WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
110. Identity of offender not to be published. —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
111. Identity of victim or witness not to be published. — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1, as amended
Date: 2015-02-23
Court File No.: Toronto Y133684
Between:
Her Majesty the Queen
— AND —
K.P.D., a young person
Before: Justice M. L. Cohen
Decision released on: February 23, 2015
Counsel
Mariam Henry and Sarah DeFillipis — counsel for the Crown
Leopoldo Llorente — paralegal for the accused, K.P.D.
Decision
COHEN, M. J.:
[1] Young people enjoy specific protections of their right to counsel under the Youth Criminal Justice Act, in addition to their right to counsel under the Charter. Section 25 of the Act addresses the extent of the right to counsel generally, and sets out mandatory procedures designed to ensure young people have access to counsel. Yet, despite these procedures, a young person may appear before a court without counsel, and may ask the youth justice court to allow him/her to be assisted by an adult whom the court considers to be suitable. The YCJA provides for such a request under section 25(7). In this case a young person has appeared without counsel, and has asked the court for an order permitting the paralegal to assist him. This ruling is about whether a paralegal can be considered a suitable person to assist a young person in proceedings under the Act[1].
[2] The question whether paralegals are eligible for consideration under sub-section 25(7) of the Act has arisen in the case of a 17 year old youth named K.P.D. K.P.D. has been charged with two counts of assault arising from two incidents which are alleged to have occurred in July and August, 2014. K.P.D. has appeared in the 311 Jarvis Youth Court on five occasions in response to the charges. Until January 13, 2015, these appearances were before a Justice of the Peace in the first appearance/set date court. At each appearance a paralegal, Mr. Leopoldo Llorente, has appeared with him. Mr. Llorente is noted as a paralegal on the information, and his status as a paralegal was known at all times to the presiding Justice of the Peace, the Crown and the duty counsel.
[3] On January 13, 2015, the matter came before me for Judicial Pre-trial. The youth appeared with Mr. Llorente, who introduced himself as a paralegal and requested permission to address the Court. Although the youth was not represented by counsel, there was no request for a direction under section 25(4) of the Act. Section 25(4) gives the court jurisdiction to direct that a young person be represented by counsel where the young person is unable to obtain counsel through Legal Aid. K.P.D. and his father told me that the youth wished to be represented by the paralegal.
[4] Mr. Llorente did not frame his request in the terms of section 25(7). I advised him that since he was not counsel, if the young person wished his assistance, I would have to be satisfied that he was a suitable adult pursuant to section 25(7) of the Youth Criminal Justice Act.
[5] In response to my direction, Mr. Llorente submitted that he was a suitable adult, and I conducted a summary inquiry. At the conclusion of the inquiry I adjourned the matter for my ruling. On February 13, 2015, when the matter returned to court, and prior to my ruling, I made further inquiries of the young person, his father and Mr. Llorente. I offered Mr. Llorente the opportunity to make further submissions, which he did. It was apparent, as it had not been on the previous occasion, that Mr. Llorente had now reviewed section 25 of the Act.
[6] I spoke briefly to the youth and his father on each occasion. Both advised they were aware that young people are entitled to legal counsel in youth court proceedings, and both were aware that a paralegal is not a lawyer. The father stated that he was informed of his son's right to counsel by the police, and that he called the Legal Aid Ontario toll free number. Legal Aid Ontario operates a "1-800" call in service for applications for legal aid certificates. The father stated that he and his son called the number, but nobody answered. He stated that he had retained the paralegal because the calls to legal aid went unanswered, and that his son was underage and needed an adult to represent him. He stated that he observed that the paralegal was allowed to represent his son before the Justice of the Peace, so he assumed there was no problem. The father stated he wanted the paralegal to represent his son. He stated that no one told him about the provisions of section 25(4) of the Act.
[7] The youth is 17 years of age and in grade twelve. He advised me that when he first attended at court, the duty counsel told him about the toll free number, and that he tried to call the number on his cell phone, but no one answered. When he tried again later, there was still no answer. The youth stated that he had met the paralegal through his father, and that his father is paying the paralegal's fees. The youth stated that no one told him about section 25(4) of the Act. He stated that he wanted the paralegal to represent him. When I asked him why, he stated that he had tried to call legal aid but there was no answer, so he wanted Mr. Llorente to represent him. When I asked him if he wanted me to make an order that he have a lawyer, he said "Sure".
[8] In answer to my inquiries, the paralegal advised that he was licenced by the Law Society as a paralegal in April, 2013. For many years he had been a practising lawyer in his native Philippines, as well as an insurance executive. As a lawyer he acted as defence counsel in marine/maritime insurance cases. In 2011, he left the Philippines for Canada as a landed immigrant, sponsored by his daughter. He found he was bored not working. He was interested in the law, but wanted to "refrain from doing heavy lifting", so he pursued a one year course to become a paralegal. In the course he studied "evidence, torts, small claims and criminal law." Although he was licenced in 2013, he was unable to find employment as a legal assistant, so he decided to set up his own practice. This was his first youth case.
[9] Mr. Llorente confirmed that he was retained by the father. He stated that he knew the youth was financially eligible to qualify for legal aid, but he did not advise the youth that, if he was unable to obtain legal aid, he could make an application under section 25(4) of the Act. He stated that he "didn't get into it," and that he "didn't know the procedure."
[10] Mr. Llorente advised me that when he first attended court with the youth, he observed a notice posted outside the courtroom restricting the persons who could address the court. As a result, he stated that he sought the advice of duty counsel, and was told to advise the presiding justice he was a paralegal, which he did. He stated that he believed he was entitled to represent the young person because the case was proceeding as a summary conviction matter. He stated that, over the course of the proceedings, he received and read the Crown disclosure, and that he had participated in a pre-trial conference with the Crown by telephone. He stated he has continued to have on-going discussions with the Crown.
[11] Since the two appearances before me, I have reviewed the record in the first appearance court. On each occasion Mr. Llorente advised the court he was a paralegal representing the young person. On the first appearance the justice allowed him to appear on the basis that the Crown was electing to proceed summarily. The Justice did not advise the youth of his right to counsel, or of the provisions of section 25(4) of the Act. The justice also did not conduct any inquiry to determine whether Mr. Llorente should be considered a suitable adult under section 25(7). On the second and third appearances, the Crown advised the court about the on-going disclosure, and that a crown pre-trial had been held. The Crown was awaiting "complainant input". Again there was no discussion about sub-sections 25(4) or (7) with the young person, his parents or the paralegal.
[12] On the fourth and final appearance in the first appearance court, the Crown asked that the matter be set for a judicial-pre-trial as the "next step" in the case. At that time the Crown noted that she had never done a judicial pre-trial with a paralegal. The Justice of the Peace said "We need counsel for the pre-trial", and set the date for the judicial pre-trial.
[13] Having considered the matter, I am able to summarize my conclusions in a very simple fashion. The youth is without counsel and has asked for the paralegal to assist him. Under my questioning, he expressed the wish to have legal representation, which opens the door to an order under section 25(4) of the Act, and effectively decides the section 25(7) question. However, because of the importance of the issue in this case to the administration of justice in the youth court, I have decided to provide extended reasons with respect to the question of whether a paralegal can be considered a suitable adult under subsection 25(7). I have come to the conclusion that paralegals, including Mr. Llorente, are not eligible for consideration.
[14] Mr. Llorente's paralegal licence does not permit him to provide legal services in proceedings under the Youth Criminal Justice Act. The Law Society by-laws apply. The paralegal is purporting to act outside the terms of his licence, and cannot do indirectly what he is prohibited from doing directly. He cannot circumvent the restrictions on his licence by asking to be found to be a suitable person. Furthermore, the Youth Criminal Justice Act is a self-contained code with elaborate guarantees concerning the right to counsel. These rights flow from the fact that youth are vulnerable litigants entitled to the highest form of legal representation. Their right to counsel is not to be easily displaced. To allow paralegals to represent accused youth under section 25(7) of the Act, would be contrary to the proper administration of justice in the Youth Justice Court.
[15] Accordingly the application is dismissed. The youth will be granted an adjournment to retain counsel pursuant to a legal aid certificate. In order to avoid further delay and inconvenience to the youth and his parents, and considering his inability to obtain counsel through the legal aid program, and in the absence of objection by the duty counsel, I am directing that the youth have legal representation under section 25(4) of the Act.
[16] What follows is a more detailed statement of my reasoning:
Detailed Reasoning
[17] For over a century Canada has had a separate criminal justice system for young people, which has its own principles. The creation of this system was based on parliament's recognition of the diminished moral blameworthiness of young persons, and on their heightened vulnerability in dealing with the justice system[2]. In the case of R. v. D.B.[3], the Supreme Court considered the onus provisions in the Youth Criminal Justice Act. In developing the analysis which resulted in those provisions being declared unconstitutional, Justice Abella observed that:
What the onus provisions do engage, in my view, is what flows from why we have a separate legal and sentencing regime for young people, namely that because of their age, young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment. (par. 41)
[18] For these reasons, the criminal justice system for young persons today is "completely sealed off" from the adult system, with separate courts, judges and rules[4].
[19] The legal question before the court in the case at bar also "flows from why we have a separate legal and sentencing regime for young people"— the vulnerability and immaturity of young people. A concern for this has resulted in a statutory preoccupation with protecting the legal rights and interests of young persons.
[20] The Youth Criminal Justice Act contemplates two categories of persons who can assist accused youth. In the first category are counsel, who provide representation, and in the second category are adults considered to be suitable by the Court, who may, at the discretion of the court, provide assistance where a youth so requests, and is unrepresented[5]. Thus for a paralegal to receive audience in a youth justice case, he/she must be found to be suitable by the court, and, if so found, is limited to providing "assistance."
[21] In the case at bar it is evident that, throughout these proceedings, all parties, mistakenly, envisioned "representation" by the paralegal rather than "assistance". But even at the lower standard of "assistance," should the court find a paralegal to be a suitable adult? To answer this question, I begin with the regulation of paralegals in Ontario.
Regulation of Paralegals in Ontario
[22] Although both paralegals and lawyers are regulated by the Law Society of Upper Canada, paralegals are not lawyers. The Law Society Act draws a distinction between practicing law and the provision of legal services. In Ontario, only lawyers are permitted to "practice law". Paralegals are not. They are permitted to "provide legal services". A person provides legal services, according to the Law Society Act, if the person "engages in conduct that involves the application of legal principles and legal judgment with regard to the circumstances or objectives of a person[6]." The provision of legal services includes, inter alia, giving a person advice with respect to the legal interests, rights or responsibilities of that person or of another person, representing a person in a proceeding before an adjudicative body, and negotiating the legal interests, rights or responsibilities of a person[7]. While this definition appears to open the door to paralegal representation in a wide variety of circumstances, on closer examination of the legislation we find this is not the case.
[23] In Ontario, lawyers are authorized to practice law, and paralegals to provide legal services, through a licensing system set out in by-laws enacted by the Law Society[8]. No licensee is permitted to practice law, or to provide legal services, except to the extent permitted by the licensee's license[9].
[24] By-law 4 enacted by the Law Society provides for classes of licences, and delineates the scope of activities authorized under each class of licence, as well as any terms, conditions, limitations or restrictions imposed on each class of licence. Paralegals like Mr. Llorente, hold a Class P1 licence. This licence restricts the scope of legal services which the paralegal is authorized to provide[10]. A licencee who holds a Class P1 licence is authorized to do any of the following:
Give a party advice on his, her or its legal interests, rights or responsibilities with respect to a proceeding or the subject matter of a proceeding.
Represent a party before,
- i. in the case of a proceeding in the Small Claims Court, before the Small Claims Court,
- ii. in the case of a proceeding under the Provincial Offences Act, before the Ontario Court of Justice,
- iii. in the case of a proceeding under the Criminal Code, before a summary conviction court,
- iv. in the case of a proceeding before a tribunal established under an Act of the Legislature of Ontario or under an Act of Parliament, before the tribunal, …
[25] A "proceeding" means a proceeding or intended proceeding,
(a) in the Small Claims Court,
(b) in the Ontario Court of Justice under the Provincial Offences Act,
(c) in a summary conviction court under the Criminal Code (Canada),
(d) before a tribunal established under an Act of the Legislature of Ontario or under an Act of Parliament …
[26] Thus, in criminal matters, a paralegal may only give advice to a party with respect to a proceeding "in a summary conviction court under the Criminal Code (Canada)". A paralegal may only represent a party "in the case of a proceeding under the Criminal Code before a summary conviction court"[11]. In my view these restrictions preclude the holder of a Class P1 licence from providing legal services in a Youth Justice Court.
[27] Firstly, proceedings in the Youth Justice Court are not proceedings "under the Criminal Code," they are proceedings under the Youth Criminal Justice Act. This conclusion flows from section 14(1) of the YCJA. Pursuant to this section, the Youth Justice Court has exclusive jurisdiction over the offence, and the young person must be dealt with as provided in the Youth Criminal Justice Act — not as provided in the Criminal Code. As Justice Abella states in R. v. S.J.L.[12], where provisions of the Criminal Code are "imported into the YCJA", they "are deemed to be applicable only to the extent that they are consistent with the provisions and objectives of the YCJA."
[28] Secondly, a Youth Justice Court is not a "summary convictions court under the Criminal Code". The youth justice court is a specially created court, established under the Youth Criminal Justice Act. Under section 14(6) of the Act, for the purpose of carrying out the provisions of the Act, it has the jurisdiction and powers of a summary conviction court under the Criminal Code. Thus, while the Act provides that Part XXVII of the Criminal Code (Summary Conviction Offences) will apply to trials under the YCJA, those provisions will apply only where they are consistent with the Act (section 142). Section 14(6) does not constitute the youth justice court a court "under the Criminal Code."
[29] Finally, applying the principles of statutory construction to the regulatory scheme, I note that, although By-Law 4 refers to the Small Claims Court, the Provincial Offences Act, and proceedings under the Criminal Code, it contains no reference to the Youth Criminal Justice Act or the Youth Justice Court. This silence on the part of the Law Society must be presumed to be deliberate.
[30] Considering the foregoing, I conclude that pursuant to By Law 4, paralegals are not authorized or licenced to provide legal services including advice or representation, in proceedings under the Youth Criminal Justice Act. Such advice or representation is not within their permitted scope of activities.
[31] However the Law Society By-Laws are a product of the deliberations of the Law Society, and are subject to change by the Law Society. By Law 4 is not the end of the discussion. In fact there are compelling reasons within the statutory framework of the YCJA which, in my view, exclude paralegals from audience in youth court. To explain these reasons, I return to my earlier reference to the vulnerability of young persons, and the special nature of the criminal justice system for them.
The Youth Criminal Justice Act Framework
[32] I begin with the preamble to the Act, and the Declaration of Principles, both of which express the depth of Canada's commitment to protecting the rights of youth in the youth criminal justice system. The preamble states that Canada is a party to the United Nations Convention on the Rights of the Child and recognizes that young persons have rights and freedoms, including those stated in the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights, and that they have special guarantees of their rights and freedoms.
[33] The Declaration of Principle states that the criminal justice system for young people must emphasize, inter alia, (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected (section 3(c)). The Declaration of Principle also states that special considerations apply in respect of proceedings against young persons and, in particular, that young persons have rights and freedoms in their own right, such as a right to be heard in the course of, and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms (section 3(d)).
[34] There is an obvious connection between "enhanced procedural protections" for youth, and "special guarantees" of their rights, and the right to counsel under the Act. In D.B., Justice Abella quotes Professor Bala[13], who explains that:
"…adolescents generally lack the judgment and knowledge to participate effectively in the court process and may be more vulnerable than adults" (Youth Criminal Justice Law, at p. 5).
[35] This awareness translates into a plethora of special protections in the Act surrounding the right to counsel. The sheer number of these provisions reflects Parliament's intention that counsel will be the means by which the statutory, and Charter protections are brought to bear in youth justice proceedings.
[36] An examination of the YCJA illustrates the immense value Parliament has placed on the right to counsel for young persons. For example, a (non-exhaustive) list would include:
The provision in Section 10(d) that an extrajudicial sanction may only be used if the young person has, before consenting to be subject to the extrajudicial sanction, been advised of his or her right to be represented by counsel and been given a reasonable opportunity to consult with counsel;
The requirement that the Notice to Parent or relative/other adult under section 26 must contain a statement that the young person has the right to be represented by counsel;
The duty under section 32, on a first appearance in Court if the young person is not represented by counsel, which requires that the judge or justice inform the young person of his/her right to retain and instruct counsel;
The requirement under section 32, that if the youth justice court is not satisfied that a young person understands the charge, and certain other matters set out in subsection (3), the court shall direct that the young person be represented by counsel;
The provisions in section 146(2), unique to criminal law, that no oral or written statement made by a young person who is less than eighteen years old, to a peace officer or to any other person who is, in law, a person in authority, on the arrest or detention of the young person or in circumstances where the peace officer or other person has reasonable grounds for believing that the young person has committed an offence is admissible against the young person unless, inter alia:
(b) the person to whom the statement was made has, before the statement was made, clearly explained to the young person, in language appropriate to his or her age and understanding, that:
(iii) the young person has the right to consult counsel and a parent or other person in accordance with paragraph (c), and
(iv) any statement made by the young person is required to be made in the presence of counsel and any other person consulted in accordance with paragraph (c), if any, unless the young person desires otherwise;
(c) the young person has, before the statement was made, been given a reasonable opportunity to consult:
(i) with counsel, and…
(d) if the young person consults a person in accordance with paragraph (c), the young person has been given a reasonable opportunity to make the statement in the presence of that person.
The entitlement of counsel to disclosure of mental health reports (section 34);
The entitlement of counsel to present a sentencing proposal before a court imposes incarceration (section 39(6));
The entitlement of counsel to receive a presentence report (section 40(5));
The entitlement of counsel to receive a copy of the reasons for sentence (section 48(a));
The right of the youth to be represented by counsel at a sentence review (section 94(15));
The entitlement of counsel to access to private records under section 119, 120 and 124; and
The entitlement of counsel to notice under section 141 in proceedings involving mental disorders.
[37] Section 25 is at the center of this proceeding, and I therefore reproduce it here. Section 25 is detailed and comprehensive. It also contains "fail safe" provisions, intended to counteract the effect of an anticipated possible failure in a youth's access to counsel. It provides as follows:
Right to Counsel
25. (1) A young person has the right to retain and instruct counsel without delay, and to exercise that right personally, at any stage of proceedings against the young person and before and during any consideration of whether, instead of starting or continuing judicial proceedings against the young person under this Act, to use an extrajudicial sanction to deal with the young person.
Arresting Officer to Advise Young Person of Right to Counsel
(2) Every young person who is arrested or detained shall, on being arrested or detained, be advised without delay by the arresting officer or the officer in charge, as the case may be, of the right to retain and instruct counsel, and be given an opportunity to obtain counsel.
Justice, Youth Justice Court or Review Board to Advise Young Person of Right to Counsel
(3) When a young person is not represented by counsel
(a) at a hearing at which it will be determined whether to release the young person or detain the young person in custody prior to sentencing,
(b) at a hearing held under section 71 (hearing — adult sentences),
(c) at trial,
(d) at any proceedings held under subsection 98(3) (continuation of custody), 103(1) (review by youth justice court), 104(1) (continuation of custody), 105(1) (conditional supervision) or 109(1) (review of decision),
(e) at a review of a youth sentence held before a youth justice court under this Act, or
(f) at a review of the level of custody under section 87,
the justice or youth justice court before which the hearing, trial or review is held, or the review board before which the review is held, shall advise the young person of the right to retain and instruct counsel and shall give the young person a reasonable opportunity to obtain counsel.
Trial, Hearing or Review Before Youth Justice Court or Review Board
(4) When a young person at trial or at a hearing or review referred to in subsection (3) wishes to obtain counsel but is unable to do so, the youth justice court before which the hearing, trial or review is held or the review board before which the review is held
(a) shall, if there is a legal aid program or an assistance program available in the province where the hearing, trial or review is held, refer the young person to that program for the appointment of counsel; or
(b) if no legal aid program or assistance program is available or the young person is unable to obtain counsel through the program, may, and on the request of the young person shall, direct that the young person be represented by counsel.
Appointment of Counsel
(5) When a direction is made under paragraph (4)(b) in respect of a young person, the Attorney General shall appoint counsel, or cause counsel to be appointed, to represent the young person.
Release Hearing Before Justice
(6) When a young person, at a hearing referred to in paragraph (3)(a) that is held before a justice who is not a youth justice court judge, wishes to obtain counsel but is unable to do so, the justice shall
(a) if there is a legal aid program or an assistance program available in the province where the hearing is held,
(i) refer the young person to that program for the appointment of counsel, or
(ii) refer the matter to a youth justice court to be dealt with in accordance with paragraph (4)(a) or (b); or
(b) if no legal aid program or assistance program is available or the young person is unable to obtain counsel through the program, refer the matter without delay to a youth justice court to be dealt with in accordance with paragraph (4)(b).
Young Person May Be Assisted by Adult
(7) When a young person is not represented by counsel at trial or at a hearing or review referred to in subsection (3), the justice before whom or the youth justice court or review board before which the proceedings are held may, on the request of the young person, allow the young person to be assisted by an adult whom the justice, court or review board considers to be suitable.
Counsel Independent of Parents
(8) If it appears to a youth justice court judge or a justice that the interests of a young person and the interests of a parent are in conflict or that it would be in the best interests of the young person to be represented by his or her own counsel, the judge or justice shall ensure that the young person is represented by counsel independent of the parent.
Statement of Right to Counsel
(9) A statement that a young person has the right to be represented by counsel shall be included in
(a) any appearance notice or summons issued to the young person;
(b) any warrant to arrest the young person;
(c) any promise to appear given by the young person;
(d) any undertaking or recognizance entered into before an officer in charge by the young person;
(e) any notice given to the young person in relation to any proceedings held under subsection 98(3) (continuation of custody), 103(1) (review by youth justice court), 104(1) (continuation of custody), 105(1) (conditional supervision) or 109(1) (review of decision); or
(f) any notice of a review of a youth sentence given to the young person.
[38] The roadmap under Section 25 is clear. A young person has a right to counsel, and the right to be informed of that right, prior to and at any stage of the youth court proceedings. A specific procedure is delineated to ensure a youth is represented by counsel at a bail hearing at any time prior to sentencing. Where the young person does not have representation, the youth court judge or justice must advise the young person of his/her right to retain counsel and adjourn the matter to give the youth a reasonable opportunity to retain counsel. Where the youth wishes to obtain counsel but is unable to do so, the court must inquire if there is a legal aid program or an assistance program and must refer the young person to that program for the appointment of counsel; or if no legal aid program or assistance program is available or the young person is unable to obtain counsel through the program, the court may, and on the request of the young person shall, direct that the young person be represented by counsel.
[39] Section 25(7) must be read in the context of this elaborate scheme under the Act[14]. Unlike the highly developed right to counsel in the rest of section 25, with its mandatory aspects, the court's decision under section 25(7) is purely discretionary. There is no right to have an adult declared suitable. There is no right to the assistance of an adult.
[40] Furthermore, within the YCJA, "assistance" is a profoundly inferior concept compared to representation by counsel. The following are the only entitlements referred to in the Act which are extended to adults assisting young persons under section 25(7):
Pursuant to section 34, a right on application to the court, to cross-examine the maker of a section 34 report, although no right to receive the report (the youth has this right);
Pursuant to section 40, a right, on application, to the opportunity to cross-examine on a pre-sentence report, although no right to receive the report (the youth has the right);
Pursuant to section 119, the right, during the section 119 access period, to be given access to a record kept under section 114 (youth court records, i.e. transcripts), and a discretionary entitlement, to access to records kept under sections 115 (police records) and 116 (government records, e.g. RCMP records), during the course of any proceedings relating to the offence or alleged offence to which the record relates, or during the term of any youth sentence made in respect of the offence.
[41] These limited entitlements speak to parliament's intention that "assistance" be carefully circumscribed, such that assistants will not be mistaken for lawyers by unsophisticated youth and their families. The Act and the jurisprudence are clear: youth are vulnerable and lacking in knowledge or understanding of the justice system. Since a paralegal is permitted to provide legal services in some circumstances, he/she may be perceived as an inexpensive equivalent to a lawyer by a young person and his family. Difficulties in accessing legal aid, such as occurred in this case, compound the risk. If assistance is treated as the equivalent of representation in the youth context, there is no doubt that, over time, the statutory scheme intended to protect the rights of young people will be eroded.
[42] "Assistance" is not defined in the Act. Its ordinary meaning is "the action of helping and aiding[15]." Section 25(7) contemplates a helping adult. Indeed, the magnitude of the distance between "representation" and "assistance" persuades me that Parliament did not envision any form of professional legal services in section 25(7). In my view, the Act does not contemplate that the adult will demand, or receive, payment for helping a youth.
Paralegals and the Standard of Representation
[43] Lawyers have the widest right of audience in the courts. As Justice Fuerst points out in R. v. Lippa, [2013] O.J. No. 3003 (Ont. S.C.J.) at paragraph 15:
… licensed paralegals are not barristers and solicitors. The fact that paralegals are regulated and licensed by the Law Society of Upper Canada and that they provide certain legal services to the public does not make them lawyers. They are not required to obtain a law degree, or to complete articles of clerkship, in order to become licensed. They are not required to write the same licensing examination as lawyers. They are not authorized to provide the broad scope of legal services performed by lawyers...
[44] Furthermore, it appears there is no constitutional entitlement to competent representation by a paralegal, which is a matter of great significance when the client is a youth. As the Ontario Court of Appeal stated in R. v. Romanowicz, [1999] O.J. No. 3191:
…an accused who chooses to be represented by an agent who is not a lawyer has decided against exercising the right to effective assistance of counsel, and cannot be heard to contend that the agent's performance should be tested against the standard reserved to counsel trained in the law: Harrison v. Canada, [1998] A.J. No. 109 (Q.B.) at paras. 15-17[16].
[45] (See also R. v. Bilinski, 2013 ONSC 2824, [2013] O.J. No. 2984 (Ont. S.C.J.), a case decided after the implementation of paralegal regulation by the Law Society.)
[46] It is important that courts recognize the inherent limitations imposed on a person providing assistance under section 25(7). Counsel play a crucial role in protecting not only the rights and interests of the young people they represent, but in maintaining the edifice of the Act itself. The court cannot sanction the use of section 25(7) by professionals purporting to offer what can only be a modicum of legal services, in the guise of assistance.
Systemic Failures in This Case
[47] It is instructive to observe how fragile a youth's right to counsel can be, despite the statutory protections I have described. The youth and his father state that they were advised by the police of a phone number they could call to obtain legal aid. They called the number and no one answered. They came to court and were advised to call again. Again no one answered.
[48] The father retained a paralegal. He did not advise the youth of his rights under section 25(4) of the Act. The paralegal states he was unaware of this provision. This speaks to an absence of knowledge of the YCJA generally.
[49] Even though the youth was never able to contact legal aid, he was not offered any advice or assistance to make a legal aid application at the courthouse other than to use the 1-800 number. No one told him that if he could not access legal aid, he had the right to make an application to a judge under section 25(4) of the Act for a direction that he be represented.
[50] No officer of the court appears to have queried the youth's representation by an individual who was not counsel.
[51] As soon as the parties and the Court were satisfied that the Crown was proceeding summarily, that seemed to be the end of any inquiry about the youth's entitlement to counsel, or the paralegal's entitlement to assist the youth. This is not the law. If the youth appeared without counsel, as was the case, irrespective of the Crown election, there should have been an inquiry into the youth's awareness of section 25(4) of the Act, and the availability of legal aid. This did not occur.
[52] If, based on informed choice, the youth wished to be represented by a person who was not a counsel, there should have been an inquiry under section 25(7). Yet it was only when it became clear the matter was being adjourned for judicial pre-trial before a judge, that the Crown and the Justice of the Peace sensed a dissonance. By that time, even though everyone knew that the paralegal was not a counsel, he had been able to appear, obtain a crown charge screening form, receive and review disclosure, and negotiate, over the telephone, a possible resolution with a crown attorney. The disclosure documents were provided to the paralegal, for his use, before any court had determined his status under section 25(7). Disclosure is confidential information.
[53] All of these steps were taken in the face of the many provisions in the Act designed to protect the young person's right to counsel, his special guarantees of his rights, his enhanced procedural protections, and his extensive right to privacy under the Act. This is not acceptable.
Conclusion
[54] The Law Society has limited the circumstances in which a paralegal can provide legal services. A paralegal's licence prohibits him/her from advising or representing young persons in proceedings under the Act. A paralegal cannot circumvent the restrictions on his/her licence by asking to be found to be a suitable adult. On this reasoning alone, a paralegal cannot be a suitable person.
[55] For all of these reasons, I find that the paralegal is not a suitable adult, and that permitting a paralegal to provide assistance would be inconsistent with the proper administration of justice in the Youth Justice Court.
Released: February 23, 2015
Signed: Justice M. L. Cohen
Footnotes
[1] This ruling does not address the appearance by paralegals on administrative remands.
[2] R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426 pars. 62-64
[3] R. v. D.B., 2008 SCC 25, [2008] S.C.J. No. 25
[4] R. v. S.J.L., per Deschamps, J.: "In sum, the consequence of the abolition of the transfer to adult court was to completely seal off the system; this is confirmed by s. 3(1)(b) YCJA, which provides that the criminal justice system for young persons must be separate from that of adults. As a result of the abolition of the transfer procedure, it can be stated definitively that '[t]he youth justice system is separate from the adult system, with separate courts, judges and rules' (Lee Tustin and Robert E. Lutes, A Guide to the Youth Criminal Justice Act (2005), at p. 29).(par.74)"
[5] Youth Criminal Justice Act, s.25(4)
[6] Law Society Act, s.1(5)
[7] Ibid., s.6
[8] Ibid., s. 26(1)
[9] Ibid., s. 26(3)
[10] Law Society of Upper Canada By-Law 4
[11] Ibid, s.6
[12] See footnote 3 (in dissent but not on this issue)
[13] R. v. D.B., footnote 2, par. 64
[14] See: R. v. D.S., [2005] A.J. No.538 (Alta.Prov. Ct.)
[15] Shorter Oxford English Dictionary, Third Edition