By Alexandra Psellas
Bill C-75 is a proposed Act to amend the Criminal Code, the Youth Criminal Justice Act, and also make consequential amendments to other acts. It passed third reading in the House of Commons on December 3, 2018 and has been passed to the Senate for review. One of the stated purposes of the proposed bill is to provide measures that will reduce criminal justice system delays and to make criminal law and the criminal justice system clearer and more efficient. However, apparent oversights in the drafting of the bill have put this purpose in jeopardy. This brief commentary will focus on the proposed amendment to the default penalty for summary offences and the impact this will have on access to justice for individuals who rely on representation by student legal clinics. By increasing the number of self-represented individuals in the criminal justice system, delays will increase, not decrease.
Access to justice is a fundamental principle of our legal system and the rule of law. It has been recognized that ensuring access to justice is “one of the greatest challenges to the rule of law”.
The rule of law requires that people only be subject to legal consequences where legally justified. The advice and advocacy of lawyers is vital to ensuring individuals have access to their legal rights and entitlements in the system of laws. As stated by Alice Woolley, “it is hard to see a criminal accused without a lawyer as having truly had access to the rule of law.”
The most cited reason for self-representation in family and civil courts is financial circumstances. It follows that this same observation would hold true in the criminal context. To this point, recent Ontario court decisions have referenced the harsh reality that Legal Aid Ontario financial eligibility income thresholds are so low as to bear no reasonable relationship to what constitutes poverty. The result of this is that many individuals do not qualify financially for legal aid but are still too poor to afford legal fees.
Each of the law schools in Ontario operates a student-run legal clinic in which students represent criminal clients on summary offences. The clinics are designed to assist impoverished individuals who do not qualify for funding through Legal Aid Ontario. While many individuals are unable to qualify for legal aid for the above-stated financial reasons, there are other situations in which individuals may qualify financially but be denied for other reasons. For example, it is unlikely that an individual would qualify for legal aid if they are not facing jail time. As stated by Doug Ferguson, director of the Community Legal Services Clinic at Western University, the student legal clinics exist to assist those who “have to represent themselves because they can’t afford a lawyer, they don’t qualify for legal aid. So they fall through the cracks of the justice system[.]”
Many summary offences, such as assault, criminal harassment, and certain mischief offences, currently create liability for a fine of not more than five thousand dollars or a term of imprisonment not exceeding six months, or both. This is the default maximum penalty for summary offences given under section 787(1) of the Criminal Code and only varies where otherwise prescribed by law. The proposed Bill C-75 includes an amendment which replaces section 787(1) with a provision increasing the maximum term of imprisonment for summary offences to not more than two years less a day.
Section 802(2) of the Criminal Code authorizes the use of agents, individuals who are not lawyers, at a criminal trial. Limitations on this provision are found in section 802.1, which provides that “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 the defendant is a corporation or the agent is authorized to do so under a program approved by the lieutenant governor in council of the province.” In effect, this limits law students acting as agents to represent only individuals facing a maximum term of imprisonment of less than six months.
Due to the increase in the default maximum term of imprisonment for summary offences to two years, the effect of the proposed amendments to sections 787(1) and 802.1 of the Code is that law students will no longer be able to act as agents for individuals facing these charges. Part of the amendment does include exceptions to this, allowing agents to act only to request adjournment of the proceedings and allowing agents to be authorized by criteria established by the lieutenant governor in council of the province. However, allowing law students to act only to request adjournment is not sufficient, because, as noted by Mr. Ferguson, “there’s no point unless we can do trials.”
Bill C-75 has passed third reading and has been passed to the Senate for approval. At this stage, it is still possible for the Bill to be amended to solve the agency issue. However, if this does not occur it will be up to the provinces to establish criteria allowing law students to act on summary offences in order to ensure continued representation for this group of individuals. Otherwise, law students will be barred from representing accused individuals on summary offences and as a result it is likely that the number of self-represented individuals will increase.
It is evident that self-represented individuals have greater difficulties achieving fair outcomes. Unrepresented persons are unable to efficiently navigate the legal system without the assistance of counsel, leading to delays. The Ministry of the Attorney General has recognized that a self-represented accused is ill-equipped to conduct a trial for many reasons, including a lack of knowledge of procedural and evidentiary rules. It acknowledges that “the criminal justice system often does not work as it should when an accused is not represented and cannot present or challenge the evidence in a meaningful way.” The effect of the amendments proposed in Bill C-75 will be to increase the number of self-represented accused, which is likely to be detrimental to both their own case and the criminal justice system as a whole.
In conclusion, while there is no evidence that the federal government intended to stop law students from representing accused persons, the result of an apparent oversight is likely to have a significant negative impact on the criminal justice system. This is contrary to the stated purpose of clarifying and improving the efficiency of the justice system. Without an amendment of the bill or action from the provinces, it is unlikely that law students will continue to be able to represent individuals facing summary offences.
 Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59 at para 39.
 Hryniak v Mauldin, 2014 SCC 7 at para 1.
 Alice Woolley, “Access to Justice in Criminal Law” (28 June 2016), online (blog): ABlawg: The University of Calgary Faculty of Law Blog < ablawg.ca/2016/06/28/access-to-justice-in-criminal-law/> [perma.cc/9PL2-FTY8] [Woolley].
 Alice Woolley, “The Lawyer as Fiduciary: Defining Private Law Duties in Public Law Relations” (2015) 65:4 UTLJ 285 at 291.
 Woolley, supra note 3.
 Julie Macfarlane, The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants (May 2013) at 39, online (pdf): National Self-Represented Litigants Project <representingyourselfcanada.com/wp-content/uploads/2016/09/srlreportfinal.pdf > [perma.cc/6LY2-DCHN].
 Manasvin Goswami (Veenu), “Reforming Rowbotham: Towards Fairer Financial Eligibility Standards for State-Funded Counsel in Criminal Trials” (2017) 26:1 Constitutional Forum 19.
 R v Moodie, 2016 ONSC 3469 at para 6; R v Folkhard, 2017 ONSC 3961 at para 7; R v Oduh, 2016 ONSC 6370 at para 10.
 Legal Aid Ontario, “Student Legal Aid Services Societies” (last visited 5 December 2018), online: Legal Aid Ontario < www.legalaid.on.ca/en/contact/contact.asp?type=slass> [perma.cc/EF5N-EEJ4].
 Legal Aid Ontario, “Criminal Law” (last visited 5 December 2018), online: Legal Aid Ontario <legalaid.on.ca/en/getting/type_criminal.asp> [perma.cc/Q6XZ-UR3V].
 Jane Sims “Proposed criminal law changes threaten vulnerable, legal clinic head warns”, London Free Press (25 November 2018), online: <lfpress.com/news/local-news/proposed-criminal-law-changes-threaten-vulnerable-legal-clinic-head-warns> [perma.cc/S29Q-DW8A] [LF Press].
 Criminal Code RSC 1985, c C-46 s 787(1) [Code].
 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, 1st Sess, 42nd Parl, 2018, cl 319 (as passed by the House of Commons 3 December 2018) [Bill C-75].
 Code, supra note 12, s 802(2).
 Ibid, s 802.1.
 Bill C-75, supra note 13, cl 317.1.
 LF Press, supra note 11.
 CBA Access to Justice Committee, Reaching Equal Justice: An Invitation to Envision and Act (Ottawa: Canadian Bar Association, 2013) at 28.
 Senate, Delaying Justice is Denying Justice: Final Report of the Standing Senate Committee on Legal and Constitutional Affairs (June 2017) (Chair: Rob Runciman) at 4.
 Ontario Ministry of the Attorney General, “Chapter 7 – Managing the Unrepresented Accused” (last modified 29 October 2015), online: Ontario Ministry of the Attorney General <www.attorneygeneral.jus.gov.on.ca/english/about/pubs/lesage_code/chapter_7.php> [perma.cc/7RPY-9G4D].
 Doug Ferguson & Jason Voss, “How a proposed law could cut off legal aid for low-income people” (24 October 2018), online (blog): The Conversation <theconversation.com/how-a-proposed-law-could-cut-off-legal-aid-for-low-income-people-105005?platform=hootsuite> [perma.cc/V9SL-7N84].