Bill C-75, the Criminal Code amendment statute, passed the House of Commons in late 2018, and has received first reading in the Senate.
The bill could wipe out the criminal law practices in student legal clinics in most provinces across Canada. For decades now, student legal clinics across Canada have been representing low income persons for summary conviction criminal offences. These clients are not eligible for legal aid, and would be unrepresented except for the work done by law students to assist them. Each year, hundreds of low income persons will be left to defend themselves.
Why has this happened? Section 802.1 of the Criminal Code deals with the ability of agents to represent an accused person in summary conviction matters. Agents are essentially any individual who is not a lawyer, and so articling students and law students are considered to be agents. Here is the current wording:
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.
Bill C-75 proposes to increase the maximum penalty for summary conviction offences from six months to two years. However, it did not significantly amend section 802.1.
Bill C-75 amended this section to only allow agents to appear on adjournments. It does not allow agents to appear on trials, making it impossible for student clinics to offer full representation to clients, and rendering their services practically irrelevant (it is a mystery to me why the six month prison term remains in s. 802.1, when it has been abolished).
It has become clear that the provinces wanted authority to deal with self-represented persons and agents who have no legal training. This is a legitimate concern. However, law students and articling students are under the direct supervision of lawyers, and appear under their licences. The key question is why, if they are supervised by lawyers, they are placed in the same category as persons who have no legal training and no supervision.
As it stands, clinic students will no longer be allowed to appear in criminal courts unless a province passes an order-in-council. There is no guarantee that the provinces will do so, or that they will do it in a timely manner so there is no gap in service.
The issue now goes to the Senate, which now has a substantial majority of independent and non-affiliated members. Bill C-75 will be an opportunity for senators to demonstrate, in the Prime Minister’s words, “the thoughtful amendments and engagement they’ve had with bills.” I hope the Senate will amend the bill to exempt law students, and that our new Minister of Justice will accept the amendment.
I urge clinic alumni who started their careers in a law school clinic to contact the chair of the Senate Legal and Constitutional Affairs Committee, Sen. Serge Joyal, to let the committee know that you want law students to continue to help low income persons in the criminal courts.