When I hear “I have good news and bad news, which do you want to hear first?” I always want to hear the bad news so I can end with the good news. For Canadian clinical legal education, here is the bad news.
Bill C-75 – Unintended Consequences?
The federal government introduced Bill C-75 for first reading in the House of Commons on March 29. This bill includes many significant and progressive reforms to the Criminal Code.
The bad news in the bill is s. 319, which amends s. 387 of the current Code:
319 Section 787 of the Act is replaced by the following:
787 (1) 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.
Imprisonment in default if not otherwise specified
(2) If the imposition of a fine or the making of an order for the payment of money is authorized by law, but the law does not provide that imprisonment may be imposed in default of payment of the fine or compliance with the order, the court may order that in default of payment of the fine or compliance with the order, as the case may be, the defendant shall be imprisoned for a term of not more than two years less a day.
Here is the significance of this amendment. Summary conviction offences currently carry a penalty of a maximum of six months of imprisonment. A few summary conviction offences (called super summary offences) carry a penalty of 18 months of imprisonment. Bill C-75 increases the maximum to two years.
But there’s a catch for law school clinics, many of whom appear in the criminal courts to represent low income persons accused of summary conviction offences.
There is another section of the Code, s. 802.1, which deals with non-lawyers appearing on summary conviction offences:
Limitation on the use of agents
802.1 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.
Section 802.1 is not amended by Bill C-75. Increasing the maximum penalty to two years now means that s. 802.1 prohibits any non-lawyer from defending an accused, including law students. In other words, criminal practices in law school clinics will be wiped out.
Under s. 802.1, the provinces can pass regulations authorizing non-lawyers to appear. To my knowledge, only Alberta has done so.
I suspect this was an unintended consequence. The federal government should fix this issue before the bill has second reading. I will be working with my colleagues to advocate for the change.
Good News for Ontario Clinics
In late March, Legal Aid Ontario announced new funding for Ontario law school clinics in the amount of $100,000 each for continue their family law programs. This is welcome news, as the previous family law funding had expired at the end of March 2017. Since then, family law programs had limped along on a reduced scale or had ended altogether by the time of the funding announcement.
Family law is the area of greatest need in the justice system in Ontario. In most jurisdictions 50-70% of parties do not have a lawyer, and suffer the consequences of navigating solo the complicated, form heavy, and deadline heavy family court system.
Law students will now have the opportunity for clinical experience in family law, and see for themselves the challenges faced by self-represented litigants.
I hope Ontario law schools will consider the benefit of creating a family law clinical course, where students can handle family law files for credit.