Minimum Experience Requirements for criminal lawyers representing clients who self identify as Aboriginal

To be authorized to represent clients who self-identify as Aboriginal, applicants shall sign an agreement to comply with these standards:

  1. Authorization to provide Criminal law services shall be a prerequisite to being authorized to represent clients who self-identify as Aboriginal

  2. Mandatory legal education in criminal law issues affecting Aboriginal clients in criminal proceedings shall be a prerequisite to being authorized to represent clients who self-identify as Aboriginal.

    Applicants to provide legal services in this area shall be required to:

    1. have read the legislation and case law set out in Schedule A,
    2. be familiar with the LAO LAW memoranda set out in Schedule A, and,
    3. become familiar with resources for Aboriginal clients in the local areas where the applicant practices

  3. Service providers shall comply with “LAO Expectations for lawyers authorized to represent clients who self-identify as Aboriginal” which articulates best practices for the representation of an Aboriginal client in a criminal proceeding.

Consideration of local conditions

A director general may apply the minimum standards in a flexible manner to conditionally authorize a lawyer to provide legal aid services to clients who self-identify as Aboriginal, on the basis of local conditions, taking into consideration local practices and the need to meet current needs without compromising quality of service. An applicant may be authorized to represent clients who self-identify as Aboriginal by agreeing to meet standards deemed to be appropriate for the local area, at the discretion of the director general.

LAO expectations for lawyers authorized to represent clients who self-identify as Aboriginal

Lawyers shall:

  1. maintain competence in accordance with the Rules of Professional Conduct of the Law Society of Ontario and, in particular, maintain knowledge of the substantive law and procedure in the area of Aboriginal issues in criminal law
  2. maintain familiarity with services to assist First Nation, Métis and Inuit that are available in the local courts and communities where the service providers practices
  3. Participate and attend Aboriginal training opportunities, including localized cultural training, as required by LAO
  4. inform the client of the Gladue principles and their application to the client’s case

  5. maintain a solicitor client relationship in accordance with the Rules of Professional Conduct of the Law Society of Ontario. In particular the service provider will:

    1. protect the dignity of the client;
    2. respond promptly to reasonable inquiries from the client;
    3. provide the client with the information necessary to make informed decisions respecting his or her representation;
    4. advise the client of their language rights;
    5. respect the client’s instructions fully within the bounds of his or her professional obligations;
    6. advance the client’s position; and
    7. maintain solicitor client privilege.

Schedule A: Legal education requirements for lawyers authorized to represent clients who self-identify as Aboriginal

A lawyer must have knowledge of and, acting in the client’s best interests, competently apply:

  1. The Criminal Code of Canada, including sections 718.2(e) and 113

  2. The Youth Criminal Justice Act, including section 38(2)(d)

  3. The Canada Evidence Act

  4. Significant leading and current jurisprudence including:

    1. R. v. Gladue, [1999] 1 S.C.R. 688
    2. R. v. Silversmith, [2008] O.J. No. 4646
    3. R. v. Brant, [2008] O.J. No. 5375
    4. R. v. Batisse, 2009 ONCA 114
    5. R. v. Robsinson, 2009 ONCA 205
    6. R v. Jacko, 2010 ONCA 452
    7. R. v. Ipeelee, [2012] 1 S.C.R. 433
    8. R. v. Bauer, 2013 ONCA 691
    9. R. v. Armitage, 2015 ONCJ 64
    10. R. v. Spence, 2015 ONSC 1692
    11. R. v. Kreko, 2016 ONCA 367

  5. LAO LAW memoranda including:

    1. S10-37 Gladue Sentencing Submissions
    2. S10-38 Aboriginal Offenders – Advocating For Alternatives to a Custodial Sentence
    3. S10-39 Ontario Resources for Aboriginal Offenders
    4. ZS10-74 Application of Gladue Principles
    5. ZS10-47 Sentencing Aboriginal Offenders
    6. ZP11-63 Application of Gladue Principles to Bail hearings
    7. ZS10-26 Application of Gladue Factors Beyond Sentencing

  6. Read the Truth and Reconciliation Commission of Canada Final Report Volume 5: Over-representation of adults 218-243, Over-representation of youth 252‑257; http://publications.gc.ca/site/eng/9.807830/publication.html

  7. TRC Calls to Action:

  8. View the continuing legal education video “Gladue at practice CLE”

Schedule B: Support and resources for lawyers authorized to represent clients who self-identify as Aboriginal

The following supports are available:

Schedule B will be updated regularly and service providers will be notified.

Forms

Questions

If you have any questions, please contact the Aboriginal Justice Strategy at aboriginalstrategy@lao.on.ca