Paralegals and law students won’t be kicked out of provincial criminal court after all when a federal bill revamping the system comes into force Thursday, averting a potential access to justice problem.

The Liberals’ Bill C-75, which takes effect Sept. 19, increases the maximum penalties for most criminal cases heard in provincial court, known as summary offences, to two years less a day in jail. The problem is that the Criminal Code only allows paralegals and law students to act for individuals in cases where the maximum penalty is six months in jail.

One of the bill’s main purposes was to reduce court delays by allowing more criminal cases to be heard in provincial court, where they can be dealt with faster than in Superior Court where the process is lengthier. But the bill also had the effect of kicking paralegals and law students out of criminal court — leaving individuals who can’t afford lawyers, but who also don’t qualify for legal aid, to fend for themselves.

With days to go before the bill takes effect, the Law Society of Ontario agreed last week to allow law students and paralegals to continue representing people on offences that currently carry maximum penalties of six months in jail but which will be increased to two years less a day after Sept. 19.

Some of the most common offences with maximum penalties of six months in jail include assault, mischief, theft under $5,000 and breaches of court orders. The legal regulator will also continue its review of determining whether paralegals could one day work on a greater number of criminal cases.

The federal government had faced criticism for the fact that its bill, introduced in March 2018, did not address the unintended consequence of barring paralegals and students from provincial criminal court, leaving it up to the provinces to deal with the issue.

“Although this is a good outcome and I am pleased that the province and the Law Society of Ontario were able to work together to achieve this result, I can’t help thinking about countless hours that myself and others have spent working on this issue,” said Suzanne Johnson, director of the community and legal aid services program, a student legal clinic, at York University’s Osgoode Hall Law School.

“I have written briefs, appeared before the Standing Committee on Justice and Human Rights, and spoken to several politicians and policy advisers. These hours would have been better spent working on behalf of our clients — the most vulnerable in society. Now that this motion has passed, I am grateful that we can carry on providing quality services to our clients.”

Law students appearing in court act under the supervision of a criminal defence lawyer. They typically represent individuals who have been denied legal aid assistance and who can’t afford a lawyer.

The director of the Downtown Legal Services clinic at the University of Toronto, Lisa Cirillo, told the Star that student legal clinics are hoping to discuss with the law society expanding the number of offences students will be permitted to work on in the future, similar to the ongoing law society review of paralegal services.

Cirillo pointed out that the clinic’s supervision model requires their staff lawyer to accompany students to all major court appearances in a case, and she is able to step in at any point if there are concerns with the handling of the file.

“In these circumstances, and given the long-term consequences of a criminal conviction, I would like to see the scope of work that the clinics can do expanded to include most if not all summary conviction offences,” Cirillo said.

The issue of having paralegals take on a potentially heavier criminal caseload has been a divisive topic within the legal profession. Although they will be defending the same types of offences they do now, those offences will carry higher maximum penalties.

“Expanding their practice area does not improve access to justice in criminal cases as justice is illusory if we cannot have confidence that both the Crown and the defence are represented properly and appropriately,” said Michael Lacy, president of the Criminal Lawyers’ Association (CLA).

“Neither the province nor the community would be content to allow paralegals to prosecute these cases because of the complexity of criminal litigation and the interests that are at stake. We should equally not be content to allow paralegals to defend these cases.”

Loading... Loading... Loading... Loading... Loading... Loading...

But George Brown, president of the Ontario Paralegal Association, said allowing paralegals to do more criminal work will improve access to justice for individuals who may be stuck representing themselves otherwise.

“I find the CLA’s position always divisive,” he told the Star. “When the two branches of licensees (lawyers and paralegals) work together, Ontario is the winner. And if we can get there I think we’re going to provide the best legal services that this province deserves.”