Bill C-75 Goes to the Senate, Still Threatens Student Legal Clinics
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.
“Each year, hundreds of low income persons will be left to defend themselves.” Do law school clinics provide a reason not to address the root cause or root causes that create this situation? In other words, while law school clinics may benefit law students providing them with practical training, do these clinics also contribute to reasoning for policy makers and the justice system to not provide viable remedies to address systemic and societal deficiencies preventing hundreds of people from affording a lawyer? Also, do clinic clients get the same results as those represented by a lawyer?
Interesting also is this statement: “I hope the Senate will amend the bill to exempt law students, and that our “new” Minister of Justice will accept the amendment.” The previous minister and the “new” minister come from different backgrounds. The previous minister of justice being Indigenous, I’m sure was sensitive to the fact that Indigenous People are over represented both as victims and as accused in the criminal system and she is also an experienced prosecutor. While the “new” minister was previously a law professor. Given the varying perspectives from the previous and new minister the results whatever they may be should be – well, interesting.
In my 17 years as a provincial court Judge I would rejoice when an unrepresented accused appeared with a law student. Despite scheduling and “beginner” issues the alternative was always worse – confusion with the vocabulary and procedural rules, unable to identify legal vs emotional issues, complainants being “crossed” by the accused, leading questions, overwhelming caselaw , guilty pleas with explanations that amounted to a defense and unable to lose work or find childcare to set up and pursue a trial… the list is long, and while students, (lordy, sometimes more senior counsel) wouldn’t always nail it, it was ALWAYS better. I had a great clinic experience at Windsor and would always recommend it to anyone who wanted to pursue a litigation practice. Not allowing students to continue with such valuable experience is extremely short-sighted. As for broader systemic issues, they are often first experienced by lawyers when working with clinic clients.
Aren’t the Feds just rightly acknowledging that it’s not their place to decide this question and turning it over to the provinces to decide? Understanding and respecting the division of powers, why would we be lobbying the Feds to change the law rather than asking the provinces and law societies to be proactive on the issue?