The issue stems from Bill C-75, incoming legislation that will make sweeping amendments to the Criminal Code, including a change so that the default maximum penalty for summary conviction offences — less serious crimes, such as theft under $5,000 and public mischief, for example — would increase from six months imprisonment to two years less a day.
The problem is that paralegals and other non-lawyer agents would be barred from defending people facing such charges because s. 802 of the Code does not allow them to do this if an accused is facing, upon summary conviction, a prison term of more than six months.
Critics have warned that barring agent representation would be a blow to access to justice and bog down an already sluggish criminal justice system.
On Aug. 16, Ontario’s Ministry of the Attorney General announced the provincial government had “issued an order-in-council to designate authority to the law society to determine who has the ability to appear in summary conviction court as a regulated agent.”
LSO treasurer Malcolm Mercer
The “licensing scope” of agents will be looked at, he said.
“The exact motion isn’t yet tabled, but what I anticipate is that we will try to preserve as closely as possible the scope of practice which existed when Bill C-75 was first proposed,” said Mercer. “There were a number of offences which were six-month offences, and I anticipate what will be proposed is that the scope of practice — the licensing scope — will be in respect of those offences.”
Mercer said “[the] motion is expected to be voted on September 11 in light of the reality that Bill C-75 comes into effect on September 19.”
An LSO spokesperson confirmed the motion would propose amendments to law society bylaws that would allow agents to continue acting for those facing summary offences under the new legislation.
In May, the Senate’s Legal and Constitutional Affairs Committee voted to amend Bill C-75 in such a way as to preserve court appearances by non-lawyer agents, but Mercer pointed to the fact that the House of Commons rejected it before Parliament rose for the summer.
“There were a number of offences you could call six-month offences,” Mercer said. “Those are all now two years less a day, but if you look at the offences that were six-month offences when Bill C-75 was proposed, we think that the best approximation of the pre-existing scope is to authorize students and paralegals to act in respect of those offences.”
In a news release, Ontario Attorney General Doug Downey said he is working with the LSO.
“The stated intentions of Bill C-75 are to keep Canadians safe, and not to inadvertently prevent paralegals, lawyer licensing candidates and law students from continuing to provide legal representation as they do now,” stated Downey. “We are working closely with the [LSO] to proactively address this situation in Ontario while ensuring these legal representation options remain accountable and subject to the current standards.”
A spokesperson from the Ministry of the Attorney General said the order-in-council to the LSO is “intended to enable law students and paralegals to continue to appear in court on behalf of defendants for some summary conviction offences.”
“This approach will allow the [LSO] to continue to regulate the provision of legal services in the public interest and ensure those who need representation can receive it,” said Brian Gray.