A Framework for Regulating Paralegal Practice in Ontario

Chapter	Page
TABLE OF CONTENTS	1-3
INTRODUCTION	4
EXECUTIVE SUMMARY	4-5
I. BACKGROUND	6
HISTORY OF THE ISSUE	6
lEGISLATION – FEDERAL	Page
Summary of Federal Legislative History	6-8
Federal Legislation – The Criminal Code	8
1892Criminal Code	8-9
1906 Criminal Code	9-10
1909 Act to Amend the Criminal Code	10
1927 Criminal Code	10
1939 Act to Amend the Criminal Code	11
1948 Act to Amend the Criminal Code	11
1953 Criminal Code	11
1970 Criminal Code	12
1985 Criminal Code	12
1997 Act to Amend the Criminal Code	12
LEGISLATIVE – PROVINCIAL	12
Summary of Provincial Legislation	12
Law Society Act	13
Provincial Offences Act	13
Solicitors Act	13
II. AGENTS IN PROVINCIAL OFFENCES COURTS	13
TRAFFIC AND RELATED OFFENCES	13
OTHER REGULATORY OFFENCES	13
SUMMARY	14
III. AGENTS IN THE CRIMINAL COURTS	14
TYPES OF AGENTS	14
Definition of “Agent”	14
Unpaid Agents	15
Students-at-Law	15
Pro Bono Exceptions?	15
Paid Agents	16
A MARKET FOR PAID AGENTS?	16
Do Agents Provide a Market Alternative?	16
Market Advantages of Unregulated Agents	17-19
Legal Services to Low-Income Ontarians	19
REASONS ACCUSEDS RETAIN AGENTS	20
Public Perception	20-21
Touting	21
Encroachment	21
Misrepresentation	21
Special Vulnerability – Immigrant Groups	22
CURRENT PROBLEMS WITH PAID AGENTS IN THE COURTS	22
Criminal Convictions	22
Incompetence	23
Improper Advertising	24
Misrepresentation	24
Privilege	24
Right to Effective Assistance of Counsel	25
Touting	26
PROBLEMS WITH AGENTS POST REGULATION	26
Consumer Protection	26
Hybridization	26
Right to Effective Assistance of Counsel	27
Incompatible with Court Reforme	27
IV. GOVERNANCE OF AGENTS	28
GOVERNANCE IN PROVINCIAL OFFENCES MATTERS	28
GOVERNANCE IN CRIMINAL MATTERS	28
Doing Nothing – Not An Option	28
Full Duplication – Creating a Parallel Profession	28-29
Restricting Practice in Criminal Matters to Lawyers	30
IV RECOMMENDATIONS	31
V. ACKNOWLEDGEMENTS	32
VI. NOTES	33-41

INTRODUCTION

EXECUTIVE SUMMARY

The Criminal Lawyers’ Association supports the initiative to regulate agents who appear in provincial offence matters and the criminal courts. We agree with the Ontario Court of Appeal that, “The absence of any regulatory control over paralegals has become particularly problematic in the criminal courts.”

The addition of the term “agent” in the 1906 Criminal Code was unexplained in Hansard and remains one of the few terms of its type undefined in the Code. Given the very few offences punishable by way of summary conviction in the early 1900′s (almost all offences were indictable) there cannot have been any parliamentary intent at that time to set up a parallel legal profession by the use of the term “agent” – they would have had nothing to do.

Over the years, the provision for appearance by “agent” in summary matters has become relied upon by students at law, unpaid (often family) agents and paid agents to permit persons who are not members of the bar to represent accuseds in criminal matters. In the mid-1990′s there was an increase in the numbers of paid agents appearing in the criminal courts.

Given paid agent’s lack of education, training, competence examinations, rules of professional conduct and lack of a regulatory body ensuring some level of quality in their work, the only justification for permitting paid agents to represent accuseds in criminal courts would be that they provide a cheaper market alternative to lawyers.

The Criminal Lawyers’ Association has found that agents do not offer a “market alternative” to consumers. All available evidence suggests that in the criminal field, agents merely duplicate the services provided by lawyers charging as much as, or more than, members of the bar.

The advantages that would allow agents to provide in theory cheaper legal services (such as no education costs, no insurance fees, no regulatory fees, no advertising restrictions, no quality standards) would not likely survive even minimal standards imposed in a regulatory scheme. If the playing field were leveled, few consumers would choose to retain agents.

Legal services to persons of modest means in the province of Ontario have always been provided by members of the bar – there is no sign that is about to change. Agents do not provide legal services to persons of modest means, and even if they were willing to accept the lower fees provided by the Legal Aid Tariff they would be merely duplicating services already long provided by more qualified lawyers.

The courts and the media have noted the problems with unregulated agents appearing in criminal matters in this province. Even if there was extensive regulation to create a parallel duplicate profession of “paralegals” practicing in the criminal courts, a number of problems would still remain:

As noted by the Ontario Court of Appeal in R. v. Romanowicz, hybridization has resulted in many serious criminal offences being prosecuted by way of summary conviction. The Court warned:

Unregulated representation by agents who are not required to have any particular training or ability in complex and difficult criminal proceedings where a person’s liberty and livelihood are at stake invites miscarriages of justice.”

Accuseds who would choose representation by even regulated agents would still surrender their constitutional right to the effective assistance of counsel, requiring the criminal courts to engage in lengthy Romanowicz inquiries in matters where agents appeared with possible delays resulting.

Paralegals practicing criminal law would be an obstacle to future court reforms such as a “unified criminal court.” The further hybridization and elimination of the preliminary hearing would result in far more serious charges again being resolved summarily. The presence of paralegals who are not educated or trained to represent accused in serious criminal matters is incompatible with these proposed reforms.

The Criminal Lawyer’s Association therefore recommends that the government act to regulate paid agents who practice in provincial offence matters, and act to set a “bright line” rule restricting the practice of criminal law to those who have passed and maintain the requirements of the Law Society of Upper Canada.

I. BACKGROUND

HISTORY OF ISSUE

In 1987, Justice Blair of the Ontario Court of Appeal wrote, “It is ironic that there is lack of clarity in the statutes governing the legal profession and their application to the respondents. I commend for the Legislature’s attention the clarification of this legislation and also the status of agents and other paralegals which is now a matter of considerable public discussion.”[1]

More than a decade later, the same court wrote that, “The absence of any regulatory control over paralegals has become particularly problematic in the criminal courts.”[2] “The obvious concerns associated with untrained and unregulated paralegals representing accused charged with serious crimes have not moved the province or the federal government to exercise any control over the appearance of paralegals in summary proceedings.”[3] And further,

Some 13 years ago … this court indicated that legislative attention to the status of agents and other paralegals appearing on behalf of accused persons was a matter of importance. The government of the day commissioned a report and draft legislation followed. Unfortunately, however, no legislation was enacted. Since that time, other courts have echoed the same concerns. Indeed, as the jurisdiction of the summary conviction court has expanded, the concern has increased. The matter has been thoroughly studied, debated and various options set out. Continued legislative inaction suggests indifference to the proper administration of criminal justice in summary conviction proceedings. The cynics among us will suggest that only some serious and highly publicized miscarriage of justice will overcome that indifference. We hope not.”[4]

LEGISLATION – FEDERAL

Summary of Federal Legislative History

In 1892, the Dominion of Canada enacted its first comprehensive Criminal Code.[5] The new code brought together an amalgam of British common law, Canadian Statutes, and local practice.[6] The 1892 Code made reference to appearance by counsel “learned in the law” in Indictable matters,[7] as well as appearance by “attorneys” to be present on behalf of corporations.[8] The corporate “attorney” had no power to argue a case but merely represented in personam the corporate legal entity on trial.[9] In Summary Conviction matters, the Code provided for appearance by “counsel or attorney,”[10] but later sections speak of appearance by “solicitors or agents”[11] in the context of adjournments, and further in the same section of representation by “counsel or solicitors”[12]. The terms “attorney” and “agent” were not defined.

It is plain that in Indictable matters only counsel could represent an accused and make full answer and defence. An “attorney” could stand in court in place of a corporation, but they had no power to conduct the case as counsel.[13]

In Summary Conviction matters, an “attorney,” (also referred to as an “agent” in one subsection) could examine and cross-examine witnesses,[14] and conduct the trial or prosecution of the Information.[15] The Code did not define the term “attorney”, but given the use of the term in s.635 as applied to corporations, and the separate references throughout to “counsel” and “solicitors”, it is reasonable to conclude that the drafters of the 1892 Code did not intend to refer to the historical term for solicitors (attorney) but rather to a general concept of agency.

What is less clear, is whether this concept of agency was meant to to have any meaning other than persons appearing in personam on behalf of corporations.

In 1906, the summary conviction provisions were again changed to provide for appearance by “counsel, solicitors or agents”. [16] There is no explanation in Hansard for the change in terms.[17]

The unexplained and unnoticed addition of the term “agent” may have related to appearance by corporations as s.720 did not at that time include specific provisions for appearance by corporations in summary matters. However, when s.720A was added three years later, and specifically provided for appearances by corporations, the term “agent” in s.720 was not deleted. Further, the new section 720A referred to appearance by “attorney” again without explanation.

Given the wording of that new section, it is likely that the 1909 use of the term “attorney” would refer to the common law definition of “attorney” as an, “… agent or substitute, or one who is appointed and authorized to act in the place or stead of another.”[18] This would refer to a corporate officer or other person authorized to stand in place of the corporate legal person in court. This interpretation accords with the provisions regarding Indictable proceedings in the same Code which provided for appearance by “attorney”[19] for corporations, but specifically provided that only “counsel learned in the law” could conduct the case and make submissions in court.[20]

After the addition of s.720A the term “agent” in s.720 was not deleted. This may be legislative oversight, if there is another meaning to the section it is not plain what it would be. The term is not defined in the Code. The regulation of the legal profession was a provincial matter.[21]There is no evidence that the insertion of the term “agent” was meant to created a parallel profession of “paralegals” – a term and concept that would not be used for another 70 years.[22]

The very narrow list of summary offences at that time also suggests that the insertion of the term “agent” in s.720 was not meant to create a new class of “counsel’ or those who could represent others in court. Virtually every offence at that time was prosecuted by way of Indictment. There were only 13 hybrid offences in the 1906 Code [23], and only two of those were offences commonly charged, (Common Assault s.291, Obstruct Peace Officer s.169).

Subsequent changes to those same provisions have retained the term “agent” without any legislative explanation as to the meaning of those words in the context of now s.800 of theCode.

Whatever the original intent was behind the insertion of the term “agent” in 1906, that provision has, over time, become relied upon by law students, unpaid agents (family members and friends), and now paid agents as permitting non-lawyers to represent accused persons, even non-corporate persons, before the criminal courts in summary matters. While supervised law students and unpaid agents have not given rise to concerns or appeals regarding their conduct, the same cannot be said of paid agents.

Unfortunately, the history of the relevant provisions of the Criminal Code after 1906 involve changes in wording and structure, but the term “agent” has remained undefined throughout that time. Despite the controversy over the rise in paid agents in the mid-1990′s and the subsequent omnibus amendments to almost every other area of the Criminal Code, Parliament has not seen fit to clarify or repeal what is now s.800.

The Ontario Court of Appeal has ruled that criminal procedure, and specifically the power to enact now s.800, is within Federal jurisdiction.[24] The provincial power to legislate regarding the legal profession does not deprive the Federal government of the power to enact s.800 of the Code.[25]

Federal Legislation – The Criminal Code

1892 Criminal Code [26]

Indictable Offences – Corporations

s.635 Every corporation against which a bill of indictment is found at any court having criminal jurisdiction shall appear by attorney in the court in which such indictment is found and plead or demur thereto.

s.659 Every person tried for any indictable offence shall be admitted, after the close of the case for the prosecution, to make full answer and defence thereto by counsel learned in the law.

s.661 If an accused person, …is defended by counsel, such counsel shall, at the end of the case for the prosecution, declare whether he intends to adduce evidence or not on behalf of the accused person for whom he appears ….

Summary Convictions

s.850 (1) The person against whom the complaint is made or information laid shall be admitted to make his full answer and defence thereto, and to have the witnesses examined and cross-examined by counsel or attorney on his behalf.

(2) Every complainant or informant in any such case shall be at liberty to conduct the complaint or information, and to have the witnesses examined and cross-examined, by counsel or attorney on his behalf.

s.855 If both parties appear, either personally or by their respective counsel or attorneys, before the justice who is to hear and determine the complaint or information, such justice shall proceed to hear and determine the same.

s.857 (1) Before or during the hearing of any information or complaint the justice may, in his discretion, adjourn the hearing of the same to a certain time or place to be then appointed and stated in the presence and hearing of the party or parties, or of their respective solicitors or agents then present, but no such adjournment shall be for more than eight days.

(2) If, at the time and place to which the hearding or further hearing is adjourned, either or both of the parties do not appear, personally or by his or their counsel or solicitors respectively, before the justice …..

1906 Criminal Code [27]

Section 855 was re-enacted as section 720. Crankshaw’s Criminal Code states that the section was re-numbered with the wording unchanged [28], but that misses the insertion of a new word “agent” that is the basis now for the appearance of non-lawyers in the criminal courts. The phrase “counsel or attorneys” was changed to “counsel, solicitors or agents” (emphasis added).

There is no explanation in Hansard for the change in terms.[29] In Ontario, the term “attorney” was used to describe solicitors prior to the Judicature Act of 1881[30]. Changing the term “attorney” to “solicitor” appears to have been a modernisation of the term without a change in meaning or substance.

The unexplained and unnoticed addition of the term “agent” may have related to appearance by corporations as s.720 did not at that time include specific provisions for appearance by corporations in summary matters. However, when s.720A was added three years later, and specifically provided for appearances by corporations, the term “agent” in s.720 was not deleted. Further, the new section 720A referred to appearance by “attorney” again without explanation.

Given the wording of that new section, it is likely that the 1909 use of the term “attorney” would refer to the common law definition of “attorney” as an, “… agent or substitute, or one who is appointed and authorized to act in the place or stead of another.”[31] This would refer to a corporate officer or other person authorized to stand in place of the corporate legal person in court. This interpretation accords with the provisions regarding Indictable proceedings in the same Code which provided for appearance by “attorney”[32] for corporations, but specifically provided that only “counsel learned in the law” could conduct the case and make submissions in court.[33]

After the addition of s.720A the term “agent” in s.720 was not deleted. This may be legislative oversight, if there is another meaning to the section it is not plain what it would be. The term is not defined in the Code. The regulation of the legal profession was a provincial matter.[34]There is no evidence that the insertion of the term “agent” was meant to created a parallel profession of “paralegals” – a term and concept that would not be used for another 70 years.[35]

The very narrow list of summary offences at that time also suggests that the insertion of the term “agent” in s.720 was not meant to create a new class of “counsel’ or those who could represent others in court. Virtually every offence at that time was prosecuted by way of Indictment. There were only 13 hybrid offences in the 1906 Code, and only two of those were offences commonly charged, (Common Assault s.291, Obstruct Peace Officer s.169).

1909 An Act to Amend the Criminal Code[37]

Section 720A was enacted, providing that:

s.720A When the defendant is a corporation the summons may be served on the mayor or chief officer of such corporation, or upon the clerk or secretary or the like officer thereof, and may be in the same form as if the defendant were a natural person.

2. The Corporation in such case shall appear by attorney, and if it does not appear the justice may proceed as in other cases.

1939 An Act to Amend the Criminal Code[38]

Changes to s.720 were made regarding service upon corporations.

1948 An Act to Amend the Criminal Code[39]

Subsection 720 was repealed by An Act to Amend the Criminal Code S.C. 1948, c.39 s.21. The following new provisions replaced the former s.720:

720. (1) If both parties appear, either personally or by their respective counsel, solicitors, or agents, before the justice who is to hear and determine the complaint or information, such justice shall proceed to hear and determine the same, provided however, that if the accused does not appear personally, the justice may require the personal appearance of the accused and may adjourn the hearing and may issue his warrant for the apprehension of the accused.

1953 Criminal Code[40]

The Criminal Code S.C. 1953-54, c.51 substantially revised the wording of the section and changed the numbering from s.720 to s.707. This wording continues with some revisions to the present Code:

s.707 (1) Where the prosecutor and defendant appear, the summary conviction court shall proceed to hold the trial.

(2) A defendant may appear personally or by counsel or agent, but the summary conviction court may require the defendant to appear personally and may if it thinks fit, issue a warrant in Form 7 for the arrest of the defendant, and adjourn the trial to await his appearance pursuant thereto.

(3) Where the defendant is a corporation it shall appear by counsel or agent, and if it does not appear, the summary conviction court may, upon proof of service of the summons, proceed ex parte to hold the trial.

1970 Criminal Code[41]

The Criminal Code R.S.C. 1970, c. C-34 changed the number of s.707 to s.735.

1985 Criminal Code[42]

The Criminal Code R.S.C. 1985, c. C-46 re-numbered s.735 as s.800 without changes to the provisions.

1997 An Act to Amend the Criminal Code[43]

In 1997, a new subsection was added providing that an accused may appear by way of video. The section requires that the accused be given the opportunity to consult privately with counsel, but no such requirement exists where the accused is represented by an agent.

s.800 (2.1) Where the court so orders and the defendant agrees, the defendant who is confined in prison may appear by closed-circuit television or any other means that allow the court and the defendant to engage in simultaneous visual and oral communication, if the defendant is given the opportunity to communicate privately with counsel, in a case in which the defendant is represented by counsel.

LEGISLATION – PROVINCIAL

Summary of Provincial Legislation

The Provincial Offences Act permits appearance by “agents.”[44] The hiring of agents in traffic and provincial offence proceedings was common by the time the Court of Appeal considered the practice in R. v. Lawrie and Pointts Ltd[45] in 1987. As the Criminal Lawyers’ Association does not oppose the use of paid agents in provincial offences matters, the relevant legislation is set out below without the historical analysis that accompanied the Criminal Code provisions.

The Ontario Court of Appeal in R. v. Romanowicz held that provisions in the Solicitors Act (see below) preventing non-lawyers from presenting legal arguments on behalf of clients for compensation must be read in conjunction with s.50(1) of the Law Society Act (see below) which regulates persons appearing as counsel “except as provided by law.”[46] The Court found that s.800 of the Criminal Code satisfied the requirement of “as provided by law.” The present Law Society Act and Solicitors Act do not bar agents from appearing in criminal courts under s.800 of the Criminal Code.[47]

Law Society Act [48]

s.50 (1) Except where otherwise provided by law, no person, other than a member whose rights and privileges are not suspended, shall act as a barrister or solicitor or hold himself out as or represent himself to be a barrister or solicitor or practise as a barrister or solicitor.

s.50 (2) Every Person who contravenes any provision of subsection (1) is guilty of an offences and on conviction is liable to a fine of not more than $1000.

Provincial Offences Act[49]

51(1) A defendant may appear and act personally or by counsel or agent.

51(3) The court may bar any person from appearing as an agent who is not a barrister and solicitor entitled to practise in Ontario if the court finds that the person is not competent properly to represent or advise the person for whom he appears as agent or does not understand and comply with the duties and responsibilities of an agent.

Solicitors Act[50]

s.1 If a person, unless himself a party to the proceeding, commences, prosecutes or defends in his own name, or that of any other person, any action or proceeding without having been admitted and enrolled as a solicitor, he is incapable of recovering any fee, reward, or disbursements on account thereof, and is guilty of a contempt of the court in which such proceeding was commenced, carried on or defended, and is punishable accordingly.

II. AGENTS IN PROVINCIAL OFFENCES COURTS

TRAFFIC AND RELATED OFFENCES

In those cases where an accused in traffic court or other provincial offence court is represented, it is fair to say that agents appear in the majority of those matters. The better agents, such as former police officers with specific training and experience, seem to confine their practice to driving related matters. A survey of the current Toronto Yellow Pages – Central East Edition[51]shows that most of the court-related advertisements are directed to traffic offences.

OTHER REGULATORY OFFENCES

There are some very serious provincial offences which carry substantial penalties.[52] Most of these regulate the activities of corporations and other businesses. Businesses are relatively sophisticated consumers of legal services and consumer protection concerns about the use of paid agents generally would not apply in this context.

SUMMARY

The Ontario Court of Appeal found that in provincial offence proceedings as well as in small claims court, that agents did address an “unmet need for service to the public.”[53]

The Court of Appeal in Lawrie and Pointts Ltd. did state though that, “…there must be a concern about the absence of any control over the education, qualification, competence and probity of all agents. They deal with serious matters because penalties of up to six months imprisonment apply to some offences under the Highway Traffic Act. No provision exists for disciplining or supervising agents, and protecting the public from any financial loss arising from the improper performance of their responsibilities by way of an insurance scheme like that of the law society.”[54] And further, “It is the responsibility of the legistlature to resolve these issues of policy.”[55]

While there appears to be a role for paid agents in traffic and provincial offences matters, there is a plain need for regulation of the industry to address the concerns outlined by the Court of Appeal above.

III. AGENTS IN THE CRIMINAL COURTS

TYPES OF AGENTS

Definition of “Agent”

The Criminal Code defines such terms as “counsel,” “justice,” “peace officer,” “prosecutor,” “provincial court judge,” even “offender.”[56] Despite defining virtually every other participant in the criminal justice system, the Criminal Code contains no definition for the term “agent”. The Ontario Court of Appeal held that the term was to be given its ordinary meaning, “…in the most general terms, a representative.”[57] Provincial legislation does not confine this term at present to unpaid agents.[58]

Unpaid Agents

There may have been a time years ago, when formal education was the exception rather than the rule, when young persons appeared in adult court, when lawyers were not as numerous across the province as they are today, there may have been a time when older educated friends or family members would assist accuseds in the defence of minor matters. The Criminal Lawyers’ Association consulted a group of senior lawyers, Crowns, and judges[59] to determine the extent to which unpaid agents were common in the postwar period. The consensus was, that in an urban area such as Toronto, unpaid agents were and are uncommon in the criminal courts.

Those very few cases where unpaid agents appear do not seem to give rise to complaints or appeals based on the quality or manner of representation.

Students-at-Law

Students-at-law are governed by the Law Society of Upper Canada. Articled students-at-law are permitted to appear on “all summary conviction matters in the Court of first instance…”[60]and on “any matter where an agent has a right of appearance.”[61]

The Criminal Lawyers’ Association contacted the supervising lawyers at the student clinics for Osgoode Hall Law School[62] and the University of Toronto[63] and determined that law students also appear in certain limited summary matters as determined by their supervisors.

With some legal education, with the rules of the Law Society, and the full supervision of lawyers, law students provide diligent and capable representation in the minor matters on which they can appear. The Criminal Lawyers’ Association does not seek to change the Law Society Act and the rules set out by the Law Society governing students attending as agents in the criminal courts.

Pro Bono Exceptions?

In Manitoba, there was a pilot project to provide some legal services by way of agents to native persons.[64] In Ontario, there seems to be no system or project in which paid agents are employed to represent certain groups. It is not plain either why Aboriginal groups or others should be represented by agents of little or no education and training while the majority of accuseds before the province’s courts are represented by lawyers. Aboriginal Legal Services in Toronto advises that while they use native “court workers” to assist accused members of their community and the lawyers who represent them, they do not refer matters to agents.[65]

Paid Agents

Paid agents rely on the provisions in the Criminal Code as discussed above to represent others in summary conviction matters in the criminal courts. There are no qualifications whatsoever required of agents, nor are there competence examinations or any body to oversee those practicing this business. This situation of untrained and unregulated persons conducting cases for payment in serious criminal matters has the potential for miscarriages of justice according to the Ontario Court of Appeal.[66]

Throughout these submissions, the Criminal Lawyers’ Association refers to “paid agents” as opposed to “paralegals”. The latter term seems to have come into use in the 1970′s in the United States to describe persons who were graduates of degree programs there[67]. There is no educational or training program in Ontario directed towards the defence of criminal cases by non-lawyers. Calling paid agents “paralegals” is somewhat misleading since in other areas of the law there are in fact college programs designed to provide special training and the graduates of those programs do call themselves “paralegals” or “law clerks”.

A MARKET FOR PAID AGENTS?

Do Agents Provide a Market Alternative?

What evidence there is of fees charged by paid agents in criminal matters indicates that they do not presently provide a market alternative to lawyers in the criminal context. In the R. v. Lemonides appeal, the Criminal Lawyers’ Association filed an affidavit of Mr. Bruce Durno[68] (as he then was) which summarized transcripts obtained in R. v. Rameshkumar[69], R. v. Richter[70], R. v. McGibbon[71],all cases in the Ontario Court of Justice, in which accuseds advised the court that they had paid agents fees ranging from $1,100 to $2,000 for summary matters.[72] In the Lemonides matter, Justice Wein mentions that the appellant had received a receipt for his payment of $1,300.[73] One St. Catherines counsel investigated fees charged by agents in the Niagara region and found that “…people with no training are charging $1,200, $1,500 for an impaired driving charge.”[74] A recent complaint received by the Criminal Lawyers’Association regarding two cases in the Ontario Court of Justice in Brampton where an agent was involved noted that two accused persons complained of having paid fees of $1300 and $2000 for guilty pleas on summary matters to an agent they had been told was a lawyer.[75]

Mr. Durno stated in his affidavit in the Lemonides intervention that he had made himself familiar with fees charged by competent and experienced counsel in summary matters and he was confident in stating that many competent counsel charged fees of $1000 to $2000 for impaired driving cases and perhaps lower in other summary offences.[76]

Another measure of lawyer’s fees is the Legal Aid Tariff. Almost all criminal lawyers accept legal aid cases and the fees under that tariff for summary cases at the time of Lemonides ranged from a maximum of $268 for guilty pleas to a maximum of $435.50 for trials with no minimums.[77]Presently the tariff has been increased to range from a maximum of $402 for pleas to a maximum of $703.50 for trials with no minimums.[78] Fully competent and well trained lawyers can and do work for fees that are less than those charged by paralegals.

Unlike other areas of the law, in criminal law paid agents do not provide a low-cost alternative to services provided by lawyers. They directly compete with lawyers for middle class clients and seem to charge similar or higher fees. There is no evidence that paid agents provide any services at all to persons with low-incomes.[79]

Market Advantages of Unregulated Agents

To show that paid agents do not presently provide a market alternative does not foreclose the possiblity that others might, in the future, choose to charge lower fees than lawyers. If there was a regulatory scheme in place, would properly trained and governed paralegals be able, in theory, to provide a market alternative to legal services provided by lawyers in the criminal courts? At present, with no standards or regulations in place, agents do enjoy a number of advantages over members of the bar. It is plain though, that most of those advantages would disappear if even a minimal regulatory scheme was put into place. Examples include:

No Advertising Restrictions

The Law Society of Upper Canada imposes detailed restrictions on the rights of lawyers to advertise. Rule 12 of the Rules of Professional Conduct[80] sets out five pages of detailed provisions governing advertisements including:

• a prohibition on false or misleading advertising[81]
• specific rules for the advertisement of fees[82]
• prohibition on touting[83]
• restricting terms that can be used in advertising or on letterhead[84]

Agents presently have no restrictions upon their advertising. Nor are they barred from touting their services directly to clients in and around courtrooms. Some courts in the Toronto area have seen instances of touting, either by direct approach in and around the courtrooms or by way of handbills distributed inside the courthouse.[85] It also seems to be common practice to promise victory or no fee (with a wide definition of a “win”).[86] To the extent that regulated paid agents would have restrictions on their advertising, and would be prohibited from some of the worst practices such as “touting,” any commercial advantage gained from these practices would end.

No Education Requirements

Paid agents wish to practice criminal law without the bother of obtaining a university education, spending three years in a law school, service of articles, and then passing professional competence examinations in a bar admission course. At the moment there is no requirement that agents have passed even a high school law course.

The paid agent who practices criminal law avoids spending $40,000 and more on university, law school and professional examinations. He or she saves not only the costs of those courses, but also the eight to nine years loss of wages.

There may be a market advantage in not undertaking the education and training, particularly where the consumer is not aware of that fact. This approach though could be taken to any profession or trade. We could have any number of people trying their hand at electrical work or even surgery. The results would be catastrophic. The Court of Appeal has predicted the same fate for criminal proceedings conducted by agents, “Unregulated representation by agents who are not required to have any particular training or ability in complex and difficult criminal proceedings where a person’s liberty and livelihood are at stake invites miscarriages of justice.”[87]

To the extent that agents are required to obtain proper education and pass professional competence exams, any market advantage they enjoy from cutting those costs will disappear.

No Ethical Rules of Conduct

Paid agents are presently subject to any rules of conduct or professional practice. There is no requirement that they follow any of the complicated guidelines imposed by the Law Society for lawyer’s accounts. They are not even required to establish a trust account. There is no body to regularly audit their practice for financial irregularities as the Law Society now does.

Agents are not “officers of the court” and owe no special duty to the courts or the justice system to honour the administration of justice. While it may be contempt for a lawyer to be reckless to their obligations to the court,[88] it is not certain that paid agents are subject to the same obligations.

No Insurance Requirements

Unlike lawyers, agents in the criminal courts generally do not carry any form of practice insurance. They are not restricted from insulating themselves from personal liability through incorporation. The means that the public is prevented from having any real civil recourse for negligent conduct on the part of an agent.

Some agents who practice in small claims courts and other areas have been able to obtain insurance. If an agent was to become a criminal paralegal practicing the same type of summary cases as lawyers, then it would likely be that their insurance rates would begin to resemble that of lawyers. Given the lack of education, training, professional regulations and exams, etc., one would think that paralegals would pose a greater risk to an insurer and would therefore pay a higher premium[89].

At a miminum, any plan to regulate paralegals would have to include provisions for liability insurance. Regulation would again remove any cost cutting advantages paralegals may have enjoyed by avoiding insurance or eliminating their liability through incorporation.

Legal Services to Low-Income Ontarians

There is no evidence that paid agents provide legal services to persons with low-incomes. People of modest means who are charged with minor offences and do not qualify for Legal Aid may need a market alternative for legal services, but at present persons falling into this group either choose to represent themselves or are represented by students-at-law.[90] Some lawyers will also represent these persons on a pro bono basis.

The available evidence suggests that paid agents do not in fact provide a market alternative for people of modest means, but rather compete directly with the bar for the more lucrative “middle class clients” who can afford to pay thousands of dollars for the defence of their summary conviction matters.[91]

If paid agents did provide access to justice to the poor and people of modest means, that would be some reason to consider whether the system of criminal justice is made more accessible by their presence. The fact that they do not provide legal services to these needy groups is probably the most telling point. They do not in fact enhance access to justice for persons of limited means in the criminal justice system, but rather seem to duplicate the services already provided by lawyers to persons of some economic means.

Some agents have argued that they do not represent persons of modest means because they are not permitted to take Legal Aid cases. If there was an agent who would be prepared to accept the low fees set out in the Legal Aid Tariff, (as thousands of lawyers do) then they would again merely be duplicating the services already provided by lawyers. The people of Ontario would be paying the same tariff rates for people who do not have the training, education, and professional competence already provided by the members of the bar who now serve on Legal Aid panels across the province. As people with Legal Aid certificates in criminal matters seem to have no difficulty in finding lawyers who will represent them, there is no reason why those persons would retain agents of lesser or no education and training to represent them in court.

REASONS ACCUSEDS RETAIN AGENTS

Public Perception

In 1995-96 there was a significant increase in the number of paid agents appearing in the criminal courts of this province.[92] During those years the Ontario Legal Aid Plan was in crisis – spending had not been properly managed and a massive deficit had resulted, the Plan was not able to meet its financial commitments and for months no payments to lawyers were made, there was one announcement that the government might be cancelling the legal aid program and that outstanding accounts would default, lawyers then launched a “class action” lawsuit to ensure outstanding accounts would be honoured. Among the responses by Legal Aid was to dramatically cut back in the numbers of certificates being issued for criminal matters.[93] All of these factors contributed to a perception by the public that there was no longer legal help available for people of modest means.

If the rise in paid agents was in response to a market need for cheaper legal services, then there would be some reason to look further to determine whether they are, or could be trained to be, competent to appear in the criminal courts. Surprisingly, all available evidence suggests that in criminal matters, agents do not provide a lower cost alternative to lawyers.[94] They appear to charge fees that are equal to or higher than those charged by lawyers. This is all the more striking when compared to the dramatically reduced fees that the majority of criminal lawyers accepted under the April 1, 1996 Legal Aid Tariff.[95] Fully trained lawyers were at that time representing accused persons on summary matters, including interviews, set date appearances, disclosure requests, pre-trial meetings and attendance for resolution or trial, for fee starting at $268 maximum for matters which resolve (and no minimum)[96]. That is 75% less than even the lowest fees that seem to be charged by paid agents.

If it is not in fact true that paid agents provide less expensive services than lawyers, then why would consumers choose, at the same cost, to be represented by persons of no formal legal education and little or no training? Part of the answer must be that while agents are not in fact cheaper, the public perceives that they are or must be, cheaper than lawyers. In this regard lawyers may be victims of their own “press”. For over a decade, television shows have portrayed criminal lawyers in shows such as “L.A. Law”, “Street Legal”, “The Practice” and others. On television, criminal defence lawyers drive the fanciest cars, and live a “hollywood” lifestyle. Real life cases that capture public attention often too focus on the prominent or celebrity accused who is surrounded by the best counsel money can buy. There is little or no press given to the vast majority of lawyers who defend persons of modest means for modest fees. Lawyers themselves also do not tend to brag to the refrigerator repair person or the garage mechanic that their hourly rates are comparable or lower, or that their hourly rate has remained unchanged since 1987.

Public perception is also shaped by advertising, and while lawyers are still quite restricted in advertising prices and making price comparisons, paid agents focus on these aspects in their advertising. Phrases used by agents in the Toronto yellow pages include: “we win or its free,” “lower legal bills,” “416-dont-pay,” “lowest fees in Toronto,” “a defence you can afford,” “guaranteed lowest rates,” “competitive prices.”[97] These slogans are not permitted in lawyers’ advertising. Since the perception that agents provide low cost services seems to be more important than the fact being true, it is understandable that agents’ advertisements focus on price competition. This is particularly so where lawyers are unable to respond due to restrictions placed on their advertisements.

Touting

Lawyers are specifically prohibited from soliciting professional employment from a prospective client with whom the lawyers has no family or prior professional relationship by mail, in person, or otherwise.[98] Agents have no restrictions and are able to directly approach accuseds in the courts whom they believe to be unrepresented. The Criminal Lawyers’ Association has received complaints that a few agents were touting their services in the Metro Toronto courthouses. At least one was apparently doing so right in a courtroom.[99] An accused person who comes to court without counsel, who adjourns his matter and then watches as numerous lawyers file by him without speaking to him, may well find the direct approaches of an agent to appear to be helpful, and may infer that lawyers had no time for her or him.

Encroachment

Agents who do appear in criminal courts almost always attend on matters involving driving offences. A look at the current Yellow Pages for central Toronto reveals that virtually every paralegal advertisement that is directed towards courtroom work mentions traffic offences and impaired driving.[100] Other driving offences are mentioned as well.

Agents have developed successful practices in traffic and provincial offences matters, and they may see the defence of criminal driving charges as a natural extension of their current practice. Likewise, a client who has had an agent defend a traffic ticket case may not appreciate the differences in defending a complex criminal charge such as “impaired driving”. They may well assume that an agent who is qualified to do one, would be qualified to do both.

Misrepresentation

Many accuseds seem not to know or understand the differences between lawyers and agents in the criminal justice system. Worse still, is the evidence that some agents misrepresent themselves as lawyers, or do not make it plain to accuseds that they are not in fact lawyers.[101]

If an accused does not know or understand that an agent is not a lawyer, then they cannot decide whether to surrender their right to effective assistance of counsel in order to retain the agent.

Special Vulnerability – Immigrant Groups

Despite the general decline in the presence of paid agents in the criminal courts, there does continue to be a special concern with agents appearing for members of immigrant communities. These persons often do not speak English, and have little or no familiarity with the Canadian legal system. They are particularly vulnerable to the misconception that agents are lawyers or provide a quality of representation like that of lawyers.

In the affidavit of Bruce Durno, filed in R. v. Lemonides, an affidavit of Flora Rosenfeld, court translator, was filed. She stated under oath that on a number of occasions agents told their client through her interpretation that they were lawyers.[102]

CURRENT PROBLEMS WITH PAID AGENTS IN THE COURTS

Criminal Convictions

One of the worst problems with unregulated agents in the criminal courts, is that a number of them have criminal records which include convictions for dishonesty. In his affidavit filed in R. v. Lemonides, Mr. Bruce Durno (as he then was) gave examples of two agents with known criminal records for dishonesty who were practicing in the criminal courts in Toronto. The Criminal Lawyers’ Association has received other such complaints, including a fax sent to warn staff at the Scarborough Provincial Court of a problematic agent appearing there who had a criminal record including convictions for obstructing justice, fraud over x 1, breaching bail, false statements to obtain a passport, and fraud over x 16.[103]

One of the most notorious examples of persons with a criminal record is Arturo Nuosci, who changed his name to Maverick A. Maveric. Maverick, who billed himself as a “former Mountie” left the R.C.M.P. as a special constable because he was dismissed for disgraceful conduct.[104] He was convicted of forgery and uttering in 1990 (was jailed for 6 months) and was out on bail on further counts of fraud when interviewed in 1996 by The Toronto Star. He was later convicted of defrauding the government of more than $55,000 in disability payments after he lied about having HIV. He was given a conditional sentence of two years less a day and ordered to make restitution. He has subsequently appeared in custody at Old City Hall for breaches of the conditional sentence.[105] Maverick A. Maveric told The Toronto Star “I’m proud of who I am and I’m proud of what I’m doing.” [106]

When fraud artists and con-men can set up shop in the courts of this province calling themselves “paralegals” and “agents” without any restriction, there is a crisis in the administration of justice.

Incompetence

The Court of Appeal stated in R.v. Romanowicz that, “Obviously, representation by agents lacking the ability to competently represent an accused endangers all aspects of the proper administration of justice, particularly the accused’s right to a fair trial.”[107]

Much of the work of agents in the criminal courts seems to be directed towards guilty pleas, and it is not known in those cases whether an accused was given proper advice prior to his or her plea. Matters that have gone to trial result in regular complaints of ineffective assistance of counsel. The Lemonides and Romanowicz appeals are examples of an ongoing problem in the criminal courts.

In St. Catherines, Mr. Justice Joseph Quinn found that one paralegal, “…transcended incompetence.”[108] The agent, Ms. H. Gross, had no formal legal training and, under cross-examination could not remember the titles of law books in her possession. “She said she had the Criminal Code and a book on evidence by “Soprinka” [sic].”[109] She could not remember the specifics of any training she might have had, and she did not keep client files more than a few months after the end of the case.

Some recent examples:

• In May of 1999, an agent identifying himself as L. Allen approached the Crown in 112 Court, Old City Hall, Toronto, to attempt to plead a client guilty. When it was determined that the accused did not admit the facts and asserted a defence to the charge, the agent asked Crown counsel if this factor could be taken in mitigation of sentence.[110]
• In November of 1999, in 112 Court, Old City Hall, Toronto, an agent identifying himself as “J. Rafael” tried to plead an accused guilty to an indictable offence. The previous day he had attended bail court in the same matter and offered himself to the court as surety![111]

The Ontario Court of Appeal commented recently that to allow untrained agents to practice in criminal cases invites miscarriages of justice:

Unregulated representation by agents who are not required to have any particular training or ability in complex and difficult criminal proceedings where a person’s liberty and livelihood are at stake invites miscarriages of justice.[112]

As noted above, agents may advertise in any fashion they choose and in so doing, may call themselves almost anything they can think of. A survey of the current Toronto Yellow Pages- Central East Edition shows the following terms used by agents who advertise service in impaired driving or other criminal cases: “advocate group,”“agents,” “C.O.P.S. Ltd,” “Canadian defence counsel,” “certified court agents,” “paralegals,” “professional legal services,” “specialized paralegals,” “traffic ticket experts,” etc.[113] The advertisements also use terms prohibited to lawyers as misleading such as: “we win or it’s free,” “*90% success rate (with an unexplained asterisk),” “starting at $…,” “guaranteed lowest rates.”[114]

Any regime to regulate agents would impose some restrictions on advertisements to protect consumers from misleading statements and to allow them to distinguish between legal services provided by lawyers and those provided by agents.

Misrepresentation

It is a regular complaint to the Law Society and to the courts, that agents have misrepresented themselves as lawyers. In two recent cases in Brampton referred to above, a court making aRomanowicz inquiry of two accuseds pleading guilty with the assistance of an agent, was told that both accuseds had been told that the agent was a lawyer.[115] In R. v. Lemonides, Justice Wein hearing fresh evidence on appeal said of the testimony of the agents that they had informed the accused they were not lawyers, “I do not accept the evidence of Mr. Carter or Mr. Blaha that they made it clear to the Appellant that Mr. Blaha was an agent and not a lawyer. Quite apart from the fact that both appeared anxious in other parts of their testimony to exaggerate their legal knowledge and ability, I found that their evidence of the specific recollections concerning conversations with the Appellant were too nicely tailored to fit the needs of the case. I simply reject the evidence of the witnesses Blaha and Carter concerning these conversations.”[116]

The Toronto Star reported that clients of agent Maverick A. Maveric told the courts in the East Mall, Metro Toronto, that they had understood he was a lawyer.[117]

“Paralegal” Nicolo Iamonico appeared gowned in the Ontario Court (General Division) for over a year before it was learned that he was not a lawyer. He was convicted of 10 counts contrary to s.50 of the Law Society Act and fined $10,000.[118]

In a handbill passed out in the Scarborough courts, an agent named Ilan D. Kritzer uses the phrase “Furthermore, I am not a paralegal. I am legal council [sic] here to protect your rights.”[119]

Ms. Sue Collings of the Special Investigations Unit of Zurich Canada prepared a list of concerns regarding paralegals held by her office and other insurance agents she contacted. Included in the letter to then Attorney General Charles Harnick was the following concern:

Claimants regularly describe their legal representative as their “lawyer” when talking with insurance representatives. Follow-up usually reveals that the insured’s representative is a paralegal and not a lawyer as described. I have particular concern for those individuals who lack the language skills to make the distinction or the ability to question the difference.[120]

The Criminal Lawyers’ Association has copies of agents’ advertisements and correspondence that use terms such as, “defence counsel,” “law partner,” “legal counsellor,” “legal council [sic] and courtroom litigator,” “advocates” and “solicitor”.[121] Even the imposition of a regulatory regime on the practice of paid agents in the courts may not address the problem of agents who represent themselves as lawyers or who fail to properly inform their clients that they are not lawyers.

Privilege

Communications between solicitor and client are subject to a special privilege.[122] Except where created by statute, there is no guarantee of privilege for agent-client communications.[123] It is unlikely that agents inform potential accuseds of this difficulty prior to discussing their cases.

Right to Effective Assistance of Counsel

If an accused retains a lawyer, he or she is constitutionally entitled to competent representation by that lawyer. “The constitutional right to the effective assistance of counsel recognizes that counsel, by virtue of their professional training, will bring to their task an expertise which others, including the accused, do not possess. An accused who chooses to seek the assistance of legally trained counsel is entitled to assistance which reflects that expertise.”[124] An accused who retains a lawyer therefore enjoys a constitutional right to professional representation which itself can form a ground of appeal if breached.

Where an accused chooses to be represented by an agent who is not a lawyer, they give up the right to the effective assistance of counsel.[125] The Ontario Court of Appeal in R. v. Romanowicz held that, “… an accused who chooses to be represented by an agent who is not a lawyer has decided against exercising the right to effective assistance of counsel, and cannot be heard to contend that the agent’s performance should be tested against the standard reserved to counsel trained in the law.”[126]

Given that the choice of representation by way of agent or paid agent involves a waiver of the right to “effective assistance of counsel,” the Ontario Court of Appeal has directed trial courts to satisfy themselves that the accused’s choice is an informed one. This questioning procedure, often on a trial date, causes delay in the courts. This is particularly the case where the accused was not properly informed and decides not to proceed with the agent – this has already caused real delays in the courts.[127] In that case not only is court time wasted, but the delay and further expenses are also imposed on witnesses and victims.

Touting

As discussed above,[128] there are no prohibitions on agents having direct contact with unrepresented persons. The current rules prohibiting such practice for lawyers were put in place to protect consumers from confrontation by persons attempting to secure a retainer and agents should be subject to the same rules, regardless of the scope of their practice.

PROBLEMS WITH AGENTS POST REGULATION

Consumer Protection

If paid agents are subject to a regulatory regime, there will have to be some way to inform the consumer about the differences in training and education between the licensed “paralegals” and members of the bar. The public has a right to know what it is they are paying for and that information becomes all the more important if agents appear to be “licensed” or “certified” in some way by the government. Note that some paralegals in the Toronto area presently advertise that they are “certified” even though there is no regulatory regime in place.[129]Certification is a marketing point, (even apparently where no regulatory regime exists) and there is a potential for consumers to be misled. One of the advantages of drawing a “bright line” between criminal offences and provincial offences (with agents restricted to the latter) is that the consumer would not be faced with the task of evaluating the particular qualifications of agents of lesser training and education than lawyers. In serious criminal matters they would have a right to effective assistance of counsel and know that the members of the bar have met substantial educational and training requirements.

Hybridization

As noted above,[130] historically charges prosecuted by way of summary conviction were extremely rare when the provision for appearance by way of “agent” in summary matters was added to the Criminal Code.[131] Since 1990, the Code has been amended to transform some serious Indictable offences into offences in which the Crown may elect whether to proceed by way of Indictment or summarily. As the Court of Appeal noted in R. v. Romanowicz, “These hybrid offences include some very serious crimes such as assault with a weapon, forcible confinement, sexual assault, breaking and entering, uttering threats and forgery. Some of these crimes (eg. sexual assault) are punishable by up to 18 months’ imprisonment and significant terms of incarceration are not unusual following conviction. Furthermore, prosecution of some of these crimes will routinely involve complex evidentiary and procedural issues. Finally, all signs suggest that Parliament will continue to expand the number of hybrid offences and increase the penalties for some offences punishable by summary proceedings (eg. drinking and driving offences).[132] The Court termed the concerns with untrained and unregulated agents representing accuseds charged with serious offences, “obvious”.[133]

These “obvious” problems do not disappear with regulation. The court reforms that reduce delay by conducting more trials at first instance, have resulted in very serious matters being prosecuted summarily. To qualify to act for others in such important trials and remove the “obvious” concerns of the Court of Appeal, there would have to be education, training, and competence testing at the level of a criminal barrister. Anything less would directly conflict with the court reforms of hybridization.

Right to Effective Assistance of Counsel

The constitutional right to the effective assistance of counsel would not likely include paid agents even if they are subject to a regulatory regime.[134]

“… An accused who chooses to be represented by an agent who is not a lawyer has decided against exercising the right to effective assistance of counsel, and cannot be heard to contend that the agent’s performance should be tested against the standard reserved to counsel trained in the law”.[135]

Even under a regulatory regime, consumers would be surrendering their constitutional right to the effective assistance of counsel if they retained an agent. The courts would then still be required in all cases involving agents to engage in the Romanowicz inquiry, with all the difficulties and delays that involves if accuseds then are unprepared to proceed with the agent.

Incompatible with Court Reform

Beyond hybridization, the Attorney General of Ontario announced future plans for court reform at the opening of the courts, January 10, 2000 in Toronto.[136] These ideas include establishing a “unified criminal court” to, “…eliminate the complexity, expense and delay of moving cases back and forth between two different levels of trial court.”[137] By eliminating preliminary hearings and merging trial courts, the distinction between indictable and summary proceedings in non-jury matters would disappear. This would likely lead to further hybridization in matters where a jury is not constitutionally required.[138]

It would not make sense to establish a new parallel profession of paralegals who would not be able to appear in many if not most of the matters in a “unified criminal court”. Not only are paralegals presently unnecessary in the present system, they would be a direct obstacle to future reforms such as a “unified criminal court” or any steps in that direction.

IV. GOVERNANCE OF AGENTS

GOVERNANCE IN PROVINCIAL OFFENCES MATTERS

The regulation of paralegals in other areas of the law should be applied to agents practicing in provincial offences courts. Over a decade ago, the Court of Appeal in Lawrie and Pointts Ltd.noted that, “…there must be a concern about the absence of any control over the education, qualification, competence and probity of all agents. They deal with serious matters because penalties of up to six months imprisonment apply to some offences under the Highway Traffic Act. No provision exists for disciplining or supervising agents, and protecting the public from any financial loss arising from the improper performance of their responsibilities by way of an insurance scheme like that of the law society.”[139]

To address the concerns of the Court of Appeal and protect the consumers of this province, a regulatory regime governing paid “paralegals” practicing in provincial offences courts must include at a minimum the following:

• provision for ensuring the good character of persons representing others in provincial offences courts
• provision for mandatory errors and omission insurance
• educational requirements, with specific courses required in provincial offences procedure, evidence and trial practice (or the equivalent, such as police college courses passed)
• competence testing
• ethical rules of professional conduct, including restrictions on misleading advertising
• provision for a governing body to enforce the above requirements

The regulatory regime must be applied to all persons who purport to represent others for pay in provincial offences courts. The position of unpaid agents may well be different – it may be that restricting regulation to those who offer their services for money while leaving to the Federal government the consideration of the general term “agents” in s.800 of the Criminal Code for other persons best agrees with the constitutional division of powers between criminal procedure and the regulation of the legal profession.

Students-at-law and law school students who appear pursuant to other provincial legislation and regulations should remain governed by those provisions and may be excluded from any regime regulating “paralegals” by an exception as “otherwise provided by law” or by a specific exception.

GOVERNANCE IN CRIMINAL MATTERS

Doing Nothing – Not An Option

Over the past 13 years, the Ontario Court of Appeal has twice now called for legislative attention to the status of agents appearing on behalf of accused persons in the courts.[140] As the scope of matters being prosecuted by way of summary conviction has expanded, the concerns of the court have increased.[141] The matter is urgent and legislative inaction is not an option. “Continued legislative inaction suggests indifference to the proper administration of criminal justice in summary conviction proceedings. The cynics among us will suggest that only some serious and highly publicized miscarriage of justice will overcome that indifference. We hope not.”[142]

Full Duplication – Creating a Parallel Profession

Unlike other areas of the law, agents in the criminal courts are not acting to supplement or support the work of lawyers, but rather to duplicate the work done by lawyers. Agents wish to practice as criminal lawyers in the courts without undertaking the education, training and competence examinations required of members of the bar. While there is likely to be regulation of law clerks and paralegals in other types of practice, to include criminal matters would require a full duplication of much of the training and regulatory structures of the legal profession.

In the civil law, there are programs to train “paralegals” and “law clerks” in the community colleges. There is no program to train “paralegals” to practice criminal law. At a minimum, such a program would have to offer courses in criminal law, criminal procedure, evidence,

constitutional law, professional ethics and trial advocacy. There would have to be some program of training, as well as competence examinations, insurance and a regulatory body to enforce minimum standards. While some of these features would be present to regulate small claims advocates or provincial offences agents, the now very serious nature of summary criminal offences would require programs that meet much higher standards.

Restricting Practice in Criminal Matters to Lawyers

There is no justification for the public expense that would be involved in creating a parallel profession in the criminal courts. Agents do no provide less expensive services in criminal matters than lawyers and they do not perform services that lawyers won’t do (such as may be the case in traffic ticket matters or other provincial offence cases). The arguments that justify the inclusion of paralegals in other areas of the law are simply not present in the criminal context. Even if there were or could be some advantage to the consumer of lower fees, that would not be a reason to lower professional standards in the now serious summary cases, nor would those lower costs likely survive even a minimal regulatory scheme.

The Report of the Ontario Legal Aid Review[143] summarized the history in Ontario of the provision of legal services in criminal matters to indigent accuseds.[144] From pro bono services to “charitable legal aid” and on to our modern Legal Aid Plan, the criminal bar has always been committed to providing legal services at the highest level to the people of Ontario. There is no reason to think that long history is about to change.

There is no real reason then to engage in the difficult exercise of trying to determine what summary offences, in what factual circumstances, are still simple enough to be dealt with by non-lawyers. Rather than set up a confusing duplicate regime of lesser trained “paralegals” who would be restricted as to the cases they could represent, it would make more sense to set a “bright line” rule that gives agents full powers to act in provincial offence matters, but prohibits them from appearing on criminal cases.

That plain rule establishing a clear division between the matters that agents would be permitted to do and those they would not, would best serve both consumers and the administration of justice in this province.

1. The Criminal Lawyers’ Association recommends that the provincial government take action to protect consumers and ensure the proper administration of justice in the province by regulating non-lawyers who provide legal services as “agents”, “law clerks”, and “paralegals”.

2. The Criminal Lawyers’ Association recommends that the provincial government include in any such regulatory system governance of “agents” who appear in the Ontario Court of Justice in provincial offences matters.

3. The Criminal Lawyers’ Association submits that “agents” do not have the education or training to participate in the complex criminal matters that are now tried by way of summary conviction. There is no shortage of properly qualified lawyers providing services in criminal cases for reasonable fees or under the Legal Aid Tariff. Creating a second profession of “paralegals” in the criminal field merely duplicates services already provided by more qualified members of the bar. There is no reason to put the public to the expense of a duplicate system which does not enhance access to justice.

4. The Criminal Lawyers’ Association submits that creating now a class of lesser trained and educated “paralegals” in the criminal system runs contrary to current efforts at court reform, including hybridization and plans to unify the criminal courts.

5. The Criminal Lawyers’ Association recommends that the provincial government adopt a “bright line” rule permitting paid agents to appear in any provincial offence matter, but prohibiting paid agents from appearing in criminal matters. Any attempt to define a class of “non-serious” criminal summary offences on which paid agents could appear is potentially misleading to consumers and unnecessary given the access to competent legal advice in criminal cases that the public now enjoys.

6. The Criminal Lawyers’ Association submits that such legislation is within the competence of the provincial government to regulate those who provide legal services. This would not conflict with the Federal power to legislate in matters of criminal procedure as there would be no restriction on the general right of unpaid agents to appear in criminal summary matters as provided for by Parliament.

7. The Criminal Lawyers’ Association recommends that any legislation preventing paid agents from appearing in criminal cases include an exception “as otherwise provided by law” to permit students-at-law who are subject to the supervision and regulation of the Law Society of Upper Canada under the Law Society Act to continue to appear.

V. ACKNOWLEDGEMENTS

This submission of the Criminal Lawyers’ Association was prepared by Joseph F. Kenkel, Barrister. The writer would like to acknowledge the work done by members of the Criminal Lawyers’ Association over the years on the issue of agents in the courts. That past work forms the basis for much of this report. The work done by former President Mr. Bruce Durno (as he then was), by Hamilton Director Dean Paquette, and by our Executive Director Ms.Stephanie Mealing, is particularly acknowledged.

The writer is grateful for the assistance of lawyers across the province who have regularly provided information to the Criminal Lawyers’ Association on this issue. Sincere thanks are also due to Mr. Patrick Duffy Q.C., the Hon. Mr. Justice Ronald Thomas and Mr. Frank Armstrong Q.C., for their assistance and advice in researching the history of agents appearing in the criminal courts.

VI. NOTES