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B.C. Supreme Court makes right call on non-lawyer in traffic court | Kyla Lee

Wednesday, February 19, 2020 @ 11:13 AM | By Kyla Lee

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Kyla Lee
Recently, the British Columbia Supreme Court ruled in a controversial case involving the provision of legal services by non-lawyers.

In a case involving Jeremy Maddock, a law school graduate who never completed articles or got called to the bar, the B.C. Supreme Court has determined that British Columbia’s Offence Act does not permit agents acting as counsel in traffic court matters (Maddock v. Law Society of British Columbia 2020 BCSC 71).

The case stemmed from complaints made by the law society against Maddock in three separate cases. The first involved Maddock acting as agent for a friend of his family. The second involved Maddock preparing and drafting an appeal from conviction in a violation ticket dispute. The third involved Maddock’s involvement in yet another traffic court matter.

Maddock argued that the Offence Act permitted him to act as agent, or effectively counsel, in traffic court. He relied on a provision that permitted an “agent” to appear and defend a person in traffic court, and specifically used the words “lawyer or agent.” The law society took the position that the Legal Profession Act constrained the interpretation given to the Offence Act, prohibiting Maddock from acting without being an articled student or called to the bar.

The court sided with the law society, determining that the use of the term agent was meant to cover those agents who provide assistance and emotional support, as opposed to legal services or advocacy. The court also determined that agent could also incorporate articled students and members of legal clinic programs at universities, but that its interpretation was not as broad as Maddock argued.

What is fascinating about this case is the position taken by the court in relation to non-lawyers, including paralegals, providing advocacy services in traffic court in Ontario. Maddock relied heavily on an Ontario Court of Appeal judgment that permitted paralegals to act as counsel in traffic court. However, the B.C. Supreme Court found that not only was that case decided on the basis of a different piece of legislation and therefore distinguishable, but that because the Ontario legislation had since been amended, the judgment may no longer be good law.

The fallout from this case raises important issues.

Following the release of the judgment, Maddock took to Twitter to complain that this judgment would prevent people from accessing affordable legal services for traffic ticket disputes.

But the numbers revealed in the judgment do not seem to support that contention.

For example, on the summary conviction appeal matter, Maddock had charged hourly for his work, plus expenses. For work performed up to the hearing, but not including a hearing as he was not permitted to conduct the hearing, Maddock charged over $2,000. As a lawyer practising in this area, I can confirm that this is not that much lower than the going rate for a summary conviction appeal of a traffic ticket matter.

If Maddock’s argument for why he should be allowed to do the work of a lawyer without being called to the bar was that the costs associated with legal representation were prohibitive, his own rates do not really fill the gap.

It is also hard to accept that non-lawyers providing legal services in traffic court would lead to any cost savings for litigants. It does not appear that Maddock led any evidence in court to suggest that the rates for representation in this area are prohibitive, or not reasonably comparable to what Maddock himself was charging.

And it is questionable as to whether there is truly an access to justice problem in traffic court. In British Columbia, traffic tickets are prosecuted by the police officers who issued the tickets. The system is generally designed to support self-represented litigants, with traffic court judicial justices providing assistance to those representing themselves.

I have sat in on traffic court trials on numerous occasions where judicial justices have given thorough explanations of how to conduct a trial. I have seen individuals acquitted based on arguments they did not raise, because an officer forgot an essential element of proving a speed measurement, for example.

And traffic court is replete with lawyers and articled students. I am frequently not the only lawyer at the courthouse representing clients charged with traffic ticket offences. Self-represented litigants will often approach me or my colleagues to ask for some advice.

In some courthouses, the judicial justice will ask counsel to assist a self-represented person to understand the implications of a plea or nuances of a defence. I have never seen counsel refuse.

Police officers are also not shy about asking for assistance from counsel who are present if negotiations regarding resolution or understanding disclosure documents, and counsel at traffic court are always happy to oblige.

From where I sit, attending traffic court regularly, there is no access to justice problem to be solved by the addition of one untrained individual. From my perspective, there is however a potential protection-of-the-public crisis.

While it may be the case that Maddock has good intentions, good intentions do not always lead to good places. As soon as you open up the opportunity to non-lawyers to provide representation and advice in traffic court, the doors fling open to anyone who can take advantage of vulnerable people.

Remember that for people facing a traffic ticket, the consequences are often greater than the fine. There are penalty points, driving prohibitions, and the Offence Act allows for the imposition of penalties including up to six months’ jail. Proper representation, if representation is desired, is therefore key to ensuring people are not subject to significant sanction.

Non-lawyer service providers may act without proper training, including in cross-examination, operation of laser and radar devices and the rules of evidence and procedure in court. This risks wrongful conviction. Judicial justices would not be under a legal obligation to provide assistance to ineffective assistants, as they are with self-represented litigants.

Frankly, without some evidence of an underlying problem in traffic court it is hard to see that what was proposed in this litigation is any type of a solution.

Kyla Lee is a criminal lawyer and partner at Acumen Law Corporation in Vancouver. Her practice focuses on impaired driving. She is the host of a podcast, Driving Lawand a weekly video series Cases That Should Have Gone to the Supreme Court of Canada, But Didn’t! She is called to the bar in Yukon and British Columbia.

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