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Court clarifies role of articling students

|Written By Robert Todd

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.

Mitchell Worsoff says he believes the case is the first to deal with the scope of an articling student’s activities.

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.

The 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.

“The 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.

“If 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 trials.

“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.”

The 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 blood alcohol.

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.

The 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.

“The 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.

“Justice 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 Langdon.

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.

“In this 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.”

Noting 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.”

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