Criminal Proceedings where the Court is not sitting as a Youth Court: Rule 53(5)

A student-at-law may act as counsel in the Alberta Court of Justice where the Court is not sitting as a youth court in the following circumstances:

1. in a proceeding pertaining to an offence punishable on summary conviction;
2. in a proceeding pertaining to an offence prosecutable either as an indictable of-fence or a summary conviction offence, where the Crown elects or is deemed to have elected to proceed by summary conviction procedure;
3. in a proceeding pertaining to an indictable offence in respect of which a Justice of the Alberta Court of Justice has absolute jurisdiction;
4. in a proceeding pertaining to any other kind of indictable offence, if it relates to any of the following:
   (i) entering an election respecting the mode of trial;
   (ii) entering a plea of not guilty;
   (iii) fixing the date for a trial, a preliminary inquiry or a hearing;
   (iv) an application for an adjournment, where the matter has been brought forward to speak to the adjournment;
   (v) an application with respect to judicial interim release (e.g. bail proceedings).

To summarize, subject to the below, a student-at-law may appear in criminal proceedings before the Alberta Court of Justice so long as the matter is proceeding by way of summary conviction. If the matter is proceeding by way of an indictable offence, then a student-at-law cannot make an appearance before the court subject to the six exceptions listed above.

Criminal Proceedings where the Court is sitting as a Youth Court: Rule 53(6)

A student-at-law may act as counsel in the Alberta Court of Justice where the Court is sitting as a youth court in the following circumstances:

1. in a proceeding pertaining to an offence punishable on summary conviction;
2. in a proceeding pertaining to an offence prosecutable either as an indictable offence or a summary conviction offence, where the Crown elects or is deemed to have elected to proceed by summary conviction procedure;
3. in a proceeding pertaining to an indictable offence in respect of which a Justice of the Alberta Court of Justice would have absolute jurisdiction if the accused were an adult;
4. in a proceeding pertaining to any other kind of indictable offence, if it relates to any of the following:
   (i) entering a plea of not guilty;
   (ii) fixing the date for a trial or a hearing;
   (iii) an application for an adjournment, where the matter has been brought for-ward to speak to the adjournment;
   (iv) an application with respect to judicial interim release (e.g. bail proceedings).

To summarize, subject to the below, a student-at-law may appear in youth criminal proceedings before the Alberta Court of Justice so long as the matter is proceeding by way of summary conviction. If the matter is proceeding by way of an indictable offence then a student-at-law cannot make an appearance before the court subject to the five exceptions listed above.

Other Alberta Court of Justice Proceedings: Rule 53(7)

A student-at-law may act as counsel in the Alberta Court of Justice in proceedings:

1. pertaining to an application for a maintenance order or for the enforcement of a maintenance order;
2. pertaining to an application for an order for custody of or access to a child or to an application for a review of such an order;
3. under the Child, Youth and Family Enhancement Act;
4. under the Mental Health Act;
5. under Part 4 of the Provincial Court Act (Small Claims).

To summarize, a student-at-law may only appear in Alberta Court of Justice in civil matters that are related to the above noted family, mental health and “small claims” civil actions.

A student-at-law may act as counsel in the Court of King’s Bench in:

1. civil proceedings before a judge in chambers, other than a pre-trial conference or a judicial dispute resolution;
2. proceedings before a master in chambers;
3. a questioning (formerly referred to as an examination for discovery under the previous Alberta Rules of Court);
4. an examination of a debtor in aid of execution;
5. any other examination provided for in the Alberta Rules of Court if it is conducted before an officer of the Court or a person authorized by the Court to conduct it;
6. an inquiry before a referee under the Alberta Rules of Court;
7. proceedings for the review of costs before an officer of the Court (also known as a Review Officer and formerly known as a Taxation Officer);
8. an appeal respecting a civil claim, taken pursuant to section 46 of the Provincial Court Act (Small Claims Court Appeal);
9. an application in a criminal proceeding, if the application relates to any of the following:
   (i) entering an election respecting the mode of trial;
   (ii) entering a plea of not guilty;
   (iii) fixing the date for a trial or a hearing;
   (iv) an adjournment, where the matter has been brought forward to speak to the adjournment;
   (v) an application with respect to judicial interim release (e.g. bail proceedings).

To summarize, students-at-law may only appear in Court of King’s Bench matters involving civil proceedings that are listed in items 1-8 above. Otherwise, the student-at-law may not make an appearance in civil proceedings. With respect to criminal proceedings in the Court of King’s Bench, students-at-law may only make an appearance with respect to the matters listed in item nine above.

A student-at-law may act as counsel in the Surrogate Court in:

1. proceedings before a judge in chambers;
2. proceedings for the review of costs before an officer of the Court (also known as a Review Officer and formerly known as a Taxation Officer).

A student-at-law may act as counsel in the Court of Appeal in:

1. civil proceedings before a judge in chambers;
2. proceedings for speaking to the list in civil or criminal matters;
3. proceedings for the taxation of costs before a Registrar of the Court;
4. an application with respect to judicial interim release pending appeal (e.g. bail);
5. interlocutory applications in criminal matters.

A student-at-law may, with leave of the Court, act as counsel in any matter, whether contested or not, before the Court of Appeal, the Court of King’s Bench, the Surrogate Court of Alberta or the Alberta Court of Justice if:

1. the student-at-law is present for the purpose of assisting a member who is that student-at-law’s principal or who is qualified under Rule 55 to be a principal, and
2. the student-at-law acts in the presence of and under the supervision of the member.

As previously noted, a student-at-law may act as counsel for certain criminal proceedings. As a part of that process, the student-at-law may need to access personal records of the accused held by a public body. Under section 40 of the Freedom of Information and Protection of Privacy Act (FOIP Act), a public body may disclose this personal information “to a lawyer or student-at-law acting for an inmate under the control or supervision of a correctional authority.”

One of the purposes of the FOIP Act is to “allow any person a right of access to records [containing personal information about them] in the custody or under the control of a public body.” However, this right is subject to “limited and specific exceptions as set out in [the] Act.” Students-at-law and their principals should fully review the FOIP Act before engaging or relying on this process.

Under section 800(2) of the Criminal Code, a defendant may appear personally or by counsel or agent, which may be a student-at-law. Section 802.1 of the Code permits a student-at-law to act on behalf of a defendant who may be liable, on summary conviction, to imprisonment for a term of more than six months. A defendant “may not appear or examine or cross-examine witnesses by agent if he or she is liable, on summary conviction, to imprisonment for a term of more than six months, unless the defendant is a corporation or the agent is authorized to do so under a program approved by the lieutenant governor in council of the province.”

An Alberta Order in Council has approved CPLED for this purpose and an Alberta student-at-law is considered an authorized agent “to provide legal services on behalf of the defendant.”

Section 91 of the Immigration and Refugee Protection Act allows “a lawyer who is a member in good standing” with a law society or a student-at-law under their supervision to act as an immigration representative and be paid for certain services. An immigration representative can also be “someone appointed by a foreign worker to conduct business on their behalf with Citizenship and Immigration Canada (CIC), Canada Border Services Agency or the Immigration and Refugee Board” or the Alberta Provincial Nominee Program.

Students-at-law are not permitted to act in the Federal Court or Federal Court of Appeal.

Under section 11 of the Federal Courts Act, “every person who is a barrister or an advocate in a province” and “every person who is an attorney or solicitor in a superior court of a province” may practise as such in the Federal Court of Appeal or the Federal Court. The Act does not recognize a student-at-law as a barrister, advocate, attorney or solicitor. As well, the Federal Courts Rules do not permit students-at-law to perform prescribed functions but refer instead to “solicitors”.

The Tax Court of Canada Act permits representation by “counsel”. That must be a person who “may practise as a barrister, advocate, attorney or solicitor in any of the provinces” and “is an officer of the Court.” There is no exception or express permission allowing students-at-law to represent a party in a General Procedure before the Tax Court of Canada. However, the Informal Procedure under section 18.14 of the Act allows for representation by “counsel or agent”. Rule 5 of the Tax Court of Canada Rules (Informal Procedure) and the Tax Court of Canada Rules of Procedure Respecting the Excise Tax Act (Informal Procedure) allow for service of documents on the appellant’s “counsel or agent”. Case law authority appears to support the proposition that students-at-law can appear in Informal Procedure matters. Students-at-law and principals should be certain about which part of the Act applies to their individual circumstances.

A student-at-law cannot represent a party or conduct business on behalf of a party in the Supreme Court of Canada.

Sections 22 and 23 of the Supreme Court Act provide that “all persons who are barristers or advocates in a province” and “all persons who are attorneys or solicitors of the superior courts in a province” may practise as such in the Supreme Court of Canada. The Rules of the Supreme Court of Canada state that a party may act in person or be represented by counsel or conduct business through an agent. The Rules of the Supreme Court of Canada define “counsel” as “a member of the bar of a province”. The Rules define an “agent” as “a lawyer practicing in the National Capital Region”, an area which means “the seat of the Government of Canada and its surrounding area.”

Under section 38 of the Matrimonial Property Act and section 38 of the Family Property Act, only a “lawyer” can witness an acknowledgement in writing between two spouses or adult interdependent partners “that provides for the status, ownership and division” of property. This applies to pre-nuptial and ante-nuptial agreements.

The term “lawyer” is not defined in these Acts, but is defined at section 28 of the Interpretation Act as “an active member of The Law Society of Alberta.” A student-at-law is not an active member until they have been admitted. Therefore, a student-at-law may not witness an acknowledgement in writing between two spouses or adult interdependent partners regarding ownership and division of property.

Students-at-law may not attend to the execution of a dower release.

Pursuant to section 7 of the Dower Act, a release of dower rights and supporting affidavit must be completed apart from the married person in whose favour it is made, and executed “before a solicitor, barrister, lawyer or attorney at law residing in Alberta, or residing in any other province, realm and territory, state or country, other than the solicitor or the partner or employee of the solicitor acting for the married person in whose favour the release is made.”

When an accused is arrested or detained, they have the right “to retain and instruct counsel without delay, and to be informed of that right.” The term “counsel” is not defined in the Canadian Charter of Rights and Freedoms. It is a principle of statutory interpretation that a court can look to related legislation for guidance where a term is undefined.

For example, section 2 of the Criminal Code defines the term “counsel” as “a barrister or solicitor, in respect of matters or things that barristers and solicitors, respectively, are authorized by the law of a province to do or perform in relation to legal proceedings.” In R v Frick, 2010 ABPC 280, an Alberta court interpreted the term “counsel” within the context of section 10(b) of the Charter to mean a lawyer, not an agent. The matter involved an impaired driving charge under the Criminal Code, which attracted a maximum 18-month sentence. Pursuant to section 802.1 of the Criminal Code, agents are not allowed to appear on summary matters attracting a sentence in excess of six months. The court determined that a non-lawyer agent could not represent the accused.

The foregoing case would not apply to students-at-law as they are authorized to defend clients in such summary conviction matters. There is, however, some unreported authority in Alberta to suggest that advice from a student-at-law at the time of arrest and detention may not be sufficient to satisfy the Charter right of the accused to retain and instruct counsel without delay. In R v Rodriguez, 2021 ABQB 372, a decision involving analysis of several Charter issues, the Court of King’s Bench of Alberta relied on R v. Frick when stating that “access to a law student or student-at-law may not satisfy the implementation obligation of providing access to legal counsel. Access to a licenced barrister and solicitor may be required.” If correct, this means a student could represent the client at trial on the substantive matter but may not be able to give advice to the same client in custody.

This article does not purport to solve this apparent anomaly, but students-at-law and principals may wish to be cautious about calls from clients in the back of a police cruiser.

The National Mobility Agreement (NMA) between Canada’s law societies facilitates practice by Alberta lawyers in other provinces. Alberta reciprocates allowing lawyers from outside Alberta to practice here. Some general conditions and limitations apply and there are also special restrictions on practice in the Northern Territories and in Québec. Interpretation of the NMA leads to the conclusion that it is not intended to permit students-at-law to engage in practice outside Alberta.

Generally, the NMA applies to lawyers, defined as “a member of the signatory body”. The NMA is silent on whether students-at-law are included and resort must be had to the provincial enabling legislation. The Legal Profession Act of Alberta and other provincial legislation distinguish “articling students” or “student at law” from members of the respective law societies. As a result, students-at-law do not enjoy the benefit of the NMA.

The NMA presumes that, before undertaking an interjurisdictional representation, a lawyer will be competent in the law and procedure of the visited jurisdiction. Other clues in the NMA include a requirement that the visiting lawyer must “be entitled to practice law in a home jurisdiction” — something that students are not yet permitted to do fully. A lawyer must be insured in the home jurisdiction — again, students-at-law are not separately insured. Visiting lawyers must not be “subject to conditions or restrictions… as a result of… proceedings related to… admission” – students-at-law are subject to the restrictions discussed elsewhere in this article.

In Alberta, the Provincial Court Act allows representation by a non-lawyer “agent”. With leave of the court, a non-lawyer may assist a litigant as provided in the Rules of Court. An attempt by a student-at-law trying to appear in these capacities outside Alberta might be viewed unfavourably and regarded as attempting to do indirectly what cannot be done directly. It is not within the scope of this article to consider whether other Canadian jurisdictions permit any degree of non-lawyer representation, by Alberta students-at-law or otherwise. Courts always have an inherent power to control their own processes.

It is possible that, in extraordinary circumstances, a court could grant leave for an Alberta student-at-law to appear. The Law Society of Alberta recommends that students-at-law take a cautious approach when considering appearing as a non-lawyer agent in other jurisdictions.