A Judicial Catch 22: What Happens when Legal Aid Fails

If there’s one thing that’s become more prevalent in today’s justice system, it is the increasing presence of self-represent accused people in our criminal courts.

When this happens, the results can be disastrous for the accused and it threatens to increase wrongful convictions.

I saw these concerns arise in a complicated wiretap case I did with two co-accused. One accused was represented by a senior member of the bar. She was eventually fully acquitted.

So was my client.

The other accused, a man in his 50’s, was easily convicted and I’m not sure it was inevitable. One thing is for sure – neither I nor the other defence lawyer could do anything for him.

To start, neither of us could take confidential instructions to help him. We can’t keep confidences from our clients.

In addition, imagine how a client would feel if they were convicted after we divided our attentions between them and the unrepresented accused? Not good. And I’m sure the Law Society wouldn’t be too pleased either.
 

THE "ROWBOTHAM" APPLICANT - STATE-FUNDED COUNSEL

Fortunately, there is a safety valve of sorts in our system, known as a “Rowbotham application”. If an accused can bring a motion in court – a big if – they can argue that their right to a fair trial will be violated unless they receive funding for a lawyer.   

Here is a quote from the leading case:

…in cases not falling within provincial Legal Aid plans, ss. 7 and 11(d) of the Charter, which guarantee an accused a fair trial in accordance with the principles of fundamental Justice, require funded counsel to be provided if the accused wishes counsel, but cannot pay a lawyer, and representation of the accused by counsel is essential to a fair trial.

I’ve done these before and in fact, I have a motion next week in superior court for a potential client who is on social assistance.

To do these successfully, you have to address three issues:

1)    Has the accused person applied to Legal Aid and exhausted all of his remedies with that organization?

2)    Can the accused afford to hire counsel?

3)    Will their right to a fair trial be compromised if they are required to proceed without counsel?

Usually, the case revolves around exhausting Legal Aid remedies and income. Criminal law is complex. Represent yourself and you get a fool for a client. 

To give you a sense, Justice Michal Fairburn of the Superior Court has set out a very good list of factors that helps to assess if counsel is needed:

(a) the seriousness of the charges;

(b) the potential length and complexity of the proceedings, including any pre-trial motions and rulings;

(c) the accused's ability to participate meaningfully in his or her own defence;

(d) the accused's facility for the language of the trial;

(e) the accused's level of education and ability to read and write; and

(f) the likelihood of imprisonment if a conviction results.

Most cases “require” counsel. Without a lawyer, the chance at an acquittal is seriously diminished.


DEALING WITH LEGAL AID AIN'T NO PICNIC

But dealing with Legal Aid ain't no picnic. It can be tough and cumbersome.

First, you apply. Then you appeal to the area committee. Then you appeal to the provincial office. Rejected again? You can ask for reconsideration.

If an accused person hasn’t done all of this, they may see themselves sent back to Legal Aid.

Once they’re done, they face scrutiny in open court. Disclose all of their assets and possible sources of income. Courts and Crowns will be suspicious when Legal Aid rejects someone in a serious case.

Ultimately though, if Legal Aid has refused an accused based on fiscal policy that is more corporate than judicial, counsel will likely be funded. For example, someone may be rejected because their spouse or parent has funds, but they don’t.  

We all know that it is the accused who faces charges in court, not a spouse. It is the accused who could go to jail, not their mother or father. A criminal accused and their spouse or parent are not a single, solitary unit in a courtroom. No-one can force another person, even a relative, to sell their assets to fund someone else’s legal defence.

All of this takes time to argue, though, and the irony is, to get a lawyer, you really need a lawyer. It's kind of like a Judicial Catch 22. You need a lawyer who believes in your case and will take it on pro bono, at least to start with. There’s no guarantee for me, for example, that I will ever get paid when I do one of these motions.

I’m ok with this. There’s more to life than money. But I also get that not every lawyer has the time or the ability to bring one of these motions. Most people rejected by Legal Aid probably go on to represent themselves.

And some of these people are innocent. And some of these innocents will inevitably be wrongfully convicted.

It may be high time to change Legal Aid eligibility rules to reflect these principles. Otherwise, we will see people routinely fall through the judicial cracks.  

 

CASE REFERENCES

R. v. Rowbotham, Ont. C.A., 1988

R. v. Munroe, Sup. C.J, 2015