In yet another display of indifference by the Ford government towards those who can’t afford a lawyer, the province has failed to close a legal loophole so that paralegals and student-staffed legal clinics can continue to serve clients in certain criminal cases.

This mess started in Ottawa, but action is needed at Queen’s Park to repair the damage. If that isn’t done, there’s a real risk that more people will end up in court without proper representation, adding to delays in the legal system and harming their chance for fair treatment.

It began with the federal government’s sweeping criminal justice reform bill, C-75. A part of that law, which comes into effect on Sept. 19, will increase the maximum sentences for all offences that don’t require a jury trial to two years less a day in jail.

This will let more serious cases be prosecuted faster, a boon to a justice system still struggling to finish trials within the time limits set by the Supreme Court of Canada in 2016. Justice delayed, as they say, is justice denied.

The problem is that the Criminal Code only allows paralegals and supervised law students to represent clients facing a maximum of six months in jail — a long-standing practice that will now effectively be banned.

This unintended consequence did not come as a surprise to the province. It was brought up during justice committee consultations and the bill was amended late last year to allow provinces to permit non-lawyers to represent clients in cases with higher maximum penalties.

The hot potato is now firmly in the hands of Ontario’s Attorney General, and has been for months.

The AG and the Law Society of Ontario should have already hashed out a solution that will not leave the poorest Ontarians with even fewer legal resources come the fall, especially after the Ford government’s recent cuts to funding for legal aid.

Now paralegals and student-staffed legal clinics face an uncertain future. Can they take on new clients? As the Star’s Jacques Gallant reported recently, contingency plans for ongoing cases are being arranged should clients be left high and dry come September.

We know that when people cannot afford legal representation they represent themselves.

Research from the National Self-Represented Litigants Project at the University of Windsor shows they are less likely to fare well in court, they take up more court time, and their cases can take longer to end. The result may actually be more court delays and inefficiencies, not fewer.

The consequences for an unrepresented accused person are also dire. Jail time and a criminal record can both have lasting, devastating implications for employment and immigration status.

Law students — who are supervised in their work by a practising criminal lawyer — will also lose an invaluable learning experience and a chance to serve their community through long-standing and respected law school legal clinics.

Speaking about legal aid last month, Supreme Court Chief Justice Richard Wagner urged governments to take “real, tangible steps, and funding, to make justice happen.”

The Ford government has already stripped funds from legal aid. The premier’s promise in April that “if anyone needs support on legal aid, feel free to call my office. I will guarantee that you will have legal aid” remains unsurprisingly empty.

But while Ford has not budged on the cuts, there’s no reason to further restrict access to the current level of affordable or free legal representation for Ontarians because of a flaw in the new law.

In fact, it could be an opportunity for a bold change by opening up more cases to paralegals and supervised law students (though the prospect has struck a nerve with the Criminal Lawyers Association, which suggests paralegals replacing lawyers in more serious cases could result in miscarriages of justice).

What is clear is that the people who have ongoing cases with legal clinics and paralegals should not be left in suspense. Attorney General Doug Downey must formally allow this kind of non-lawyer representation to continue so that access to justice in this province is not undermined any more.

https://www.thestar.com/opinion/editorials/2019/07/29/ontario-must-not-leave-accused-people-high-and-dry.html