Bill C-75, an omnibus bill making numerous amendments to the Criminal Code, has passed third reading in the House and will likely become law in the new year. The Bill’s changes include raising the maximum penalty for summary conviction offences to 2 years less a day. The Bill, as it stands, will significantly restrict the work of DLS’s Criminal Law division and prevent us from providing free legal representation to our clients charged with criminal offences.
Currently, s. 802.1 of the Criminal Code allows law students to represent accused if the maximum sentence they face is 6 months incarceration or less. This means DLS can help with most summary offences. If Bill C-75 raises the maximum sentence for summary convictions without changing s. 802.1, students would be barred from doing any substantive work on criminal files, including running trials for our clients. Students would be restricted to appearing in court only to schedule further appearances (set dates).
This change will be a serious setback to our already disadvantaged clients. For a segment of the population, DLS is the only representation they can find. Legal Aid will only give certificates to people at risk of imprisonment and community legal clinics do not represent clients for criminal matters. This means that any one charged with a criminal offence who cannot afford a lawyer, but is not at risk of jail time, is left to navigate the criminal justice system on his or her own. Just because our clients are not facing a risk of jail, it does not mean they are not facing serious consequences. Fines, restrictive probation conditions, and criminal records are only some of the penalties our clients face.
Lack of representation has serious consequences. Empirical research by Prof. Paré at the University of Western Ontario shows that clinic representation makes accused less likely to plead guilty.1 Unfamiliar with the justice system, unrepresented accused are more likely to plead guilty to “get it over with”. This will create a risk of wrongful convictions.
A study by Legal Aid also found that self-represented accused are less likely to raise Charter arguments. Without representation, many are unable to recognise when their rights have been infringed. Even if they know the police did something they shouldn’t have, it is confusing to try and turn that into a legal argument. Less representation means less protection for people’s rights.
The change will also deprive students of the ability to get hands on experience in the criminal courts. The Criminal Law Division is DLS’s largest division. It provides students with a chance to learn practical skills that can’t be taught in the classroom. This makes for better lawyers with stronger connections to the community.
This change even undercuts the Government’s own stated goals of the Bill. Bill C-75 is meant to clear delay from the justice system; but leaving people without representation will only make the problem worse. In their report on court delays, the Standing Senate Committee on Legal and Constitutional Affairs found that unrepresented accused contribute to unnecessary delays in the justice system. The change proposed in Bill C-75 only serve to undermine Parliament’s attempt to address the backlog in our courts.
In its current form, Bill C-75 will drastically limit the work of the Criminal Law Division at DLS and Student Legal Clinics across Canada. This Bill will leave thousands without representation, creating a barrier to access to justice, increasing backlogs in the courts and may result in wrongful convictions. In addition, it will deprive students of practical clinical education which puts them face to face with segments of the population who are most in need of legal assistance.
There is one way these problems can be avoided: The Lieutenant Governor of Ontario can make an order exempting students from the restriction in s. 802.1. There may be a concern about students representing clients who are facing more serious offences should an Order in Council be made; however, it is possible for the order to specify a sub list of offences for which students would be allowed to provide representation.
The best hope of DLS and our clients is to have the Lieutenant Governor make this order. It’s already been done in Alberta and it can be done here in Ontario, too. If you want to help, please write to your local MPP urging him or her to support this order should Bill C-75 be passed into law as it currently stands.
1 Paul-Phillipe Paré, Dale E Ives, and Jason Voss (2008). The Effects of Differential Representation on Outcomes in Summary conviction Criminal Cases (Unpublished) page 12.