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Canada is known around the world for the quality of its student legal clinics and the level of responsibility given to law students.
In 2016, the International Journal of Clinical Legal Education held its annual conference in Toronto jointly with the Association for Canadian Clinical Legal Education (ACCLE). A number of my students attended, and were surprised to learn that Canadian law students carried a great deal more responsibility than their counterparts in other countries.
My students handle trials in criminal matters, small claims court, and landlord and tenant matters. They draft wills and powers of attorney. They handle mediations. All of this is done under the close supervision of clinic lawyers. Each Canadian clinic covers different areas of law, but the similarities are there.
There is one exception in Canada – in Québec. According to section 128 of the Act Respecting the Barreau du Québec (Loi sur le Barreau):
1) The following acts, performed for others, shall be the exclusive prerogative of the practising advocate or solicitor:
(a) to give legal advice and consultations on legal matters;
(b) to prepare and draw up a notice, motion, proceeding or other similar document intended for use in a case before the courts;
(c) to prepare and draw up an agreement, petition, by-law, resolution or other similar document relating to the constitution, organization, reorganization or winding-up of a legal person governed by federal or provincial laws respecting legal persons, or the amalgamation of several legal persons or the surrender of a charter.
In other provinces, law societies allow law students to represent clients so long as they are under the supervision of a lawyer. For example, the Law Society of Ontario allows law students working in law school clinics to provide legal services under its Bylaw 4:
34.3 (1) An Ontario law student may, without a licence, provide legal services in Ontario if the Ontario law student,
(a) volunteers in, is employed by or is completing a clinical education course at a student legal aid services society, within the meaning of the Legal Aid Services Act, 1998;
(b) provides the legal services through the student legal aid services society to the community that the society serves and does not otherwise provide legal services; and
(c) provides the legal services under the direct supervision of a licensee who holds a Class L1 licence employed by the student legal aid services society.
It is important to note that law students must be under the direct supervision of a licensed lawyer. Similar provisions exist in other provinces.
Thousands of lawyers over the years have worked in student legal clinics and had their first taste of law practice representing real clients (and often have great stories to tell about their successes and tribulations). Is it time for Québec law students to have the same experience?
Québec has a number of excellent legal information clinics in its law schools, such as the Legal Information Clinic at McGill, le Clinique Juridique at l’Université de Montréal, or le Bureau d’Information Juridique at Laval.
Clearly this is Québec’s decision, and Québec’s decision only. And as a clinic director from Ontario, I hesitated to address the issue. However, I suggest that at this point in our legal history, where access to justice is the biggest legal issue of our generation, it is time for a discussion on expanding the role of law students in Québec to include the representation of clients.
Law students can play an important role in representing low income. In no way does this impinge on the prerogatives of the bar. The clients cannot afford to pay for a lawyer, nor do they qualify for legal aid, so there is no financial loss to lawyers.
Law students can defend those who have no place to turn for help, and by doing so, save them from a criminal record, save them from being homeless, or save them from financial disaster. This will serve to benefit Québec society, give law students the legal experience they crave, and expand the opportunities for experiential learning in Québec law schools.
I am not suggesting it will be easy, nor am I underestimating the need to fund the clinics. But I think it is time for a discussion on the issue. I have confidence that the provincial government, the Barreau, and law schools have the innovative drive and the creativity needed to have a debate, and if desired, carry out the necessary reforms.