Society seeks to clarify articled student practice in Provincial Court
The Benchers have asked the Chief Judge of the Provincial Court to look at a discrepancy that appears to exist between the Law Society Rules and the Provincial Court Rules - or the interpretation of those rules - on the scope of practice for articled students.
Rule 2-43(1)(d) of the Law Society Rules states that articled students may appear in Provincial Court:
(i) on any summary conviction offence or proceedings;
(ii) on any matter in the family division or small claims division; or
(iii) where the Crown proceeds by way of indictment, for the purposes only of
(A) speaking to an application for an adjournment, or
(B) setting a date for preliminary inquiry or trial.
Lawyers have flagged for the Law Society that some judges do not allow students to appear at family law case conferences, arraignment hearings or trial confirmation hearings and that some registries do not allow students to search family law files.
Family law case conferences
Some judges have expressed concerns about articled students (rather than counsel) attending family law case conferences on the basis that case conferences require counsel who are experienced, who are familiar with the process of the court and who understand the likelihood of the outcome of the matter should it proceed to trial.
As Law Society Rule 2-43(1)(d)(ii) provides that an articled student may appear in the Provincial Court on any matter in the family division, the Law Society has assured the Chief Judge that it expects students appearing under the rule to have been properly instructed by their principals as to the likely outcome of matters should they proceed to trial.
Similarly, the Society expects principals to satisfy themselves that their students adequately understand the issues so that case conferences can proceed in a useful manner. A principal who has any doubt should not send a student to attend a case conference.
Criminal Caseflow Management Rules
The Criminal Caseflow Management Rules created two new pre-trial proceedings: the arraignment hearing and the confirmation hearing. These hearings provide the court some assurance that the prosecution and the defence have given sufficient consideration to all the issues and that there is a proper time estimate for the trial. Both rules are silent with respect to the attendance by students at such hearings.
It appears some judges interpret these rules as prohibiting attendance by students, at least with respect to indictable offences. There appears to be some disagreement as to whether the Criminal Caseflow Management Rules, and specifically Rule 8(1) and Rule 10(1) and (2), are purely procedural rules by which dates are fixed, or whether there are substantive matters that may be addressed at these hearings.
The Law Society has noted for the Chief Judge that, if the appearance relates simply to adjournments or the setting (or confirmation) of court dates, the Law Society Rules appear to permit a student's appearance. Again, a principal should only send a student who is properly instructed and has an adequate understanding of the issues.
Provincial Court (Family) Rule 20(10) provides that no one is entitled to search a registry file respecting an application under the Family Relations Act, an agreement filed under s. 121 of that Act or an application under the Family Maintenance Enforcement Act, unless that person is a party, a party's lawyer, a person named in the application as a respondent or named as a party to the agreement, a family justice counsellor or a person authorized by the judge.
While Law Society Rule 2-43(1)(d) allows an articled student to appear in Provincial Court on any matter in the family division, the Provincial Court Rules do not appear to allow students access to the client's file in that registry. Although the discrepancy has not proved a problem at every registry, it can result in difficulties or embarrassment for students.
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The Chief Judge is considering the matters raised by the Law Society.