Court considers paralegals

The Ontario Court of Appeal has held that people who choose to be represented by agents rather than lawyers give up their constitutional right to effective representation. However, an accused who hires an agent retains his right to a fair trial.

In the decision, released August 27, 1999, the court ruled that judges can disqualify agents from acting in summary conviction proceedings where necessary to protect the accused’s right to a fair trial, such as where the agent is incompetent or disreputable. A judge may have to declare a mistrial if the incompetence becomes apparent only after proceedings commence.

Summary conviction proceedings include minor offences such as shoplifting and simple assault. But they can also involve very serious charges such as drinking and driving, sexual assault, assault with a weapon, uttering threats and forgery.

Trial judges do not have to inquire into the competence of agents who represent people charged with criminal offences, the court said. However, the trial judge should satisfy himself or herself that the accused’s decision to hire an agent was an informed one.

The court criticized the government for its failure to regulate paralegals. “A person who wants to sell t-shirts on the sidewalk needs a licence….that same person can, however, without any form of government regulation, represent a person in a complicated criminal case where that person may be sentenced to up to 18 months imprisonment.

“Continued legislative inaction suggests indifference to the proper administration of criminal justice in summary conviction proceedings.”

In April 2002, legal and and paralegal groups proposed a framework to regulate paralegals in Ontario. Regulation would include requirements for education and training, accreditation, licensing, insurance, a code of conduct and a disciplinary process. The Law Society of Upper Canada will be reviewing the proposal.