The Story So Far
The saga of Bill C-75 and its impact on student legal clinics has staggered to an end – sort of. Unfortunately a significant access to justice issue remains. Here is a brief summary of what happened.
When Bill C-75 was introduced by the federal government in 2018, the bill raised the maximum penalty for summary conviction offences to two years. However, the bill did not amend s. 802.1, which stated that “agents” (including law students and articling students) can only appear on criminal matters in summary conviction matters where the maximum penalty is six months.
Law students, who had successfully appeared in the criminal courts for decades, would be prohibited from the courts unless a province passed an order-in-council. This raised the prospect of uneven access to justice for Canadians, with each province taking a different approach. Despite appeals to the House of Commons Justice Committee, the federal government passed the bill through the House of Commons.
The Senate Legal and Constitutional Affairs Committee saw the impact of the government’s wording, and added a clause that, while not perfect, would allow existing provincial law to apply. This meant in effect that provincial law societies would have the jurisdiction to govern the role of agents. This amendment had the support of the Federation of Law Societies of Canada, the Law Society of Ontario, the Canadian Bar Association, and the Association for Canadian Clinic Legal Education. It was passed by the Senate on third reading on June 13.
The Minister of Justice rejected the amendment and Bill C-75 passed the House on June 19, 2019, and was to come into effect on September 19. After that date law students could not appear in the criminal courts without an order-in-council from a province.
Most of the provinces have passed these orders-in-council. In Ontario, the provincial government passed an OIC delegating the authority to the Law Society of Ontario. On September 11, just a week before bill was to take effect, the LSO passed a resolution allowing the status quo for law students, articling students, and paralegals to continue.
Access to Justice Issue Still Remains
Bill C-75 changed a number of indictable offences into hybrid offences where the Crown can elect to proceed by indictment or by summary conviction. However, the LSO has declined to allow law students, articling students, or paralegals to appear on these new hybrid offences where the Crown elects summary conviction.
In Ontario, persons charged with an offence (assuming they meet the financial criteria) will normally receive legal aid if the Crown is seeking a jail sentence. If the Crown is not seeking a jail sentence, legal aid is not available; this is where student legal clinics fill the gap in access to justice, representing those charged with an offence but are not eligible for legal aid.
The impact is this: those charged with a new hybrid offence where the Crown is not seeking jail time will not be eligible for legal aid, and cannot be helped by student clinics.
Too many self-represented persons are being pushed through the legal system with little or no representation. If justice is to be done, if Charter rights are to be respected, if a defence is to be pleaded, persons charged with these offences need representation. Law students, under the supervision of licensed lawyers, can do that.
It’s time to make access to justice the lens through which all justice system decisions are made.