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Courtroom hierarchy a necessary part of the system

Article Originally Published on June 27, 20131 by Advocate Daily. 

An Ontario Superior Court of Justice ruling dismissing an application to give lawyers and paralegals equal rights in court ensures long-established courtroom decorum will remain intact, says Toronto criminal lawyer Aaron Harnett.

“The distinction that was drawn by the court is a legitimate one that signifies that the role counsel plays goes far beyond the role a paralegal plays in the criminal justice system,” says Harnett.

The Certiorari application asked that JP G.M.K. Forrest’s decision banning paralegals from sitting past the bar and requiring paralegals be called in accordance with the Barristers Act to handle criminal matters be overturned.  See Prior Story

The York Region Law Association and Criminal Lawyers’ Association were intervenors in the case.

In a judgment this week, Justice Michelle Fuerst dismissed the application, finding that despite licensing, paralegals are “not barristers and solicitors.”  Read R. v. Lippa

“The fact that paralegals are regulated and licensed by the Law Society of Upper Canada and that they provide certain legal services to the public does not make them lawyers,” the decision reads. “They are not authorized to provide the broad scope of legal services performed by lawyers.”

Harnett says the law has always been entrenched in tradition, and on this matter, change is not necessary.

“The justice system is at a basic level about rules and the power to enforce them. But the trappings of the law are also important. They attempt to impart  a sense of occasion and ceremony. Courtrooms are like sets, and the players in them wear costumes, and have stage directions they must follow. Who stands up for whom, who sits where, and who wears what have always delineated the different roles in this subtle and well-established hierarchy,” says Harnett. “Justice Feurst’s decision is one for the first to address how these very recent arrivals in this very old system are to be distinguished. She has properly confirmed that while they are to be recognized and accorded respect, there are distinctions between the players that will have an impact on their treatment in courtrooms in Ontario.”

Adds Harnett: “In Canada, we have been distinguishing between courtroom participants for as long as we have had courtrooms. For example, counsel honoured with the status of Queen’s Counsel have been granted a special place before the bar. They  wear silk robes instead of cotton, and are deferred to in a number of ways in and out of court.

“Judges themselves have similarly been differentiated in their powers, regalia and the form  of address. It is part of our legal tradition, and Justice Feurst’s reasons for judgment explain clearly why paralegals stand well behind lawyers in the continuum of deference,” he says.

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