Thank you.
My name is Jillian Rogin and I am an assistant professor in the faculty of law at the University of Windsor. I'm so honoured to be here today on behalf of the Association for Canadian Clinical Legal Education, or ACCLE.
I just want to take a moment to acknowledge that the land we're currently on is unceded territory belonging to the Algonquin Anishinabe people, and I'm really thankful for being allowed to be here today.
In addition to being an assistant professor and appearing on behalf of ACCLE, I'm also a criminal defence lawyer. Relevant to what we're going to talk about, I've worked as a duty counsel lawyer in the provincial courts. I was also a reviewing lawyer at a legal clinic in Windsor, Community Legal Aid, so I have experience in the provincial courts representing marginalized people.
To start out, ACCLE commends the intent of Bill C-75 insofar as it aims to reduce inefficiencies in criminal matters and it focuses on reducing over-incarceration of indigenous people and other marginalized people, but I want to focus on aspects of the bill and the proposed amendments that might undermine those laudable goals. Specifically, I'll be looking at the reclassification of offences and the impacts of that reclassification scheme both on law students and on the clients that legal clinics serve across Canada.
The increase in the maximum penalty, the proposed amendment to subsection 787(1), of course precludes law student representation, articling student representation, and representation by paralegals. All three will be precluded entirely from representing anyone any longer in any criminal matter in the provincial courts. This is of course because there's no corollary amendment to section 802.1 of the code.
To be frank, there is no stated rationale that I can find for this dramatic and drastic change to the legal landscape in Canada. There's no data I can point to that shows there is any difficulty with law student representation of people charged with minor criminal offences, and it's not clear what the legislative purpose is of eradicating that form of representation for marginalized people.
What we do know is that this eradication of law student representation will cause an access to justice crisis across this country. Legal clinics across Canada that for decades have been representing clients in summary conviction matters will suddenly come to a halt, and accused people will not have much-needed access to legal representation to answer to the criminal charges they're facing.
As it currently stands, section 802.1, as you all know, allows for the provinces to enact orders in council. I'm going to speak briefly about why, in my respectful submission on behalf of ACCLE, that is not an appropriate or adequate response to the difficulty of the proposed amendments.
Firstly, it's a piecemeal approach, so it means that provinces may or may not act. You may have a situation where there are some provinces that act and some that don't. There's no obligation on any province to do so.
Secondly, which is most alarming to me, even if the provinces act, it's very unlikely that they will do so in a manner that's timely, to prevent a gap in representation. If Bill C-75 were enacted tomorrow and passed into law the day after or on the day, we would have to attend court and make applications to get off the record for the current clients we have. That would have to happen all over Canada. We would not be able to appear in court except to get off the record.
Thirdly, on that point, in a sense—and I say this with respect—it's misguided to suggest that the antidote to the massive decrease in the provision of legal services can derive from the provinces enacting orders in council. Respectfully, the question should be, why are we taking away the current law student representation that has been in effect for three decades? Of course, it's a very drastic change.
We know also that this can't be justified by efficiency. It's not more efficient to have more people in the provincial courts who are unrepresented, with no legal representation. We know that not only are unrepresented litigants at a disadvantage, but they tend to clog an already clogged system, and the purpose of the bill is to address delays. We know, as I referenced in our brief, that unrepresented indigenous people disproportionately plead guilty when charged with an offence. The lack of representation is an incentivizing force of guilty pleas, and that should be alarming for all of us, especially with the stated intention of the bill.
This access to justice crisis is a crisis not just for clients who are facing those criminal charges, but also for law student education. Exposure to working with marginalized people facing criminal charges, exposure to the community organizing that has been a hallmark of clinics for decades, exposure to the promotion of social justice issues and—perhaps most important to me as a mentor and as somebody who had wonderful mentors—the opportunity to work really closely under the direct supervision of a criminal defence lawyer is a foundational experience of law school education. In my opinion, it's crucially important, particularly in criminal law. It is a crucial part of that clinic experience.
The evisceration of law student, articling student, and paralegal representation has constitutional dimensions, and it may impact fair trial concerns pursuant to section 11(d) and section 7, and perhaps section 15, depending on who is being denied representation, and in what circumstances.
In terms of our clients, I'm going to address the increase in the maximum penalty. It has been stated that this is not a change in sentencing ranges; however, it is a direct intent to raise the maximum penalty for summary conviction offences. The idea that it's not going to have an impact on sentencing ranges, in my respectful view, is misguided.
I'm speaking from that experience of being in the provincial courts, being in the plea court when you have a client who has 1,000 convictions for theft under. They go before the judge and the Crown is asking for 30 days and the judge says, “I'm done with you, six months”, because that's the maximum. The idea that's not going to happen and isn't justifiable with legal principles is, respectfully, perhaps misguided.
In terms of court efficiencies, we know that the proposed changes are not going to alleviate delays in the lower courts, in the provincial courts. There's nothing to suggest that's the case. The provincial courts are already overburdened. Many lower courts across Canada are facing crisis levels of criminal cases passing through, as I've noted in our brief. Provincial courts currently, in a recent Statistics Canada report, are seized with 99.6% of all criminal cases in Canada, the superior courts secure 0.4%. In that sense, it's very difficult to imagine, in terms of the hybridization of offences, how the choice to proceed summarily is going to create further efficiencies for the Crown or for the criminal justice process.
I'll turn now to the recommendations that ACCLE is putting forward.
We're boldly asking that the proposed amendment to subsection 787(1) not be made at this point, not with a more thorough charter analysis of the proposed amendment having regard to who it might most impact. This includes perhaps looking for further ways to reduce court delays that do not disproportionately impact marginalized people. Alternatively, we're asking that if this does go through, then an amendment be made to subsection 802.1 that allows for the continuation of law student representation.
Thank you.