An Ontario judge’s refusal to allow an articling student to represent an accused at trial has prompted the Superior Court to take the apparently unprecedented step of clarifying just what a student-at-law can do.
Justice Kenneth Langdon stayed impaired driving charges against a man
after ruling one trial judge showed an apprehension of bias by refusing
to hear arguments on a constitutional issue, and another judge erred by
refusing to allow representation by an articling student.
judge decided to stay the charges against Aaron Moran, even though
Moran did not contest the Crown’s allegations, ruling an institutional
delay of 15 months would be excessive.
Law Times’ request for comment on the case from the Ministry of the Attorney General was not returned.
Mitchell Worsoff, who represented the accused in R. v. Moran, says the case is the first he knows of in Canada to deal with the scope of an articling student’s activities.
bottom line is that Mr. Moran is entitled to decide his own fate,” says
Worsoff, who adds that Moran chose to have Worsoff’s articling student,
Adam Little, represent him.
Worsoff says he and Little — who is
now a staff lawyer at Worsoff & Associates — went over the case
together. He added that Little was more familiar with criminal law than
many in his position, as he had worked on cases while a law student.
anybody off the street who’s not trained in law, without a legal
background, can argue a case on behalf of somebody, it would not make
sense for an articling student to be stopped from doing so, especially
when they’ve achieved law school and they are being supervised by a
principal of a law firm,” says Worsoff, adding agents can also conduct
“At the end of the day, any competent lawyer is not
going to set themselves up for a difficult situation,” says Little.
“They’re not going to send an articling student out who’s not prepared,
with the potential for the law society and other consequences.”
case involves Moran, who was charged on June 15, 2006 with impaired
care and control of a motor vehicle and care and control with excess
His trial was set for March 7, 2007 before
Justice Marjoh Agro of the Ontario Court of Justice. Little, at the
time an articling student, represented Moran.
The Crown counsel
at the trial, whose name wasn’t included in the decision, raised
concern that Little was representing Moran, according to the appeal
judgment of Langdon.
“The implications, of course, are
far-reaching, not just whether or not a conviction could ensure, but of
course, the ultimate implications, driving prohibitions, civil
consequences of insurance, the other consequences mandated by the
province,” said the prosecutor, as quoted in the judgment. “There are
Charter issues to be raised in this particular case, all of which the
Crown is concerned about the representation that Mr. Moran will
receive. Again, I do not speak of Mr. Little’s competence because I
have no knowledge of that.”
The same prosecutor claimed to have
raised similar concerns in the past regarding Little representing a
client, which that judge agreed with, according to the judgment.
Arguments were then heard from both sides regarding Little’s standing, and the judge decided against Little.
matter was then adjourned. A trial was held on Oct. 5, 2007, at which
time Moran was convicted. Before the trial, however, Moran brought an
application asking for his trial to be dealt with by a judge who
doesn’t normally hear matters in the Regional Municipality of Halton.
foundation of this request was an alleged concern that local justices
were adhering to an unwritten policy to deny standing to students or
agents in trial under ss. 253(a) and (b),” according to the judgment.
The motion was denied.
Worsoff represented Moran at the Oct. 5,
2007 trial. Also on the trial date, Little filed an application and
constitutional issue alleging Moran’s right to trial within a
reasonable time had been infringed.
The trial judge, Ontario Court
Justice Lesley Baldwin, denied the application. Langdon ruled that
Baldwin showed an apprehension of bias in that decision.
Baldwin’s remarks [sic] it clear that she had read the written
material, including the appellant’s extensive application, that she had
considered the same and that she had concluded that the prosecution’s
factum was correct in law,” said Langdon.
Langdon notes that the
trial judge said she would hear only new information on the matter.
“[S]he was in effect inviting the applicant to surprise the respondent
with something that he had not already placed in his material,” said
He goes on to write, “Oral submissions supplementing an
application or factum are an indispensable part of a litigant’s efforts
to persuade a tribunal. I consider that the appellant was denied
natural justice because he was effectively refused the opportunity to
be heard on the merits of his application.”
In terms of Agro’s
decision to deny Little standing on March 7, 2007, Langdon ruled that
s. 50 of the Law Society Act makes it clear that the Law Society of
Upper Canada decides the circumstances under which a student-at-law can
appear before Ontario courts and tribunals.
“The Law Society of
Upper Canada has made it clear that it is the articling principal that
is responsible to determine whether the student-at-law was sufficiently
capable to deal with the complexities of the matter and to provide any
requisite supervision, this includes consideration of the possible
consequences to the accused,” wrote Langdon.
conclusion, the trial judge was in error,” the judge later wrote. “To
begin with the trial was in no way complex. Indeed, as it unfolded it
was the simplest kind of trial.”
With these decisions in mind,
Langdon’s decision notes that to schedule a new trial on the matter
would bring to 15 months the amount of institutional delay “in a
jurisdiction where eight months marks the constitutionally tolerable
amount . . . for a simple proceeding of this nature.”
that Moran didn’t contest the merits of the allegations he faced,
Langdon said the accused did not have his Charter application heard,
which he was entitled to.
Langdon wrote, “By the time this
matter gets before a trial judge again, sufficient further time will
have elapsed that evidence of specific prejudice would not be
necessary. The proceedings are stayed.”