Tuesday, October 15, 2013

Paralegal Offended by Justice of the Peace's Treatment, Calls Barristers Act Unconstitutional

Some lawyers, including those who practice before the Ontario Provincial Courts have becoming increasingly more vocal in expressing concern that paralegals are encroaching on what they consider to be their turf.  This turf war between lawyers and paralegals was ratcheted up a bit in the case of Lippa, et al. v. The Queen, (indexed as R. v. Lippa 2013 ONSC 4424).   
Marian Lippa has worked as a paralegal since 1998.  In 2006, the Law Society Act ("Act") was amended to create two forms of licensee - lawyers and paralegals - where previously, only lawyers were licensed to practice law in Ontario.  Much to the chagrin of many lawyers, licensed paralegals became members of the Law Society of Upper Canada ("LSUC").  Paralegals became subject to a regulatory regime that closely parallels the regime applicable to lawyers, including adherence to Rules of Professional Conduct.  They were authorized by the by-laws under the Act to provide specified legal services including representing a party before a summary conviction court.
Ms. Lippa became licensed as a paralegal by the LSUC in 2008.  She has her own paralegal firm, which employs other licensed paralegals.  On June 10, 2010, Mr. Lippa appeared in a Newmarket court as agent for counsel on two criminal cases.  The presiding justice of the peace ("JP") "reminded" her that agents were to remain behind the bar until their cases were called.  The JP said that the area in front of the bar was reserved for lawyers and law students.  The JP cited the Law Society's "protocol" and "safety reasons" and referred to it as a tradition that had existed for hundred's of years.  The JP also referred to the Crown having an opportunity to call matters in order of protocol by "elder counsel" first.
Ms. Lippa was offended and embarrassed by the JP's instructions.  She was also concerned that her company would lose business if its clients felt that they were not being defended as well they could be if they were represented by a lawyer.  In addition, her employees could not attend as many set-date appearances on a given day as they otherwise would have.  Accordingly, Ms. Lippa sought orders of certiorari and mandamus quashing the instructions of the JP and directing that the JP's court list be called on a "first come, first served" basis, subject to common sense exceptions.  She also sought declarations that the certain provisions of the Barristers Act were not mandatory or alternatively were unconstitutional.  
The matter was heard before Justice Michelle Fuerst of the Ontario Superior Court of Justice.  Justice Fuerst dismissed Ms. Lippa's application.  While holding that paralegals play an important role in the delivery of cost-effective legal services in Ontario and that their status as such is deserving of respect, Justice Fuerst held that the JP was "perfectly within her jurisdiction" to give the instructions that she did.
In respect of the issue of courtroom seating, Justice Fuerst held that it is common ground that a court of criminal jurisdiction has the power to control its own process in order to maintain the integrity of that process.  Determining where individuals sit in a courtroom, particularly a busy remand courtroom, where individuals are coming and going as various cases are called, falls within the jurisdiction of a judicial officer to maintain order in the courtroom and the dignity of the proceedings.  The JP did not exceed her jurisdiction or breach the principles of natural justice in ordering that only lawyers could sit in front of the bar when court was in session.
As to the order in which cases were called, Justice Fuerst held that it was not clear that the JP was adhering to the provisions in the Barristers Act which sets out an order of precedent of members of the bar in courts of Ontario.  The regime set out in the Barristers Act anticipates a mixed list, consisting of criminal and civil matters.  Accordingly, the act has very little direct application to present day criminal courts which deal solely with criminal cases.  There are a variety of ways in which cases can be called in busy courtrooms.  No one method will necessarily be the most orderly or efficient for every courtroom in the province, nor is one necessarily better than another.  However the list is called, not every case can be given priority and inevitably some individuals will wait longer than others.  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 JP. 
Finally, as for the alleged unconstitutionality of the Barristers Act, Justice Fuerst held that there was no breach of section 7 of the Charter of Rights and Freedoms in that the JP's instructions did not impinge on Ms. Lippa's life, liberty or security of the person.  The instructions may have affected Ms. Lippa's economic interest but that interest is not protected by section 7, i.e. the ability to general business revenue by one's chosen means is not a right that is protected by section 7 of the Charter.  Further, corporations and other artificial entities such as Ms. Lippa's company were excluded from section 7 protection.  

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