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).
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.
Regards,
Blair
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