R v Allahyar

R. v. Allahyar

2017 ONCA 345
Court of Appeal for Ontario — Gillese, van Rensburg and Brown JJ.A. | May 1, 2017

Background

Mohammad Allahyar, a non-native English speaker, was charged with speeding under section 128 of the Highway Traffic Act. Throughout multiple court appearances over several months, he was assisted by his brother-in-law, Ethan Miazad — with the prosecutor's agreement and the justice of the peace's approval. Allahyar requested disclosure of the operating manual for the radar device that captured his speed. The court ordered the OPP to provide photocopies of the relevant pages, but when Miazad went to the police station, officers refused to let him photocopy anything.

After repeated adjournments and the prosecution's continued failure to provide proper disclosure, the justice of the peace entered a stay of proceedings under section 7 of the Charter. The prosecutor appealed to the Ontario Court of Justice, where the appeal judge suddenly refused to allow Miazad to represent Allahyar, stating he was "becoming more and more concerned about individuals representing individuals in criminal or quasi-criminal or Provincial Offences Act matters that aren't properly trained." The appeal was allowed and the stay was overturned.

Issues

1. Did the appeal judge err in refusing to permit Miazad to represent Allahyar on the appeal?
2. What are the proper considerations when deciding whether to disqualify a non-lawyer representative?

The Right to Representation by Family and Friends

The Court of Appeal ruled that the appeal judge made a serious error. Under the Provincial Offences Act and Law Society bylaws, non-licensed family members and friends who don't expect compensation are explicitly authorized to represent defendants in POA proceedings. The court emphasized that the leading case, R. v. Romanowicz, sets a high bar for disqualifying someone's chosen representative: disqualification is only justified where representation "would clearly be inconsistent with the proper administration of justice." It's not enough that the judge thinks the accused would be better off with other representation.

The appeal judge failed to consider the specific circumstances of this case. Miazad had demonstrated skill and diligence — he identified case authority for disclosure requests, brought proper Charter motions with supporting affidavits and factums, and successfully obtained a stay. There was no evidence of incompetence, conflict of interest, or any threat to the administration of justice. The judge's blanket concern about non-lawyers appearing in POA matters was exactly the kind of "arbitrary rule" that Romanowicz warned against.

Key Takeaway

You have the right to be represented by an unpaid family member or friend in Provincial Offences Act proceedings, and judges cannot disqualify them based on general concerns about non-lawyer representation.

The court must point to specific problems with your representative's competence or conduct that threaten the proper administration of justice. Simply lacking formal legal training is not grounds for disqualification, especially when your representative has been helping you effectively throughout the proceedings.