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Law Society foresight negates impact of Bill C-75 on law student practice in criminal matters in Manitoba

August 24, 2018 — 

In the wake of proposed changes to sections of the Criminal Code of Canada contained in Bill C-75 (An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts), CBC News reported July 31 in the article ‘It’s problematic,’ Bill C-75 to leave low-income people without access to legal helpthat law students in Ontario would no longer be able to help clients in need of representation, while gaining valuable hands-on training. As a result of such reports, law students in Manitoba likewise became concerned. Legal Aid lawyer, award-winning sessional instructor and University Law Clinic director Mike Walker offered a clear explanation as to why Bill C-75 will not have any impact on law student practice in criminal matters in Manitoba.

“In most provinces law students practice as agents as permitted by s. 800(2) of the Criminal Code.,” said Walker. “802.1 of the Criminal Code then restricts agent practice.”

The section is as follows:

802.1 Limitation on the use of agents
Despite subsections 800(2) and 802(2), a defendant may not appear or examine or cross-examine witnesses by agent if he or she is liable, on summary conviction, to imprisonment for a term of more than six months, unless the defendant is a corporation or the agent is authorized to do so under a program approved by the lieutenant governor in council of the province.

Bill C-75, introduced for its First Reading on March 29th, 2018, raises the maximum penalty for summary offences from six months to two years less a day in jail. Bill C – 75 does not contain an amendment to s. 802.1. The possibly unintended consequence of these proposed amendments, Walker said, is that law students will no longer be able to represent clients in criminal court as agents because of the limitation under s. 802.1.

In Manitoba, however, the amendments to the Criminal Code in Bill C – 75 will not restrict student practice in Manitoba because of certain provisions of the Legal Profession Act in Manitoba, said Walker, that allow for student practice. Specifically, under Definitions:

“articling student” means a person enrolled in the society’s bar admission program and registered in the student register as an articling student. 

“law student” means a person enrolled in a law degree program and registered in the student register as a law student. 

In the section titled Practice by students, section 21 states:

21. The benchers may make rules permitting and regulating the practice of law by students.

Provisions of the Law Society Rules relating to law student practice under the section regarding Admission of Students state:

Registration of law students 
5-15(1)  A person may be registered in the society’s student register as a law student if the person: 
             (a)         provides proof of enrolment in a law degree program; 
             (b)        is  approved  by  the  chief  executive  officer  to practise  law  under the  control,  supervision and authority of a practising lawyer; 
             (c)         files the required application; 
             (d)        furnishes all documentation required by the chief executive officer; and 
             (e)         pays any required fee. 

Term of registration 
5-15(2) Subject to rule 5-16(1), any registration granted under subsection (1) must be for a period of not more than one year.  A law student may apply to renew his or her registration prior to its expiry.  

Withdrawal of approval to practice 
5-16(1) The  chief  executive  officer  may  withdraw  the  registration  granted under  rule  5-15(1) at any time.  

Practice by law students 
5-16(2) A law student may practise law pursuant to section 21 of the Act under the supervision of a practising lawyer.  

Practice by NCA [National Committee on Accreditation] students 
5-16(3) A  person  who  is  registered  to  take  or  awaiting  the results  of  examinations  or  courses prescribed by the NCA has the same rights as a law student under rule 5-16(2), and may be registered in the society’s student register if he or she complies with rule 5-15(1)(b),(c),(d) and (e). An NCA student is also bound by rules 5-15(2) and 5-16(1).  

Walker, who attended an Association of Canadian Clinical Legal Education conference in June, said much discussion took place there regarding Bill C-75 and the impacts it will have across the country. “I think that we are very fortunate,” Walker said, “that our Legal Profession Act specifically permits law student practice and that our law society has made rules permitting and regulating practice by law students.”

“The challenge is going to be to get the attention of the government and/or various law societies to address the issue,” he said, regarding other provinces.

In Manitoba, our Law Society has already taken care of that.

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