Justice Committee on Sept. 18th, 2018

[Prof. Jillian Rogin]

We are asking for this as the alternative, if clause 787(1) is going to be passed and the maximum penalty will be raised.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

What sort of amendment would you propose for that?

[Prof. Jillian Rogin]

We would ask that the same exception for law students that currently exists in section 802.1 be carved out for penalties of two years less a day.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

The previous panel suggested that this wouldn't be a good idea, that law students should not be representing people in that situation. Would you agree with that?

[Prof. Jillian Rogin]

ACCLE's position is that we need to have a national conversation about that. Legal clinics, law students and the reviewing lawyers need to be involved. Perhaps the courts need to be involved. Historically, conversations about what law students are able to do involve many parties. Unfortunately this hasn't happened. The legal clinics in Canada have not been part of any consultation with respect to what law students should be able to do. That's one of the many reasons we're asking for further charter review and further consultation before any changes are made to the current classification scheme in terms of maximum penalties and law students' ability to appear.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

That was my next question. Absent that consultation and conversation, do you suggest that all of the existing six-month offences remain as such and that there remain a distinction between those offences and the super summary offences?

[Prof. Jillian Rogin]

Yes, and we're particularly concerned, as many people have said, about the immigration consequences of any change to the maximum penalty beyond six months, and about the other issues I've already spoken to.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Right.

Those are my questions.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. McKinnon.

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

Thanks to both of you for coming.

I want to start, if I may, with you, Ms. Rogin. I'm interested in the number of non-represented people who are in the provincial courts. I don't know if I saw it in your brief, but as of a couple of years ago in my province of British Columbia, 21% of all criminal accused had no lawyer. They were unrepresented in provincial court.

Do you have any idea how many people currently are unrepresented? What impact would this section have on a person's ability to get representation if paralegals and articling students are not allowed?

[Prof. Jillian Rogin]

We don't have the numbers. We don't have data in terms of how many people are currently represented by students, paralegals or articling students, but in our brief, we do note that self-represented litigants are not a small group. In the 2015-16 Canadian statistics on adult criminal court processing times, it was reported that 24% of charges in the adult criminal provincial courts in Nova Scotia, New Brunswick, Quebec, Ontario, Saskatchewan and British Columbia were against an unrepresented person.

[Murray Rankin, NDP, Victoria, BC]

When you spoke just now—it's not in your brief as such—you decried the lack of data on the effect of removing this right of law students, paralegals and articling students to participate, and you used words like “crisis”. You said it will create a crisis and you don't know what the legislative purpose for eradicating law student representation would be. Those are your words.

Did it occur to you that this might have been entirely inadvertent, that this may have been an unintended consequence? Having lack of data may simply suggest that the government had no idea, had not thought through the consequences of this particular reform. Is that not a possible hypothesis?

[Prof. Jillian Rogin]

I think that's a distinct possibility and all the more reason to engage in further consultation before taking such a drastic step.

[Murray Rankin, NDP, Victoria, BC]

In your brief on page four, you say, “Curtailing law student representation will also result in further court delays and further burdens on the provincial courts. It is widely understood that unrepresented litigants cause court delays and that the legal system as a whole works more efficiently when people come to court with legal representation.”

In your clinical experience, is it often the judges who are the most anxious to have people represented? Is this because of the delays and sometimes the judge having to bend over backwards when people have no representation? Does this actually make it harder for the judicial system to work?

[Prof. Jillian Rogin]

It makes it very difficult. In my experience, it's actually the Crowns and the judges who are vying for people to come and assist, and I speak directly from my experience as duty counsel. I was often paged into a courtroom where a trial was going on to see if I could assist. Of course, it wouldn't have been appropriate for me to do so, but it happened repeatedly, so much that you could tell there was a craving for representation. It's very awkward for the judge and for the Crown to try to go through any proceedings, a trial, a bail hearing or otherwise, without someone representing an accused person's interests.

[Murray Rankin, NDP, Victoria, BC]

You had something else in your brief at page four that was even more disturbing, I think. You said that, "Research shows that self-represented litigants spend more court resources and time, face repeated barriers in understanding court procedures, make more mistakes"—and here's the punchline—"and as a 2002 study corroborated, sometimes plead guilty to minor offences just to get it over with."

Can you think of other measures in Bill C-75 that might incentivize pleading guilty to get it over with, measures that might disadvantage those without proper legal counsel?

[Prof. Jillian Rogin]

In my experience, whether they are in custody or out of custody, people plead guilty to deal with the stress of attending court, whether it's because of a denial of bail, of having to attend the remand court over and over again, or of having to miss work to come and attend, which certainly disadvantages all involved. There is a serious problem with incentivizing guilty pleas in our courtrooms across the country.

[Murray Rankin, NDP, Victoria, BC]

Given they would have what we used to call a criminal record and given the impact on employment, on immigration, on renting an apartment, all those things—

[Prof. Jillian Rogin]

Family law implications.

[Murray Rankin, NDP, Victoria, BC]

—family law, immigration—I think you've really addressed something that's very disturbing, and I thank you for doing so.

Those are my points.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Rankin.

Mr. Boissonnault.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you, Mr. Chair, and thanks very much to both of you for your testimony.

Ms. Gillies, how would the repeal of bawdy house laws positively affect the people you serve: sex workers and their loved ones?

[Kara Gillies]

I will start by saying that we don't have data on whether the revised bawdy house law specific to the practice of acts of indecency has been used specifically against sex workers for sex work activities. Certainly, the legal analysis we've received suggests that, yes indeed, the bawdy house law could continue to be used to target sex work activities, although if that were to happen we would refer back to the Bedford case, which determined that the bawdy house law, at least specific to prostitution, interfered with and violated our charter right to security of the person.

We are also aware there are people within our sex-working community who are gay men or men who have sex with men and who continue to be targeted under the bawdy house legislation.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

For you, then, it's both a security of the person argument re Bedford and an “archaic piece of legislation” argument that comes from the LGBTQ2 community.

[Kara Gillies]

One hundred per cent.