A federal proposal for reducing delays in the courts could have the unintended consequence of making access to the justice system even more difficult for many people, legal experts say.

The Liberal government wants to shift some of the caseload away from Superior Court by increasing the maximum penalty for all criminal cases heard in provincial court — known as “summary offences” — to two years less a day in jail.

However, that would effectively prevent paralegals and law students from representing defendants in provincial court, as they regularly do now, because the Criminal Code only allows them to act in cases where the maximum penalty is six months in jail.

By increasing the maximum penalty for all summary offences, the federal government would boot them out of court.

“It would create, in my opinion, a terrible access-to-justice issue,” said Stephen Parker, president of the Ontario Paralegal Association.

Defendants who use paralegals or law students tend to fall into a gap, neither qualifying for legal aid nor being able to afford a lawyer. Critics say the government’s proposal will mean more accused will be left to fend for themselves in court, and risk being saddled with a criminal record and all of the employment, travel and immigration consequences that flow from it, not to mention possibly face jail time.

“But for our students, the clients would be there unrepresented,” said Lisa Cirillo, executive director of Downtown Legal Services, a legal clinic with the University of Toronto’s faculty of law.

“That is an access-to-justice crisis, both for the clients and the courts, because it slows everything down if you have clients in there who don’t understand the process, don’t know what’s expected of them, and can’t get access to legal advice.”

Summary convictions that currently carry a maximum penalty of six months in jail include causing a disturbance and public nudity.

Other summary offences, such as impaired driving, have maximum penalties of 18 months in jail, while a few dealing with sexual offences involving children already have a maximum penalty of two years less a day in jail.

David Taylor, spokesman for federal justice minister Jody Wilson-Raybould, pointed out that there is a provision in the Criminal Code that allows provinces to create a program allowing paralegals and students to defend cases where the maximum penalty is above six months.

A spokesperson for Ontario’s Ministry of the Attorney General said the government is “considering the issue.” Only Alberta and British Columbia have approved such programs since that provision in the code was enacted in 2002.

Bill C-75, the government’s massive package of reforms to the justice system announced in March, will provide provinces and territories with the tools they need to speed up the justice system, in the wake of a landmark Supreme Court of Canada ruling in 2016 that set strict timelines to bring criminal cases to trial, Taylor said.

The Criminal Lawyers’ Association (CLA) said it would be concerned if the province created a program allowing paralegals to defend even more serious cases should C-75 pass and make all summary convictions punishable by a maximum penalty of two years less a day in jail.

Daniel Brown, a Toronto director of the CLA, noted that students work in provincial courts under the supervision of criminal defence lawyers and it’s unlikely they would be permitted to defend serious criminal cases.

“We don’t think that paralegals have the same type of training, background and supervision that should allow them to continue to represent accused persons on what would now also include very serious criminal charges with steep penalties,” Brown said.

Parker disagrees, saying his association has long wanted paralegals to have the ability to defend more serious cases. He said prior to the regulation of paralegals by the Law Society of Ontario in 2007, they were permitted to act in such cases.

“They didn’t have any training at all apart from their own experience, and there really was no issue with competency,” he said. “Just because the maximum penalty has been increased doesn’t reduce somebody’s competency to be able to present a full answer and defence on behalf of a client.”

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Aside from the impact on access to justice, the amendment in C-75 would deal a blow to law students looking to get experience in criminal law. Cirillo said campus legal clinic directors will be meeting to discuss advocacy around the issue.

“We feel like the government couldn’t possibly have intended to do this,” Cirillo said.

“We feel there's such a huge access to justice issue in our country, we feel like they couldn’t have meant to wipe out the ability of all of these clients to access legal assistance,” she said.