Lawyers said the unintended consequences of the bill raise questions about how the legal profession balances training the next generation of lawyers while handling important criminal matters.
Visible minorities, Indigenous, low-income and immigrant communities currently rely on paralegals and students for summary conviction hearings — an option that may be eliminated under the bill, a result of changes to the mandatory sentences, the law society said in a document presented to Convocation last week in a report to Convocation from the Government and Public Affairs Committee.
The law society, represented by Treasurer Malcolm Mercer and Bencher Suzanne Clément, also made the comments before the Justice and Human Rights committee of the House of Commons, which devoted a couple of weeks to studying the bill.
The committee had published a list of nearly 50 witnesses or briefs by the middle of last week, including many from Ontario lawyers and legal organizations, such as Legal Aid Ontario, Toronto Lawyers Association and professors from Ryerson University, Queens University, the University of Ottawa and the University of Toronto.
Emma Rhodes, a lawyer that focuses on representing young people on youth criminal justice and child protection matters, says that if articling students aren’t allowed to take on such cases with the assistance of senior lawyers, it might create a future problem for the profession.
“This is part of a larger problem that we have with respect to mentoring future lawyers in the criminal bar. We know that articling positions as criminal lawyers are decreasing [and] mentorship opportunities are decreasing. It’s an overriding concern that future lawyers that want to go into criminal justice are not going to get proper mentorship,” says Rhodes, who works in association with Paradigm Law Group. “I don’t think the repercussions have been thought through.”
The law society’s brief recommendation to the government doesn’t necessarily distinguish between regulated agents, who may receive different types of training. Licensing candidates, for example, must complete at least the equivalent of two years of coursework in an approved Canadian Common Law Program, two-thirds of which must have been in-person study, according to the Federation of Law Societies of Canada National Committee on Accreditation. Paralegals require at least 710 hours of classroom instruction on core subjects, according to the LSO website.
“I always have concerns with paralegals representing vulnerable populations because they don’t have the same supervision. For a person who doesn’t have a knowledge, they may not understand the difference between a paralegal and a lawyer,” she says.
Rebecca Bromwich, who teaches law at Carleton University, says the LSO’s position also indicates that the profession many have been cavalier about deciding which issues should be suitable for articling students or paralegals and whether the requirements should be different for each of the two professional groups.
“With this reform, the liberty that’s at stake for the accused is pretty significant. It begs a really foundational question: What’s the difference between lawyers and paralegals and articling students? Why are lawyers better?” Bromwich says.
The law society’s submissions say that Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts “increases the default maximum penalty for summary conviction offences from 6 months to two years less a day of imprisonment.”
This increase in the maximum penalty from summary conviction means that the accused cannot use so-called regulated agents, such as paralegals, lawyer licensing candidates and law students, to represent them in court on “routine aspects” of these matters, the law society’s brief said. Instead, the law society’s recommendation said that the government should maintain the status quo and should be a separate category of summary conviction offences with maximum penalties of six months. Otherwise, the law society says, vulnerable populations may be most affected and lose a “relatively affordable” option for representation.
Another solution could be to permit regulated agents to appear on summary conviction matters through an order-in-council. But, Mercer says, this route would put the regulatory aspect in the hands of the provincial government rather than the LSO. Such an option could “cede a vital part of the Law Society’s regulatory authority,” the law society’s brief said, adding that the matter would be “more appropriately managed within the regulatory mandate and expertise of the Law Society.”
“The issue is simply not before the parliamentary committee whether or not there should be separate scopes of practice for students and paralegals. That’s not something the law society has been asked to consider nor has it considered it. If that is something [that] ought to be considered, the law society is the right place, the best place, to determine scope of practice. It would be perfectly appropriate to propose. . . . [I]t hasn’t happened,” Mercer says.
He says the law society agreed to take on the regulation of paralegals more than a decade ago and has worked hard — with success — on the scope, education, conduct and insurance requirements of paralegals.
“It would be inadvisable in my view for all of that to be abandoned in the criminal law context and have the government of Ontario take over the regulation of the scope of practice of paralegals in that context,” Mercer says.