Law Times

Page 4 February 11, 2013 Law Times • NEWS Pastor charged hourly rate 'Circular argument' criticized Continued from page 1 misrepresenting his qualifications. In a 2004 ruling in Protsko v. Angel Edward & Associates, the Superior Court found he had been assisting a client, Nadia Protsko, with an immigration matter along with a fellow defendant, Alexander Yusfin. "There can be no doubt that the unsuspecting and particularly those not conversant with the English language would likely conclude, particularly from Mr. Augier's business card, that he had legal qualifications: and may have been, indeed, a lawyer. Mr. Augier's targeted market were the relatively poor and vulnerable; as appears from evidence given by Mr. Yusfin," wrote former justice Keith Hoilett. For his part, Goldstein noted McGuire Law Corp.'s web site indicated Augier had experience negotiating an estates settlement and representing a client in divorce and immigration proceedings. Augier's legal practices came to the law society's attention after it received a complaint from one of his former clients who had paid him a substantial amount of money to deal with her divorce proceedings. According to the injunction ruling, Augier had the client, identified as Ms. Acacio, sign a direction giving him authority to act as her agent. "There can be no doubt that the licensing regime is directed at people exactly like Mr. Augier: charlatans who take advantage of vulnerable people to enrich themselves," said Goldstein, who noted the banner on Augier's letterhead referred to "McGuire Law Corporation." However, Augier denied having control over McGuire Law Corp. Instead, he claimed he was the pastor of the Abba Uno church and was simply "ministering to his flock." Augier said the church, meaning "one father" in Latin, is a non-profit organization that gets its funding through charitable donations. In a 2010 letter to the City of Hamilton, Augier said the church had no government or grant funding. At the time, he was requesting that the city's economic development committee "waive the building department fees for a change of use application and the addition of a roof storage area." According to the Spectator, Augier said he had raised about $1.5 million from private donors over the years as "gifts" from people helping him get started. Despite his claims that the funds went directly to McGuire Law Corp., Goldstein found Augier was charging clients an hourly rate for his legal services. "Negotiating an estates matter and representing a client in a divorce proceeding are classic examples of practising law," wrote Goldstein, who noted Augier had written Acacio a letter demanding a further retainer to proceed with her divorce case. "The affidavit of Ms. Acacio makes it clear that she believed he was a lawyer." According to Julia Wilkes, a civil litigator who offered a legal opinion to the law society before it brought its application for an injunction, the court ruling is the "first step" in the process. "In the event that the individual continues to provide legal services, they then can be held accountable for breaching a court order," says Wilkes. Although the Abba Uno and McGuire Law Corp. web sites are no longer in operation, Wilkes says the law society has no indication as to whether or not Augier is still providing legal services. "At this point, we're not certain whether or not he is or isn't," says Wilkes. "But in the event that he does, now that this court order is out there, there are sanctions and disciplines in the future." In response to inquiries from Law Times, Augier's assistant, J.T. McBane, responded on his behalf to note that the pastor is appealing the injunction. According to law society spokesman Roy Thomas, the LSUC has brought 17 cases related to the unauthorized practice of law over the past three years. Although the LSUC has the power to fine and order an unauthorized practitioner to stop posing as a lawyer or paralegal, Thomas says it does "not know definitively how many individuals commit this kind of fraud." However, it receives about 5,000 complaints a year about lawyers, paralegals, and others who engage in the unauthorized practice of law or provision of legal services. LT Happy Family Day Law Times will not be publishing next week but will return on Feb. 25, 2013. Meanwhile, enjoy fresh content on our web site at www.lawtimesnews.com Continued from page 1 couldn't have affected the outcome of the trial. "The errors occasioned no prejudice or appearance of unfairness," said Rouleau, noting that since the judge excused all 11 potential jurors, they couldn't have affected Sinclair's case. But Toronto criminal defence lawyer David Cohn says he's "troubled" by that argument. "It misses the fact that we're still left in a vacuum as to why they were excused. That's a very circular argument," he says. In Cohn's view, the exclusion of all potential jurors without clear reasons doesn't comfort the accused as he doesn't know if the judge eliminated those who would have rightly decided in his favour. "More recent cases from the Court of Appeal seem to have adopted a more functional approach whereby the appearance of justice is a governing standard," he says. "And I'd say the problem with that is that the appearance-of-justice standard becomes a moving target depending on the seemingly subjective view of that particular bench." Whenever a judge errs in similar ways, it should lead to a finding of a miscarriage of justice, says Cohn. "The right to be present at your trial is such an important right that any breach of it should lead to the appearance of unfairness. For the judge to usurp that right by removing jurors that are potentially favourable to the accused, potentially favourable to the Crown, without the Crown or without the defence knowing is a very substantial beach of the accused's right to be present at his trial." Criminal lawyer Craig Penney compares the case with the recent Supreme Court of Canada decision in R. v. Yumnu. In that case, the top court ruled the appearance of unfairness must involve "a serious interference with the administration of justice and offend the community's sense of fair play and decency." Penney says these decisions are akin to deeming a judge's error bad but not fatal. "These trials won't be considered fair, but as far as the Supreme Court of Canada is concerned, they're fair enough," he adds. In his list of reasons for dismissing the appeal, Rouleau also mentioned the fact the defence didn't raise an objection during the trial about the private conversations. That's a lesson to all defence counsel, says Penney. "This shift is another reminder of the vigilance that must be shown at trial. Voice your objection and articulate then and there unfairness or appearance of unfairness." For appellate lawyers, it means "you'll need to turn your mind to the issue of how the wrong prejudiced your client," he adds. "Can you demonstrate that, without this error, there is a reasonable possibility that the verdict would have been any different?" But from the perspective of the accused, that's not a fair standard, says Cohn. "To me, that doesn't make a lot of sense because if counsel was ineffective, that should not fall at the feet of the accused," he adds. Cohn suggests there's also no clear way to reconcile Rouleau's statement that the accused's exclusion from discussions with potential jurors "impairs the appearance of fairness, compromises the transparency of the trial proceedings" and his later finding that these errors "occasioned no prejudice or appearance of unfairness." But Rouleau's decision also outlined a number of steps trial judges can take in the future to protect the privacy of potential jurors while maintaining the opencourts principle. Judges, he wrote, should seek counsel's agreement about the procedure they wish to follow, ensure a record of all exchanges with potential jurors, and write a brief reason on the record for excusing someone from jury duty. Sinclair had also appealed over the fact that before his arraignment, his lawyer and counsel for the Crown had an in-chambers conversation about the wording of the R. v. Parks question put forward to potential jurors. (The Parks question seeks to confirm that potential jurors wouldn't have a bias against a black person charged with harming a white person.) But Rouleau rejected this aspect of Sinclair's appeal. "The in-chambers discussions in this case were preliminary in nature," wrote Rouleau. "The trial judge subsequently summarized the nature of these discussions on the record in open court and in the accused's presence." LT AVAILABLE ONLINE AND IN PRINT WIpN GACard le ift REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! ting 500 Aepyour current lisnced a Upgrad or Silver enh 13 ld 20 to a Go by June 30, in. listing hance to w for a c elow for details $ See b PLUS! Monthly draws from January to June, 2013 for a $100 Apple Gift Card just for asking how you can develop your business with an Annual Gold or Silver Enhanced Listing. Untitled-3 1 With more than 179,000 page views and 31,000 unique visitors monthly canadianlawlist.com captures your market. FOR MORE INFORMATION CONTACT Colleen Austin T: 416.649.9327 | E: colleen.austin@thomsonreuters.com Visit www.canadianlawlist.com for full contest details. www.lawtimesnews.com 13-01-08 1:26 PM

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