Qualification of Agent
As a general rule, a representative is permitted to represent a defendant in certain proceedings in the OCJ. Section 50 of the POA provides for a defendant to appear and act personally or by representative at trial in provincial offences matters, while s. 118 provides for an appellant or respondent in appeals of Part III matters to appear and act personally or by representative. A “representative” is defined in s. 1(1) as “a person authorized under the Law Society Act to represent a person in that proceeding”.
In addition to a lawyer or paralegal holding a Class P1 license, a non-licensed family member or friend who does not expect or receive compensation for the provision of legal services, is authorized to represent a defendant in any proceedings under the POA before the OCJ.
The right of a representative to appear is subject to the court’s authority to control its own process. Pursuant to s.50(3) of the PoA, a trial judge has the authority to refuse to permit an agent who is not a lawyer to represent an accused person in summary conviction trial proceedings if the court finds that the person is not competent properly to represent or advise the person for whom he or she appears, or does not understand and comply with the duties and responsibilities of a representative.
The procedure to be followed is as follows. The court should first determine whether the defendant has made an informed choice to be represented by the agent. In appropriate cases, the court may also inquire into the propriety of the representation. Disqualification is justified only where representation would clearly be inconsistent with the proper administration of justice. It is not enough that the trial judge believes that the accused would be better off with other representation or that the process would operate more smoothly and effectively if the accused were represented by someone else. Disqualification of an accused’s chosen representative is a serious matter and is warranted only where it is necessary to protect the proper administration of justice.
The circumstances of the particular case will inform the decision of whether to disqualify, including the seriousness of the charge and the complexity of the issues raised.
Examples of conduct that could lead to disqualification include: questions of competence, discreditable conduct, conflict of interest and a demonstrated intention not to be bound by the rules and procedures governing criminal trials: R v Allahyar, 2017 ONCA 345 at paras 11-19
Questions respecting the standard of competence required of licensed paralegals have been addressed in recent cases such as R v Khan, 2015 ONCJ 221,  OJ No 2096 and R v Bilinski, 2013 ONSC 2824,  OJ No 2984.
On appeal, fresh evidence showing that the appellant suffers from mental illness that has a detrimental effect on his ability to earn money to pay the fines, may demonstrate to the appeal court that it is in the interests of justice that the total amount of the fines be reduced: R v AE, 2016 ONCA 243 at para 57