IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
R. v. Scherbey, |
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2018 BCSC 1584 |
Date: 20180914
Docket: 65701-1
Registry: Chilliwack
Regina
Respondent
v.
Edward John Scherbey
Appellant
Before: The Honourable Mr. Justice Cullen
On
appeal from: An order of the Provincial Court of British Columbia,
dated December 12, 2016 (R. v. Scherbey, Chilliwack File No. AH88436714)
Addendum to Reasons for Judgment
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Counsel for the Respondent: |
P. Blessin |
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Agent for the Appellant: |
J. Maddock |
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Place and Date of Hearing: |
Chilliwack, B.C. |
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Place and Date of Judgment: |
Vancouver, B.C. |
[1] This is an addendum to my Reasons for Judgment dated September 15, 2017, indexed at 2017 BCSC 1638.
[2] On August 14, 2017, I granted the right of audience to Mr. J. Maddock to appear at and present arguments on behalf of the appellant at his appeal from a conviction for speeding on September 9, 2015. Mr. Maddock acted as the appellant's agent at his trial on August 18, 2016.
[3] Mr. Maddock is not a practising lawyer. At the appeal, counsel for the Crown opposed his representation of the appellant while acknowledging that it was permissible for him to act as his agent and represent him at the summary trial in respect of the speeding ticket.
[4] The Crown relied on a letter from the Law Society of British Columbia which expressed the view that Mr. Maddock was acting in breach of the Legal Profession Act, S.B.C. 1998, c. 9 [LPA], by purporting to represent Mr. Scherbey at his appeal in the Supreme Court. The Crown also relied on the decision of N. Brown J. in the case of Jones v. Mountain Institution (Warden), 2017 BCSC 1304 [Jones], which dealt with an attempt by a layperson named Parchment to represent three petitioners in applications for habeas corpus.
[5] In that case, which was somewhat different from the case at bar, Mr. Justice Brown set forth the relevant provisions of the LPA and summarized the law governing circumstances in which non-lawyers may or may not be granted an audience by the court. He set forth s. 15(1) of the LPA which reads as follows:
15 (1) No person, other than a practising lawyer, is permitted to engage in the practice of law, except
(a) a person who is an individual party to a proceeding acting without counsel solely on his or her own behalf,
(b) as permitted by the Court Agent Act,
(c) an articled student, to the extent permitted by the benchers,
(d) an individual or articled student referred to in section 12 of the Legal Services Society Act, to the extent permitted under that Act,
(e) a lawyer of another jurisdiction permitted to practise law in British Columbia under section 16 (2) (a), to the extent permitted under that section,
(f) a practitioner of foreign law holding a permit under section 17 (1) (a), to the extent permitted under that section, and
(g) a lawyer who is not a practising lawyer, to the extent permitted under the rules.
[6] Mr. Justice Brown also quoted from The Law Society of British Columbia v. Parsons, 2016 BCCA 435 at paras. 10,11 and 12 which read as follows:
[10] In Law Society v. Robbins, 2011 BCSC 1310, Grauer J. examined the legislative history of s. 15(5) and its relationship to the statute's definition of "the practice of law". He concluded:
[I]f a person ... does nothing more than assist a party by appearing to speak on his or her behalf at a hearing for free, then he is not practising law and the Law Society is in no position to intervene. That person will be subject only to the court's overriding discretion, in the case of persons who are neither litigants nor lawyers, to grant or withhold a right of audience. Where, however, a person takes in hand not only advocacy or assisting in the drawing of a document, but also the overall prosecution or defence of a proceeding, as a solicitor was wont to do, then he is ... contravening section 15(5), and the Law Society may intervene.
[11] In interpreting a provision that stated "no person shall ... sue out any writ or process or solicit, commence, carry on or defend any action or proceeding before a court" the Manitoba Court of Appeal came to a similar conclusion in Moss v. NN Life Insurance Co., 2004 MBCA 10 at para. 11:
A person who is present in court in order to lend assistance to a self-represented litigant, without fee and on an isolated occasion, would not likely be in violation of [the provision] -- depending, of course, on the nature and extent of the assistance. [The provision] seems to envision a process which is largely controlled by the non-lawyer. Something more than modest assistance on an occasional basis would be required before that person could be said to be carrying on or defending an action or proceeding before a court.
[12] Mr. Parsons has clearly "take[n] in hand ... the overall prosecution of a proceeding". He has "largely controlled" the process on behalf of the litigant. In so doing, I agree that he has contravened s. 15(5) of the Legal Profession Act.
[7] Mr. Justice Brown also referenced Renyard v. Renyard, 2014 BCSC 2649 and explained the ratio in that case at paras. 15 through 18 which read as follows:
[15] In Renyard v. Renyard, 2014 BCSC 2649 [Renyard], a decision of Verhoeven J., the preliminary question to be decided was whether to allow the claimant in a family matter to be represented by a non-lawyer, a “Mr. Walter Anderson”. The respondent in that case objected to the court allowing the claimant to be represented by Mr. Anderson, contending he was practising law contrary to the LPA.
[16] At para. 10 of Renyard, Verhoeven J. quoted para. 12 of the then recent decision of Justice Voith in Rutherford v. The Owners, Strata Plan NW971 (Highland Park), 2014 BCSC 420 as follows:
[12] A court, in exercising its discretion, will consider numerous factors. In YAL [YAL et al v. Minister of Forests et al, 2004 BCSC 1253], at para. 62, the court indicated that such considerations will include, among others, the nature and complexity of the proceedings, the suitability of the applicant, and the financial means of the plaintiff.
[17] At para. 11 of Renyard, referring to the Vernrose decision, Verhoeven J. noted:
[11] … [T]he overriding consideration is the interests of justice, and the court's discretion is to be exercised where it is deemed necessary or proper, but is to be exercised rarely and with caution.
[18] At para. 12, Verhoeven J. referred to the aforementioned decision in Dick and the court's reference to two strong public policy reasons for the general rule, and the concern about the example set for other citizens and cases where representation by a non-lawyer is allowed. Verhoeven J. noted that was a concern in the matter before him; and that a similar concern had also been expressed by Dorgan J. in Pavlis v. HSBC Canada (6 December 2007), Victoria 02-4093 (B.C.S.C.), which Verhoeven J. noted was conveniently cited in a decision of Walker J.: Nayyar v. Manufacturers Life Insurance Company, 2010 BCSC 1671 at para. 5. The relevant quote from Dorgan J.’s decisions is follows:
[18] In the exercise of my discretion, my focus must ultimately be on the interests of fairness and justice. That focus, bearing in mind those goals, affects not only the parties to this litigation but the broader community, as well. That is, there is a public interest that must be taken into account in the exercise of my discretion. …
[Emphasis in original.]
[8] In the case before him based on the principles which he discerned from the cases referred to above, Mr. Justice Brown declined to grant an audience to Mr. Parchment in the case before him.
[9] Counsel for the Crown contended that despite the legitimacy of Mr. Maddock's representation of the appellant at his trial, it would nonetheless be inappropriate and contrary to the public interest to permit him to represent the appellant at his appeal.
[10] Crown counsel fairly conceded that Mr. Maddock's competence, based on his filed written argument and based on the fact that he has a law degree and articled in British Columbia, is not an issue. It was the Crown’s submission, however, that for essentially the same reasons relied on by Justice Brown in Jones, the court should decline to grant an audience to Mr. Maddock in light of the public interest.
[11] Mr. Maddock made submissions in support of his representation of the appellant. He referred to s. 57(2) of the Offence Act, R.S.B.C. 1996, c. 338 and likened it to s. 800(2) of the Criminal Code of Canada. Those sections read as follows:
57(2) A defendant may appear personally or by counsel or agent, but the justice may require the defendant to appear personally, and may, if the justice thinks fit, issue a warrant, in Form 5, for the arrest of the defendant and adjourn the trial to await his or her appearance under the warrant.
800(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.
[12] It was Mr. Maddock's submission that those sections do not limit the ambit of representation of a person facing a summary conviction offence. The only limitation is imposed by s. 802.1 of the Criminal Code which reads as follows:
802.1 Despite subsections 800(2) and 802(2), a defendant may not appear or examine or cross-examine witnesses by agent if he or she is liable, on summary conviction, to imprisonment for a term of more than six months, unless the defendant is a corporation or the agent is authorized to do so under a program approved by the lieutenant governor in council of the province.
[13] Mr. Maddock further submitted that he was receiving no remuneration for his work on behalf of the appellant, only reimbursement of his expenses. He submitted that the thrust of the cases referred to in Jones and relied on by Mr. Justice Brown reflect a concern with ensuring that an agent did not incompetently or unethically represent a person accused of a summary conviction offence. He submitted that his representation did not engage such concerns and accordingly there is no basis upon which to decline to grant him an audience.
[14] Mr. Maddock further submitted on the basis of R. v. Romanowicz (1999), 138 C.C.C. 225 (Ont. C.A.), that the Court defined the term “agent" broadly for the purposes of s. 800 of the Criminal Code. In para. 24 of Romanowicz the Court held as follows:
[24] The word "agent" is not defined in the Criminal Code. Its meaning is found in ordinary parlance and the dictionary -- in the most general terms, a "representative". The relevant provincial legislation does not limit the language of the Code (assuming it could) to unpaid agents. Thus the fact that the representative is a hireling is irrelevant to the accused's right to a representative of his or her choice to assist in the defence of a summary conviction proceeding.
[15] Mr. Maddock conceded that notwithstanding s. 800 of the Criminal Code and s. 57(2) of the Offence Act, the court has a discretion to decline to grant audience to an agent but submitted in the context of the instant case, such a step was not warranted. He relied on para. 77 of Romanowicz which reads as follows:
[77] The power to disqualify agents, like any other facet of the court's power to control its processes, must be exercised judicially on the basis of the circumstances present in a given case. Those circumstances may include the seriousness of the charge and the complexity of the issues raised in a particular case. A presumption, however, that all agents are incompetent to represent accused persons charged with certain summary conviction offences is not a proper basis on which to exercise that discretion. Trial judges are not at liberty, as we are told at least one Provincial Division judge does, to adopt a rule that no agents can appear on criminal matters. That approach is arbitrary and contrary to the Criminal Code. Judges cannot ignore the letter of the law while purporting to control the process of the court so as to maintain the rule of law and the integrity of the proceedings.
[16] Mr. Maddock indicated that Mr. Scherbey was in poor health, he had suffered a heart attack, and he had been warned by his doctor to avoid stress. He submitted in all the circumstances he should be permitted to act as his agent for the summary conviction appeal at bar.
[17] The language in Romanowicz at para. 85 appears to support the proposition that ss. 800 and 802 of the Criminal Code permit agents who are not lawyers to represent accused persons in summary convictions proceedings brought under Part XXVII which includes summary conviction appeals.
[18] Paragraph 85 of Romanowicz reads in part as follows:
-- Sections 800 and 802 permit agents who are not lawyers to represent accused in summary criminal proceedings brought under Part XXVII of the Code.
[19] I am, however, reluctant to make a definitive determination on the applicability of that decision to British Columbia without further and more complete argument. In my view in the context of the present case it is sufficient to note that Mr. Scherbey’s appeal is largely based on what occurred in the course of a trial in which he was represented by Mr. Maddock and to which no objection was, or is, taken. Mr. Scherbey has health issues and is subject to a doctor's warning to avoid stress. Mr. Maddock's representation of him is pro bono, save for his expenses, and there is no issue raised by the Crown as to his competence or the adequacy or appropriateness of his written materials.
[20] In my view in all the circumstances, including the legitimacy of Mr. Maddock's initial representation of the appellant at trial, even if s. 800(2) of the Criminal Code does not apply to proceedings other than at trial, this is one of those cases where the interests of justice favour granting Mr. Maddock an audience. I therefore will permit him to represent the appellant in the summary conviction proceedings.
The Honourable Mr. Justice A.F. Cullen