New Measures to Cover Gap in Agent Representation

On June 21, 2019, Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, received Royal Assent. The Bill was an omnibus legislation that was prompted by the delays caused described in Jordan and Cody.

The effect of this Bill was to remove preliminary inquiries for virtually all offences, expand spousal violence to include intimate partner violence, abolish the use of peremptory challenges for jurors, and hybridize almost all indictable offences under 10 years while increasing the maximum penalty to 2 years for summary convictions.

Not too long before Bill C-75, the federal government passed Bill C-46, coming into effect in December 2018. These amendments removed four driving offences that had been within the scope of regulated agents until that time, relating to dangerous operation, failure to stop after accident, flight from a peace officer, and operation of vehicles.

While the jury is out (literally) on whether these combined changes will actually achieve their intended goals, there is an unintended effect of these last group of changes that will be experienced exclusively in Ontario.

Clause 317.1 of the Bill limits the use of agents, as follows,

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
(a) the defendant is an organization;
(b) the defendant is appearing to request an adjournment of the proceedings; or
(c) the agent is authorized to do so under a program approved — or criteria established — by the lieutenant governor in council of the province.

The term “agent” is not a defined term in the Code, and its interpretation differs across jurisdictions.

Across Canada, law students in legal clinics would typically represent people in summary conviction proceedings where the maximum penalty is six months or less under Section 802.1 of the Criminal Code. They do not represent people charged with super summary offences, which typically will carry a maximum term of 18 months.

The use of the word “agent” in the Code and in the Bill also has a unique interpretation in Ontario, where licensed paralegals have also operated in this scope. Ontario remains the only jurisdiction where paralegals are licensed by the law society. The current scope of practice for paralegals under By-Law 4 was created specifically in 2008 in response to the previous version of s. 802.1 of the Code.

Prior to the licensing of paralegals in Ontario, the Ontario Court of Appeal reviewed the issue of agents in R. v. Romanowicz. The accused was unsuccessful at the Divisional Court on a summary conviction appeal in arguing that the judge should not have allowed an agent to appear on his own behalf.

The Court of Appeal found the provisions to be intra vires Parliament’s authority, and rejected his argument that he was entitled to effective counsel when choosing to be represented by an agent,

[28] An accused is also entitled to proceed without counsel. The accused may choose self-representation, or if the Crown has proceeded summarily, the accused may choose to be represented by an agent. By choosing to proceed without counsel, an accused elects to forgo the right to the effective assistance of counsel.

An accused cannot at the same time exercise the right to proceed without the assistance of counsel and yet demand the right to the effective assistance of counsel.
[citations omitted]

The court also went on at length about the measures a trial judge should take to ensure the competence of an agent, and the difficulties in doing so effectively. Doing so could even undermine the accused’s confidence in an agent and affect the appearance of a fair trial. However, the creation of a licensed non-lawyer agent regime in Ontario arguably vitiates this need in this province, in a distinct manner from the rest of Canada.

Removal of law students, who typically provide these services for free, and paralegals and articling students, who typically provide these services more cost effectively, would potentially have a significant impact on access to justice.

The initial draft of Bill C-75 was therefore amended following submissions and debate at the House of Commons Standing Committee on Justice and Human Rights to allow for special programs at the provincial or territorial level.

In response, Ontario signed Order in Council 1115/2019 on Aug. 15, 2019, which states,

For the purposes of section 802.1 of the Criminal Code (Canada), the regulation of persons authorized to practice law or provide legal services by the Law Society of Ontario under the Law Society Act, including its determination of who may appear or examine or cross examine witnesses as an agent on summary conviction offences, is an approved program.

The accompanying press release highlights the cooperation of the provincial government with the law society to address these unintended effects,

The Ontario government is proactively working with the Law Society of Ontario to establish a program that will ensure the federal government’s Bill C-75 does not restrict paralegals, lawyer licensing candidates or law students from providing legal representation to people charged with summary conviction offences.

The government has responded to the concerns expressed by Ontario’s legal community that federal changes to aspects of the Criminal Code in Bill C-75 could restrict access to affordable legal representation provided by paralegals, lawyer licensing candidates (including articling students) and law students, all of whom are agents regulated by the Law Society of Ontario. This could limit opportunities for law students and lawyer licensing candidates to gain valuable professional experience, as they currently do.

This past week, the law society passed a motion by the Paralegal Standing Committee at Convocation to address this gap. The motion states:

First, that Convocation approve, in order to preserve as closely as possible the range of services currently provided by regulated agents, in response to the enactment of Bill C-75:

a) with respect to paralegal scope of activities, the following two-stage approach:

i. amending By-Law 4, in principle, to establish a scope for criminal matters comprised of the following:

1) all offences that were punishable by a maximum penalty of six months’ imprisonment when proceeding by summary conviction at the time that Bill C-75 was enacted; and
2) four offences that had been within agent scope since the onset of
regulation but were amended by Bill C-46, and as a result of which were no longer within scope as of December 17, 2018: specifically, sections 320.13(1), 320.16(1), 320.17, 320.18(1) of the Criminal Code; and

ii. continuing to review and develop the scope of activities for paralegals in criminal law matters, taking into account education and training standards and competency development in this field.

b) with respect to lawyer licensing candidates and law students, amending the Law Society’s Rights of Appearance documents, in principle, to permit appearances on all offences described in part (a)(i) above.

Second, provided Convocation approves the above approach, that Convocation implement that approach with respect to part (a)(i) above by adopting the amendments to By-Law 4…

The motion passed nearly unanimously, with some some minor concern around the lack of consultation with the criminal bar.

Although the effect of the motion is to effectively expand the scope of practice for paralegals in Ontario in relation to the effect to an accused, it is also subject to ongoing review, specifically around scope of practice. The hope appears to be that additional training and education will help bolster the competency of paralegals practicing in this area.

The law society’s motion will come into effect on September 19, 2019, the same day that Bill C-75 will increase to the maximum default penalties. The motion’s supporting materials contains a helpful list of these offences, as follows:

Permitted Criminal Code Summary Conviction Offences for Regulated Agents as of September 19, 2019

Summary Conviction Offences Carrying Maximum Penalties of Six Months’ Imprisonment Prior to Bill C-75 Coming into Force on September 19, 2019:
s. 54 – Assisting deserter
s. 56 – Offences in relation to members of RCMP
s. 66(1) – Unlawful assembly
s. 83(1) – Engaging in prize fight
s. 89(2) – Carrying weapon while attending public meeting
s. 134(1) – Perjury (where not required to make oath, etc)
s. 174(1) – Nudity
s. 175(1) – Causing disturbance, indecent exhibition, loitering, etc
s. 176(2)-(3) – Disturbing religious worship or certain meetings
s. 177 – Trespassing at night
s. 201(2) – Person found in or owner permitting use (gaming or betting house)
s. 206(4) – Offence (buying ticket for unlawful lottery or game of chance)
s. 207(3)(b) – Offence, participation in lottery scheme (permitted lotteries)
s. 207.1(3)(b) – Offence, participation in lottery scheme (permitted lotteries, international cruise
ship)
s. 210(2) – Landlord, inmate, etc (common bawdy-house)
s. 211 – Transporting person to bawdy-house
s. 213(1)-(1.1) – Stopping or impeding traffic / Communication (relating to offering, providing
or obtaining sexual services for consideration)
s. 278.9(2) – Publication prohibited (in relation to production order)
s. 278.95(2) – Publication prohibited (hearing to determine admissibility of evidence of
complainant’s sexual activity)
s. 320.19(2) – Operation while impaired – low blood drug concentration
s. 320.36(4) – Unauthorized use of bodily substance / Unauthorized use or disclosure of results
s. 335(1) – Taking motor vehicle or vessel or found therein without consent
s. 339(2) – Dealer in second-hand goods (lumbering equipment without owner’s consent)
s. 353(3)-(4) – Fail to keep record of transaction, sale of automobile master key
s. 364(1) – Fraudulently obtaining food, beverage or accommodation
s. 393(3) – Fraudulently obtaining transportation
s. 398 – Falsifying employment record
s. 401(1) – Obtaining carriage by false billing
s. 419 – Unlawful use of military uniforms or certificates
s. 425 – Offences by employers
s. 438(2) – Interfering with saving of wreck
s. 439(1) – Interfering with marine signal (making fast vessel or boat)
s. 442 – Interfering with boundary lines
s. 447.1(2) – Breach of order (cruelty to animals)
s. 454 – Slugs and tokens
s. 456 – Defacing current coins
s. 457(3) – Likeness of bank-notes
Convocation – Paralegal Standing Committee Report
107
s. 463(c) – Attempts, accessories – summary offences
s. 464(b) – Counselling offence that is not committed – summary offences
s. 465(1)(d) – Conspiracy – summary offences
s. 486.6(1) – Offence (fail to comply with orders restricting publication: sexual offences, victims
and witnesses)
s. 487.0197 – Contravene preservation demand
s. 487.0198 – Contravene preservation or production order
s. 487.0199 – Destruction of preserved data
s. 487.08(3) – Use of bodily substances
s. 487.2 – Contravene restriction on publication (warrant)
s. 490.0312 – Offence (obligation to advise police service, NCR outside of Canada)
s. 517(2) – Failure to comply with order (Order directing matters not to be published for
specified period)
s. 539(3) – Failure to comply with order (Order restricting publication of evidence taken at
preliminary inquiry)
s. 542(2) – Restriction of publication of reports of preliminary inquiry (fail to comply re
confession or admission of accused)
s. 648(2) – Restriction on publication (fail to comply re portion of trial where jury absent)
s. 649 – Disclosure of jury proceedings
s. 672.37(3) – Authorizing application for federal employment requiring applicant to disclose an
NCR verdict where applicant discharged absolutely or not subject to disposition
s. 672.501(11) – Failure to comply (Order restricting publication – sexual offences, NCR)
s. 732.11(4) – Prohibition on use of bodily substance (contravene, re probation)
s. 742.31(4) – Prohibition on use of bodily substance (contravene, re conditional sentence)
s. 810.4(4) – Prohibition on use of bodily substance (contravene, re recognizance)

Hybrid Offences Carrying Maximum Penalties of Six Months’ Imprisonment When Prosecuted By Summary Conviction Prior to Bill C-75 Coming into Force on September 19, 2019:

s. 56.1(4) – Identity Documents
s. 57(2) – False statement in relation to passport
s. 66(2) – Unlawful assembly with concealment of identity
s. 73 – Forcible entry, forcible detainer
s. 83.231(2) – Hoax – terrorist activity
s. 86(3) – Careless use of firearm / Contravention of storage regulations
s. 87(2) – Pointing a firearm
s. 88(2) – Possession of weapon for dangerous purpose
s. 90(2) – Carrying concealed weapon
s. 91(3) – Unauthorized possession of firearm / prohibited weapon or restricted weapon
s. 93(2) – Possession at unauthorized place (firearm /weapon)
s. 94(2) – Unauthorized possession in motor vehicle (firearm /weapon)
s. 101(2) – Transfer without authority (firearm / weapon)
s. 104(2) – Unauthorized importing or exporting (firearm /weapon)
s. 105(2) – Losing or finding without reporting (firearm / weapon)
s. 106(2) – Destroying without reporting (firearm / weapon)
Convocation – Paralegal Standing Committee Report
108
s. 107(2) – Making false statements (in relation to ss. 105-6)
s. 108(2) – Tampering with serial number (firearm / weapon)
s. 117.01(3) – Possession contrary to order / Failure to surrender authorization (firearm /
weapon)
s. 121.1(4)(b) – Selling, etc, of tobacco products and raw leaf tobacco
s. 127(1) – Disobeying order of court
s. 129 – Offences relating to public or peace officer
s. 130(2) – Personating peace officer
s. 139(1) – Obstructing justice
s. 140(2) – Public mischief
s. 145(1)-(5.1) – Escape and being at large without excuse
s. 160(1)-(2) – Bestiality / Compelling commission of bestiality
s. 162(5) – Voyeurism
s. 162.1(1) – Publication, etc, of an intimate image without consent
s. 169 – Obscene material / Immoral theatrical performance / Mailing obscene matter
s. 173(1)-(2) – Indecent act / Exposure
s. 204(10) – Contravention (regulatory offences related to horse racing / betting)
s. 207(3)(a) – Offence, conduct, management, operation of lottery scheme (permitted lotteries)
s. 207.1(3)(a) – Offence, conduct, management, operation of lottery scheme (permitted lotteries,
international cruise ship)
s. 241.31(4)-(5) – Offence, filing information / contravene regulations (medical practitioner /
nurse practitioner / pharmacist in relation to medical assistance in dying)
s. 263(3) – Duty to safeguard opening in ice / guard excavation on land
s. 264(3) – Criminal harassment
s. 264.1(3) – Uttering threats
s. 266 – Assault
s. 270(2) – Assaulting a peace officer
s. 273.3(2) – Removal of child from Canada
s. 282(1) – Abduction in contravention of custody order
s. 283(1) – Abduction
s. 319(1)-(2) – Public incitement of hatred / Wilful promotion of hatred
s. 327(1) – Possession of device to obtain use of telecommunication facility or service
s. 334(b) – Punishment for theft (under $5000)
s. 342(1), (3) – Theft, forgery, etc of credit card / Unauthorized use of credit card data
s. 342.01(1) – Instruments for copying credit card data or forging or falsifying credit cards
s. 342.1(1) – Unauthorized use of computer
s. 342.2(1) – Possession of device to obtain unauthorized use of computer system or to commit
mischief
s. 347(1) – Criminal interest rate
s. 348(1)(e) – Breaking and entering with intent, committing offence or breaking out (place other
than dwelling-house)
s. 349(1) – Being unlawfully in dwelling-house
s. 351(1) – Possession of break-in instrument
s. 353.1(4) – Tampering with VIN
s. 355(b) – Possession of property obtained by crime (under $5000)
s. 355.5(b) – Trafficking in property obtained by crime (under $5000)
Convocation – Paralegal Standing Committee Report
109
s. 356(3) – Theft from mail
s. 362(2)(b) – False pretence or false statement
s. 367 – Punishment for forgery
s. 368(1.1) – Use, trafficking or possession of forged document
s. 368.1 – Forgery instruments
s. 372(4) – False information / Indecent communications / Harassing communications
s. 380(1)(b) – Fraud (less than five thousand dollars)
s. 380.2(4) – Prohibition order (not comply, in relation to fraud)
s. 382.1(2) – Tipping (insider trading)
s. 402.2(5) – Identity theft / Trafficking in identity information
s. 403(3) – Identity fraud
s. 412(1) – Punishment: ss. 407, 408, 409, 410, 411 (Forgery of Trademarks and Trade descriptions)
s. 415(g) – Offences in relation to wreck
s. 417(2) – Unlawful transactions in public stores
s. 420(1) – Military stores
s. 422(1)(g) – Criminal breach of contract
s. 423(1) – Intimidation
s. 425.1(2) – Threats and retaliation against employees
s. 430(3) – Mischief (testamentary instrument / property exceeding $5000)
s. 430(4) – Mischief (other property)
s. 430(4.2) – Mischief in relation to cultural property
s. 430(5) – Mischief in relation to computer data
s. 430(5.1) – Commission or omission of act required by duty if likely to constitute mischief
s. 432(1)-(2) – Unauthorized recording of a movie / Unauthorized recording for purpose of sale,
etc
s. 437 – False alarm of fire
s. 446(2) – Causing damage or injury (captive animals conveyed or abandoned)
s. 462.31(2) – Laundering proceeds of crime
s. 462.33(11) – Restraint order (not comply)
s. 463(d) – Attempts, accessories – hybrid offences
s. 487.0552(1) – Failure to comply with order or summons
s. 487.08(4) – Use of bodily substances
s. 490.031(1) – Offence (fail to comply with order, National Defence Act, International Transfer
of Offenders Act)
s. 490.0311 – Offence (knowingly provide false information, Sex Offender Information
Registration Act)
s. 490.8(9) – Offence (contravene restraint order, offence related property)

Hybrid Offences Carrying Maximum Penalties of Six Months’ Imprisonment When Prosecuted By Summary Conviction Prior to Bill C-46 Coming into Force on December 21, 2018:

s. 320.13(1) – Dangerous operation
s. 320.16(1) – Failure to stop after accident
s. 320.17 – Flight from a peace officer
s. 320.18(1) – Operation while prohibited

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