Paralegals and access to justice | Grazia Condello
Wednesday, November 04, 2020 @ 12:56 PM | By Grazia Condello
After a few years, a woman came into our office who was charged with fraud but financially unable to retain a lawyer. After hearing her story, I decided to take my first case.
The client had a Maltese show dog with silky long hair. For years, she brought her dog to same groomer for combing and trimming. On one occasion, one of the groomers shaved the dog down instead of the usual trim. The client, justifiably, said that she would not pay. A short time later, police arrived at her home. An overzealous police officer forcibly handcuffed and arrested her and charged her with fraud under $5,000. The Crown attorney was seeking a conviction and a fine. I prepared extensively, compiling case law on the elements of fraud, photos of the dog, a veterinary report and most importantly, relevant sections of the Consumer Protection Act. The crux of my argument was consumers cannot be forced to pay for a service that they did not ask for and the facts did not amount to fraud. After discussions, the Crown attorney agreed to withdraw the charge. Had the woman been convicted, she would have lost her job. This was the beginning of my path in criminal law and human rights.
The late Lord Bingham of the U.K. Supreme Court recognized that there were barriers to access to justice and spoke frequently to raise awareness of the need to fill this gap. These barriers and gaps were also recognized by the Canadian courts and the Law Society of Ontario (LSO) for some time.
Paralegals were regulated by the LSO in 2008 and the timing was right. There had been a significant gap in the justice system for people who were in need of legal representation but unable to afford a lawyer.
Within a regulated “limited scope of practice,” paralegals have an important role in the justice system. Considering when a person is faced with a governmental prosecution such as a Liquor Licence Act violation or a Highway Traffic Act violation, most defendants are unaware of their rights or how to assert them.
Paralegals have a vital role in filling this gap: whether in assisting people in provincial offences court with traffic tickets, helping small business owners collect money in the small claims court, or in representing landlords and tenants before the tribunal.
Lawyers have long played an important role in filling in gaps in the system by providing pro bono legal services in areas where litigants are most vulnerable. Organizations such as Innocence Canada provide legal services to low income persons for the purposes of establishing wrongful convictions.
Paralegals are also involved in bridging the gap within their scope of practice. In 2017, the Ontario Paralegal Association sought intervener status on a case dealing with disclosure of a speed measuring device manual in case of a speeding offence. I was one of the paralegals who provided pro bono legal services by drafting the initial notice of application for intervener status, in which the court granted intervener status to the association. This allowed the association to retain counsel and make arguments on behalf of the defendant. The case ultimately went to the Court of Appeal for Ontario. The court ruled in our favour — that the testing and operation instructions in the radar manual were subject to first-party disclosure obligations.
One of the areas of law that is currently in need of reform is family law. Over 57 per cent of litigants before the family courts are unrepresented. In 2016, Justice Annemarie Bonkalo began the Family Legal Services Review at the request of the attorney general. In addition to Justice Bonkalo’s report, which illustrates the barriers that self-represented litigants face, there have been numerous legal associations that have proposed recommendations to overhaul the justice system.
Despite the varying recommendations, criticisms and ongoing consultations, one thing is clear: access to justice is recognized as an obstacle for many litigants and paralegals have a role in filling gaps in the justice system.
In the words of the late Lord Bingham, “denial of legal protection to the poor litigant who cannot afford to pay is an enemy of the rule of law.”
Grazia Condello is a paralegal and partner in the Toronto law firm, Neuberger & Partners LLP. She is also attending University of London law school on a part-time basis and is currently in her second year. Her main area of practice includes criminal law, provincial offences and human rights.
Illustration by Chris Yates/Law360
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