The recent decision in R. v. Lippa highlights the importance of the differences between lawyers and paralegals.
As the court stated in its ruling on an application by paralegal Marian Lippa, “licensed paralegals are not barristers and solicitors.” This is an important point as the regulation of paralegals moves out of its early infancy. The Law Society of Upper Canada has governed lawyers in Ontario since 1797. This has allowed the regulation of the practice of law in the public interest for quite some time. It has allowed for the establishment, assessment, and revision of standards as necessary.
The licensing of paralegals has been extant for just over five years. The law society’s five-year review of paralegal licensing highlights the fact that, “in spite of extensive communications work by the law society, public awareness has not kept pace with changes in the legal services market, particularly with respect to awareness of the distinction between services provided by lawyers and services provided by paralegals.”
The court in Lippa recognized this important distinction and the dynamic that exists between the two types of licensees, in particular the fact that the ability “of licensed paralegals to act for accused persons in summary conviction matters is not co-extensive with that of lawyers.”
The importance of noting the fact that paralegals don’t have recognition as officers of the court in the same way as lawyers further stresses the differing expectations placed upon the two levels of licensees. Calling lawyers’ matters first recognizes the fact that “as lawyers enjoy a wider audience than licensed paralegals in the criminal courts, such a direction was not arbitrary, discriminatory or unfair. The fact that it inconvenienced Ms. Lippa and caused her to feel slighted when her matters were held down does not mean that it was contrary to the principles of natural justice or otherwise an excess of jurisdiction on the part of the justice of the peace.”
While Lippa clearly wished for direction mandating an equivalency between paralegals and lawyers before the court, the decision reiterates each court’s power to control its own process. The decision allows for local practice to recognize the unique circumstances that may exist in each jurisdiction to allow for a fair and efficient operation of the court, both in seating arrangements and the manner in which it calls the list. Criminal courts are busy places and judicial officers need to be able to make decisions to promote the effective use of the limited resources available. Imposing a requirement on judicial officers to hear from people on management issues would be contrary to the efficient use of resources and, as stated in the case, “would grind the business of the courts to a halt.”
The suggestion given by the court that “it may well be appropriate, particularly in small or crowded courtrooms, to reserve the limited number of seats in front of the bar for lawyers who have been called to the bar and have the widest right of audience in the courts,” allows for a clear division so that arrangements are not random or capricious. This approach allows each court to set its own rules based on the circumstances that most directly affect it. What works in Peterborough, Ont., may not work in Toronto and vice versa.
While the decision does not provide hard and fast rules about what must happen, people will look to the guidance it provides for quite some time. It emphasizes the independence of the court and its ability to control its own procedure. The effective management of the courtroom is a core responsibility of the judicial officer. The judicial officer should work with the other interested parties in the courtroom, especially Crown counsel and the other barristers and solicitors, but the final determination regarding the most effective administration of the court must lie with the person presiding.
Two of the most interesting aspects of this case relate to how rarely parties litigate such issues and the precedential impact it may have. Cases of this kind allow for a review of the history of the legal profession along with the rules and laws that govern us. It is as interesting for its historical review of how matters are dealt with as it is for the legal principles it engages. The interpretation of the Barristers Act is of particular interest to the legal historian. The provisions contained in it have existed in some form or another for more than a century yet they are very rarely subject to litigation. The provisions date back to a time of mixed lists, circuit courts, and even fewer juridical resources than we have today. The endurance of the principles contained therein and the fact that the courts continue to apply them, even in spirit, recognizes the efficacy of such provisions and the manner in which they promote a fair and efficient use of resources.
As our courts continue to get busier and they face the challenge of dealing with matters more efficiently, it will be important to provide an increasingly educated populace, as Superior Court Justice Michelle Fuerst put it in Lippa, with a “sufficient explanation of the process and the rationale for it” in order to allow the justice system to act more expeditiously.
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[/span]For more, see "Two decisions consider status of paralegals versus lawyers."
Nathan Baker, a lawyer at Aitken Robertson Professional Corp. in Peterborough, Ont., acted for the York Region Law Association as an intervener in Lippa.