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Court finds JP showed appearance of bias towards lawyer

|Written By Glenn Kauth

The Ontario Court of Justice has acquitted a Toronto civil litigation practitioner of a Highway Traffic Act offence after finding a justice of the peace gave the appearance of bias towards him at trial.

The case involved Michael Jagtoo of Jagtoo & Jagtoo Professional Corp. over an alleged speeding incident on April 23, 2009. Five days before he was to go to trial before Justice of the Peace Robert Boychyn on Sept. 29, 2009, Jagtoo tried to request disclosure from prosecutor Jane Moffatt. But he sent the request to the wrong office, meaning Moffatt didn’t receive it until the day before trial. As a result, it was too late for her to process it, according the Dec. 9 ruling by Justice Robert Beninger on Jagtoo’s appeal in Durham (Regional Municipality) v. Jagtoo.

On the trial date, Jagtoo asked Moffatt to agree to an adjournment. But in court before the proceedings were to begin, Moffatt showed Jagtoo the police officer’s notes and summarized them for him. Jagtoo argued he didn’t read the notes, and Beninger ruled Moffatt’s actions didn’t constitute proper disclosure.

When Jagtoo then asked Boychyn for an adjournment, he refused and made the following comments: “I’m absolutely shocked and amazed that a barrister and solicitor, in good standing, in this province, would treat these matters in such a cavalier fashion. . . . I find your request to have this matter adjourned disingenuous and smacking of, what has been referred to as, sharp practice. . . . I’m disappointed in your request and I think it’s an embarrassment to and an insult to the court and to the profession of barristers and solicitors and your motion is declined.”

Noting that Boychyn made the comments before proceeding to trial, convicting Jagtoo of speeding, and fining him $259, Beninger ruled there was “an appearance that bias may have been exhibited towards the appellant.”

“A lawyer who is a defendant before the court should not be treated any differently, and should not appear to be treated any differently, than any other defendant before the court,” wrote Beninger.

In response, Beninger quashed the conviction and entered an acquittal.




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