R. v. Khan, 2015 ONCJ 221

Citation: R. v.

Khan , 2015 ONCJ 221 ONTARIO COURT OF JUSTICE (TORONTO REGION) BETWEEN: HER MAJESTY THE QUEEN Respondent -And – RAHANA KHAN Appellant -And – HER MAJESTY THE QUEEN Respondent -And- LEE CHENG Appellant Heard: 25 February 2015; Judgment: 23 April 2015 (44 paras.) Grace Noel, Municipal Prosecutor Altaf Khan, Counsel for Appellants Paul Hatzitrifonos, Agent for Counsel Libman J.: - Ruling as to Status of Paul Hatzitrifonos to Argue Provincial Offences Act Trials and Appeals as Agent for Counsel Introduction [ 1 ] This ruling concerns the issue as to whether a non-lawyer and non-paralegal practitioner, Mr.

Hatzitrifonos, may argue provincial offences trials and appeals on behalf of a lawyer. The lawyer, Mr. Khan, says that while he does not have the sufficient expertise or cost- effectiveness ability to do so himself, his agent Mr. Hatzitrifonos, who has no formalized or accredited legal education or training but who he nevertheless considers to be knowledgeable in provincial offences matters, should be permitted to do so on his behalf, and under his supervision. It is Mr.

Khan’s position that this arrangement is compatible with the Access to Justice Act [1] governing paralegal regulation in this province, and serves to facilitate access to justice. [ 2 ]Conversely, the Director of Prosecutions has expressed her reservations as to the competency of the agent put forward by Mr. Khan, and notes that Judges and Justices of the Peace before whom Mr. Hatzitrifonos has appeared are sufficiently concerned so as to have requested that Mr. Khan attend in person to explain the nature of this “retainer agreement” by which Mr.

Hatzitrifonos identifies himself as having authority on behalf of Mr. Khan to argue trials and appeals in the Provincial Offences Court. This is what led to this legal argument before me on the day that these appeals were returnable (25 February 2015), and the appearance of both Mr. Hatzitrifonos and Mr. Khan in response to a request from the presiding appeal court Judge, Justice Khawly, on the previous appeal date (29 January 2015), when Mr. Hatzitrifonos appeared in court and sought to argue these appeals. [ 3 ] I have concluded that permitting a non-licensed agent such as Mr.

Hatzitrifonos to conduct trials and appeals in the Provincial

Offences Court, on behalf of counsel, is contrary to the proper administration of justice and should not be permitted. Far from facilitating or promoting access to justice, it impedes access to justice. [ 4 ] Most particularly, it impedes access to justice in the provincial offences court because Mr. Hatzitrifonos has received no legal training at an accredited education program to ensure that he is competent to provide legal services, nor has he undertaken and successfully completed a licensing examination on these core competencies afterwards.

Neither is he governed by the rules of the Law Society mandating, among else, a duty of competency and fiduciary obligations to clients, as well as the requirement to take continuing professional development education programs so as to ensure on-going competency. Thus clients who avail themselves of Mr.

Hatzrifonos’ representation are not only much more likely to suffer a miscarriage of justice through the services of a non-trained legal representative, but will also have no recourse to a professional regulator for relief in the case of a claim of incompetency, or to a court of law in the instance of a failure to provide effective representation, as there is no standard of competent representation by which Mr. Hatzitrifonos is obliged to meet. [ 5 ] In short, the agent put forward by counsel is a non-governed and non-governable legal services representative or agent. For these reasons, it is my ruling that Mr.

Hatzitrifonos should not be permitted to argue provincial offences trials or appeals on behalf of Mr. Khan, and these appeals will be adjourned to allow Mr. Khan to either review this ruling or arrange for alternative legal representation. Circumstances of Offences and Appeals [ 6 ] Rhana Khan was charged with a parking infraction on 30 March 2013 in the City of North York. She applied for a trial and was given a trial date of 28 November 2013 at 1:30pm at the Ontario Court of Justice, York Civic Centre court house.

On that date, according to the court record, “Paul Hatz”, who I take to be Paul Hatzitrifonos, attended on her behalf, identifying himself as “friend” of the defendant. The trial was adjourned on consent to 26 February 2014. On that date neither the defendant nor her representative appeared in court. As a result, a conviction was imposed on the deemed not to dispute docket against Ms. Khan. [ 7 ]A Notice of Appeal was filed by Mr. Andrew Khan against the conviction, dated 26 March 2014, that is just within the 30-day appeal period notwithstanding the defendant and her representative, Mr.

Hatzitrifonos, were aware of the trial date that was missed in February. [ 8 ] It would have been open to the defendant to apply for a re-opening under s.19 of the Provincial Offences Act [2] within 15 days of the conviction being entered and coming to her attention if the non-attendance for her parking trial was through no fault of her own. This provision applies to default convictions for parking infractions.

A timely application for a re-opening would have preserved the defendant’s rights of appeal had the re-opening been denied; had the re-opening been granted, a new trial would be ordered and the time and expence of an appeal been avoided. It appears, in fact, that the defendant was not at fault for the conviction; the conviction was the fault of the non-attendance of her agent or representative, Mr. Hatzitrifonos. [ 9 ] The Notice of Appeal document which was filed on behalf of Ms. Khan is filled out in block handwriting.

Under the heading “Decision of Ontario Court of Justice” it is written “NO ONE WAS ABLE TO ATTEND, DO (sic) TO PERSONAL FAMILY ISSUES.” The appeal itself is stated as being against conviction, finding as to ability to conduct a defence, and sentence.

As for the grounds of appeal: “I WOULD LIKE TO FIGHT THIS MATTER (sic) TRIAL, NO ONE WAS PERSONAL (sic) ABLE TO ATTEND DUE TO FAMILY ISSUES.” The relief sought is: “I WOULD LIKE TO ATTEND TRIAL FOR THE FOLLOWING PARKING MATTER.” It is not clear who filled out the Notice of Appeal, given that the signature “A Khan” appears in different colour ink and style than the sections reproduced above. [ 10 ] The Khan appeal was listed for argument on 29 January 2015. Mr. Hatzitrifonos appeared on that date to argue the appeal. The presiding Judge, Justice Khawly, evidently expressed concerns as to Mr.

Hatzitrifonos’ ability to argue the appeal, and had the matter adjourned until February 25, 2015 so that Mr. Khan could appear in court to explain his reasons for asking his agent to argue the appeal (and trial) on his behalf. [ 11 ] Cheng Lee was charged with four Highway Traffic Act [3] infractions on 10 December 2012. These included

Part I certificate of offences for fail to have insurance card, disobey stop sign, fail to surrender permit for motor vehicle and fail to surrender driver’s licence. The defendant requested a trial and a trial date was issued for 28 October 2013. At that time no one appeared and a deemed not to dispute conviction was entered on all four charges. [ 12 ] The Notice of Appeal was filled out on 7 November 2013. Once again, no reopening application was brought, in this instance under s.11 of the Provincial Offences Act which applies to default convictions under

Part I. The reopening period of 15 days at this stage was still extant. Instead the Notice of Appeal states under “Decision of Ontario Court of Justice”: “FOUND GUILTY WITHOUT BEING ABLE TO FILE DEFENCE, OR PRESENT 11B APPLICATION AND ADJOURN MATTER.” The appeal is stated to be against conviction, finding as to ability to conduct a defence and sentence. [ 13 ] However, there is no indication in any of the materials filed of any Charter of Rights s.11(

b) application to stay proceedings for unreasonable delay, including the required notice under s.109 of the Courts of Justice Act to the Attorney General and municipal prosecutor. [ 14 ]According to the Notice of Appeal, the grounds of appeal are: “FOUND GUILTY WITHOUT FILING DEFENCE OR PRESENT (sic) 11B APPLICATION, HAD AFFIDAVIT OF SERVICE ALSO WAS NOT ABLE TO ADJOURN MATTER.” The Notice also states for “In Support of this Appeal”: “… ACCEPT 11B APPLICATION & HAVE A NEW TRIAL.” Again, it is not clear who completed the Notice of Appeal given that the signature of the appellant contrasts with the block handwriting on the document. [ 15 ] The appeal hearing was likewise listed for 29 January 2015 at which time Mr.

Hatzitrifonos appeared to argue the matter. It was adjourned by Justice Khawly to 25 February so that Mr. Khan could appear as well. [ 16 ] After hearing argument from the parties on the 25 February 2015 return date, judgment was reserved until 23 April 2015. This date was evidently requested by the parties as it appears that there are two other appeal hearings scheduled for 23 April 2015 at which time Mr. Khan and Mr. Hatzitrifonos have been asked to again attend in person before the provincial offences appeal court.

Mr. Hatzitrifonos is seeking to provide “legal services” in the Provincial Offences Court [17] The Provincial Offences Act is the statute by which most citizens in this province experience the justice system. Given the millionsof charges issued each year which are governed by this Act, most commonly for Highway Traffic Act charges, it is often referred to asthe “peoples’ court.” [18] In the words of the Ontario Court of Appeal in one of its earliest decisions on the Provincial Offences Act, this statute “is notintended as trap for the unskilled or unwary:” R v Jamieson (1981), (ON CA), 64 C.C.C. (2d) 550 at 552.

Almost 30years later, Laskin J.A., on behalf of the Court of Appeal in York (Municipal Municipality) v Winlow, 2009 ONCA 643 at para. 71observed: “.. many defendants who appear in traffic court are self-represented; many have little or no knowledge of the justice system;many are poorly educated or have but a rudimentary knowledge of English.” [19] The desire to have the assistance of an advocate or representative before a court of law, even an informal one where parkinginfractions and traffic tickets are prosecuted like those in the cases under appeal, is completely understandable.

Indeed, as Judge Nadeauremarked in R v Hill, [1987] O.J. No. 1935 (Prov.Ct.): The underlying philosophy of the Provincial Offences Act is such as to encourage persons to personally represent themselves at trials ofprovincial offences. In the spirit of the Statute, Judges and Justices presiding in those courts should approach the proceedings withtolerance and understanding towards such unrepresented persons and should permit certain latitudes in matters of procedure and law,provided no offence be done to basic principles of law and evidence.

Defendants are frequently uncomfortable and occasionally awed incourtrooms.

Some will enlist the assistance of a friend or a relative to “speak” for them and the same consideration ought to be extendedto such an agent. [20] Justice Nadeau went on to distinguish, however, this type of informal agent representative from “the commercial agent who, uponrepresentations made generally to the public or specifically to his prospective principal, that he has some special expertise or isknowledgeable in matters of law and procedure, is for a fee, retained to defend persons in the trial courts and to argue appeals to thisCourt.” [21] It should be remembered that the comments of Justice Nadeau about commercial agents are in the context of the pre-regulation ofagents by the Law Society, which did not take place for another 20 years. [22] There can be no question that the services provided by Mr.

Hatzitrifonos on behalf of the defendants in the provincial offences trialand appeal courts constitute legal services within the meaning of the Law Society Act, which include “dealing with or filing keydocuments; conducting examinations in a proceeding; and engaging in any other conduct necessary to the conduct of the proceeding.”[4]Neither is it in dispute that trials and appeals under the Provincial Offences Act are “proceedings” for the purposes of the Law SocietyAct.[5] [23] Thus, the appearance of Mr. Hatzitrifonos, on behalf of counsel, Mr.

Khan, to represent persons charged with provincial offences atboth trial and appeal, amounts to the providing of “legal services.” In the words of s.1(5) of the Law Society Act, this agent “engages inconduct that involves the application of legal principles and legal judgment with regard to the circumstances or objectives of a person.” [24] Neither does it appear that Mr. Hatzitrifonos, as a non-licensed agent, can be under the supervision of Mr.

Khan, as counsel, giventhat the former is providing legal advice to persons charged with provincial offences, and seeking to act on their behalf before theadjudicative body hearing their cases: see LSUC By-Law 7.1, s.6(1). Such tasks and functions are not permitted to be assigned to non-licensees. Mr. Hatzitrifonos is Not Subject to the Law Society Paralegal Licensing Regime [25] When Justice Nadeau differentiated between commercial and non-commercial agents appearing in the provincial offences court in Rv Hill, there was no licensing regime in place to regulate and accredit such representatives.

The legislation that eventually was enacted,the Access to Justice Act, was in response to the concerns expressed by many as to the quality of non-licensed and non-trained agents,such as the following comments of the Ontario Court of Appeal in R v Romanowicz (1999), (ON CA), 124 O.A.C.100 at para. 88: A person who decides to sell t-shirts on the sidewalk needs a licence and is subject to government regulation. That same person can,however, without any form of government regulation, represent a person in a complicated criminal case where that person may besentenced to up to 18 months imprisonment.

Unregulated representation by agents who are not required to have any particular training orability in complex and difficult criminal proceedings where a person’s liberty and livelihood are at stake invites miscarriages of justice.Nor are de facto attempts to regulate the appearance of agents on a case-by-case basis likely to prevent miscarriages of justice. [26] As a consequence of the Access to Justice Act, two significant amendments were made to the Provincial Offences Act.

The first wasto provide, for the first time, a definition of “representative” in s.1(1) as meaning for the purposes of the Provincial Offences Act, “ aperson authorized under the Law Society Act to represent a person in that proceeding.” [27] It is clear that Mr. Hatzitrifonos is being put forward by counsel as the defendant’s legal representative to conduct the proceeding(whether trial or appeal), and not merely to appear on behalf of counsel without addressing the merits of the matter. Mr.

Hatzitrifonos’sattendance and appearance before the provincial offences courts thereby falls within the meaning of representative under s.1(1) [28] The second important amendment was to s.50(3) which permitted a Court to bar any person from appearing as an agent “who is nota barrister and solicitor entitled to practise in Ontario if the court finds that the person is not competent properly to represent or advisethe person for whom he or she appears as agent or does not understand and comply with the duties and responsibilities of an agent.” [29] The current s.50(3), amended by the Access to Justice Act, permits the Court to bar from appearing before it for the stated reasons,“any person, other a person who is licensed under the Law Society Act”.

Thus, a representative cannot be barred from appearing before

the provincial offences court, unlike the past practice: see, for example, Alessandro v Romain, [2000] O.J. No. 1397 (S.C.J.); Charron vOntario (Justice of the Peace) (2008), (ON SC), 91 O.R. (3d) 305 (S.C.J.); R v Galbraith, 2008 ONCJ 761, R vTassone, [2006] O.J. No. 1365 (S.C.J.); Thibaudeau v Ontario (Court of Justice), 2008 ONCA 702. [30] Accordingly, if Mr.

Hatzitrifonos has a legal authority to appear before the provincial offences court under the supervision ofcounsel, and as counsel’s authorized agent, there would appear to be no legislative footing for the Justice to intervene to bring theproceedings to a halt and address the competency of the representative in the face of an obvious miscarriage of justice, as is within thecontemplation of current s.50(3).

The Importance of Competent Legal Representation [31] The Access to Justice Act put in motion the enactment of rules governing competency for licensed paralegal practitioners, much liketheir licensed lawyer counterparts.

Upon the successful completion of an accredited education program and licensing exam, paralegalpractitioners who are licensed to practice in Ontario have duties imposed upon them under the Paralegal Rules of Conduct, including, forexample, a requirement of integrity and civility in connection with the provision of legal services (rule 2.01(1)); the required standard of a“competent paralegal” when performing services undertaken on a client’s behalf (rule 3.01(1)); a duty to be “honest and candid” whenadvising clients (rule 3.02(2)) and to adhere to a standard of confidentiality for information from clients (rule 3.03(1)) and avoid conflictsof interest (rule 3.04(1)), as well as treating tribunals and other licensees with “candour, fairness, courtesy and respect” (rule 4.01(1). [32] There is also, of course, the annual requirement for 12 hours of continuing professional development, including 3 hours ofprofessionalism or ethics, for licensed providers of legal services in this province, whether lawyers or paralegals. [33] These are just some of the rules and duties imposed on those who are licensed to argue trials and appeals in the provincial offencescourt.

However, none of these apply to Mr. Hatzitrifonos. [34] Aside from the significant risks posed to the administration of justice generally, and the clients in particular whose well-being is putinto the unregulated hands of Mr. Hatzitrifonos, thus making a miscarriage of justice in such cases a real possibility, the appeals underconsideration provide concrete evidence of the consequences of unprofessional and untrained, and seemingly incompetent,representation, much as the Court of Appeal in the Romanowicz decision cautioned. [35] Here, in the case of the appellant Khan, Mr.

Hatzitrifonos adjourned her trial to a date on which he did not appear, thereby resultingin a conviction being imposed in the absence of any trial, as authorized by s.18.4(1) of the Provincial Offences Act.

Then, in spite of thedefendant being convicted through no apparent fault of her own, he neglected to avail himself of the re-opening application procedureunder s.19 which is an informal process, requiring a written application only, and instead invoked the more formal process of appealnecessitating an appearance before the Court many months later, and on grounds that are barely responsive to the Notice of Appealdocument. [36] The appellant Cheng is in an even worse position than Ms. Khan, having been convicted of all four offences for which he has beencharged.

A Notice of Appeal was filed instead of a s.11 re-opening. Had the re-opening been granted there would have been no need tobring an appeal; had the re-opening been dismissed, there was ample time to appeal. Instead, Mr.

Cheng is currently facing fines ofalmost $500 having been convicted of four matters that appear to relate to the same traffic stop without a trial, has a record of drivinginfractions under the Highway Traffic Act that includes demerit points, and may well affect his insurance coverage, and seeks to bring aCharter of Rights motion for unreasonable delay that has not been properly served on the Court or prosecutor in accordance with theCourts of Justice Act, and thus risks further delaying any trial on the merits in the event the presiding Justice would adjourn the trial onthe trial date and require the parties to re-attend to argue the Charter motion. [37] While I can appreciate that Mr.

Hatzitrifonos may have a genuine interest and passion for provincial offences practice, his serviceshave resulted in serious consequences for those who have relied upon him for representation. [38] Quite apart from these unfortunate results for the defendants in the cases under appeal, I would like to provide another illustration ofthe very real potential pitfalls of allowing unlicensed and untrained representatives like Mr.

Hatzitrifonos to appear in the guise ofcommercial legal services providers before the provincial offences court. [39] It has yet to be decided what is the standard of competency for paralegal practitioners who appear in the provincial offences court.While there is case-law concerning claims of ineffective assistance of counsel, no case has conclusively determined what is thecompetency standard for paralegal practitioners, either in respect of

summary conviction criminal cases (see R v Bilinski, 2013 ONSC2824) or provincial offences (see Hill v Toronto (City), 2007 ONCJ 253). [40] If an agent like Mr. Hatzitrifonos were permitted to conduct a provincial offences trial or appeal, as is suggested, the Court would berequired to consider whether, assuming there is some standard of competency, what that would be, without there being any guideposts toconsider such as rules or regulations, examination or licensing process, or the like. In short, who and what would be the reference pointswhen there is no objective criteria by which to measure Mr.

Hatzitrifonos’ legal services and representation? [41] To return to the Court’s admonition in Romanowicz, can we sanction a justice system where Mr. Hatzitrifonos is required to obtain alicence to operate a food cart on the corner outside this courthouse, but not to defend persons inside? I think the answer must beobviously not. Conclusion [42] For these reasons I have determined that Mr.

Hatzitrifonos should not be permitted to argue either these appeals before theprovincial offences appeal court, or the provincial offences trial proceedings to which they relate. [43] I would like to make clear that this ruling relates only to a commercial arrangement put forward by counsel where he is seeking tohave legal services provided by a non-trained and non-licensed representative. Nothing in these reasons should be taken as discouraging a

father coming to court to help his son explain why he failed to attend court for his trial, or a daughter or friend assisting a parent, loved one or colleague, to explain their circumstances to a Judge or Justice. [ 44 ] This, however, is not a case of a friend going to court to help out another friend. It is, instead, in essence, an attempt to turn back the clock on paralegal regulation and place unnecessary and unwarranted barriers on access to our justice system.

Provincial offences may be, in many cases “minor offences”, but they impose, as these appeals demonstrate, major obligations on those who the law considers to be representatives or agents providing legal services in such cases. There is good reason, as I have endeavoured to explain, why this is so. Date: 23 April 2015 R. Libman J Ontario Court of Justice [1] Access to Justice Act, 2006, S.O. 2006, c.21. [2] Provincial Offences Act , R.S.O. 1990, c.P.33 [3] Highway Traffic Act , R.S.O. 1990, c.H.8. [4] Law Society Act , R.S.O. 1990, c.L.8, s.1(6)(3). [5] LSUC By-Law 4 at ss.6(1)(

b) and 6(2)(2)(ii).