LONDON — It’s a Wednesday morning, and proceedings on the second floor of the London courthouse are in full swing. In the waiting area, Barbie Anton is holding a letter from Legal Aid referring her case to Community Legal Services, a free legal clinic staffed by Western University law students and supervised by lawyers. She needs someone to represent her on a criminal mischief charge.
Anton meets the clinic’s criteria: although her financial situation would make her eligible for Legal Aid, she doesn’t qualify, because her charge will likely result in a fine rather than jail time. She hopes to become one of the more than 100 people a year CLS represents on minor criminal matters, such as shoplifting, simple assault, and mischief.
The clinic, housed at Western University, about a 10-minute drive from the downtown courthouse, is one of seven of its kind in Ontario. All are attached to universities and staffed by law-student volunteers who are supervised by practising lawyers. The clinic could be Anton’s best shot at gaining legal representation — but new federal legislation has thrown the service’s future into doubt.
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Bill C-75, now in its third and final reading in the House of Commons, would, among other things, standardize the maximum penalty for summary conviction offences — minor offences heard in provincial courts — at two years less a day. Currently, law students are permitted to represent people charged with summary criminal offences that carry a maximum penalty of six months or less. Once the longer maximum penalty kicks in, they won’t be permitted to deal with any.
Jody Wilson-Raybould, the federal minister of justice, explained in the House this month that “what Bill C-75 proposes is to provide more flexibility to prosecutors to proceed summarily in provincial court for less serious cases. This would allow for matters to proceed more quickly and for superior courts to focus on the most serious matters, resulting in an overall boost in efficiency in the system.”
But David McKillop, the vice-president of policy and research for Legal Aid Ontario, told TVO.org that the changes will prove devastating for clinics run by the province’s law schools: “They can still do family services and the other things that they do, such as provincial offences. But in terms of actual criminal work, they will no longer be allowed to do that, which has serious access-to-justice implications and weakens our ability to serve our clients.”
University of Windsor law student Melanie Lopo worries about what will happen to people facing minor summary offences if the service ends. In her two and a half years volunteering at Community Legal Aid in Windsor, she’s learned that most clients are inclined to take the first offer they get — as long as it doesn’t include jail time and the fine isn’t too high. But even a conviction from a minor offence can make it difficult to find a job, access social services, and cross borders.
“Having them walk into a courthouse and not know their rights and not know what they're entitled to, it really will incentivize guilty pleas,” she said.
Others point to the fact that students will lose the opportunity for practical experience. “It really gives people … a practical leg up,” said Lauren Wilhelm, a Hamilton-based criminal lawyer who volunteered at the CLA clinic in Windsor when she was studying law.
McKillop believes the federal government has not considered what the bill could mean for law-student volunteers. The bill has now reached third reading, but the federal government hasn’t taken steps to address this issue, despite the fact that it’s been raised by several legal organizations from across Canada. “To me, the best solution was an amendment to the bill,” McKillop said. (The Canadian Bar Association, for example, recommends amending the bill to allow agents, including students, to continue representing people on minor charges.)
The Criminal Code does permit provinces to pass orders in council that would allow agents to tackle criminal summary offences involving penalties of more than six months — British Columbia and Alberta are the only provinces that have passed such orders. Doug Ferguson, executive director of the clinic in London, said that in the mid-2000s, he and others lobbied the Ontario government to pass a similar order, but they were unsuccessful.
A spokesperson for the federal justice minister’s office noted in an email that the Standing Committee on Justice and Human Rights, which reviewed Bill C-75 after its second reading, did made some amendments “to enable provinces and territories to establish criteria for agent representation on summary conviction offences with a maximum penalty of greater than six months imprisonment” — this would be in addition to their current capacity to create programs for this purpose, she said.
The spokesperson added that Wilson-Raybould has alerted her provincial and territorial counterparts to the issue “so that they will take the requisite prompt action to set the necessary criteria for this important matter.” Brian Gray, a spokesperson for the Ontario Ministry of the Attorney General, wrote in an email, “We will be following the progress of the bill, and will be considering its impact on the people of Ontario.”
Even if the province’s Progressive Conservative government does decide to make the change, there’s no guarantee that an order would pass in time to avoid program shutdowns, Ferguson said. He advocates a federal solution: “This bill created the problem, so why doesn’t the bill fix it instead of leaving it up to the provinces?”
This is one in a series of stories about issues affecting southwestern Ontario. It's brought to you with the assistance of faculty and students from Western University’s Faculty of Information and Media Studies.
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