Justice Committee on Sept. 26th, 2018

[Emilie Taman]

It does, and it's one of the things that also concerns me about mandatory minimum punishments. It's important when an accused is exposed to a loss of liberty at the hands of the state that there be a transparent process. The reality is that prosecutors make a number of discretionary decisions that can enhance or detract from the level of jeopardy that an accused faces, yet in those decisions, by and large nobody knows why they were made or the reasons for them, and they're effectively immune from review.

[Murray Rankin, NDP, Victoria, BC]

This goes to the solution part in respect of keeping people like your student legal aid services out of the courts. It's solution time, and one solution that was proposed was, I think, under section 802.1 of the Criminal Code, that we talk to the lieutenant governors of the provinces. Indeed, in June I asked the Minister of Justice when she was here what she was going to do about this unintended consequence. I think you mentioned this in your brief as well. Her response was that she was talking to the provinces and territories about their programs under section 802.1, where she might be able to do a deal with the provinces.

I think you suggest, Ms. Taman, that maybe the better solution would be to not do it piecemeal but to do it all at once, but not for every single one of these new offences and to have a schedule.

I would like your reaction to that. You probably don't want to cover every single brand new summary conviction offence that's being created, or do you? If not, how would you react to the solution proposed by Ms. Taman?

[Lisa Cirillo]

Maybe I'll start, and then Doug and Suzanne can add.

I guess I'd say a few things. It's important to understand that we're speaking from the perspective of the student legal aid clinics in Ontario, a province that has quite a robust provincial legal aid system. In fact, they are our primary funders. The way in which we map out where clients go for representation is that if it looks like imprisonment is a likely possibility, that client will likely be eligible for a certificate from legal aid.

In terms of our programs, we're representing clients who would not otherwise be eligible for legal assistance. I'd start by saying that. Then I guess I'd say that the reason we chose to put the language that you see in our brief as our first suggestion is that we're not proposing that any agent should be allowed to do this work if the changes go through. We're proposing that articling students or students in programs like ours, where they are part of a robust and highly supervised environment, could and should provide assistance to clients who have nowhere else to turn. What's the alternative? We are only representing people who don't have any other option for legal assistance.

I'm delighted to hear that you're a DLS alumni and that you have fond memories of your time there. I'm not sure when you went to law school.

[Murray Rankin, NDP, Victoria, BC]

Years ago, decades....

[Lisa Cirillo]

The programs have evolved a lot. Part of the reason we spent so much time in our submission talking about the level of supervision and the training is to highlight that when a client comes to us for legal assistance, they're not just working with a law student who is out there on their own. They're actually getting the benefit of a team, a supervising lawyer and a law student. As you'll see when you look at our brief, many of our clinics offer other kinds of assistance. We have many criminal clients who are simultaneously family clients or refugee clients. They're accessing support through our social work services.

For a low-income, vulnerable client who is probably racialized and may not speak English, if the alternatives are getting our assistance or nothing, I would very strongly say they're better off getting assistance from our clinics.

[The Chair, Liberal, Anthony Housefather]

Thank you.

[Murray Rankin, NDP, Victoria, BC]

Am I out of time?

[The Chair, Liberal, Anthony Housefather]

Yes, you've exceeded it.

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much.

Thank you to all the witnesses for being here, and thank you to those who have been here before and have agreed to come back and share your thoughts. It's much appreciated.

I'd like to begin with the Student Legal Aid Services Societies. I appreciated your presentation. I read the recommended wording that you have for 802.1, in order to modify that to allow law students and article clerks to continue to appear. I believe it is important, and I know we're considering all options to make sure that happens.

In reading your recommended wording, it would appear that it would be allowing law students to represent clients who are facing jeopardy of two years less a day. That's a firm six months, obviously, so it's for more serious sets of circumstances. Do you have any concern about somebody with a lack of experience actually being a member of the bar? I know they're going to be supervised by a lawyer in order to qualify for the recommended wording you have, but do you have any concern that the level of jeopardy is perhaps beyond the experience level of that individual?

[Douglas D. Ferguson]

I'll answer that, if I may.

We have a very good record of success on behalf of our clients. In fact, my clinic did a study about 10 years ago where we compared our results on assault charges to that of the private bar, duty counsel, and self-represented individuals. We found that our students had the best record—to our surprise, to be honest.

Because they're so closely supervised by criminal lawyers, I think they do have the capacity to handle some of these hybrid offences that may be new to us. As I said, if there are any concerns with that, we would recommend that we list a few serious offences for which our agents could not appear, but the default should be that we appear on everything else.

[Colin Fraser, Liberal, West Nova, NS]

Go ahead, Ms. Cirillo.

[Lisa Cirillo]

I would like to add one thing too.

I would also say that our students do incredibly important, serious work across areas of practice. We have students who represent clients who are making refugee claims and say that if they're deported they're facing death in their country of origin. Our students do custody and access cases. I don't think there's anything about a particular kind of criminal case that makes it impossible for the students to do. I guess I would say I would reject that notion.

At my clinic now, when we have clients who come in and are charged with super summary offenses, the Toronto courts will let our students assist them behind the scenes up to trial, and if they have to go to trial on their own, we have a comprehensive kind of self-help kit that we give them. I would tell you, however, that if you ask them, they would much rather have my students continue to go to court and represent them at that trial than to have to go on their own. When our students go to court, our supervising lawyer is there, so they are getting a very extensive kind of support.

[Colin Fraser, Liberal, West Nova, NS]

Thank you.

What about Ms. Taman's suggestion that there could be a scale of offences—some that qualify and some that don't—with all these new hybrid offences?

[Lisa Cirillo]

I think Ms. Taman was responding to our submissions, and as my colleague Ms. Johnson said in her remarks, our preference would be to use the wording we provided. If that is of concern to the committee, then yes, we would agree that there could be a schedule of offences that the committee might carve out, saying, “In these ones we're not going to allow students in programs to go.” Again, these are about students in these kinds of programs. We're not talking about law student vigilantes going out and doing work on their own.

[Colin Fraser, Liberal, West Nova, NS]

I appreciate that. Thanks very much.

Ms. Taman, I'll turn to you. You might want to jump in on this. I have another question for you, as well.

[Emilie Taman]

I just wanted to really quickly add that I would support what's being advocated in terms of supervised students. My concern is that agents can be people with no legal training at all. That's where I would be concerned.

[Colin Fraser, Liberal, West Nova, NS]

Fair enough. That's a good point.

We've heard concern on this committee about leniency when some sentences are hybridized and the Crown is allowed to make an election by summary offence. You did a good job of explaining how that process works. I appreciate that.

You mentioned this briefly in some other answers. Can you talk a bit about what you would see happening to two fact patterns that are the exact same, one proceeding by indictment and one proceeding by summary conviction, because the Crown makes the election?

When you consider the circumstances of the accused, the circumstances of the offence and the principles of sentencing as set out in the code, do you see there being a concern that the sentences would be different, especially given the fact that case law would still be applicable to any new sentencing decisions?

[Emilie Taman]

Judicial discretion in sentencing is not fettered by the length of available sentence or by whether it is a summary conviction offence or an indictable offence. It's fettered by the maximum punishment. What I'm clumsily trying to say here is that I don't think how you classify the offence has an effect on the length of the sentence, except with respect to the ceiling. I did a bit of quick and dirty research earlier and found many examples of people who were charged with indictable offences that have maximum penalties of up to five or 10 years but were sentenced to fewer than two years.

What I really want to emphasize is that even if the Crown were to proceed indictably in the context of these newly hybridized offences, there's no guarantee that those who proceed by indictment will get punishments longer than two years. That doesn't become the floor when you proceed by indictment.

[Colin Fraser, Liberal, West Nova, NS]

Fair enough. Thank you very much.

Professor Parkes, I'll turn to you for a moment.

You talked about your concern with inflationary sentences as a result of increasing the maximum available for summary offences. If the bill was modified to allow the current offences, which are just summary conviction offences, to stay the same and all of the ones that are straight indictable to become hybridized, so they'd be two years less a day, would that solve the problem of inflationary sentences?

[Debra Parkes]

I don't know that I understand the question.

[Colin Fraser, Liberal, West Nova, NS]

The ones that are straight indictable right now, that are being hybridized, those go to two years less a day if proceeded by summary conviction.

[Debra Parkes]

Yes.

[Colin Fraser, Liberal, West Nova, NS]

If the ones that are currently summary, which are being upped to the maximum of two years less a day, stayed the same, would that solve the issue for you?

[Debra Parkes]

That is an interesting point. If anything, making these offences, which are otherwise pure indictable, summary convictions would maybe signal that there's a lower end that ought not to be receiving the high punishments. Yes, I am concerned that in this move to open up hybridization and to open up opportunities in provincial court for summary conviction and supposedly for the efficiency benefits that would come up with that, that we've also included all of the other offences, as you said, and raised the ceiling on those. That is where you're likely to have the most inflationary effect.

Again, when I'm talking about this “sentence creep” and the research on that, it's not about formally, necessarily.... Certainly you see it when you have mandatory minimums, but I don't know that I could say with any certainty that, even having the new hybrid offences for which you have the summary conviction maximum of two years less a day, it wouldn't have some impact on the “sentence creep”. But I think it would be a lot less than when you're raising the ceiling on the other ones.

[Colin Fraser, Liberal, West Nova, NS]

I just have one other quick question, if I have any time left.