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.
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.
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.
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.