2015 QCCA 2156, 2015 QCCA 2156

Morin c. R. 2015 QCCA 2156 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005649-148 (750-36-000380-141) (750-73-000273-133) (750-73-000274-131) DATE: 22 décembre 2015 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. JACQUES DUFRESNE, J.A. MARIE-JOSÉE HOGUE, J.A. DANIEL MORIN APPELLANT - Accused v. HER MAJESTY THE QUEEN RESPONDENT - Prosecutrix And ANDRÉ VINCENT IMPLEADED PARTY - Impleaded party JUDGMENT I INTRODUCTION [ 1 ] What began as a

summary conviction prosecution for unpaid taxes against the appellant in the Court of Quebec has morphed into two unrelated issues with which the Court is seized: 1) Is the judgment of a Superior Court judge refusing to hear submissions in certiorari proceedings on behalf of the appellant from someone who is not a member of the provincial Bar or any other Bar in Canada and accordingly dismissing such proceedings appealable as of right pursuant to s. 784(1) Cr.C . ? 2) On the assumption the judgment is appealable, did the trial judge err in refusing to hear such submissions on behalf of the appellant? II RELEVANT FACTS [ 2 ] Daniel Morin was charged in two separate informations with five

summary conviction offences under s. 231.2(1) (

a) of the Income Tax Act [1] on May 1, 2013 [2] and six more offences under s. 238(1) of the Act on July 9, 2013. [3] The first set of counts allege his failure to produce Form T1 income tax returns for the 2007, 2008, 2009, 2010 and 2011 taxation years. The second set alleges his failure to comply with judicial orders issued on September 12, 2012 requiring him, within 90 days from that date, to produce Form T1 income tax returns for the 2001, 2002, 2003, 2004, 2005 and 2006 taxation years. [ 3 ] Mr. Morin was summoned to appear in the Court of Quebec on September 10, 2013.

He did not do so, but David-Kevin Lindsay appeared on his behalf. Mr. Lindsay is not a member of the provincial Bar or any other Bar in Canada. He nevertheless contended that he was entitled to appear on behalf of Mr. Morin pursuant to s. 800(2) Cr.C . That

section reads as follows:

(1) Where the prosecutor and defendant appear for the trial, the

summary conviction court shall proceed to hold the trial. Counsel or agent

(2) A defendant may appear personally or by counsel or agent, but the

summary conviction court may require the defendant to appear personally and may, if it thinks fit, issue a warrant in Form 7 for the arrest of the defendant and adjourn the trial to await his appearance pursuant thereto. 800.

(1) Lorsque le poursuivant et le défendeur comparaissent, la cour des poursuites

sommaires procède à la tenue du procès. Avocat ou représentant

(2) Un défendeur peut comparaître en personne ou par l’entremise d’un avocat ou représentant, mais la cour des poursuites

sommaires peut exiger que le défendeur comparaisse en personne et, si elle le juge à propos, décerner un mandat selon la formule 7 pour l’arrestation du défendeur, et ajourner le procès en attendant sa comparution en application du mandat. [ 4 ] At the initial hearing on September 10, 2013, Mr. Morin was not present. After Mr. Lindsay advised the presiding judge that he would seek to represent Mr. Morin, the judge informed him that the case would have to be adjourned since the judge required the presence of an English-French interpreter, and such an interpreter was not present. The judge did not then refuse Mr.

Lindsay's request to act on Mr. Morin's behalf, however, the matter was adjourned pro forma to November 12. The minutes of the hearing indicate that the judge ordered Mr. Morin to be present in Court on that date, and that the presence of an English-French interpreter would be required. [ 5 ] On November 12, Mr. Morin did not comply with the order that he be present in Court. An interpreter was present for the benefit of the judge. Mr. Lindsay was again present to act on behalf of Mr. Morin. He advised the Court that Mr. Morin did not live in Quebec and had not lived in Canada for about 15 months.

In response to inquiries from the judge, Mr. Lindsay informed him that Mr. Morin's absence was due to his inability to defray the cost of attending Court from his place of residence, the location of which was not disclosed. Crown counsel accordingly requested the judge to issue a bench warrant for Mr. Morin's arrest. [ 6 ] A discussion then ensued as to the status of Mr. Lindsay before the Court, the upshot of which was that the judge declined to entertain a written motion on behalf of Mr. Morin that Mr. Lindsay represents him as his agent, inasmuch as the motion had not been served on Crown counsel.

The judge therefore required that Mr. Morin's motion be served. Moreover, considering that Mr. Lindsay was not a member of the Bar, the judge issued the bench warrant for Mr. Morin's arrest. [ 7 ] The motion to have the

summary conviction court recognize Mr. Lindsay as the agent of Mr. Morin pursuant to s. 800(2) Cr.C . has therefore yet to be adjudicated. That file is thus in abeyance, presumably awaiting Mr. Morin's arrest, if ever, or his voluntary surrender. [ 8 ] Mr. Morin's reaction to the foregoing was to cause a notice of motion for the issuance of a writ of certiorari dated November 29, 2013 to be served. [4] He sought a variety of orders, the most germane of which for present purposes were that Mr.

Lindsay be authorized to appear on his behalf in the certiorari proceedings, that the two summons issued by a justice of the peace be quashed, and that the arrest warrant issued on November 12, 2013 be quashed. [ 9 ] There then followed an exchange of correspondence between Mr. Morin and Mr. Justice Marc David, the co-ordinating judge of the criminal division of the Superior Court. Mr. Morin insisted in his letter that the issue of Mr.

Lindsay's capacity to represent him be dealt with at the outset, and he emphasized his view that he had never been served with any of the underlying documents giving rise to the charges as he had not been living in Quebec at the time. [ 10 ] Accordingly, the matter was first presented pro forma on January 20, 2014 before David, J. He ordered that a hearing be held on April 17, 2014 at which the only issue to be decided was whether Mr. Lindsay had the necessary capacity to act on behalf of Mr. Morin. He also ordered the parties to prepare and submit written arguments on that issue, which they did. Mr.

Morin signed the 10-page document dated February 21, 2014 entitled "Written Submissions on Agency, Re

An Act respecting the Barreau du Québec (hereinafter the Act)" along with a Book of Authorities. [5] Crown counsel replied with its own submissions on March 20, 2014. [ 11 ] That hearing in the Superior Court then took place before Vincent, J. [ 12 ] It did not last very long. Mr. Lindsay not being a practising advocate in Quebec, he refused to hear him and dismissed Mr. Morin's motion. During the course of the brief exchanges between them, Vincent, J. affirmed having read the written submissions Mr. Lindsay had filed on Mr. Morin's behalf, but concluded as follows: Mr.

Lindsay was insistent to address the Court because Justice David just made —- I don't have… he has a procès-verbal for that, saying that he could give his arguments even if the Crown was contesting the fact that Mr. Lindsay was not allowed to plead before the Court. I've decided not to hear any submissions from Mr. Lindsay according to the law, le Code des professions [6] saying that to be able to address the Court, so first, if you are the interested person, yes you could, but you cannot represent another one unless you are a member of the Bar.

I just want that the Bar should know this and just decide if the direction given by Justice David…well, you will do what you have to do. I don't have anything else to say. According to the case of Daniel Morin, the Court has just noticed that Mr. Morin, the Petitioner is not here. So the case is dismissed without costs.

[ 13 ] A further brief exchange between Mr. Lindsay and Vincent, J. was unproductive and simply resulted in the judge saying there was nothing he could do unless the law was changed or, in essence, the Court of Appeal decided otherwise. III ANALYSIS AND DISCUSSION

(1) Is the judgment of the Superior Court appealable? [ 14 ] An appeal to this Court in matters of certiorari is governed by s. 784(1) Cr.C . , which insofar as relevant provides that an appeal lies to this Court "from a decision granting or refusing the relief sought in proceedings by way of … certiorari …/ d'une décision qui accorde ou refuse le secours demandé dans des procédures par voie de … certiorari …". Contrary to the Crown's position, and as we have seen from the transcript, the Superior Court judge dismissed Mr.

Morin's proceeding because it was going to be argued on his behalf by someone who was not entitled to do so. As such, it was a final judgment that brought the certiorari proceedings to a conclusion. To hold otherwise would result in the Court concluding that there was no right of appeal, but that the certiorari proceedings are still pending in the Superior Court. [ 15 ] The notice of appeal to this Court dated May 5, 2014 again purports to be signed by Mr.

Morin and was filed on May 15, well within the 30-day time limit contemplated by s. 21 of the Rules of Practice of the Court of Appeal in Criminal Matters . [ 16 ] The appeal was thus regularly undertaken as being an appeal from a final judgment dismissing the certiorari application. [7] 2) Did the Superior Court judge err in refusing to hear submissions from Mr. Lindsay on behalf of Mr. Morin? [ 17 ] This issue necessarily engages precisely the same considerations as those that led to the judgment under review insofar as Mr. Lindsay is purporting to act on behalf of Mr. Morin in this appeal.

In order to ensure that both sides of the issue would be argued before the Court, Mr. Lindsay was informed at the outset of the hearing, and he so acknowledged, that while the Court had taken cognizance of the factum he had prepared and would listen to his oral submissions, doing so was not to be taken as an acknowledgement that he had the right to act on behalf of Mr. Morin in this Court. [ 18 ] That being said, the short answer to the second issue in appeal is that the Superior Court judge did not err in refusing to hear Mr. Lindsay on behalf of Mr.

Morin with respect to his right to represent him on the merits of the certiorari application. Nevertheless, it would not have been inappropriate for him to have done so, just as this Court elected to hear Mr. Lindsay with the caveat mentioned in the preceding paragraph. That being said, Vincent, J. did have written submissions on behalf of Mr. Morin, and it is clear that the oral argument of Mr. Lindsay would not have changed the outcome. [ 19 ] First, to the extent that s. 800(2) Cr.C . may result in Mr. Lindsay's appearance on behalf of Mr.

Morin in the Court of Quebec being recognized, that provision does not apply outside the context of the

summary conviction court. [8] In any event, the

summary conviction judge has yet to determine definitively Mr. Lindsay's status in the Court of Quebec inasmuch as he required him to serve the written motion by which his status as an "agent" was sought. Presumably, if Mr. Morin is ever arrested or surrenders to custody, Mr. Lindsay's status will be amongst the first issues to be decided by the

summary conviction judge. That being said, independently of whatever status, if any, that may be attributed to Mr. Lindsay as an "agent", the

summary convictions judge had the authority to compel Mr. Morin's attendance and to issue the bench warrant for his arrest. [ 20 ] As for Mr. Lindsay's status in the Superior Court, there is no provision in the Criminal Code remotely analogous to s. 800(2) that would justify his representation of Mr. Morin in that court on a certiorari or in this Court on an appeal from an adverse judgment. The law of general application in Quebec therefore applies. [ 21 ] Insofar as the right to prepare legal proceedings (such as a motion or a factum in this Court) and represent another person in such proceedings are concerned, that law is contained in

An Act respecting the Barreau du Québec , [9] the relevant provisions of which are to the following effect: 128.

(1) The following acts, performed for others, shall be the exclusive prerogative of the practising advocate or solicitor: (

a) to give legal advice and consultations on legal matters; (

b) to prepare and draw up a notice, motion, proceeding or other similar document intended for use in a case before the courts; (c) […] . 128. 1. Sont du ressort exclusif de l'avocat en exercice ou du conseiller en loi les actes suivants exécutés pour le compte d'autrui:

a) donner des consultations et avis d'ordre juridique;

b) préparer et rédiger un avis, une requête, une procédure et tout autre document de même nature destiné à servir dans une affaire devant les tribunaux; c) […]

(2) The following acts, performed for others, shall be the exclusive prerogative of the practising advocate and not of the solicitor: (

a) to plead or act before any tribunal, except before: (1) a conciliation officer or an arbitrator of disputes or grievances, within the meaning of the Labour Code (chapter C-27); (2) the Commission des relations du travail established by the Labour Code ; (3) the Commission de la santé et de la sécurité du travail established pursuant to the Act respecting occupational health and safety (chapter S-2.1), a review board established under the said Act or the Workers' Compensation Act (chapter A-3), the social affairs division of the Administrative Tribunal of Québec, instituted under the Act respecting administrative justice (chapter J-3), in the case of a proceeding pertaining to compensation for rescuers and victims of crime, a proceeding brought under

section 65 of the Workers' Compensation Act (chapter A-3) or a proceeding brought under

section 12 of the Act respecting indemnities for victims of asbestosis and silicosis in mines and quarries (chapter I-7), the Commission d'appel en matière de lésions professionnelles established pursuant to the Act respecting industrial accidents and occupational diseases (chapter A- 3.001) or the Commission des lésions professionnelles established under the said Act; (4) the Régie du logement established under the Act respecting the Régie du logement (chapter R- 8.1); (5) the social affairs division of the Administrative Tribunal of Québec, to the extent that the Minister of Employment and Social Solidarity or a body which is his delegatee as regards the application of the Individual and Family Assistance Act (chapter A-13.1.1) is to be represented to plead or act in his or its name; (6) an arbitration officer, a conciliation officer, a council of arbitration or an investigator within the meaning of the Act respecting labour relations , vocational training and workforce management in the construction industry (chapter R-20); (7) in matters of immigration, the social affairs division of the Administrative Tribunal of Québec, in the case and subject to the conditions set out in the third paragraph of

section 102 of the Act respecting administrative justice ; 2. Sont du ressort exclusif de l'avocat en exercice et non du conseiller en loi les actes suivants exécutés pour le compte d'autrui:

a) plaider ou agir devant tout tribunal, sauf devant: 1° un conciliateur ou un arbitre de différend ou de grief, au sens du Code du travail (chapitre C- 27); 2° la Commission des relations du travail instituée par le Code du travail ; 3° la Commission de la santé et de la sécurité du travail instituée par la

Loi sur la santé et la sécurité du travail (chapitre S-2.1), un bureau de révision constitué en vertu de cette loi ou de la

Loi sur les accidents du travail (chapitre A-3), la

section des affaires sociales du Tribunal administratif du Québec, institué en vertu de la

Loi sur la justice administrative (chapitre J-3), s'il s'agit d'un recours portant sur l'indemnisation des sauveteurs et des victimes d'actes criminels, d'un recours formé en vertu de l'

article 65 de la

Loi sur les accidents du travail (chapitre A-3) ou d'un recours formé en vertu de l'

article 12 de la

Loi sur l'indemnisation des victimes d'amiantose ou de silicose dans les mines et les carrières (chapitre I-7), la Commission d'appel en matière de lésions professionnelles instituée par la Loi sur les accidents du travail et les maladies professionnelles (chapitre A-3.001) ou la Commission des lésions professionnelles instituée en vertu de cette loi; 4° la Régie du logement instituée en vertu de la

Loi sur la Régie du logement (chapitre R-8.1); 5° la

section des affaires sociales du Tribunal administratif du Québec, dans la mesure où il s'agit pour le ministre de l'Emploi et de la Solidarité sociale, ou pour un organisme qui est son délégataire dans l'application de la

Loi sur l'aide aux personnes et aux familles (chapitre A- 13.1.1), de se faire représenter pour plaider ou agir en son nom; 6° un arbitre, un conciliateur, un conseil d'arbitrage ou un enquêteur, au sens de la Loi sur les relations du travail, la formation professionnelle et la gestion de la main-d'oeuvre dans l'industrie de la construction (chapitre R- 20); 7° en matière d'immigration, la

section des affaires sociales du Tribunal administratif du Québec, dans le cas et aux conditions prévus au

(

b) to prepare and draw up a will or codicil or a discharge or any contract or document, except leases, affecting immovable property and requiring registration or cancellation of a registration in Québec; (

c) to prepare, draw up and file the declaration of value of an estate, required by the taxation laws; this paragraph c shall not apply to legal persons authorized by law to act as liquidators of successions or as trustees; (

d) to prepare and draw up a document or proceeding, for registration as prescribed by law, of a person or partnership carrying on a business or operating an industry; (

e) to make collections or make any claim with costs or to imply that judicial proceedings will be taken. troisième alinéa de l'

article 102 de la Loi sur la justice administrative ;

b) préparer et rédiger un testament, un codicille ou une quittance et tout contrat ou document, sauf les baux, affectant des immeubles et requérant l'inscription ou la radiation d'une inscription au Québec;

c) préparer, rédiger et produire la déclaration de la valeur d'une succession, requise par les lois fiscales; le présent sous-paragraphe c ne s'applique pas aux personnes morales autorisées par la loi à remplir les fonctions de liquidateur de succession ou de fiduciaire;

d) préparer et rédiger un document ou une procédure pour l'enregistrement prescrit par la loi, d'une personne ou d'une société exploitant un commerce ou exerçant une industrie;

e) faire de la perception ou réclamer avec frais ou suggérer que des procédures judiciaires seront intentées. [ 22 ] It will be seen that the legislation reserves the delivery of legal advice to practising advocates and solicitors pursuant to s. 128(1)(a), and the pleading or acting before any court "performed for others / pour le compte d'autrui" to practising advocates under s. 128(2)(a), subject in the latter case to the enumerated exceptions. None of those exceptions are applicable to the Superior Court or the Court of Appeal. [10] [ 23 ] The jurisprudence applicable in Quebec is eminently clear that Mr.

Lindsay has no status before the Superior Court to act on behalf of Mr. Morin in the manner he proposes. [11] The fact that the proceedings brought in Mr. Morin's name are in the nature of certiorari changes nothing. [12] [ 24 ] It is true, as the argument goes on behalf of Mr.

Morin, that there have been judgments rendered elsewhere in Canada that hold that a superior court has inherent jurisdiction to allow a party such as the appellant to be represented by an agent. [13] To the extent that such inherent jurisdiction may exist, it is nevertheless subject to being ousted by statute. [14] That is the precise effect of the statutory provisions set out in paragraph [21] above. [ 25 ] Accordingly, Mr. Lindsay had no status to appear before the Superior Court to argue Mr. Morin's certiorari proceedings, and Vincent, J. did not err in dismissing his motion.

FOR THESE REASONS, THE COURT : [ 26 ] DISMISSES the appeal; [ 27 ] DIRECTS the Court's Registry to refuse the filing of any proceedings or other materials on behalf of the appellant in this or any other file that are not signed by him or a practising Quebec advocate or someone otherwise authorized by the Barreau du Québec . ALLAN R. HILTON, J.A. JACQUES DUFRESNE, J.A. MARIE-JOSÉE HOGUE, J.A. Daniel Morin Absent Mtre André Albert Morin

Public Prosecution Service of Canada For the respondent Date of hearing: December 3, 2015