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This public information page is sponsored by the following lawyer to help explain the differences between DUI lawyers and DUI paralegals. Click the banner for more information about the author:
Ontario lawyers practise law in Ontario, Canada. Ontario lawyers are members of the Law Society of Upper Canada. Each Ontario lawyer is a barrister, solicitor, and notary public. Ontario barristers are Ontario lawyers who go to Greater Toronto Area and other courts. Ontario solicitors are Ontario lawyers who don't usually go to Court but spend most of their time in their offices or working elsewhere in Ontario with Ontario business law clients, Ontario real estate law clients, Ontario commercial law clients, Ontario property law clients, and Ontario corporate law clients. Notaries Public (notary public) are Ontario lawyers who have powers related to special oaths and document certification.
Toronto courts (Superior Court and the Ontario Court of Justice) serve Old City Hall DUI court matters, College Park DUI courts Etobicoke court matters, North York court cases, and Scarborough court prosecutions. Ontario lawyers also attend court in Brampton courts, Oakville courts, Burlington courts, Milton courts, Orangeville courts, Newmarket courts, and Oshawa courts. There are many other courts in the Greater Toronto Area.
The Law Society of Upper Canada now regulates paralegals. The Law Society now regulates education and licensing of paralegals. These laws and regulations are contained in the Law Society Act, the By-laws, and the Paralegal Rules of Conduct.
Paralegals are not lawyers, even if they are licensed paralegals. Paralegals are not barristers or solicitors. Unlike lawyers, paralegals have not attended law school to learn the constitutional and historical context of our criminal justice system. Paralegals have not learned the full context of substantive and procedural criminal law. Paralegals have not taken the same courses in trial advocacy that lawyers have and do not have the training for and experience of appearing before all levels of Courts in Canada. Many DUI defences require an extensive knowledge of the case law related to the Canadian Charter of Rights and Freedoms. DUI terminology respecting breath instruments and their proper operation and maintenance requires significant study.
Paralegals may have attended community college programmes. Those programmes may have prepared them for simple scheduling hearings and consent matters in the Ontario Court, but not trials where Indictable and Hybrid criminal charges must be litigated and liberty is at stake. The nature of our adversarial criminal law system makes it essential that persons obtain the services of a lawyer if they wish to assert their rights in the context of a trial where law must be construed and applied . In criminal matters you will be prosecuted by a real lawyer, known as the Crown Attorney or Assistant Crown Attorney. You should also be defended by a lawyer.
The practice of DUI drunk driving law is very complex. A lawyer will use a variety of approaches in defending an impaired driving charge. The consequences of a drunk driving conviction are severe. Bill C-2 will raise the maximum punishment for drunk driving to 18 months in jail if the Crown elects to proceed summarily. Paralegals may not act in summary conviction matters where the maximum penalty exceeds 6 months.
Why not ask an: Impaired Driving Lawyer- What Are My Chances?
The following is an excerpt from a decision of the Ontario Court of Appeal, Regina v. Romanowicz, 138 C.C.C. (3d) 225, ON CA. The Court emphasizes the importance of proper legal representation:
Is there a constitutional right to effective assistance where an accused is represented by an agent who is not a lawyer?
[27] Every accused is owed a fair trial. That right is guaranteed by s. 11(d) of the Charter. Representation by professionals trained in the law and bound by the ethics and obligations of their profession serves that right. In some cases, legal representation is essential to the securing of a fair trial and an accused who wants counsel must be provided with counsel: R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.) at p. 66. If an accused retains counsel, she is constitutionally entitled to competent representation by that counsel: R. v. B. (L.C.) (1996), 104 C.C.C. (3d) 353 (Ont. C.A.) at p. 367; R. v. Joanisse (1995), 102 C.C.C. (3d) 35 (Ont. C.A.) at pp. 56-58. The constitutional right to the effective assistance of counsel recognizes that counsel, by virtue of their professional training, will bring to their task an expertise which others, including the accused, do not possess. An accused who chooses to seek the assistance of legally trained counsel is entitled to assistance which reflects that expertise.
[28] An accused is also entitled to proceed without counsel. The accused may choose self-representation, or if the Crown has proceeded summarily, the accused may choose to be represented by an agent: R. v. Vescio, [1949] S.C.R. 139 at p. 142, 92 C.C.C. 161, [1949] 1 D.L.R. 720; R. v. Littlejohn and Tirabasso (1978), 41 C.C.C. (2d) 161 (Ont. C.A.) at p. 173. By choosing to proceed without counsel, an accused elects to forego the right to the effective assistance of counsel. An accused cannot at the same time exercise the right to proceed without the assistance of counsel and yet demand the right to the effective assistance of counsel.
[29] If an accused chooses self-representation, he or she cannot be heard to complain that the conduct of the trial did not rise to the level [page238] of a competent counsel. We see no reason why the same conclusion would not follow when an accused chooses to be represented by an agent who is not a lawyer. Nor does the fact that the agent is paid create any presumption as to the agent's competence. Just as where an accused chooses self-representation, 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 (QL) at paras. 15-17 (Alta. Q.B.) [summarized 84 A.C.W.S. (3d) 687].
[30] In holding that an accused who chooses to be represented by an agent and not a lawyer has no constitutional right to competent representation, we do not suggest that the accused's right to a fair trial is diminished. That right remains in full force and the absence of legally trained counsel puts an added obligation on the trial judge to protect that right: R. v. McGibbon (1988), 45 C.C.C. (3d) 334 (Ont. C.A.) at p. 347.
[31] Nor do we suggest that an accused who is represented by an agent who is not a lawyer is foreclosed from raising the conduct of that agent on appeal in support of a submission that the conviction constitutes a miscarriage of justice. Any such submission cannot, however, be made on the basis that the miscarriage arises because the agent failed to meet the competent lawyer standard. Rather, the accused must demonstrate that the agent's conduct, perhaps combined with other events, produced a miscarriage of justice.
and
[41] We think that a trial judge faced with an accused who has chosen to be represented by an agent should ensure that the choice is an informed one. The trial judge should be satisfied that the accused is aware that the agent is not a lawyer and that the accused will not have recourse to various remedies which might be available to him if the agent were a lawyer and performed inadequately.
[42] Where it appears that the accused is represented by a paid agent, the trial judge would do well to inform the accused that the laws of Ontario do not require that persons receive any training or demonstrate any level of expertise before being allowed to take money in return for representing persons in criminal matters. It is also advisable that the trial judge advise the accused that while the law expects certain minimum standards of competence from lawyers it imposes no such standards on those who are not lawyers.
[Note recent Rules of Conduct for Paralegals in Ontario]
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and
[73] The power to refuse audience to an agent must be invoked whenever it is necessary to do so to protect the proper administration of justice. The proper administration of justice requires that the accused's constitutional rights, particularly the right to a fair trial, be protected. It also requires the fair treatment of other participants in the process (eg. witnesses) and that the proceedings be conducted in a manner that will command the respect of the community.
[74] It is impossible to catalogue all of the circumstances in which representation by a particular agent would imperil the administration of justice and properly call for an order disqualifying that agent. Obviously, representation by agents lacking the ability to competently represent an accused endangers all aspects of the proper administration of justice, particularly the accused's right to a fair trial. Other examples where the administration of justice would suffer irreparable harm if an agent were allowed to appear are found in the material filed on this appeal. They include representation by an agent facing criminal charges involving interference with the administration of justice and representation by an agent whose background demonstrates pervasive dishonesty or a blatant disrespect for the law. Representation by persons who have convictions for crimesof dishonesty or who have otherwise demonstrated a lack of good character can only bring the administration of justice into disrepute in the eyes of reasonable members of the public. This is so even if those agents have the requisite forensic ability. We emphasize, however, that we do not suggest that a criminal record or some discreditable conduct automatically disqualifies someone from representing an accused. We are referring to situations in which the agent's criminal record or other discreditable acts are such as to permit the conclusion that the agent cannot be relied on to conduct a trial ethically and honourably.
[75] In addition to the cases where the agent's ability or character would disqualify the agent from acting, there may be other situations where disqualification is appropriate. Representation by an agent who [page250] has a conflict of interest, for example, where the agent has a special relationship with the complainant or other witness, could well interfere with the proper administration of justice. An accused should not be represented by a relative of the complainant in a sexual assault case, or by a person who is charged in a separate information with an offence against that complainant. Similarly, representation by an agent who has demonstrated an intention not to be bound by the rules and procedures governing criminal trials would also be inconsistent with the proper administration of justice.
[76] These are only examples of circumstances which could result in an order disqualifying an agent. They are provided to demonstrate that disqualification is justified only where representation would clearly be inconsistent with the proper administration of justice. It is not enough that the trial judge believes that the accused would be better off with other representation or that the process would operate more smoothly and effectively if the accused were represented by someone else. Disqualification of an accused's chosen representative is a serious matter and is warranted only where it is necessary to protect the proper administration of justice.
[77] The power to disqualify agents, like any other facet of the court's power to control its processes, must be exercised judicially on the basis of the circumstances present in a given case. Those circumstances may include the seriousness of the charge and the complexity of the issues raised in a particular case. A presumption, however, that all agents are incompetent to represent accused persons charged with certain summary conviction offences is not a proper basis on which to exercise that discretion. Trial judges are not at liberty, as we are told at least one Provincial Division judge does, to adopt a rule that no agents can appear on criminal matters. That approach is arbitrary and contrary to the Criminal Code. Judges cannot ignore the letter of the law while purporting to control the process of the court so as to maintain the rule of law and the integrity of the proceedings.
[78] Where there is a concern that a particular agent should not act for an accused in a given case, it should be raised with the court before trial. Crown counsel may raise that concern or third parties (eg. the Law Society of Upper Canada) may be given leave by the trial judge to raise the issue. The trial judge may also raise the question of the propriety of the agent appearing, although he or she [page251] should only do so based on some specific concern referable to the particular agent and not on a general disapproval of the law, permitting agents to appear for accused in summary conviction proceedings.
[79] When the issue is raised the grounds for the potential disqualification of the agent should be clearly articulated. The trial judge should first decide whether those grounds provide any basis upon which to disqualify the agent. If satisfied that they do, the trial judge should then conduct an inquiry in which all interested parties are given a full opportunity to present their positions on the issue. Although the rules of evidence would not necessarily apply to this inquiry, the dictates of procedural fairness must.
[80] If the trial judge is satisfied that representation by the agent would interfere with the proper administration of justice the agent must be disqualified. We stress that the trial judge must be able to make that finding. Judicial unease about representation by a particular agent will not suffice. The accused's right to choose representation by an agent must be respected unless that choice is clearly incompatible with the proper administration of justice.
and
[88] A person who decides to sell T-shirts on the sidewalk needs a licence and is subject to government regulation. That same person can, however, without any form of government regulation, represent a person in a complicated criminal case where that person may be sentenced to up to 18 months' imprisonment. Unregulated representation by agents who are not required to have any particular training or ability in complex and difficult criminal proceedings where a person's liberty and livelihood are at stake invites miscarriages of justice. Nor are de facto attempts to regulate the appearance of agents on a case-by-case basis likely to prevent miscarriages of justice.
[89] Some 13 years ago in R. v. Lawrie and Pointts Ltd., supra, at p. 366, this court indicated that legislative attention to the status of agents and other paralegals appearing on behalf of accused persons was a matter of importance. The government of the day commissioned a report and draft legislation followed. Unfortunately, however, no legislation was enacted. Since that time other courts have echoed the same concerns. Indeed, as the jurisdiction of the summary conviction court has expanded, the concern has increased. The matter has been thoroughly studied, debated and various options set out. Continued legislative inaction suggests indifference to the proper administration of criminal justice in summary conviction proceedings. The cynics among us will suggest that only some serious and highly publicized miscarriage of justice will overcome that indifference. We hope not.
[Note recent legislation to govern criminal law and other paralegals in Ontario.]
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Effective assistance in a Criminal Court matter, Ontario Court of Justice by a lawyer or a licensed paralegal (in summary conviction matters only, offence with a 6 month jail sentence maximum only) requires an initial consultation, multiple court attendances to obtain all disclosure (not just what the Crown gives you on first appearance), a Crown pre-trial meeting, possibly a Judicial pre-trial meeting, attendance at the Trial Co-ordinator's Office and assignment Court to set the trial date, possibly a Confirmation Hearing, preparation service and filing of Charter of Rights application, affidavit, and perhaps factum, retention, advanced notice of, and preparation of expert witnesses, preparation of case law and witnesses for trial and physical attendance and guidance throughout the trial. Effective work requires a reasonable fee based on the time it takes to do all those things. Ask the lawyer or paralegal to explain which steps are necessary and how they will be billed. Ask the lawyer or paralegal what is included in the initial estimate and what is not included. Ask the lawyer or paralegal about out-of-pocket disbursements and expert's fees.
Contingency fees are not allowed by the Law Society of Upper Canada in criminal and quasi-criminal matters. This Ontario Solicitors Act requirement which applies to lawyers (barristers and solicitors) has now been made applicable to licensed paralegals in Rule 5.01(6) of the Paralegal Rules of Conduct. Criminal law contingency fees are prohibited for licensed paralegals. Advertising such as "Win or It's Free" is no longer permitted if the paralegal is licensed.
Concerns about the cost of legal representation are best addressed by meeting the lawyer or licensed paralegal face-to-face at the beginning of the retainer and then again and again as many times as it takes to make sure you understand exactly what you are paying for.
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