Thank you.
Good evening. I'm also honoured to be here. I know the hour is late and, brevity being the soul of wit, I will get straight to the point.
I'm here to speak primarily on the issue of law students, dealing with section 802.1 in the code. I'm on the board for Community Legal Aid in Windsor, Ontario, as well as the amicus curiae in the 672 Court in Windsor, Ontario. That's the mental health court. We've had that court for about eight or nine years now. I act primarily as duty counsel in that court, so I deal with a lot of mentally ill accused, as well as, more importantly, a lot of people who do not qualify for legal aid.
I'm sure you've heard that, at one point, legal aid had a period of time when certificates were given to people with mental health issues. Unfortunately, due to financial constraints, that has really gone by the wayside. That's why the students are present in our court system and are able to assist people charged with relatively minor offences. Most of the people who come into the mental health court and do not qualify for legal aid are first-time offenders who have no real history in the criminal justice system. It's the perfect opportunity for students to work on these matters.
The recommendation that's available in CLA's memo deals with the amendment to section 802.1 by adding wording essentially dealing with the agents and the articling students being allowed to appear even with the change in the amount of time for the offences being dealt with. I'm not here to speak on the issue of maximum potential penalties for summary offences. Whatever you do with that, you still have to deal with the issue of the law students being there.
I'm asking you to allow the articling and law students to continue in this area of law, because they're under the direct supervision of a lawyer. This is different from a paralegal. Legal Aid's approach is to ask you either to enumerate a number of sections of the code that they should be allowed to act on, or to exclude them.
However, having been a criminal lawyer now for 17 years, I know that these nice tiny little boxes into which things fit just don't exist in criminal law. Every case has its difficulties, even if it's something as small as a theft under a certain amount or an assault in a bar fight or something like that. There could be issues in that case that a student might have a problem with, but because the student has an articling principal and all the clinics have staff lawyers who review all the files, they will have the ability to look at the individual case and give the student some direction on what to do.
It's much like doctors and residency, because our students are in law school. Before doctors go into residency, they have medical training. Our students have legal training. That's why I'm asking you to consider that. I'm sure there's a big issue with the paralegals. I'm not here to speak for or against the paralegals, but I think there should be some kind of exemption for the students. They're in a different class because of the training they've had: Either they're in law school or they're articling.
With the direction of an articling principal or one of the staff lawyers, there is someone there to see the problems in each individual case and to sound the alarm. If you do it in the way Legal Aid is asking, with the enumerated sections or the excluded sections, there's still potential for danger. That's why I'm asking you to deal with that amendment by adding those words to it.
Under a program approved by the lieutenant governor in council of the province.... I don't want to put too much on the table here, but I think we could cross that out. This is a federal statute, the Criminal Code, and I think that with direction, if you intend to allow the students to do that, it should be across the board instead of having each province do that. More importantly, if you leave it to the province to do this, there's going to be a gap for the people who are most vulnerable in the system, marginalized people as well as mentally ill people. As I said, dealing with the 672 issues, I have a real passion for the mentally ill accused.
I'm a lawyer who donates some of his time as amicus, but there's not a lot of me, if I can put it that way. The students fill a big part of the problem of dealing with the people who otherwise would be alone in the system.
Furthermore, getting rid of the students would cause further delay, because self-represented accused will cause delay in the system. There's empirical data that points to this.
I've dealt with people who have come to me in the 672 Court who weren't even notified by duty counsel that it existed. Once they came to me, essentially, I found out they had been trying to plead guilty for four or five months. They had been sent to a mandatory pretrial because the Crown position is that if you're going to have a self-represented trial, you have to have a pretrial in front of a judge. This causes delay and burdens the system.
There's always this caveat that there's a direction, that there's a lawyer present to watch the students. Allowing this would facilitate the marginalized people to still have representation in the system.
On preliminary hearings, I want to tell you that, being a lawyer for 17 years, I've read the material. A very small percentage of court time is used for preliminary hearings. As a criminal defence lawyer exclusively, I find them to be very valuable.
I'm not sure if anyone has said it before, but I would like to tell you that sometimes, even though I know things are not going to go well for my clients at trial in superior court, we have a preliminary hearing so they can see the evidence. They can see the Crown's case against them.
What happens in these cases is that a lot of times these matters resolve. We have preliminary hearings to test the evidence, and it doesn't take up much court time. Take the example of a sexual assault case. A preliminary hearing will last perhaps two hours. If it's a strong case, I sit down with my client after that, and then we alleviate a week-long superior court trial.
Also, sometimes the Crown doesn't really know what they have, and when I ask them to test the evidence after the preliminary hearing they see the frailties. The lawyers see it. It's the other players who don't, and they are the ones who need to see it at times. What happens at that point is that, again, there is resolution.
I would ask you to consider keeping preliminary hearings.
Finally, I would like to speak briefly about victim fine surcharges. Kudos to the committee for dealing with this issue. Again, being amicus and dealing with a lot of mentally ill accused, it's almost comical at times when I have somebody homeless or mentally ill in court. Guess what: They don't come to court. They get charged with failure to appear. They are not a danger to the public, and with the Antic decision and the new bail system, they keep getting released. Then you have them back in court with seven or eight separate pieces of information—breaches for not going to probation, not being at the residence where they are supposed to be, and failure to appear. Say, there are seven or eight charges. They plead to five. It's victim fine surcharge upon victim fine surcharge.
My clients, in some senses, become the victim of the victim fine surcharge. In that example, it is going to be $500 or $600. They don't have the money. They will never have the money, so I don't see the point of piling it on. I'm very happy to see the committee has wrapped its mind around that. I'm obviously in support of adopting your recommendation dealing with the victim fine surcharges.
Thank you, unless you have any questions.