Access to Justice
Generally, access to justice refers to a range of institutional actions to ensure that people who lack resources or capabilities, can have access to the justice system.
One way an institution can promote access to justice is by intervening and helping to win landmark legal victories in crucial areas . The McGuigan case is a prime example of how an intervention by the Ontario Paralegal Association helped to win a landmark legal victory in a crucial area of law and thereby improved access to justice.
The Regional Municipality of York v. James McGuigan: Landmark intervention by the Ontario Paralegal Association
McGuigan was charged with speeding – driving 75 kilometers per hour in a 60 kilometer per hour zone. He faced a fine of $52.50. What caused such a simple and mundane charge to take on significant importance in Ontario and raise constitutional questions? The answer, with a drum roll is disclosure obligations. The justice of the peace who presided at the trial ordered the prosecutor to make disclosure; to provide relevant pages from the user manual of the device used by the police officer to measure the speed of McGuigan’s vehicle. The prosecutor refused to provide the disclosure and instead applied for a Certiorari order to quash the disclosure order. The prosecutor argued that the manuals belong to York Regional Police (the “YRP”), therefore the request constitutes a third-party disclosure and as such should be obtained from the YRP via an O’Connor application. The Superior Court of Justice agreed with the prosecutor and granted the Certiorari order and quashed the disclosure order.
At this stage, the OPA requested a leave to intervene, and leave was granted. Intervention by the OPA was necessary for the following reasons:
- The OPA is in a position to assist courts in providing a measure of representational balance and to permit courts to receive a broader range of views on the constitutionality of the legal issues central to this application.
- The constitutionality of quashing the disclosure order necessitates consideration of section 7 of the Canadian Charter of Rights and Freedoms. It impacts every person charged with an offence under section 128 of the Highway Traffic Act. The OPA is best suited to advocate in this regard on behalf of all the paralegals in the Province of Ontario.
- It is a fundamental argument in Provincial Offences as to what disclosure the defendant is entitled to and what the Prosecution’s disclosure obligations are. This too is important for the OPA and its members.
Upon intervening, the OPA appealed the Certiorari order. After hearing the arguments, the appeal court set aside the Certiorari order and reinstated the disclosure order made by the justice of the peace. The Certiorari order was set aside for the following reasons:
- Certiorari is an extraordinary remedy and should only be used rarely under the POA. Erroneous disclosure rulings constitute errors of law within the jurisdiction and these are appealable.
- The Superior court judge should not have exercised extraordinary remedy in the course of ongoing proceedings.
- The Superior court judge failed to consider that in accordance with POA s. 141(4), Certiorari remedy is only available where an order causes substantial wrong or miscarriage of justice. The appeal court found that the disclosure order made by the justice of the peace, fell well short of the standard required to overcome the bar put in place by s. 141(4).
The appeal court also reinstated the disclosure order with the following findings:
- The user manual procedures for the testing and operation of a speeding measuring device are subject to first-party disclosure (Stinchcombe) and not third-party disclosure (O’Connor).
- The appeal court further found that it was not sufficient for the prosecutor’s office to invite defence to view the user manual at the prosecutor’s office. The manner of disclosure is meant to be meaningful to allow the defence to make a full answer and defend their case. In short, the defendant must have a copy of the information during trial so that it can be used during the cross-examination of the police officer, or as an exhibit.
The appeal court took the following facts into consideration:
- There are more than 40,000 speeding tickets issued in York Region each year. Such disclosure requests are common. Previously, thousands of disclosure requests were granted and the prosecutor’s office provided a copy of the manuals.
- The prosecutor’s office also provided copies of the user manuals for speed measuring devices to paralegal agents appearing regularly in traffic court.
- The prosecutor’s office had a collection of user manuals for all speed measuring devices and these were available to be viewed in the prosecutor’s office.
- The charging police force has a duty to furnish the pertinent passages from the user manual to the prosecutor to enable the prosecutor to discharge its first-party disclosure obligations. This is not a crushing administrative task.
The McGuigan case clearly demonstrates that the OPA and its members are committed to access to justice. The OPA has a vested interest in legal matters that affect all Ontarians and will intervene in matters of significant legal importance. Although McGuigan was the first formal intervention by the OPA, it has previously funded defences of other important matters, including R v. Pawar,  O.J. No. 1566 and The Regional Municipality of York and Wadood and Davis  O.J. No. 2474.
The OPA will continue to promote access to justice as the Paralegal profession evolves, and in doing so may intervene in cases of significance in the future.
Do you know of any other cases where paralegals have improved access to justice?