The recent decision of Justice Fuerst in R v. Lippa has the controversy over the standing of paralegals raging again in Ontario. The decision relates to whether judicial officers have the discretion over which legal professionals will sit in the courtroom, and the order of cases which will be called.
In deciding that paralegals can be treated differently within the court system, Justice Fuerst made some interesting comments. She states at para. 18,
…s. 29 of the Law Society Act provides that every person who is licensed to practise law in Ontario as a barrister and solicitor is an officer of every court of record in Ontario. Black’s Law Dictionary, 8th ed., defines “officer of the court” as “A person who is charged with upholding the law and administering the judicial system.” Licensed paralegals are not included in s. 29.
The section in the Act, which was last amended in 2006, states,
Officers of the courts
29. Every person who is licensed to practise law in Ontario as a barrister and solicitor is an officer of every court of record in Ontario. 2006, c. 21, Sched. C, s. 26.
Normally the expressio unius maxim would hold, as Justice Fuerst indicates, that the absence of paralegals from this section means they are not in fact officers of the court. But from at least April 2008, when paralegal licenses were first issued in Ontario, paralegals have commonly referred to themselves as such.
Paul Calarco describes the development of this concept in the 2007 paper presented at LSUC, “NOT IN MY COURT YOU DON’T!! The Right of Audience and the Enforcement of Ethical Conduct,”
In England the origins of the defence bar have been lost in time. Prior to C. E. 1200 there is no indication of a professional body of people who acted as lawyers. However, under the expansion of the common law rules in the era of Henry III and the legislation of Edward I, it became clear that people not skilled in the law could not hope to represent any other person.
As well, as pointed out by Professor Ogilvie, procedure was becoming more technical. In the first part of the thirteenth century, a group of what we would now call barristers was developing. By the end of the 13th century, it appears that lawyers were well established as part of the King’s courts. They were regarded as officers of the court. [citations omitted]
An officer of the court has a duty, as part of their profession, to promote justice and the effective operation of the justice system. However, barristers and solicitors are not the only officers of the court described in Canadian legislation.
The Supreme Court Act refers to several court support staff as officers, all of whom are necessary for the proper functioning of the Court. Although the Registrar of the Supreme Court and Deputy Registrar are both described in s. 12 as “barristers or advocates,” there are other officers, such as the Sheriff of the County of Carleton in s. 21 who clearly are not. The Act enumerates in s. 24 a lengthy list of officers,
Officers of the Court
24. All persons who may practise as barristers, advocates, counsel, attorneys, solicitors or proctors in the Court are officers of the Court.
But the Supreme Court is a statutory court. Calarco notes that determining the right of appearance are part of the discretionary powers of courts with inherent jurisdiction.
Section 800 of the Criminal Code allows an accused to appear on summary conviction personally or by an agent, which can include friends, relatives or interpreters. The responsibility placed on these agents was described by Justice Wein in R. v. Lemonides,  O.J. No. 3562, as follows,
79 All agents should expect to be in a position to satisfy the Court that the defendant has been advised of the agent’s status, and it should be clear on the record that the client waives their right to counsel and understands the significance of appearing without a lawyer. All agents should be aware that they will be expected by the Court to act as officers of the Court, that is in an ethical and competent manner. [emphasis added]
In other words, when non-licensees act as agents they are also required to act as officers of the court (even if they may not actually be officers, as suggested by Justice Hill in R. v. Romanowic at para. 40; but note this is the context of being an unlicensed agent). To suggest that a licensee acting in the same capacity in Ontario is not also acting as an officer of the court simply does not follow.
The in pari materia maxim of statutory interpretation, looking at other statutes in Canada, would suggest that an expansive definition is provided to officers of the court throughout our judicial system. The title denotes more of a responsibility to the court system than any proffered right, such as appearing before the bar. Interpretation and use of the term by courts also suggests a broad and liberal meaning.
Justice Green of the Supreme Court of Newfoundland and Labrador referred to the Adult Corrections Act in NLAPPE v. Newfoundland (Minister of Justice) to indicate that probation officers had a right to strike, but were obligated as officers of the court to continue to perform duties lawfully required of them by the court.
Justice Garson of the Supreme Court of British Columbia considered the admissibility of a court monitor’s report and the compellability of a monitor as an expert witness in Pine Valley Mining Corporation (Re), and cited Janis Sarra in “Rescue!: The Companies’ Creditors Arrangement Act,”
As an officer of the court, the monitor has been found not to be compellable to give evidence in a proceeding, although the monitor reports to the court on a regular basis. The monitor’s reports have been found to be “not evidence” and hence not generally subject to cross-examination; rather, as an officer of the court, the monitor is to act “lawfully, fairly and honourably”. In Ontario, the court has held that insolvency officers will not generally be subject to cross-examination of their reports, while acknowledging that these court-appointed officers do occasionally make themselves available for examination in the spirit of co-operation and common sense. [emphasis added]
Similar comments can be found by Justice Farley of the Ontario Superior Court of Justice in the Commercial List case of Bell Canada International Inc., Re.
Perhaps the most expansive comments on this topic recently would be by Justice Himel in Page (Trustee of), where she considers whether persons who accept appointments as a trustee in bankruptcy or a receiver is an officer of a court, and therefore exempt from jury duty under the Juries Act. Justice Himel provides a comprehensive review of case law of various positions and titles which are included as officers of the court, even where they are not explicitly stated as such by legislation. She also refers to Black’s Law Dictionary (though an earlier edition than Justice Fuerst), cites the Courts of Justice Act and Public Service Act, and provides several maxims of statutory interpretation.
Justice Himel concludes trustees in bankruptcy and receivers are officers of a court of justice, but her analysis in Page doesn’t resolve the issue entirely. Her interpretation of the Juries Act is largely based on the language in s. 3(1) of the Act, which states,
3. (1) The following persons are ineligible to serve as jurors:
6. Every person engaged in the enforcement of law including, without restricting the generality of the foregoing, sheriffs, wardens of any penitentiary, superintendents, jailers or keepers of prisons, correctional institutions or lockups, sheriff’s officers, police officers, firefighters who are regularly employed by a fire department for the purposes of subsection 41 (1) of the Fire Protection and Prevention Act, 1997, and officers of a court of justice. R.S.O. 1990, c. J.3, s. 3 (1); 1994, c. 27, s. 48 (1); 1997, c. 4, s. 82. [emphasis added]
This specific wording would prevent any application of expressio unius or ejusdem generis (both of which can be applied to lists) to the Juries Act, and no such expansive language can be found in the Law Society Act.
We could assume the absurd interpretation that paralegals in Ontario are officers of the court for the purposes of being excluded from juries, but not for the purposes of actually operating within the court system. But the noscitur a sociis maxim of interpretation may be of assistance in looking elsewhere in the Law Society Act specifically in order to provide broader context.
The 2006 amendments to the Law Society Act created the Paralegal Standing Committee, which in turn led to the changes which created paralegal licensing in 2007. The Paralegal Standing Committee, created in s. 25.1 of the Act, is also responsible for creating the by-laws for paralegal regulation. Subsection 25.1(10) of the Act also confers quite a bit of discretionary power to the Committee as follows,
Delegation of powers to committee or referee or both
(10) Convocation may delegate any of the powers conferred upon it by this section to a committee of Convocation and, whether or not Convocation has made any such delegation, it may appoint any licensee as a referee and delegate to the licensee any of the powers conferred upon it by this section that are not delegated to a committee. R.S.O. 1990, c. L.8, s. 51 (10); 2006, c. 21, Sched. C, s. 71 (7). [emphasis added]
The Committee was specifically responsible for and instituted the Paralegal Rules of Conduct. Rule 3.04(1) discusses personal interests and how to deal with conflicts of interests which may arise from personal relationships, and states,
Whether such a relationship may interfere with the paralegal’s fiduciary obligations to the client, including his or her ability to exercise independent professional judgment and his or her ability to fulfill obligations owed as an officer of the court and to the administration of justice. [emphasis added]
The implications of not recognizing paralegals of officers of the court is to disregard the ethical obligations they owe to the court. Ensuring that paralegals are officers of the court benefits the public interest and the entire judicial system, because it indicates they have a broader duty and professional responsibility to the law.
Calarco points out the close relationship between the right of appearance as officers of the court and enforcement of ethical conduct. When appearance is denied, the purpose is not necessarily punishment, but rather promotion of the proper administration of justice.
Without the possibility of discipline there is little ability by the legal system to address unethical conduct of licensees. Courts also have their own ability to enact discipline against officers of the court. The Ontario Court of Appeal stated in R. v. Elliott,  O.J. No. 4694,
144 The power of a superior court to cite a person for contempt of court is a very important power but it is to be used with restraint. It is a serious matter to threaten anyone, let alone an officer of the court, with contempt of court…
Although the Law Society Act may not explicitly identify paralegals under s. 29, this should not be taken as an exhaustive list, especially since these amendments occurred before paralegals were officially licensed. As we’ve seen, there are many other officers of the court within the judicial system.
This section in the Law Society Act could not have envisioned or foreseen the prospective developments of the Paralegal Standing Committee, and the intent of the statute could not reasonably be construed as binding their authority to define and regulate the new legal profession which was being contemplated in Ontario at the time.
The same Act used by Justice Fuerst also provides broad discretion under s. 25.1 to the Paralegal Standing Committee, which has seen it fit to refer to paralegals as officers of the court in at least once instance. Conferring this status does not necessarily change the decision of Justice Fuerst about the order in which cases are called, which is based in law in the Barristers Act and the inherent jurisdiction of superior courts, but it does have some significance.
One final thought can be derived from a small footnote in a 2006 decision by Master MacLeod in Iroquois Falls Power Corp. v. Jacobs Canada Inc., where he discusses the roles of the court and the Law Society in governing the conduct of lawyers,
Whatever historical differences may have existed between the roles of barrister and solicitor no longer apply under Ontario law. s. 29 of the Law Society Act provides that every “member” is an officer of every court of record in Ontario and s. 28 provides that a person who is qualified and is called to the bar and enrolled and admitted as a solicitor “are members and entitled to practice law in Ontario as barristers and solicitors”.
Similarly, whatever historical differences may have existed between the roles of lawyers and paralegals no longer apply in Ontario as it relates to their status as officers of the court, despite differences in scope of practice. As “licensees,” paralegals are just as responsible to the Law Society for their license as lawyers are, and are just as answerable to the court as its officers.
Ensuring this duty exists for all licensed agents working within our court system for the courts that they work in can only be a good thing for other licensees, the judicial system as a whole, and the public.