The Role of Paralegals in the Criminal Justice System

This is a speech I gave at the Ninth United Nations Congress on the Prevention of Crime and the Treatment of Offenders held in Cairo May 7, 1995

In Canada, everyone, be he or she a citizen or a landed immigrant or a visitor, is entitled to be represented by a lawyer in a criminal court if that person is charged with a serious criminal offence. But unfortunately, not all such accused persons can afford to hire a lawyer to represent them, so they can either represent themselves in court or they can ask for assistance from the provincial legal aid program which will pay for the services of a lawyer to represent them in court.

In the province of Ontario, the second largest of the ten provinces of Canada, that province being more than twice the size of France, in which 11 million of Canada’s 28 million people live, the legal aid program is constantly short of money and for that reason many accused persons charged with minor crimes can no longer look to legal aid for financial assistance in order to hire a lawyer.

Some people can represent themselves in the criminal courts and convince the courts of their innocence and they do extremely well for themselves but alas, for many, those who represent themselves in court later learn to their dismay, that they had a fool for a client and they end up in jail for a crime they didn’t commit.

Some unrepresented accused persons plead guilty to crimes to which they are not guilty of having committed because they believe, or have been convinced by the police who charged them, that they really are guilty. Some police officers who arrest some accused persons themselves actually believe that those persons they have arrested are guilty, when in fact they are innocent. And in cases such as these, an innocent person who is found guilty, may end up in prison or get a heavy fine or even both.

So we are forced to ask ourselves, how do we help these kinds of accused persons who cannot afford a lawyer or get financial assistance from Legal Aid to hire a lawyer? Fortunately, in Ontario, there are two other options open to these accused persons.

Firstly, they can go to a store-front clinic which is operated under the direction of a lawyer and which utilizes the services of law students who will get their hands-on experience through these clinics. Their services are free. Unfortunately, there are not enough of these clinics around Ontario to service the many thousands of people in need of their services. Many of the smaller cities don’t even have them.

Secondly, they can ask an ordinary citizen who is not a lawyer or a law student in a legal clinic to represent them. The Criminal Code of Canada, a code which is the same everywhere in Canada and which was created in the year 1906, has a section in it that states that anyone who is not a lawyer, even if that person is only a visitor to Canada, is permitted to represent an accused person charged with a criminal or quasi-criminal offence.

There are some limitations however that apply to such lay persons—for example, such a lay person representing a friend or a paying client, cannot represent that person in court if that person is charged with murder, manslaughter, criminal negligence causing death or injury, serious sexual assault, robbery, break and enter, assault causing bodily harm, fraud or theft if the loss of money or property exceeds $5000 in Canadian money—and many other serious offences in the Code. The reason is obvious. Would you want a person trained in first aid doing brain surgery on you also?

In Canada, these kinds of serious offences are called indictable offences—what the Americans call, felonies and the accused persons can either represent themselves or they can use the services of a lawyer. Legal Aid has enough money to fund persons who are facing these kinds of charges and cannot afford a lawyer.

There are also quite a number of lesser crimes in which the prosecutor may choose to proceed against the accused person by way of indictment or alternatively, proceed summarily and these crimes are called hybrid crimes. These kinds of crimes consist of; driving while impaired, driving while having consumed alcohol in such an amount that it exceeds eighty milligrams of alcohol in one-hundred millilitres of blood, refusing to blow in a breathalyzer machine, hit and run, dangerous driving, common assault, assaulting a police officer, minor sexual assault, committing an indecent act in public, threatening someone with death or serious injury or intimidating them, theft, possession of certain illegal drugs and other crimes.

If the prosecutor chooses to proceed against the accused summarily instead of by indictment, these crimes will be treated in the same way misdemeanors are treated in the United States and accused persons being proceeded against summarily may be represented by law students or ordinary lay persons.

In each province in Canada, there are many provincial offences such as driving while the driver’s licence is under suspension, fail to report an accident, fail to remain at the scene of an accident, careless driving, driving without insurance and a great many more offences such as breaching building codes, fishing or hunting without a licence, trespassing on private property, and more than a hundred other offences that are not criminal crimes but they are violations of provincial and municipal law. Some of the penalties in these kinds of offences range from imprisonment up to six months and fines up to $25,000 Canadian dollars.

The Legal Aid Plan in Ontario simply does not have enough money to pay lawyers to defend the many thousands of persons in Ontario who are charged with hybrid crimes in which the prosecutors are proceeding summarily or where the accused are charged with provincial or municipal offences. And for the most part, lawyers don’t really want these kinds of cases anyhow. There is no money in it for them because many of these offenders are given fines which range from $200 to $1000. It’s hardly justifiable to charge a client $1500 to defend him when the maximum fine his client would probably get is no more than $200 or up to one thousand dollars.

And it is here that the second option, that is, representation by professional lay persons, comes into play. This option is making great headway in the justice system in Ontario.

These professional lay persons are called, paralegals, court agents or lay counsel. They are for the most part, well educated and are self-taught in the area of law and recognized by the government, the judges, the prosecutors and other lawyers and the public in general, as being for the most part, well qualified to represent accused persons in court. A provincial government study in 1990 on the subject or paralegals representing people in court stated that paralegals do an admirable job when defending their clients in the various courts. Many of them are representing their clients two and three times a week in the criminal courts and other tribunals.

Paralegals also represent people in the small claims courts, landlord and tenant courts, family courts, bankruptcy courts, immigration hearings, and many other tribunals dealing with many legal issues. They are allowed to handle criminal appeals up to the level of a provincial (criminal) court.

There is no doubt in anyone’s mind that it would be better for everyone if paralegals were trained in law, so at present, there are several community colleges in Southern Ontario that have created two-year full-time paralegal programs and smaller schools are conducting one-year, full-time paralegal programs, for lay persons wishing to practice law in our criminal, traffic, civil, family and administrative courts.

The government of Ontario has not yet brought in the legislation that will govern paralegals because the schools and colleges need more time to prepare their paralegal students for the training required to represent their clients properly in the courts. NOTE: At the time I gave this speech16 years ago, the legislation hadn’t been created then. It currently exists and has for several years.

The judges are very pleased when they see persons being represented in their courts by paralegals. They know that such cases brought before them will be conducted in a more orderly fashion when conducted by paralegals than if accused persons choose to represent themselves. However, if a judge is not convinced that a paralegal representing a client in his or her court is qualified to act as an advocate, the judge can order the paralegal right off the case.

This concept of paralegals representing accused persons in the criminal courts as a viable option for accused persons charged with minor crimes and offences is fairly new in Canada although a few paralegals in Ontario have practiced law in the criminal courts of that province for almost a third of a century. The Law Society of Upper Canada that governs the licensing and conduct of the 30,000 lawyers in Ontario, at first resented the idea of 700 paralegals acting for clients in the criminal courts. They even charged a large Toronto paralegal firm with acting as lawyers because they were being paid for their services. The Law Society lost their case and they appealed twice and lost both appeals. Now they have grown to accept the role of paralegals (albeit grudgingly) in our judicial system as a viable option for unrepresented accused persons in need of legal assistance. NOTE: The Law Society in Ontario now governs paralegals and has for several years. Currently, even if the person representing another in the court is not a lawyer or a licenced paralegal, he or she can still represent that person in the criminal court since the Criminal Code is a federal law of which the Law Society has no jurisdiction to decide who can represent someone in a criminal court.

Many of the paralegals practicing law in the criminal courts are former police officers who took the same criminal law courses all the lawyers took in law school, or former parole or probation officers or corrections officers and even criminologists such as myself who have also taken the same criminal law courses the lawyers take.

Many lawyers, especially those who practice only family, civil or real estate law, do not feel qualified to represent their clients in the criminal courts and if their clients are charged with minor criminal offences, they will often send them to paralegals whom they know and trust, and who are, in their opinions, more qualified to represent their clients in such courts than they are. It is not uncommon for lawyers with little or no experience in traffic law, to hire a paralegal to represent them in traffic court.

At the present time, paralegals in Ontario are a regular feature in the criminal courts in that province and when they are finally regulated by legislation and the ones being trained have passed the required exams in order to be permitted to practice law, they will play an important role in our criminal justice system.

The role of paralegals in the criminal justice system works in Canada and it can work in other countries. I respectfully submit that other countries should seriously consider training their non-lawyer citizens to serve its people as lay advocates in their courts as affordable options for those accused persons charged with minor crimes and offences who cannot afford the services of a lawyer.