Update on Bill C-75: Elimination of Criminal Practices in Law School Clinics
In my April column, I mentioned the introduction of Bill C-75 by the federal government. It was introduced for first reading in the House of Commons in March, and is now before the Standing Committee on Justice and Human Rights, from where it will go back to the House for third reading.
Unless amended, Bill C-75 will wipe out criminal law practices in most law school clinics in Canada, and worsen the administration of justice in our criminal courts. At no time has the federal government indicated that it intended to stop law students from representing accused persons. No evidence has been produced to show why this should happen. It appears to be an oversight on the part of the drafters of the bill.
Background
Section 802(2) of the Criminal Code authorizes the use of an agent in a criminal trial. Law students and articling students are considered agents. They can represent those charged with summary conviction offences subject to limits under section 802.1. Section 802.1 reads:
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.
The current maximum for summary conviction offences is six months. Bill C-75 changes the maximum penalty for summary conviction offences to two years.
However, Bill C-75 failed to amend s. 802.1. If passed in its current form, law students and articling students will be banned from appearing in court on all summary conviction matters.
The Impact
Although Bill C-75 was intended to improve the justice system and assist access to justice, it will have the opposite effect.
First of all, every law school clinic in Canada (outside Quebec) represents low income persons in the criminal courts. These people would have to self-represent if not represented by a law school clinic. Many have unstable housing or are homeless. Many have mental health issues, developmental delay, or substance abuse issues. Law students help these people by explaining the criminal court process, ensuring their rights are respected, and advocating on their behalf in discussions with the Crown and in trials before the Court. Being represented makes a real difference in the outcome of their cases.
Second, law school clinics provide valuable legal training for law students. After graduating law school many of the law students go on to practice in either a community legal aid clinic or do Legal Aid work (primarily in criminal law, family law, immigration law). There is a real need for lawyers to practice in these areas. Law school clinics are in effect the “cradle” of the criminal law bar.
Third, more self-represented persons appearing in court will slow down the court system and lower its efficiency.
Broad Support for Amendments
I appeared before the Justice Committee at the House of Commons on behalf of Ontario student clinics, along with my colleagues Lisa Cirillo and Suzanne Johnson from University of Toronto and Osgoode Hall respectively, on September 26. We received a respectful hearing from all three parties represented on the committee.
Submissions supporting amendments to Bill C-75 to allow law students to appear came from the Federation of Law Societies, the Canadian Bar Association, the Ontario law deans, the Association for Canadian Clinical Legal Education, the Criminal Lawyers’ Association, and Legal Aid Ontario.
Options
The federal government has not given any indication it intends to fix its error by amending s. 802.1.
Under s. 802.1, the provinces may pass regulations authorizing law students to appear on criminal matters. To my knowledge, only a couple of provinces have done so. However, relying on individual provinces to fix an error by the federal government could lead to an unequal system across Canada. Furthermore, it will take time for provinces to pass any regulations, and would force the shutdown of clinic programs.
Bill C-75 created the problem; Bill C-75 should fix it. The cleanest and simplest solution would be to amend s. 802.1 to exclude clinic law students and articling students from its effect. There are other options that could accomplish the same purpose.
In the meantime, Canadian clinics and their clients are left in limbo. It is time for the Minister of Justice to publicly state she will support an appropriate amendment to preserve the law school clinic system.
Second Reading amendments on Bill C-75 came out on Friday, November 2. The amendment changes s. 802.1 CCC to keep the 6-month maximum incarceration, only allow agents to set adjournment dates, and that it leaves representation matters to an Order-in-Council of the Lt. Governor of the province. It is more than apparent that the government wants to limit or eliminate the use of agents entirely from the summary conviction system. Ontario paralegals and students-at-law will be lucky to defend Cannabis Act tickets if C-75 passes as is.
From what I understand, the Ontario MAG is looking into adding an Order-in-Council.
Both the Law Society of Ontario and Legal Aid made representations that seemed to be not helpful for the Justice Committee. The LSO’s submissions were to keep the status quo. The government is definitely looking to change all summary convictions to a maximum of two years. Legal Aid suggested that there should be a schedule of crimes that agents may continue to represent accused in summary conviction matters. The government is not interested in parsing out every criminal code offence as “agent-suitable” or not.
Time is running out on Bill C-75. I would start talking to your local MPP. I will meet with mine later today.
“First of all, every law school clinic in Canada (outside Quebec) represents low income persons in the criminal courts. These people would have to self-represent if not represented by a law school clinic.” Perhaps the Government is trying to force the hand of the legal profession. That is, rather than having a two-tier system whereby the less fortunate defendants are either represented by a less experienced advocate or self-represented and where the more fortunate defendants who can afford to hire “experienced” and/or expensive advocates – the Government may be looking to have the law societies and the legal profession as a whole address the status quo by providing a solution that affords equal or even a choice to have experienced counsel and advocacy for all regardless of socioeconomic circumstances. However, if this is the Government’s aim then all parties involved — government and non-government would have to honestly address the underlying circumstances surrounding the current situation.