New Measures to Cover Gap in Agent Representation

• Author: Omar Ha-Redeye
• Date: September 15, 2019

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...