Lawyer convicted, fined for criminal contempt of...
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Dec 13, 2014  |  Vote 0    0

Lawyer convicted, fined for criminal contempt of court

Gina DaFonte blames missing four court appearances in two months on “health issues”

OurWindsor.Ca

First lawyer Gina DaFonte failed to attend one court appearance for a client who had pled guilty to assaulting and threatening her husband.

But when she missed four court appearances in two months, Ontario Court Justice Lesley M. Baldwin had had enough.

The Halton judge cited DaFonte for contempt of court on March 10 and took the rare of step of convicting her on Dec. 3.

“Her conduct went far beyond mere discourtesy or inconvenience,” Baldwin wrote in her 37-page decision. “Her conduct has interfered with the court’s authority and its ability to administer justice.”

The decision illustrates the lengths the Crown, duty counsel, court staff and DaFonte’s own client went to get in touch with her about the court dates, including phone calls that were not promptly returned, emails she said ended up in her junk folder and a letter delivered by courier she said she never saw.

It also lists a number of reasons DaFonte gave for her absences, such as a claim she was so disoriented from taking over-the-counter flu medications that she did not know what day of the week it was.

In the process, her client’s case dragged on for over a year, Baldwin wrote, and a family court case involving her two young children was delayed.

DaFonte’s lawyer, Paul Calarco, declined to comment, other than to say he has “strongly recommended” that DaFonte appeal. DaFonte, who testified she has been practising criminal and family law for the past 10 years, did not respond to phone calls or an email.

“It’s a very unusual remedy that a judge would find somebody in criminal contempt of court, especially a lawyer,” said Toronto criminal lawyer Daniel Brown. “Normally, the type of behaviour that was exhibited falls under the category of professional misconduct, and is normally referred to the Law Society.”

Baldwin wrote that she would send her decision to the Law Society of Upper Canada “for any supervision or other action they deem appropriate.” A society spokesman said it is “aware” of the decision.

DaFonte first entered client Tracy Fleming’s life around April 2013 when Fleming retained her as her new lawyer prior to her sentencing, according to another court decision dealing specifically with Fleming’s case. DaFonte appeared before Justice Brian Stead in July 2013 and said she would apply to strike Fleming’s guilty pleas, alleging ineffective assistance of counsel. (Fleming, who was charged in 2012, had pled guilty earlier in 2013 while being advised by another lawyer.)

That’s when things started to get complicated.

DaFonte failed to appear at the next court date on Aug. 28, telling the Crown in a letter she was on medical leave from Aug. 21 to Sept. 13. The matter was adjourned until Oct. 4. She did appear on that date, but the application had not been “perfected,” read the decision, so the matter was again adjourned until Jan. 28, 2014.

Jan. 28 is the first date that is the focus of Baldwin’s contempt of court ruling. The judge quoted from a Jan. 26 email DaFonte sent to Fleming that said she was ill and might not be able to attend court, but that she would let the Crown know.

Fleming wrote back on Jan. 27: “I can understand that you’re sick but you have to realize I need to take care of this it has been 2 years and I need to get out of here. The longer it’s put off is the longer my life is in Limbo. Please keep this court date to keep things moving along. Thank you.”

DaFonte did not appear, sending a fax to the courthouse at 7:42 a.m. on Jan. 28, saying she was ill. The hearing went ahead, with the Crown saying it could not reach DaFonte — pointing out that her office phone number is simply an answering service — about scheduling another date.

Fleming, stuck having to represent herself at the Jan. 28 hearing, asked DaFonte in an email on Jan. 31 if she would be at the next court date on Feb. 4, writing: “the crown certainly tore me apart and the judge literally stuck up for me.”

The Crown also faxed a letter on Jan. 28 informing DaFonte of the Feb. 4 date. But when the day came, she was nowhere to be found. She would later claim that Fleming’s email ended up in her junk folder, and that she “misread the Crown’s letter,” according to Baldwin’s decision.

After the second no-show, the Crown sent a letter via overnight courier to DaFonte’s Bay St. office address, saying that on Feb. 10 it would ask for an order compelling her to appear. The elusive lawyer wasn’t present on Feb. 10. She would later testify that she knew nothing of the Crown’s letter, saying the receptionist at her office never told her about it.

The receptionist would later testify that she does not work for DaFonte, but is the receptionist for a law firm in the Bay St. building where DaFonte’s office is located. She said DaFonte is a subtenant of the firm, but is rarely in the office. She said she would place any mail for DaFonte on her desk, but would never notify her.

Baldwin, who had by now taken over the case, adjourned the matter until Feb. 11, and made the order for DaFonte to appear. DaFonte did arrive that day — albeit late — and only to ask for more time to review her application about striking the guilty pleas. At that time Baldwin told her: “I don’t think you have been on top of this file.” DaFonte said that “she does not make it a practice to miss court appearances.”

The matter was pushed to March 10. DaFonte did not appear; it was the fourth time in two months she had missed a court appearance. After court staff tried several times to reach her, Baldwin cited her for contempt of court.

DaFonte would testify at the contempt trial that “she has had health issues over the years and she goes up and down.” She said she had been feeling ill on March 10, and that when her husband left for work that morning, she did not know what day it was. Her husband of three years, Andre Hermanstyne, a social worker, testified that she seemed “out of it.”

DaFonte said she waited until her husband came home with the car to take her to a clinic late that afternoon, where she received a sick note. In her testimony, she said “her disorientation and confusion could have been caused by the Neocitran and cold/flu pills she was taking that day.”

Calarco, DaFonte’s lawyer, submitted that no contempt took place because DaFonte was ill, and pointed out that she had apologized. He asked that the citation be dismissed.

The judge did not agree.

“I am satisfied beyond a reasonable doubt on the facts of this case that Ms. DaFonte’s conduct demonstrates reckless indifference to her obligations to the Court and her client,” Baldwin wrote.

She was fined $500, to be paid within 60 days.

Separately, Fleming’s guilty pleas were maintained.

It would appear that DaFonte is also a wedding planner on the side. A website for Luxe and Lavish Events, which is registered to DaFonte’s law office, says: “Using her background in the legal field, Gina translates her analytical and detail-focused skills to plan sophisticated events and spectacular affairs.”

In another episode, DaFonte represented Hermanstyne in 2011 in his custody battle with his former partner, who was seeking an increase in child support as well as arrears of child support for their two children. (According to the contempt of court ruling, DaFonte and Hermanstyne have been together since 2007, and married for the past three years.) The result of the family court case is unclear, but what is known is that Justice Robert Spence granted the mother’s application to remove DaFonte as Hermanstyne’s lawyer.

“The father and his lawyer have a romantic relationship and are cohabiting within that relationship. Either at trial, or in out-of-court questioning, the mother will be seeking to elicit evidence about the father’s lifestyle in connection with both the access issue as well as the support issue,” wrote Spence in his ruling. “To that end, mother’s counsel may wish to call the father’s counsel as a witness in this proceeding, as she has knowledge of the father’s lifestyle.”

Toronto Star

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