In my previous post on this issue back in June 2018, I lamented about the lack of change for the use of agents in the Criminal Code. Section 802.1 says this:
Despite subsections 800(2) and 802(2), a defendant may not appear or examine or cross-examine witnesses by agent if he or she is liable, on summary conviction, to imprisonment for a term of more than six months, unless the defendant is a corporation or the agent is authorized to do so under a program approved by the lieutenant governor in council of the province. Criminal Code of Canada
Why is this a problem? It was because of the changes introduced by Bill C-75. The proposed bill intends to change the maximum imprisonment for all summary conviction offences to two years less a day. Section 787(1) would be amended to this:
Unless otherwise provided by law, every person who is convicted of an offence punishable on summary conviction is liable to a fine of not more than $5,000 or to a term of imprisonment of not more than two years less a day, or to both. Section 319 of Bill C-75
The various Law Societies and Legal Aid providers have opined on this conflict in the legislation. Treasurer Malcolm Mercer for the Law Society of Ontario gave submissions that stated that there should be no changes to the General Penalty when the Crown elects to proceed by summary conviction. The Treasurer felt that some crimes are more morally blameworthy than others and sentencing reflects those distinctions. For example, Theft Under $5000 can proceed summarily under the General Penalty, but Impaired Driving offences are set at 18 months as the maximum penalty. Therefore, Ontario Paralegals can represent accused of Theft Under $5000, but not accused of Impaired Driving offences. Legal Aid suggested another way; there should be a schedule of offences that paralegals, agents, and students-at-law can represent accused. Both of these carve-outs are unsatisfactory for Ontario Paralegals.
The Justice Committee has sought to address some of these concerns in a new amendment of s. 802.1 in the second reading of the Bill:
Despite subsections 800(2) and 802(2), a defendant may not appear or examine or cross-examine witnesses by agent if he or she is liable, on summary conviction, to imprisonment for a term of more than six months, unless(a) the defendant is an organization;(b) the defendant is appearing to request an adjournment of the proceedings; or(c) the agent is authorized to do so under a program approved — or criteria established — by the lieutenant governor in council of the province.
This new amendment still locks out paralegals, agents, and students-at-law from representing defendants in a summary conviction hearing, with the exception of to-be-spoken-to dates while the two sides prepare for trial. This is unacceptable.
The “status quo” position by the Law Societ of Ontario does not have merit. One can look to the Provincial Offences Act and see the wide range of punishments. Not only are there fines and driver’s licence demerit points, but jail time, as well. For example, the newly amended Careless Driving Causing Bodily Harm or Death in the Highway Traffic Act, punishment includes imprisonment for two years, aside from fines and driver’s licence suspensions. Under the Environmental Protection Act in Ontario, the term of imprisonment on some provincial offences can be as high as five years less a day. Ontario Paralegals can represent accused in these situations. So the idea that the status quo represents that there are different ‘levels’ of criminality does not hold up. The way in which the proposed amendment of s. 802.1 currently reads, Ontario’s Paralegals will be lucky to defend accused under the federal Cannabis Act.
Downloading the use of agents to the province makes little sense either. The provinces and their respective Law Societies are the greatest impediments to access to justice. Only British Columbia and Alberta have Orders In Council to deal with court agents for criminal matters. It would not guarantee access to justice. To their credit, some Law Societies are considering making the quantum leap from studying paraprofessional representation in the courts to act on access to justice. Both BC and Ontario are looking to implement special licences for Paralegals to deal with the unrepresented majority of parties in family law. In Ontario, before Paralegal regulation in 2007, Paralegals assisted on simple divorces and filling out paperwork, and on the odd occasion, represented their clients in court. Before 2007, the estimated percentage of self-represented litigants in family court was 60 percent. When Ontario’s Law Society regulated Paralegals, the estimated percentage of self-represented litigants post-2007 has risen dramatically to over 80 percent in some family courts. That is a direct effect of removing Paralegals from family law and a deliberate throttling of access to justice. If the proposed amendment to s. 802.1 passes in Parliament, I predict the same access to justice issues will occur in the criminal courts. This will bog down the system and make the Jordan decision either completely unworkable or perversely effective in removing valid cases from the scales of justice.
In keeping with my belief that those who complain should have solutions in mind to cure the perceived defects, I offer this to the Standing Committee on Justice and Human Rights: add a category of representative such as “licensed court agent”. The definition of “licensed court agent” could include paralegals licensed and authorized by the law of a province and students-at-law. This will protect the thousands of accused in securing a choice of representative, thereby increasing access to justice. It preserves the Law Societies’ duties to regulate and protect the public interest. It preserves the independence of the courts by not taking away its inherent jurisdiction to control its own process. It leaves space for the future for the Law Societies of other provinces outside of Ontario to license and regulate paralegals or court and tribunal agents to ensure competency. It can be limited to performing legal services and representation in summary conviction matters by adding the category to s. 802.1 of the Criminal Code.
The current realities favour a middle road. Legal Aid is not properly funded and, at best, can only serve the poorest of the poor. Hiring lawyers are cost-prohibitive. If the University of Toronto is raising their tuition for law school to $40,000 per year, is it really cost-effective for those new counsels (or even experienced ones) to take on that shoplifting case? Ontario’s Paralegals are regulated by the Law Society of Ontario and provide standards to the curriculum of study that includes criminal law. Ontario’s Paralegals are in the best position to strike the balance between competency and access to justice, and those things should be enhanced, not diminished by Bill C-75.