Criminal Law and the Right to Access Justice
Is there a blanket right to state funded counsel?
No. While generally an accused will be appointed a lawyer if they cannot afford one, there are important qualifications on this right.
The Charter has certain guarantees that apply on “arrest or detention”, or on being “charged” with an offence. This includes (among others):
- Section 10(b): to retain and instruct counsel without delay and to be informed of that right; and
- Section 11(d): to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.
In addition, s. 7 of the Charter protects life, liberty and security of the person. Section 7 guarantees that the state cannot deprive a person of these rights except in accordance with the “principles of fundamental justice”. It is a principle of fundamental justice that a person receives a fair hearing where they are able to participate and present their case.
Individually, these sections do not create a right to legal aid. For example, while s. 10(b) contains a right to retain and instruct counsel, it does not create a general right to state-funded legal aid: “The right to retain counsel, constitutionally secured by s. 10(b) of the Charter, and the right to have counsel provided at the expense of the state are not the same thing.” (R. v. Rowbotham, (1988) 63 CR (3d) 113 (Ont CA) at para 156)
When read together, however, these three sections will create a right to legal aid when it is essential to trial fairness. State-funded counsel is essential to trial fairness when a person:
- cannot afford a lawyer,
- faces a threat to their life, liberty or security of the person (typically by way of imprisonment), and
- they cannot effectively participate in their hearing without a lawyer.
In these circumstances, a legal aid lawyer will be constitutionally guaranteed (see, Rowbotham at para 156)
This Charter guarantee provides a safety net for situations that do not fall within provincial legal aid plans. It is not, however, a blanket right to legal aid:
- State-funded counsel will only be essential to trial fairness where the charges are sufficiently serious, complex, and where the accused has demonstrated that they are unable to get counsel through any other means. (see Rowbotham, ibid.)
- This safety net applies to representation at trial. It does not guarantee representation immediately at the time of arrest. (see, for example, R v. Prosper,  1 S.C.R. 236)
Other criminal law cases have carved out further exceptions to the right to representation. For example, in R v. Robinson 1989 ABCA 267 the Alberta Court of Appeal held that an accused does not have the right to counsel when advancing an appeal that is deemed unmeritorious by legal aid. It also does not guarantee that a state appointed lawyer has to be present for all aspects of a trial. (see generally, Rowbotham, ibid.)
For more information, please review the annotated bibliography provided here.
The following section explains the right to legal aid in civil cases.