITTED THE 3 REGULATORY OFFENCES THAT HE HAS BEEN CHARGED WITH?

(1) Was The Defendant Operating An Electrical Contracting Business Without Holding A Valid Electrical Contractor Licence? (

a) S. 3 of O. Reg. 570/05 . 326 (

i) The defendant has not been licenced by the ESA as an electrical contractor for the province of Ontario. 327 (

b) Legislative purpose of the Electricity Act, 1998 . 330 (

c) What Type Of Activity Would Entail Electrical Work For Which A Person Would Need To Be A Licenced Electrical Contractor In Ontario? 331 (

d) When does an electrical permit for electrical work for a residential house have to be obtained? 339 (

e) Both the defendant and Steve Duff had not been licensed by the ESA as an electrical contractor in Ontario. 343 (

f) Is “P & B Construction” a separate legal entity? 348 (

g) What was Paublo Medina’s involvement with the three renovations in question? 350 (

h) What was Steve Duff’s involvement with the three renovations in question? 356 (

i) Did Paul Broomfield have a partner in any of the three renovations? 362 (

i) Was Paublo Medina a partner in the 22 Vespahills Crescent, Brampton renovation? 370 (ii) Was Ali Nabbouh a partner in the 291 Boon Avenue, Toronto renovation? 374

a) Did the prosecution have to disclose the conversation between Ali Nabbouh and ESA Investigator to the defendant prior to Ali Nabbouh testifying, even though the defendant was the party calling Ali Nabbouh? 377 (iii) Is there any credible evidence that the defendant had a partner in the renovation of 22 Vespahills Crescent, Brampton or of 291 Boon Avenue, Toronto? 385 (

j) Is there any evidence that someone licenced as an electrician or licenced as an electrical contractor in Ontario did any of the electrical work at any of the three residences in question? 393 (

k) Has the credibility of any of the three homeowners been undermined? 396 (

l) Has there been collusion between the three homeowners or a conspiracy against the defendant by the three homeowners? 404

(2) Has The Prosecution Proven That The Defendant Has Committed The Actus Reus Of The Three Offences Beyond A Reasonable Doubt? (

a) Is there evidence that the defendant had been engaged in performing electrical work that is covered under the Ontario Electrical Safety Code for which the defendant is required to hold a valid Ontario electrical contractor’s licence? (

i) Count #1 - 22 Vespahills Crescent, Brampton 408 (ii) Count #2 - 291 Boon Avenue, Toronto 415 (ii) Count #3 - 94 Narrow Valley Crescent, Brampton 437 (

b) Conclusion On Whether The Prosecution Has Proven Beyond A Reasonable Doubt The Defendant Has Committed The Actus Reus Of The Offence For The Three Charges. 451

(3) Due Diligence Defence (

a) Did The Defendant Establish The Defence Of Due Diligence In Respect To Each Of The Charges On A Balance Of Probabilities? 459 (i) 22 Vespahills Crescent, Brampton 463 (ii) 291 Boon Avenue, Toronto 466 (iii) 94 Narrow Valley Crescent, Brampton 473

(4) Did The Prosecution Prove Beyond A Reasonable Doubt That The Defendant Had Been Operating An Electrical Contracting Business Without Holding A Valid Electrical Contractor Licence For All Three Houses? 474 7. DISPOSITION 477

1. INTRODUCTION [1] Some trials like trains, run on

schedule and stay on the tracks. Occasionally, a trial like a train can fall behind schedule, or even derail, due to unfortunate or serendipitous events.

Paul Broomfield , the defendant in this regulatory prosecution under Ontario’s Electricity Act , 1998 , claims that this is one of those such occasions, and that his present trial has indeed fallen off the rails, since he claims that he is no longer receiving a fair trial and that the integrity of the judicial process has also been undermined because of the egregious misconduct of the Crown prosecutor during that portion of the trial when the defendant had been self-represented (the defendant had been unrepresented for 9 of the 12 days of scheduled trial dates and had only been represented by legal counsel for the last 3 days of the trial).

Ergo, the defendant brings an application for an abuse of process under s. 7 of the Charter based on that prosecutorial misconduct and seeks a remedy under s. 24(1) . [2] The prosecutorial misconduct complained of by the defendant involves the prosecutor purportedly ridiculing the unrepresented defendant; the prosecutor making sarcastic and demeaning comments about the defendant’s memory and the way the defendant was conducting his defence; and in the way the prosecutor had improperly asked leading questions and elicited hearsay and opinion evidence from his own witnesses and by inappropriately presenting irrelevant and bad character evidence.

In addition, the defendant contends that the prosecutor had also improperly gave evidence in the trial; that the prosecutor had inappropriately inquired into the defendant’s relationship with his previous legal representative; that the prosecutor had unfairly commented on the defendant’s lifestyle and his associations with unsavory persons; that the prosecutor had inappropriately inserted editorial commentary in the trial about the prosecutor’s personal belief on the defendant’s credibility and on the defendant’s potential defences.

As well, the defendant contends that the prosecutor had improperly grilled the defendant about what witnesses the defendant had intended to call and the efforts made by the defendant to do so; that the prosecutor had inappropriately questioned the defendant about his failure to assert his innocence at the outset with the ESA inspector and on the defendant’s failure to speak and cooperate with ESA inspectors and investigators; that the prosecutor had unsuitably argued directly with the defendant instead of speaking or making submissions through the court; and that the prosecutor had inaptly threatened to seek the maximum penalty if the defendant were convicted; and that the prosecutor had improperly asked the defendant to comment on the veracity of prosecution witnesses.

As such, the defendant contends that these inappropriate actions by the prosecutor during the trial when the defendant had been unrepresented has irreparably prejudiced the defendant and would cumulatively constitute an abuse of process, which is an infringement of the defendant’s rights under s. 7 of the Charter .

Ergo, the defendant submits that the proper remedy under s. 24(1) of the Charter is an order for a stay of proceedings and an order for costs, or at the very least, an order for a new trial, if a stay is not warranted. [3] In reply to the defendant’s abuse of process claim, the prosecution submits that the defendant’s application is a personal attack on the prosecution, even though the prosecution submits that at various stages of the trial, the prosecution had taken steps to ensure the defendant received a fair trial by offering assistance to the defendant to get the defendant’s witnesses to attend the trial.

Moreover, the prosecution contends that the defendant’s allegations used to support his abuse of process claim are offensive, misplaced, and consists of prosecution statements and submissions that had been taken in isolation, out of context, or mischaracterized.

Furthermore, the prosecution contends that the defendant’s application does not even come close to meeting the threshold required for granting a remedy, and that the defendant’s application is only a last minute effort by the defendant to avoid the outcome of the trial on its merits by attempting to have the charges against him stayed. [4] But more importantly, trials for regulatory prosecutions, like criminal trials, are not strictly adversarial -- they are still about fairness and finding the truth.

As such, prosecutors, as quasi-ministers of justice, are required to treat accused persons fairly and with dignity. At trial, they are not to insult or make sarcastic comments about accused persons, which could prejudice an accused person, since this improper behavior could affect the fairness of the trial and undermine the integrity of the judicial process .

Moreover, judicial officers presiding over trials with unrepresented accused are required to maintain their impartiality and ensure the accused receives a fair trial by explaining and guiding unrepresented accused about trial procedure, rules of evidence, and legal principles, without entering into the arena of the adversarial trial.

But, where prosecutorial misconduct causes an unfair trial or undermines the integrity of the judicial process then an accused person can seek a remedy under the Charter based on the doctrine of abuse of process. [5] In respect to the three charges for this prosecution, the defendant, Paul Broomfield, who had a business doing renovation work for commercial and residential premises, had been hired by three home-owners:

(1) Jay Jairam of 22 Vespahills Crescent in Brampton,

(2) Ahmed Khan of 291 Boon Avenue in Toronto, and

(3) Razeka Bacchus of 94 Narrow Valley Crescent in Brampton, to do renovation work on their respective homes during a period from August 8, 2011 to July 22, 2014. For the three charges, the prosecution contends that the renovation work included the defendant doing electrical work for which the defendant was neither not legally licensed or authorized to do. In Ontario, the only people or businesses that are legally permitted to do electrical work for the public are licenced electrical contractors.

During that period when the defendant was doing renovation work for the three homeowners, the defendant had not been licenced as a journeyperson electrician by the Ontario College of Trades nor licenced by the Electrical Safety Authority (“ESA”) to operate as an electrical contractor in Ontario. The ESA is an agency that operates as the administrative authority under the Electricity Act, 1998 , S.O. 1998, c. 15, Sched. A. and is responsible for public electrical safety in Ontario as designated by s. 1 of the Electrical Safety Authority Regulation ( Electricity Act, 1998 ), O. Reg. 89/99 .

Furthermore, the ESA has the responsibility for enforcing the Ontario Electrical Safety Code , O.

Reg. 164/99, the licensing of electrical contractors and master electricians in Ontario, and for conducting electrical inspections for customers whenever an electrician or electrical contractor is doing electrical work that is covered by the Ontario Electrical Safety Code . [6] Two of the three homeowners, Jay Jairam of 22 Vespahills Crescent, Brampton and Ahmed Khan of 291 Boon Avenue, Toronto, had contacted the ESA about whether an electrical permit had been taken out for the electrical work that was being done in their respective homes.

The defendant had also told both of them that he was an electrician before they had hired him. The ESA then informed both of these two homeowners that no permit had been taken out for their respective houses. The ESA then sent out an ESA inspector to inspect the electrical work that both homeowners had hired and observed the defendant doing in their respective houses. The electrical work that had been done did not pass inspection and the homeowners also learned that the defendant had not been licensed in Ontario to legally do any electrical work. [7] The ESA then commenced an investigation into the defendant.

During the investigation into the defendant and the electrical work that had been done at 22 Vespahills Crescent, ESA Investigator Gary Corbett was made aware of a third homeowner, Razeka Bachhus, who had also hired the defendant to do renovation work on her house at 94 Narrow Valley Crescent, Brampton.

After the ESA had inspected the electrical work done in the respective renovations of 22 Vespahills Crescent, Brampton and 291 Boon Avenue, Toronto, the two homeowners, Jay Jairam and Ahmed Khan, were then required to hire a qualified electrician to redo the electrical work that had been supposedly done by the defendant and for someone to rip down the drywall put up by the defendant in order to redo the electrical work. However, the defendant contends that he did not personally do any of the electrical work that had been done in the three homeowners’ houses during the renovation of those three houses.

After an investigation had been conducted by the ESA of the three residential houses where renovation work had been done on the three homeowners’ residences by the defendant, the ESA charged the defendant on November 17, 2014, with committing three offences of “operate an electrical contracting business without holding a valid electrical contractor license”, contrary to s. 3 of the Licensing Of Electrical Contractors And Master Electricians Regulation ( Electricity Act, 1998 ), O. Reg. 570/05 , and did thereby commit an offence under s. 113.20(1) (

d) of the Electricity Act, 1998 , R.S.O. 1998, c. 15, Sched. A. [8] Now, for the reasons that follow, the defendant has not proven on a balance of probabilities that the conduct of the prosecutor during the trial had been so improper or abusive that it had prejudiced the defendant from having a fair trial, or that it had been so inappropriate that it had undermined the integrity of the judicial process, so that it violated s. 7 of the Charter for an abuse of process.

For many of the evidentiary issues raised by the defendant as part of the abuse of process claim, the defendant’s concern had been about the prejudicial effect of evidence adduced from leading questions by the prosecutor from their own witnesses and the elicitation of irrelevant hearsay, bad character, and lay opinion evidence into the trial, has to be viewed in context and in light of the inferences that are being sought, as well as its intended use in the trial.

However, any potentially prejudicial effect of the impugned evidence had been lessened in this trial, as this was a non-jury trial, and the charges involved strict liability regulatory offences in which the prosecution can elicit evidence in their case-in-chief to rebut a defence of due diligence or other anticipated defences. And, although the prosecutor’s intemperate comments, immoderate language, and sarcastic tone were not ideal or professional, they certainly had not crossed the line from aggressive to abusive.

Moreover, the trier who heard and perceived the impugned comments, language, and tone, in the context of when the comments would have been made and used, would be able to consider their effects on the defendant, their conceivable prejudice to the fairness of the trial and on the outcome of the trial, as well as its potential prejudice to the integrity of the judicial process.

In this case, the prosecutor’s comments, language, and tone during the trial did not cause the defendant to receive an unfair trial, nor did it undermine the integrity of the judicial process, since the defendant’s trial was a non-jury trial for which the trier would be cognizant of applying the relevant legal principles and law and would also be able to disabuse and give no weight to any hearsay, bad character, opinion, or any other irrelevant prejudicial evidence, nor put any weight on any inappropriate, sarcastic, or demeaning comments made by the prosecutor about the defendant’s memory, business practices, or personal lifestyle, or to use the impugned evidence or the prosecutor’s comments improperly as proof of guilt.

Hence, this trial, like a train, may have been delayed in arriving on schedule, but it has not been derailed by the conduct of the prosecutor. As a result, the abuse of process application is dismissed. [9] And, in respect to whether the prosecution has proven beyond a reasonable doubt that the defendant has committed the actus reus respectively for the three counts, the prosecution has met their burden for two of the three counts.

Specifically, the prosecution has proven that the defendant has committed the actus reus for the offence in count #1, which is in respect to Jay Jairam’s house at 22 Vespahills Crescent, Brampton, and the actus reus for the offence in count #2, which is for Ahmed Khan’s house at 291 Boon Avenue,

Toronto. However, the prosecution has failed to meet its burden of proving beyond a reasonable doubt that the defendant committed the actus reus for the offence in count #3, which is in respect to Razeka Bacchus’s house at 94 Narrow Valley Crescent, Brampton.

And, in regards to whether the defendant has met his legal burden of proving a defence of due diligence on a balance of probabilities for the two strict liability offences in counts #1 and #2, the defendant has not established that he had taken all reasonable care in the circumstances to avoid committing those two offences or that he had been under a mistaken set of facts, if true, would make his acts or omissions innocent.

Accordingly, convictions will be entered against the defendant for counts #1 and #2; while an acquittal will be entered for count #3. [10] In addition, the trial of these three charges had commenced on January 25, 2017, and concluded on May 2, 2018. Although the defendant had been given an opportunity to adjourn the first day of trial in order to retain counsel, the defendant decided to go ahead with his trial and represent himself. Over the first 9 days of the 12 days that were set aside or actually held for the trial, the defendant had represented himself.

It was only for the last 3 days of the trial that the defendant had been represented by legal counsel. [11] The trial had taken a total 12 days of scheduled trial dates to complete and were held on January 25 and 26 of 2017; February 1 and 2 of 2017; June 28 and 29, 2017; September 7, 2017; October 24, 2017, November 1, 2017, November 23, 2017, March 8, 2018, and May 2, 2018. During the trial, 11 witnesses testified: eight for the Crown and three for the defence. The prosecution witnesses were:

(1) Jay JAIRAM , owner of 22 Vespahills Crescent in Brampton;

(2) Shaun SMITH , inspector for the ESA, who inspected 22 Vespahills Crescent in Brampton;

(3) Ahmed KHAN , owner of 291 Boon Avenue, Toronto;

(4) Tim BERRY , inspector for the ESA, who inspected 291 Boon Avenue, Toronto;

(5) Sean LICHTY , underwriter at Gore Mutual Insurance Company;

(6) Razeka BACCHUS , owner of 94 Narrow Valley Crescent in Brampton;

(7) Scott EASON , project specialist with the Electrical Contractors Registration Agency of the ESA; and

(8) Gary CORBETT , investigator for the ESA. The defence witnesses were:

(1) Errol FARQUHARSON ; previous owner of 291 Boon Ave, Toronto

(2) Ali NABBOUH , an individual who had supposedly been the defendant’s partner in the renovation of 291 Boon Avenue, Toronto; and (3) the defendant . [12] After witness testimony was completed on March 8, 2018, the defendant subsequently brought an application on May 2, 2018, for a remedy under s. 24(1) of the Charter for an infringement of the defendant’s rights under s.7 of the Charter for an abuse of process. As well, final submissions on the merits of the three Electricity Act, 1998 charges laid against the defendant were also completed on May 2nd by both the prosecution and the defendant.

Judgment was then reserved on the abuse of process application, as well as judgment was reserved on whether the prosecution had proven that the defendant is guilty of committing the three charges beyond a reasonable doubt, and the matter was then adjourned to September 19, 2018, for the ruling on the application and on the judgment to be rendered on the three charges. These, therefore, are the written reasons for both the abuse of process ruling and the judgment on the three charges: 2. THE CHARGES [13] The defendant, Paul Broomfield, under a

Part III Information numbered 8477 that was sworn on November 17, 2014, has been charged with committing the following three offences under s. 3 of the Licensing Of Electrical Contractors And Master Electricians Regulation ( Electricity Act, 1998 ), O. Reg. 570/05 , and did thereby commit an offence contrary to s. 113.20(1) (

d) of the Electricity Act, 1998 , R.S.O. 1998, c. 15, Sched. A : Count #1 Paul William Broomfield of [municipal address removed for privacy] Mississauga, Ontario, between the 1st day of April 2014 and the 22nd day of July 2014 at 22 Vespahills Crescent, Brampton, Ontario, did commit the offence of did operate an electrical contracting business without holding a valid electrical contractor license, contrary to s. 3 of Ontario Regulation 570/05 , and did thereby commit an offence contrary to s. 113.20(1)(

d) of the Electricity Act, R.S.O. 1998,

Chapter 15,

Schedule A, as amended.

Count #2 Paul William Broomfield of [municipal address removed for privacy] Mississauga, Ontario, between the 2nd day of December 2013 and the 30th day of April 2014 at 291 Boon Avenue, Toronto, Ontario, did commit the offence of did operate an electrical contracting business without holding a valid electrical contractor license, contrary to s. 3 of Ontario Regulation 570/05 , and did thereby commit an offence contrary to s. 113.20(1)(

d) of the Electricity Act, R.S.O. 1998,

Chapter 15,

Schedule A, as amended. Count #3 Paul William Broomfield of [municipal address removed for privacy] Mississauga, Ontario, between the 2nd day of January 2012 [ 8th day of August 2011 (after prosecution application to amend the start date for this charge granted] and the 31st day of December 2012 at 94 Narrow Valley Crescent, Brampton, Ontario, did commit the offence of did operate an electrical contracting business without holding a valid electrical contractor license, contrary to s. 3 of Ontario Regulation 570/05 , and did thereby commit an offence contrary to s. 113.20(1)(

d) of the Electricity Act, R.S.O. 1998,

Chapter 15,

Schedule A, as amended. 3. BACKGROUND (

A) SUMMARY OF THE FACTS [14] During a period from August 8, 2011 to July 22, 2014, three homeowners had contracted with the defendant, Paul Broomfield, to renovate parts of their respective homes. The three homeowners who had contracted with the defendant were:

(1) Jay Jairam of 22 Vespahills Crescent in Brampton,

(2) Ahmed Khan of 291 Boon Avenue in Toronto, and

(3) Razeka Bacchus of 94 Narrow Valley Crescent in Brampton. As testified to by two of the three homeowners (Jay Jairam and Ahmed Khan), their respective renovation agreements included the defendant doing all of the renovation work, including doing the electrical work. For the other homeowner (Razeka Bacchus), she did not specifically refer to an agreement to do the electrical work, but did testify to the defendant being responsible for installing 16 pot lights with the accompanying switches or dimmers as part of their agreement.

But more importantly, during the period in which renovation work was being done on the three homes, the defendant had not been licenced as an electrical contractor by the Electrical Safety Authority (the “ESA”), the body which governs the licensing of electrical contractors in Ontario. (1) 22 Vespahills Crescent, Brampton [15] Jay Jairam had testified that before he had hired the defendant to renovate the basement of his relatively new house, the defendant had told Jairam that the defendant was an electrician.

The defendant had commenced the renovation work on Jay Jairam’s house at 22 Vespahills Crescent, Brampton sometime about April 1, 2014, and had stopped or abandoned doing any further work at 22 Vespahills Crescent on July 22, 2014, after ESA inspector Shaun Smith had inspected the electrical work done in the basement of the house at 22 Vespahills Crescent and had ordered the defendant, Paul Broomfield, to stop doing anymore electrical work at that particular house.

[16] Jairam also said that before the defendant began to renovate the basement of Jairam’s house at 22 Vespahills Crescent, no electrical work had been done to the basement and that Jairam had never hired any electrical contractor to do any electrical work in the basement of his house before he had actually hired the defendant to renovate his basement.

In addition, Jairam testified that he had observed the defendant on weekends doing electrical work in the basement of his house at 22 Vespahills Crescent, during the time the defendant had been doing the basement renovation. [17] Furthermore, Jairam said that because of conversations with other electricians that Jairam knew, Jairam had become concerned about whether an electrical permit had been taken out for the electrical work being done at his house at 22 Vespahills Crescent.

Jairam also said he had asked the defendant about the electrical permit and the defendant had told Jairam not to worry and that Jairam would get the inspection certificate at the end. [18] Because of Jairam’s concern about the electrical work being done on his house, Jairam called the ESA on July 18, 2014, to enquire about whether an electrical permit had been taken out for his house at 22 Vespahills Crescent, Brampton. Jairam said that he had been informed by the ESA that no permit for electrical work had been taken out for his house. The ESA then sent out ESA Inspector Shaun Smith to inspect Jairam’s house.

When ESA Inspector Smith arrived at 22 Vespahills Crescent on July 21, 2014, ESA Inspector Smith testified that he had entered the basement of the house and had observed the defendant doing work in the basement with another male person, but does not recall seeing the defendant doing any electrical work.

ESA Inspector Smith also said that he had asked the defendant for the defendant’s name and for the name of the person who had done the electrical work in the basement of 22 Vespahills Crescent, but the defendant did not provide his full name or the name of the person who had done the electrical work in the basement. ESA Inspector Smith also said he had observed a defect in the electrical work that did not comply with Ontario’s Electrical Safety Code , and which had not been covered up by drywall.

In addition, ESA Inspector Smith said that much of the electrical work done in the basement had been covered up by drywall. After the inspection, ESA inspector Smith informed Gary Corbett, the ESA investigator, on July 21, 2014, about the electrical work being done at 22 Vespahills Crescent by someone who may not have been a licenced electrical contractor.

In addition, ESA Inspector Smith said that licenced electrical contractors would not have covered up the electrical work with drywall until after the electrical work had passed inspection by the ESA. [19] In addition, Jay Jairam had testified that the electrical work that had been done in his basement during the renovation work had not been done properly and had to be redone by a qualified electrician for an additional cost to Jairam.

Jairam also said that the drywall that had been put up and covering the wiring as part of the renovation work had to be removed in order that the wiring and electrical work could be redone properly. [20] Furthermore, Jairam testified that he had paid about $6,000 to $7,000 in cash to the defendant do the electrical work, and that it cost him and his wife an additional $10,000 to start over again and redo the renovation and to also correct the electrical work done by the defendant. [21] In regards to the electrical work that had been done in the basement of 22 Vespahills Crescent, Brampton, ESA Inspector Shaun Smith, testified that he had attended in the basement of that house in July of 2014, which ESA Inspector Smith later acknowledged had been on July 21, 2014.

ESA Inspector Smith also said that on that day he had observed the defendant working in the basement with another male person. In addition, ESA Inspector Smith said he had asked the defendant if he had done the electrical work and the defendant had replied, “No”. ESA Inspector Smith then asked the defendant who had done the electrical work, and Smith said that the defendant had replied that he could not remember, but that his electrician did it.

ESA Inspector Smith also said that the electrical work that had been done had been covered up, but that Smith did observe some defects that were not Code compliant that had not been covered up by the drywall.

Moreover, ESA Inspector Smith described one of the defects as an “open joint”, which meant that there had been a joint or a splice in a wire before the wire had reached an electrical outlet, which was not permitted under the Electrical Safety Code , which requires one continuous wire instead of two wires spliced together before the wire reaches the electrical outlet. [22] ESA Inspector Smith also said he had taken a photograph of the licence plate of the motor vehicle that the defendant was driving that day and which had been parked outside of 22 Vespahills Crescent, Brampton, and then forwarded that photograph of the licence plate to ESA Inspector Gary Corbett. [23] Moreover, ESA Inspector Smith said that any licenced electrical contractor or electrician would have taken out a permit for any electrical work being done.

Smith then said that there had been no permits in the ESA system for 22 Vespahills Crescent, Brampton. [24] Furthermore, ESA Inspector Smith said that a permit had been subsequently taken out by a licenced electrical contractor on August 13, 2014, for 22 Vespahills Crescent. Eventually, ESA Inspector Smith said the electrical work done by the licenced electrical contractor passed inspection and Smith said he sent a “Certificate of Inspection” to the licenced electrical contractor.

(2) 291 Boon Avenue, Toronto [25] For Ahmed Khan’s house at 291 Boon Avenue, Toronto, Ahmed Khan testified that the defendant had provided Ahmed Khan with a business card with the name of Paul Broomfield under a business name of P & B Construction. The business or style name of P & B Construction had been registered with the Ministry of Government and Consumer Services as a general partnership (see Exhibit 5).

Also, the back of the business card indicates that Paul Broomfield or P & B Construction did “Renovations Commercial/Residential, Tiles and Drywall and Electrical”. [26] Furthermore, Ahmed Khan had said that he had hired the defendant to do the renovation of his house at 291 Boon Ave. Ahmed Khan and the defendant had entered into a written agreement on March 24, 2013 for the renovation work to be done on the house (see Exhibit 12). However, this written agreement does not specifically mention doing any electrical work, except for removing the electrical as part of the demolition work.

On the other hand, Khan testified that the defendant was supposed to do all the electrical work and run new wiring and put new fixtures in for the pot lights. [27] Ahmed Khan also testified that the defendant had told Khan that he was an electrician, but had a renovation construction business.

In addition, Khan said the defendant had commenced the renovation work at the 291 Boon Avenue house about March 26, 2013, as required by the agreement, and then had stopped or abandoned the renovation job before it had been completed sometime near the end of December of 2013. [28] Khan further said that he had observed the defendant doing electrical work in the basement of 291 Boon Avenue in the nature of pulling wire from the main electrical panel in the basement through the joists in the basement and also putting electrical outlets on the studs before the drywall was put up.

Moreover, Khan said he recalls being with the defendant for about an hour when the defendant had been pulling wire in the basement while the defendant had been standing in water that was on the basement floor, which made Khan concerned for his and the defendant’s safety while the defendant had been working with electrical wires while standing in a pool of water.

Khan also said he had raised the safety concern with the defendant at that time. [29] In addition, Khan said the defendant had asked for permission to bring someone in to help the defendant do the electrical work, since the defendant had been falling behind schedule. Khan said he gave his approval and the defendant then brought in a person named Steve Duff to help the defendant do the electrical work.

Moreover, Khan said he had observed the defendant and Steve Duff doing electrical work together for about one week and a half in December of 2013, until the defendant had stopped coming to 291 Boon Avenue and Khan had lost contact and communication with the defendant. Khan then said he had to hire Steve Duff’s company, Wiztronic Inc., separately to fix the improper electrical work done in the basement by the defendant and to finish the electrical work for the whole house.

Wiztronic Inc. (referring to itself as an “Electrical and Communication Contractor”) then provided Ahmed Khan with an invoice dated January 16, 2014, for a total amount of $1695 for that separate electrical work (see Exhibit 11).

Khan also said that he had to himself pay for the parts for the electrical work being done Wiztronic Inc. [30] Khan also said that the renovation work agreed to be done for the house at 291 Boon Avenue, Toronto, by the defendant had not been completed by the defendant. [31] In addition, Khan said that he had received advice from Paublo Medina, the person who did the drawings for his house at 291 Boon Avenue, to enquire if a permit had been taken out for the electrical work for his house.

Khan then said he contacted the ESA (on September 26, 2014) and learned that that no permit to do the electrical work at 291 Boon Avenue, Toronto, had been taken out by the defendant. After an ESA inspector attended 291 Boon Avenue on September 30, 2014, and inspected the electrical work done at 291 Boon Avenue, Khan said the electrical work did not pass inspection and that Khan had to have the drywall taken down and all the electrical work removed and redone by a licenced electrical contractor.

Khan also said that he had been informed by the ESA that neither the defendant nor Steve Duff were licenced electricians or licenced electrical contractors in Ontario. [32] Furthermore, Khan testified that it had cost him about $7000 to fix and redo the renovation and to hire a licenced electrical contractor to correct the electrical work done by both the defendant and Steve Duff. (3) 94 Narrow Valley Crescent, Brampton [33] As for the house at 94 Narrow Valley Crescent, Brampton, the homeowner, Razeka Bacchus, testified that she had hired the

defendant to repair and renovate parts of the main floor of her house that had been damaged and vandalized during a break-in at her house. Bacchus said that her insurance company had given her a cheque for $25,000 to be used for repairing the damage to the inside of her house and that she could hire her own contractor to do the work. Bacchus then hired the defendant on August 8, 2011, to repair and renovate her house for an agreed price of $20,000. The defendant then commenced working on Bacchus’s house, but Bacchus testified that she was not present when the defendant was working in her house.

Bacchus also said that the defendant had stopped doing any work on her house at about the end of December of 2012. She also said that the agreed upon work that the defendant was supposed to do for Bacchus was not completed by the defendant. [34] But more importantly, Bacchus did not testify that Bacchus and the defendant had specifically agreed that the defendant would do any electrical work in the repair and renovation of Bacchus’s house, but Bacchus did say that the renovation work had included installing 16 pot lights and accompanying light switches.

In addition, Bacchus said that it had been Bacchus’s understanding that the defendant would bring in qualified people to do any work that the defendant could not do himself. [35] However, Bacchus did not testify to specifically observing the defendant doing any electrical work to her home and had only observed a young man about 22 or 23 years old that had been working with the defendant drilling holes for the pot lights. [36] Bacchus also testified that when she uses her dishwasher or microwave when her pot lights are also turned on, the power would go off and she would have to reset her power. [37] In addition, Bacchus said that she had to pay another contractor to redo the bathroom floor, but she did not testify about hiring anyone to correct the electrical work that had been done during the renovation of her house by the defendant. [38] Furthermore, Bacchus said that she is acquainted with Jay Jairam (the homeowner of 22 Vespahills Crescent, Brampton) because her place of employment is only a few doors away from Jairam’s autobody shop.

In addition, Bacchus had acknowledged that she had discussed with Jairam that the renovation work for her house had not been completed by the defendant, which had been similar to what had happened with Jairam’s renovation.

(4) The ESA charges the defendant with committing three offences of “operating an electrical contracting business without holding a valid electrical contractor licence” on November 17, 2014. [39] After ESA Investigator Gary Corbett had interviewed witnesses and completed his investigation into the electrical work done in the three houses, Corbett charged the defendant, Paul Broomfield, on November 17, 2014, with committing three offences of “operating an electrical contracting business without holding a valid electrical contractor licence” in relation to those three houses.

Corbett then personally served the defendant with a summons to appear in court on January 6, 2015, for those three charges. [40] The ESA had begun an investigation into the defendant shortly after ESA Inspector Shaun Smith inspected Jay Jairam’s house at 22 Vespahills Crescent, Brampton, on July 21, 2014. During ESA Investigator Gary Corbett’s investigation of 22 Vespahills Crescent, Corbett said he had received information that the defendant may have also done electrical work at Razeka Bacchus’s house at 94 Narrow Valley Crescent, Brampton.

Therefore, the ESA would have only first learned about the defendant’s renovation work at 94 Narrow Valley Crescent as early as July 21, 2014, which is within the two-year limitation period for commencing charges against the defendant when the information was sworn on November 17, 2014, in respect to the defendant’s alleged electrical work done at 94 Narrow Valley Crescent, sometime between August 11, 2011 to December 31, 2012.

The two-year limitation period for laying this specific charge set out in count #3 against the defendant only starts at the time when the facts that gave rise to the alleged offence first come to the attention of the Director of the ESA.

In this case the earliest date that the Director could have been aware of the facts that gave rise to the alleged offence in relation to Razeka Bacchus’s house at 94 Narrow Valley Crescent, Brampton, would have been on July 21, 2014. [41] Moreover, it had been only on September 26, 2014, that Ahmed Khan had enquired about whether an electrical permit for the electrical work that had been done at 291 Boon Avenue, Toronto, had been taken out by the defendant, for which Khan had been informed by the ESA that no permit had been taken out by the defendant.

In addition, Khan had also learned shortly after that inquiry to the ESA that neither the defendant nor Steve Duff had been licensed in Ontario to do electrical work as an electrical contractor. [42] In addition, ESA Investigator Gary Corbett said that he had charged both Steve Duff and Steve Duff’s company, Wiztronic Inc., for “operating an electrical contracting business without holding a valid electrical contractor licence” in respect to the electrical work Steve Duff had done at 291 Boon Avenue, Toronto. For those particular charges, Corbett testified that the company Wiztronic Inc. had

pled guilty to the charge and that the charge against Steve Duff had been withdrawn by the prosecution. (

B) HISTORY OF THE PROCEEDINGS [43] The information charging the defendant, Paul Broomfield, with committing three offences of “operating an electrical contracting business without holding a valid electrical contractor licence”, contrary to s. 3 of the Licensing Of Electrical Contractors And Master Electricians Regulation ( Electricity Act, 1998 ), O. Reg. 570/05 , thereby allegedly committing an offence under s. 113.20(1) (

d) of the Electricity Act, 1998 , R.S.O. 1998, c. 15, Sched. A, had been sworn and laid on November 17, 2014. A summons was then issued and served on the defendant, ordering the defendant to appear in court on January 6, 2015, to answer to the three charges. [44] On January 6, 2015, the defendant appeared as required and was provided with initial disclosure. The matter was then adjourned to March 3, 2015, to be spoken to. On March 3rd, the defendant appeared and was provided with further disclosure. The defendant then informed the court that he had approached someone named “B.

Bernardo” to be his legal representative. The matter was then adjourned to April 7, 2015. The defendant on the March 3 rd appearance was also informed by the court that on the April 7th appearance date the defendant had to bring a letter from his legal representative indicating that they had been retained. [45] On April 7, 2015, the defendant appeared with Michael Mahadeo, a legal representative, who was not yet retained by the defendant. The matter was then adjourned to May 5, 2015, to be spoken to, for retainer purposes.

On May 5, 2015, Michael Mahadeo appeared for the defendant and informed the court that the defendant had still not yet retained Mahadeo. The matter was then again adjourned to June 2, 2015, for retainer purposes. [46] On June 2, 2015, Michael Mahadeo appeared again for the defendant and informed the court that he was still not retained by the defendant. The matter was once again adjourned for retainer purposes to July 7, 2015. On July 7, 2015, Michael Mahadeo appeared for the defendant and once more informed the court that he was still not retained. The matter was then adjourned to August 4, 2015.

On August 4th, both the defendant and Michael Mahadeo appeared. The matter was then adjourned to September 1, 2015, for ongoing and continuing resolution discussions. On September 1st, Michael Mahadeo again appeared for the defendant. The matter was then adjourned to November 3, 2015, for either setting a JPT, setting a trial date, or for resolving. On November 3, 2015, both the defendant and Michael Mahadeo appeared. The matter was then set for a JPT to be held on January 12, 2016, over one year after the defendant’s first appearance.

On January 12, 2016, both the defendant and Michael Mahadeo appeared for the JPT. The matter was then adjourned to March 8, 2016, to set a four-day trial. On March 8, 2016, Michael Mahadeo appeared once again for the defendant and the matter was set down for trial with four dates selected as September 14, 15, 21, 22, 2016. A confirmation date was also set for August 9, 2016. On August 9th, legal representative, A. Dhir, appeared for Michael Mahadeo and four new trial dates were set for the four-day trial consisting of January 25 and 26 and February 1 and 2, 2017.

A second JPT was also set for November 22, 2016. [47] On the November 22nd second JPT date, the four trial dates commencing on January 25, 2017, were confirmed by the defendant’s legal representative Michael Mahadeo. [48] On the first trial date of January 25, 2017, the defendant appeared and informed the court that Michael Mahadeo would not be representing him as the defendant could not afford the retainer. The defendant was then asked if he was ready to proceed with the trial and the defendant said that he was.

Moreover, the defendant on the first day of the trial did not request an adjournment in order to hire a legal representative. The trial then finally began with the defendant representing himself, some 26 months and one week after the information had been sworn on November 17, 2014.

The defendant was then arraigned on the three charges, to which the defendant had entered not guilty pleas. [49] On the first day of the trial of January 25, 2017, 4 prosecution witnesses, Jay Jairam, Shaun Smith, Ahmad Khan, and Timothy Berry, testified. [50] On the second day of the trial held on January 26, 2017, 4 prosecution witnesses, Sean Lichty, Razeka Bacchus, Scott Eason, and Gary Corbett testified.

During the testimony of Sean Lichty of Gore Mutual Insurance, the defendant had informed the court that he wanted to testify on the liability insurance number issue and had been permitted to testify out of order on only that specific issue, for reason of expediency and trial management to accommodate the prosecution not having to recall Sean Lichty to testify on another day for the purposes of rebuttal in respect to any issue raised by the defendant’s testimony in respect to the liability insurance number issue.

After the defendant had testified and been cross-examined by the prosecution on only that specific issue, the prosecution did not recall Sean Lichty to provide rebuttal evidence.

[51] On the third actual day of the trial of February 1, 2017, after ESA Investigator Gary Corbett had completed his testimony, the prosecution closed its case. The defendant then began his defence and called as his first witness, Gary Corbett, the ESA investigator. Also, on February 1st, Errol Farquharson and the defendant himself testified for the defence. The defendant began his testimony that day but did not complete his testimony on February 1st.

The third trial day was then adjourned to February 2, 2017, for the cross- examination of the defendant by the prosecution. [52] On the 4th day of the trial of February 2, 2017, the prosecution’s cross-examination of the defendant did not begin immediately as the defendant sought an adjournment. After submissions were heard from both parties in respect to the defendant’s application for an adjournment, the adjournment was not granted. The defendant in his application stated that he had been trying to contact a person named Ali Nabbouh to be a witness for the defence, but had been unsuccessful.

Later, on February 2nd, Ali Nabbouh, a person that the defendant had mentioned in his testimony was present in the courtroom. Nabbouh had been contacted by Gary Corbett, the ESA investigator, on the morning of February 2nd and Nabbouh had agreed to attend later that day to testify.

Ali Nabbouh arrived later on February 2nd and was allowed to testify as a defence witness about whether he had been a partner or intending to go into a partnership with the defendant on the 291 Boon Avenue, Toronto house renovation and whether Nabbouh had actually provided to the defendant the WSIB number and the liability insurance policy number written on a piece of paper entered as Exhibit 7. After Nabbouh’s testimony was completed, the prosecution began its cross-examination of the defendant. However, the prosecution’s cross-examination could not be completed on February 2nd.

The trial was then adjourned to June 28, 2017, at 9:00 a.m., for the continuation of the prosecution’s cross-examination of the defendant [53] On the scheduled 5th day of the trial of June 28, 2017, the defendant did not appear at 9:00 a.m. ESA Investigator Gary Corbett informed the court that Corbett had left a voice mail on the defendant’s telephone number to remind the defendant of the trial continuation that was to be held on June 28th.

The court waited for the defendant to appear that morning of June 28th, but since the defendant did not appear a bench summons was then issued to the defendant at 11:31 a.m., ordering the defendant to appear on June 29, 2017, at 9:00 a.m. for the continuation of the defendant’s trial. Gary Corbett, the ESA Investigator, agreed to serve the summons on the defendant. Later that day on June 28th, after counsel for the prosecution had already left the courthouse, the defendant arrived late at the courthouse having received Corbett’s voice message.

The defendant was then informed by the court on what had occurred that morning and that the defendant had to appear the next day on June 29th for the continuation of his trial. [54] On the 6 th scheduled day of the trial of June 29, 2017, before the defendant’s trial resumed, the defendant brought an application to adjourn his trial so that he could hire legal counsel. The defendant's application for an adjournment was granted. Two additional trial days were then scheduled for November 1 and 2, 2017, with a confirmation date of readiness scheduled for September 7, 2017.

The defendant was also informed that he would have to order transcripts of the witness testimony already given in the trial for the legal counsel that the defendant was intending to retain. [55] On the September 7, 2017, confirmation date (the 7 th date), the defendant did not appear at the scheduled time of 9:00 a.m. Counsel for the ESA then informed the court that they had not been contacted by counsel for the defendant or by the defendant in respect to the continuation of the trial. The November 1 and 2, 2017, trial dates were then confirmed and counsel for the ESA were excused.

After counsel for the prosecution left the courthouse, the defendant then arrived late at 9:37 a.m. without counsel. The defendant then informed the court that he had retained the Mahadeo law firm, which was the same “Michael Mahadeo” that had been appearing and representing the defendant before the defendant’s trial had commenced.

The defendant was then instructed that the defendant’s trial would commence again on November 1, 2017, and that the November 1 and 2, 2017, trial dates were confirmed. [56] The defendant then brought an application on October 24, 2017 (the 8 th date), to adjourn the November 1 and 2, 2017, trial dates, citing that the transcripts in respect to the previous trial dates were not ready.

However, the defendant had only ordered the transcripts on September 29, 2017, which was nearly 3 months after the defendant’s last appearance on June 29, 2017, when the defendant’s application to adjourn his trial to hire legal counsel had been granted. The defendant also informed the court that he had retained Michael Mahadeo, but did not have a letter from Mahadeo that Mahadeo had been retained and reasons why Mahadeo would not be available on November 1 and 2, 2017, for the recommencement of the defendant’s trial.

Michael Mahadeo was then contacted by the court by speaker phone in the courtroom and was informed by Mahad

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