Mar 7, 2015

Youth Court Ruled Out of Bounds for Paralegals

R. v. K.P.D., 2015 ONCJ 88 (CanLII)

A Youth Criminal Justice Court judge has held that paralegals cannot represent clients in that court. Justice Marion Cohen found, in a decision released Feb. 23, that the special court lies outside the paralegal scope of practice.

The issue arose when a paralegal asked to be declared a “suitable adult” and able to assist a young person, under section 25 (7) of the Youth Criminal Justice Act. Justice Cohen found that, based on the paralegal’s conduct, he was not a “suitable adult” under that provision.

Justice Cohen went further, providing extensive reasons for her decision:

“Paralegals are not authorized or licenced to provide legal services including advice or representation, in proceedings under the Youth Criminal Justice Act. No licensee is permitted to practice law, or to provide legal services, except to the extent permitted by the licensee’s license.”

While they are termed Ontario Courts of Justice, youth courts operate under a “self-contained code” with safeguards for youth who appear before them, the judge noted. “These rights flow from the fact that youth are vulnerable litigants entitled to the highest form of legal representation” and “because of their age, young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment.”

After reviewing the LSUC By-laws and related legislation, Justice Cohen found that paralegals may only represent a party in the case of a proceeding under the Criminal Code before a summary conviction court.

“The criminal justice system for young persons today is “completely sealed off” from the adult system, with separate courts, judges and rules,” Justice Cohen wrote. Provisions include separate legal and sentencing regimes for young people. She noted that proceedings in the Youth Justice Court are not proceedings under the Criminal Code. They are proceedings under the Youth Criminal Justice Act (YCJA), and so the Youth Justice Court has exclusive jurisdiction.

Justice Cohen held that only "counsel" may represent youth. Paralegals are not counsel. Paralegals provide legal services, under the Law Society Act.

Adult ‘Assistance’ Inadequate When Stakes are High

    Under the YCJA, the court has discretion to allow a “suitable adult” to provide assistance, but not representation. Suitable adults’ assistance is limited and “profoundly inferior” to counsel, Justice Cohen wrote. “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.”

    In discussing her reasons for the suitable-adult finding, Justice Cohen notes that the paralegal in this case was not aware of, and had not advised his client of, provisions under the Act that provide for counsel to be appointed when Legal Aid is not available. “This speaks to an absence of knowledge of the YCJA generally.”

    Justice Cohen also found that it was “unacceptable” for confidential documents to have been released to the paralegal, in pre-trial steps. “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. Permitting a paralegal to provide assistance would be inconsistent with the proper administration of justice in the Youth Justice Court.”

    Cases Referenced & Background Information on Competency: