R v Bilinski

R. v. Bilinski

2013 ONSC 2824
Ontario Superior Court of Justice — Justice Durno | June 14, 2013

Background

Janusz Bilinski was charged with two counts of assault against his wife, Aleksandra Niemczyk. The Crown alleged he kicked her on December 22, 2010, causing a bruise to her leg, and pushed his fists into her face on December 26, leaving marks. Bilinski retained a licensed paralegal, John Chojnacki, to represent him at trial instead of a lawyer.

At trial, the paralegal's performance was heavily criticized by the trial judge. The paralegal made several questionable decisions: he asked to combine another charge at the start of trial (alerting the judge that Bilinski had violated his release conditions), failed to subpoena a potential witness, provided inadequate cross-examination, attempted to call improper character evidence, and didn't properly prepare his client. The trial judge convicted Bilinski on both counts, noting the paralegal "either doesn't understand his obligation" regarding basic trial procedures.

Issues

1. Whether the Law Society's regulation of paralegals created a new standard entitling defendants to effective representation equivalent to lawyer representation
2. Whether the paralegal's performance was so deficient it caused a miscarriage of justice warranting a new trial

The Paralegal Standard

Bilinski argued that since the Law Society of Upper Canada began regulating paralegals in 2007, defendants should now expect the same quality of representation from licensed paralegals as from lawyers. The court firmly rejected this argument, relying on the 1999 Court of Appeal decision in R. v. Romanowicz.

Justice Durno explained that fundamental differences remain between lawyers and paralegals despite regulation. Lawyers must complete law school, articles, and extensive licensing requirements. Paralegals need only complete approved legal services programs with less substantive examinations. Many paralegals, including Chojnacki, were "grandfathered" into licensing with no educational requirements beyond three years of experience.

The court emphasized that "an accused cannot at the same time exercise the right to proceed without the assistance of counsel and yet demand the right to the effective assistance of counsel." Choosing a paralegal means accepting a lower standard of representation.

The Miscarriage of Justice Analysis

Even applying a lower standard for paralegals, Justice Durno found no miscarriage of justice. While acknowledging the paralegal made several errors, the court concluded none affected the trial's reliability. The complainant and her daughter testified consistently, and police observed injuries matching the allegations. Bilinski gave a full account of his version of events, which the trial judge rejected based on credibility and demeanor, not due to inadequate representation.

The court noted that many of the paralegal's alleged failures were either not established on the evidence or involved tactical decisions where reasonable counsel could differ. For example, the failure to subpoena a witness who had never given a statement and didn't want to testify could not be shown to have affected the outcome.

Key Takeaway

Choosing a paralegal over a lawyer means accepting that you won't receive lawyer-quality representation, and you can't later complain about that choice.

While paralegals are now regulated, they still don't have the same training as lawyers. If you want the constitutional right to effective assistance of counsel, you need to hire actual counsel — not a paralegal.