After hearing impermissible inquiries into the complainant’s sexual history, repeated irrelevant and improperly posed questions, and various attempts to elicit inappropriate evidence, the judge was becoming increasingly exasperated. “If you are going to be a licensed paralegal who is going to proceed in criminal matters, you must represent your client according to the rules,” the judge said in a rebuke that day.
This was during a recent trial where a paralegal was attempting to defend a man accused of domestic assault and multiple counts of breaching the conditions of his bail. He was likely looking at significant jail time if found guilty.
A few days before that fiasco, I had a telephone pretrial meeting with another licensed paralegal who began to try to discuss the perceived weaknesses of the Crown’s case against a client accused of assault, possessing a dangerous weapon as well as property obtained by crime, and dangerous driving. It quickly became clear that not only did this agent not know even the most basic principles of the law surrounding search and seizure, thus rendering any informed discussion of the case impossible, but he seemed to not know what I was referring to when I mentioned the applicable sections of the Charter of Rights and Freedoms.
Not long before that conversation, I was the Crown in set-date court when an unlicensed would-be legal agent stepped forward to attempt to address a matter that he was statutorily barred from acting on as the Criminal Code prohibits any non-lawyer from representing an accused person if the charge has a maximum penalty of more than six months. In this case, the charge was assault causing bodily harm, one that, like impaired driving and over-80 charges, carries a potential jail term of up to 18 months.
Our duties as Crown attorneys include not only being strong and effective prosecutors but, in our roles as ministers of justice, ensuring that the system operates fairly for those accused of crimes. So it’s troubling when I see substandard representation in criminal courts where liberty is at stake.
Of course, none of this is to dispute that there are paralegals out there doing good work and providing value for clients in various areas of practice including, at times, during the early stages of low-level criminal cases and working in criminal lawyers’ offices assisting with less straightforward matters.
According to a recent Law Society of Upper Canada-commissioned survey, the province’s licensed paralegals are most commonly practising in the Small Claims Court as well as Provincial Offences Act and Landlord and Tenant Board matters. However, a significant percentage of them report practising in summary conviction criminal courts where, particularly in a borderline case, the quality of the defence work at trial — whether by a paralegal or a lawyer — can be the difference between freedom and incarceration.
Members of the public rightly expect that the legal advocates they hire are up to the job. Paralegals and lawyers need to be realistic and candid with prospective clients about their abilities and their level of experience in the criminal justice system and agents, whether licensed or not, need to be upfront and frank about their scope of practice. It isn’t difficult to find misleadingly worded web sites that give the impression that a non-lawyer will represent a person accused of impaired driving or over 80.
In many jurisdictions, unlicensed agents doing substantive work in the criminal context is now uncommon, although the less competent of these self-anointed legal representatives can plague the system.
It’s important to note that money generally doesn’t need to be the retainer-determining issue. Usually, if there’s a real prospect of someone going to jail when the Crown has indicated that it will be recommending a jail sentence in the event of a finding of guilt and the accused truly can’t afford to retain a lawyer, legal aid assistance is available to help pay for defence counsel.
Knowing how the courts have interpreted the more common sections of the Criminal Code as well as the fundamentals of the law of evidence and the Charter as it relates to criminal matters and having a familiarity with the procedures and conventions of criminal courts should be the minimum for anyone considering taking on a liberty-at-stake matter on their own. This also applies to new trial Crowns who are assigned a mentor to watch and assist them with the relatively low-stakes prosecutions they invariably start with.
The law society can only provide so much guidance, assistance, and oversight. Ultimately, it’s up to its licensees to make the effort to get up to speed by, for example, arranging for mentoring and participating in further education or, in the alternative, exercising the judgment to keep out of the criminal courts.
Criminal law dabblers can be a source of frustration and irritation for judges and Crowns and, in my experience, typically provide poor advocacy and weak representation for their clients. For the proper administration of justice, those advocates who are not sufficiently capable should stay away from liberty-at-stake matters and leave them to those defence lawyers who have training, experience, and a specialization in criminal law.
Scott Arnold is an assistant Crown attorney in Toronto.
