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FUNDING THE DEFENCE: APPLICATIONS FORCOURT APPOINTED COUNSEL

These matenals were prepared by Barry Morgan, QQ, of Morgan Theberge law firm, Saskatoori,Saskatchewan for the Saskatchewan Legal Education Society Inc seminar, Criminal Law Update,May2005

FUNDING THE DEFENCEAPPLICATIONS FOR COURT APPOINTED COUNSEL

TABLE OF CONTENTS

THE “ROWBOTHAM” APPLICATION I

A. GENERAL OVERVIEW 1

B. FACTORS TO BE CONSIDERED iN DETERMINiNG 2WHETHER APPLICANT HAS EXHAUSTED ALLPOSSIBILITIES TO EMPLOY COUNSEL

C. FACTORS TO BE CONSIDERED IN DETERMiNiNG 5WHETHER REPRESENTATION BY COUNSEL ISESSENTIAL FOR A FAIR TRIAL

II. THE “FISHER” APPLICATION 6

A. GENERAL OVERVIEW 6

B. CONSIDERATIONS RELEVANT TO THE APPLICATION 7

III. CONCLUSION 10

FUNDiNG THE DEFENCE

APPLICATIONS FOR COURT APPOINTED COUNSEL

This paper deals with applications for court appointed counsel on behalf of persons who are

ineligible for legal aid (“Rowbotham” Applications) and applications for court appointed counsel

of choice at a rate higher than the Legal Aid tariff (“Fisher” Applications). I would like to

acknowledge with thanks the assistance ofWade McBride ofDepartment ofJustice Canada for

very generously sharing the research he has done on these applications, which has been relied on

extensively in preparation ofthis paper.

I. THE “ROWBOTHAM” APPLICATION

A. GENERAL OVERVIEW

In March of 1988, the Ontario Court ofAppeal in R. v. Rowbotham at af. (l988),41 C.C.C. (3d)

1 dealt with numerous issues arising out of a trial of twelve individuals on an indictment

containing four counts ofconspiracy to either import or traffic in hashish or marihuana. One of

the accused who was convicted at trial, Laura Kononow, argued before the Court ofAppeal that

she had a constitutional right at trial to be provided with state funded counsel, as she lacked the

means to hire a lawyer. The issue had been argued at a hearing before the trial judge, where it

became known that Mrs. Kononow had been denied legal aid, apparently due to her income

level. The trial was expected to last four months, and the argument ofthe lawyer who brought

the application before the trial judge was that it was unrealistic to think that anyone could pay

counsel for a four-month trial on a net income of’S 1,400.00 per month.

After considering a number ofcompeting arguments, the Court ofAppeal summarized the legal

test for court appointed counsel as follows:

To sum up: where the trial judge finds that representation of an accused bycounsel is essential to a fair trial, the accused, as previously indicated, has aconstitutional right to be provided with counsel at the expense ofthe state ifhe orshe lacks the means to employ one. Where the trial judge is satisfied that anaccused lacks the means to employ counsel, and that counsel is necessary toensure a fair trial for the accused, a stay ofthe proceedings until funded counsel isprovided is an appropriate remedy under s. 24(1) of the Charter where the

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prosecution insists on proceeding with the trial in breach ofthe accused’s Charterright to a fair trial. (at page 70)

The test as enunciated in Rowbotham, and elaborated on in numerous subsequent decisions,

requires the court to make a two-stage inquiry, namely:

(i) Has the accused exhausted all possible routes to employ counsel?

(ii) Is representation ofthe accused by counsel essential to ensure a fair trial?

The basis for such an application is grounded in an individual’s Charter rights, primarily s. 7 or s.

11(d) ofthe Charter. That being the case, there is an onus upon the applicant to provide evidence

that will satisfy the court, on a balance of probabilities, that his or her Charter rights will be

infringed: Collins v. The Queen (1987), 33 C.C.C. (3d) 1 (S.C.C.), at page 13.

The application should be brought by way ofNotice at least 14 days before the hearing pursuant

to s. 8 of The Constitutional Questions Act (copy ofs. 8 is appended to this paper). It should be

accompanied by supporting documentation, as the applicant must have sufficient evidence to

satisfy the court on the civil standard that his or her Charter rights will be infringed.

Additionally, all efforts made by the applicant to obtain legal services through the Legal Aid

Commission and otherwise should be documented. In the event an individual’s eligibility is

denied, he or she must appeal to the executive director of the Legal Aid Commission, again by

way of demonstrating that he or she has explored and exhausted all possibilities for obtaining

representation through Legal Aid. In conjunction with that, it will be absolutely essential to file

sufficient fmancial information, usually by way of a sworn Financial Statement which details

income and property, to enable the court to properly inquire into the issue as to whether the

accused lacks the means to employ counsel.

B. FACTORS TO BE CONSIDERED IN DETERMINING WHETHER APPLICANTHAS EXHAUSTED ALL POSSIBILITIES TO EMPLOY COUNSEL

Rowbotham and subsequent decisions contemplate that appointment ofstate funded counsel will

be confined to cases where the court is satisfied that the accused lacks the means to employ a

3

lawyer, and, that representation by counsel is essential to a fair trial. As noted by the Court in R.

v. Hopjner (1996), 146 Sask. R. 35 (Q.B.):

Every indigent person who is charged with a criminal offence is not automaticallyentitled to have counsel appointed by the court. Rather, such an appointmentshould be made only where it is necessary to ensure that the person will obtain afair trial and be able to make full answer and defence. (at page 36)

In Rowbotham, the Court stated that as a matter of common sense, an accused who had the

ability to pay for his or her defence was not entitled to take the position that personal funds

would not be accessed, and indeed, that “A person who has the means to pay the costs ofhis or

her defence but refuses to retain counsel may properly be considered to have chosen to defend

himselfor herself’ (at page 64). Tn brief, Rowbotham contemplates that court appointed counsel

is reserved for those who simply have no realistic prospect of funding the defence, not for those

who have funds (even though their resources may be quite limited), and simply do not want to

expend them.

It cannot be overemphasized that the court must be satisfied that the applicant lacks the fmancial

resources to retain a lawyer and that the applicant has explored and exhausted all possibilities for

obtaining counsel. This includes consideration of the applicant’s efforts to obtain services

through Legal Aid, whether efforts have been made to hire counsel who might conduct the case

at reduced rates, what steps were taken by the accused from the time ofthe charge being laid to

the time ofthe application to secure counsellresources to hire counsel, and all resources that may

be available to an applicant. The court is not in the position in such applications of “second

guessing” Legal Aid’s decision to deny coverage, since an individual may simply not meet Legal

Aid’s eligibility requirements and yet still be unable to realistically fund a defence. Rather, the

court is to assess whether the applicant has any possible means of funding the defence, or

contributing to the costs ofstate funded counsel.

Certainly the approach appears to be that far more than a cursory review offmancial information

will be undertaken by the court, see for example the Hopjner case, supra, where the Court

reviewed in detail the fmancial resources ofthe applicant, and concluded that he was not indigent

as he had resources, albeit quite limited, that could be accessed to fund his defence, including the

4

equity in his home, his earned income, and a forthcoming annuity. Having arrived at that

conclusion, the Court noted that was the end ofthe inquiry and it was not necessary to go on to

consider whether counsel was required in order to ensure a fair trial.

The nature and breadth ofthe inquiry to be undertaken by the court in considering whether the

applicant has discharged the onus of establishing that no means are available to employ a lawyer

was underscored by the Nova Scotia Court ofAppeal in R. v. Keating, [1997] N.SJ. 250. The

Court’s summarization of the inadequacies of the inquiry undertaken by the trial judge, as

follows (at paragraph 28), may be instructive to counsel as to the degree of detail of financial

information that it may necessary to put before the court in such cases:

In my view, the inquiry, given the extreme consequences should reliefbe ordered,was not sufficiently detailed to enable the judge to arrive at a just result. Theonus was upon Mr. Keating to establish that he lacked the financial resources toretain a lawyer. In his enquiry the judge asked for no confirmation about theterms ofMr. Keating’s employment - how long it could last, whether it might beextended and the availability of overtime; he made no specific inquiry about Mr.Keating’s efforts to obtain legal aid - whether Mr. Keating had been refusedassistance for reasons other than income and what income he had actuallyreported to legal aid; he did not require Mr. Keating to satisfy the court that hehad exhausted the legal aid appeal process; he did not request a copy of thedocumentation submitted by Mr. Keating in support of his legal aid application;he did not inquire into the possibility that legal aid might alter the usual incometest in the event of a complex matter; he did not ask for proof of the amount ofsupport, if any, that Mr. Keating was legally obliged to pay for his wife andchildren, nor for confirmation of the amount that Mr. Keating had actually beenpaying and for how long; he required no estimate from Mr. Keating nor [counsel]as to the possible cost ofan expert witness; he did not consider the fee that wouldbe allowed for such a case by the legal aid tariff (which is $1,350) and compare itto the quotes received by Mr. Keating to determine whether such fees were withina reasonable range; he did not consider whether Mr. Keating had made areasonable effort to contact counsel who might be prepared to conduct the defencefor a more modest fee than that quoted by [counsel] - there are a number oflawyers who agree to work on certificate for the legal aid tariff, from which onecould infer that lawyers are available who would conduct the defence for a feewithin thatrange or even somewhat above it, but not at the $5,000 level; the judgedid not enquire into what, if any, financial arrangements Mr. Keating had madefor his defence between the time ofthe charge in August of 1995 and the date oftrial, and, assuming none, why he hadn’t done so; he did not explore with Mr.Keating any sources ofcredit or other financial assistance that he might have.

5

C. FACTORS TO BE CONSIDERED IN DETERMINING WHETHERREPRESENTATION BY COUNSEL IS ESSENTIAL FORA FAIR TRIAL

One ofthe areas that must be canvassed by the court in making the determination as to whether

representation by counsel is essential for a fair trial is the likely complexity of the case. In

Keating, supra, the Court noted the preliminary inquiry only took one-half ofa day, and that the

Crown intended to call the same two witnesses at trial, anticipating half a day of Crown

evidence. The Court declined to appoint counsel, holding” . . . there was not clear evidence before

the judge that this was one of those rare circumstances where, due to the complexity of the

proceeding, the accused required funded counsel to ensure a fair trial, particularly in light ofthe

Crown’s request that counsel be appointed pursuant to s. 486 (2.3)” [for the limited purpose of

cross-examination ofthe minor complainant] (at paragraph 24).

The court may also consider the ability ofthe accused to defend himselfand the duty ofthe trial

judge to assist an unrepresented accused. In Keating, the Court noted that the applicant had a

grade 11 education, and had completed two years ofschooling toward a mechanical course. The

Court also made the further observation:

In addition, the trial judge should have considered the court’s obligation to assistan unrepresented accused during trial and whether, in fulfilment of thatobligation, his assistance would be adequate to address Mr. Keating’s needs. In R.v. Kennie (1993), 121 N.S.R. 2(d) 91 at p. 97, this Court approved the followingcomment by Griffiths, J.A. in R. v. McGibbon (1988), 45 C.C.C. (3d) 334(Ont.C.A.) at p. 347:

Consistent with the duty to ensure that the accused has a fair trial, the trialjudge is required within reason to provide assistance to the unrepresentedaccused, to aid him in the proper conduct ofhis defence, and to guide himthroughout the trial in such a way that his defence is brought out with itsfull force and effect. How far the trial judge should go in assisting theaccused in such matters as the examination and cross-examination ofwitnesses must ofnecessity be a matter ofdiscretion.

The length ofthe trial is also a relevant consideration in such applications. In Rowbotham, the

Court referred in particular to the fact that the trial was initially estimated to take 4 months, and

ultimately took 12 months to conclude. It was also stated, however, that it would not have been

necessary for counsel for the accused to have been present in court every day during that very

6

long trial to provide her with adequate legal representation, and that rather, counsel need only

have been present in court during those parts ofthe trial that were critical to her.

In conjunction with considering the complexity of the case, the court will consider the

seriousness of the consequences to the defendant should there be a conviction. In R. v. Rain

(1998), 130 C.C.C. (3d) 167 (Alta. C.A.), at paragraph 89, the Court stated:

Had the Learned Provincial Court Judge correctly approached the assessment ofwhether the charges faced by Ms. Rain were serious and complex thus renderingprobable an unfair trial in the absence of counsel he could not have come to theconclusion that he did, at least on the issue of seriousness. As the learnedProvincial Court Judge found, there was no reasonable probability that Ms. Rainwould be incarcerated upon conviction.

In Hopfrer, supra, at page 37, the Court summarized the following as relevant, but not

exhaustive, considerations in ascertaining whether a fair trial requires the appointment of

counsel:

(1) The education and language skills ofthe accused;

(2) The complexity ofthe case in terms ofraising any question of law or factwhich would put the accused at a significant disadvantage ifunrepresented;

(3) Whether the case raises any question of law or fact which would posedifficulties to an unrepresented accused in terms of marshalling relevantevidence;

(4) Whether the accused could face imprisonment ifconvicted.

II. THE “FISHER” APPLICATION

A. GENERAL OVERVIEW

In R. v. Fisher, [1997] S.J. No. 530 (Q.Bj, Milliken J. was faced with an application by the

accused to have out-of-province counsel appointed for him, at a rate of pay higher than the

provincial Legal Aid tariff. In response to the “floodgate” argument being advanced by counsel

on behalfofthe Minister ofJustice, his Lordship held:

7

I don’t think that the circumstances which have occurred in this case, namely acharge of murder and rape which took place over thirty years ago for whichanother person was convicted and now exonerated and the accused person havingappeared at a reference with the same counsel he wishes now to have representhim, will happen again in this province in another thirty years. I am therefore ofthe opinion that my rulings on this application will not set a precedent which willaffect the Legal Aid Tariff. (at paragraph 20)

The Court decided that lead counsel should be paid $150.00 an hour, his co-counsel should

receive $75.00 per hour, and that there would be no limit on the hours ofeither counsel (although

the order could be reviewed iffees exceeded a specified total).

The Law Society of Saskatchewan has posted a suggested procedure for making this type of

application on their website, and two pages dealing with this are appended to this paper with

kind permission ofthe Law Society.

B. CONSIDERATIONS RELEVANT TO THE APPLICATION

Mr. Fisher was eligible for legal aid, however, Legal Aid’s initial position was that they would

not fund Mr. Fisher’s counsel of choice, as his lawyer was from out of province. In deciding

whether he should appoint that lawyer, Milliken 3. considered the following:

(1) The fact Mr. Fisher was accused of a murder which had occurred over 30 yearspreviously;

(2) That another individual had previously been convicted ofthat murder;

(3) That the Supreme Court ofCanada had held a reference into the murder and theconviction ofDavid Milgaard;

(4) That Mr. Fisher was a witness at the Supreme Court reference;

(5) That Mr. Beresh had represented Mr. Fisher at the reference, for which he waspaid a fee of$ 160.00 an hour for his work by the federal Department ofJustice;

(6) That there were complex issues concerning the admission of evidence whichwould arise in Mr. Fisher’s trial.

8

On that basis, the Court decided that Mr. Beresh should be appointed, and that as the Crown was

going to have two lawyers involved in the prosecution, Mr. Fisher was also entitled to second

counsel.

Also in issue in Fisher was the appropriate rate to be paid to counsel. Mr. Beresh indicated he

would not be able to accept the appointment at the Legal Aid hourly rate. In making the

appointment, the Court stressed the unique facts ofthe case, and its view that there would not be

a fair trial ifMr. Beresh did not conduct the defence. As counsel for the Minister ofJustice and

Mr. Beresh could not negotiate an agreed rate, the Court reviewed hourly rates paid to outside

counsel retained by the Department ofJustice, and arrived at the hourly rates above referred to.

In R. v. Schafer (1999), 178 Sask. R. 105 (Q.B.), the accused brought application to have the

court appoint counsel to act for him on the basis that he was indigent. The Court felt that the

appointment was necessary in order to ensure a fair trial, and considered in particular that the

case was extremely complex both factually and legally. Counsel for the Crown accepted, with

some qualifications, that the applicant was indigent, however, a number ofissues remained to be

resolved, namely, whether the appointment should be in general terms or should specify the

appointment of the applicant’s counsel of choice, whether the Legal Aid tariff should govern

payment of counsel, and whether the order should recognize an obligation on the part of the

applicant to contribute to payment of some of the Crown’s expenses for legal counsel from any

interest the applicant might have in a matrimonial home.

On the issue ofwhether counsel ofchoice should be appointed, the Court considered the Fisher

decision, and R. v. Wingj’ield (1998), 174 Sask. R. 304. In Wingfield, the unique circumstance

was that the accused insisted upon the appointment ofFrench speaking counsel, and counsel of

choice was granted in that case. However, in Schafer, the Court determined that compelling

circumstances such as were present in Fisher and Wing/leld did not exist in this application.

Accordingly, the Court made a “general” appointment ofcounsel to represent the applicant, with

the fees and expenses to be paid by the Crown.

9

In dealing with the issue of counsel’s fee in Schafer, the Court considered that the nature and

complexity ofthe facts and law in this case would require extensive preparation in excess ofthe

maximum preparation hours permitted under the Legal Aid tariff, and the fact that the length of

trial was anticipated to be two months. On that basis, the Court did not feel that it was

appropriate to impose as part of the appointment the Legal Aid tariff as being the basis for the

counsel fee. The Court directed the parties to try to negotiate an agreed fee, and reserved

jurisdiction to determine the matter in the event the parties could not agree.

On the issue of whether the accused should be required to contribute to the cost ofhis defence,

the Court noted that the applicant and his spouse were living in a home registered solely in the

wife’s name valued at approximately $350,000 to $375,000. The Court conservatively estimated

that there was equity exceeding $200,000 in the home after deducting the mortgage balance and

tax arrears. The Court stated that even ifthe applicant were to undergo banlcruptcy, he would be

in a position to claim a $32,000 exemption of his interests in that homestead on a worst case

scenario, and indicated it was appropriate that the Crown could expect Mr. Schafer to bring at

least that amount into contribution towards the costs incurred for his legal representation.

In R. v. Cai, Vu and Dang (2002), 170 C.C.C. (3d) 1 (Alta.C.A.), the federal Crown agreed to

fund 30 of 33 co-accused, but would not agree to pay for the remaining three individuals. The

trial judge permanently stayed the prosecution against those three accused, and the Crown

appealed that stay. The Court reviewed a number of factors and, ofparticular note, made the

point that “A court granting money creates a grave constitutional problem” (at page 17), pointing

out that neither Parliament nor any Legislature had approved an expenditure that in this case

could range between $4 million and $7 million, depending on a number offactors. In any event,

the case is instructive as it clearly recognizes that there are dangers inherent in, in effect, setting

up a parallel legal aid system, and/or in making appointments which provide unlimited counsel

hours at an enhanced rate.

In R. v. Peterman, 20040430 C39930 & C39935 (Ont.C.A.), the Court noted that the right ofan

accused person to be free of unreasonable state or judicial interference in his or her choice of

counsel does not impose a positive obligation on the state to provide funds for counsel o fchoice,

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subject to two exceptions. The first ofthese exceptions is where an accused can establish that he

or she can only obtain a fair trial if represented by a particular counsel, such as occurred in

Fisher. The second exception is where the court finds that an accused simply cannot find

competent counsel to represent him or her on the conditions imposed by Legal Aid. The Court

noted in Peterman that the expectation would be that such cases would be exceedingly rare, and

held that the circumstances of this case were not unique and were not of the same order of

complexity as the Fisher case. This was an arson case expected to last seven days with

approximately thirty witnesses. The Court went on to note that ifthat level of complexity were

determined to justify a Fisher order, virtually every accused facing a jury trial could claim

entitlement to state funded counsel ofchoice, and the Court ofAppeal held that was simply not

the law. Nor was there any evidence before the application judge that other competent counsel

were not available to take the case and to do so on the conditions imposed by Legal Aid.

As to the level ofproficiency of counsel to be appointed in such cases, the Court noted in Cai,

supra:

The “best around” is emphatically not the test. All that is required is a level oflegal representation which ensures that the accused’s answer to the allegations ofhis guilt is made available to the adjudicating court. Certainly not matchlessNobel-level privately retained representation. (at page 7)

ifi. CONCLUSION

In summary, and although there may be an evolving expectation that that counsel should be

appointed as of right when legal aid coverage has been denied, the cases certainly underscore

that the tests for entitlement to court appointed counsel are to be stringently applied, and that

entitlement is to be restricted to the comparatively few applicants who meet those criteria. As

for the Fisher type ofapplication, certainly all indications to date are that success in such matters

will be very much limited to rare cases where extremely unique circumstances warrant the relief.

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c. C-29 CONSTITUTIONAL QUESTiONS

Appeal7 The opinion ofthe court shall be deemed a judgment ofthe court and an appealshall lie therefrom as in the case ofa judgment in an action.

R.S.S. 1978, c.C29, s.7.

Notice to Attorneys General required8(1) In this section:

(a) “law’ includes:

(i) all or any portion ofan Act or a regulation, order, rule, rule ofcourt,form, tariff of costs or fees, proclamation, letter patent, bylaw orresolution enacted in the execution ofa power conferred by or pursuantto the authority ofan Act;

(ii) all or any portion ofan Act ofthe Parliament ofCanada or an order,regulation, rule, rule of court, form, tariff of costs or fees, letter patent,commission, warrant, bylaw, resolution or other instrument issued,made or established:

(A) in the execution of a power conferred by or pursuant to theauthority ofan Act ofthe Parliament ofCanada; or

(B) by or under the authority ofthe Governor in Council;

(b) “remedy” means a remedy provided pursuant to section 24 of theCanadian Charter ofRights and Freedoms but does not include a remedy ofexclusion ofevidence or a remedy consequential on exclusion ofevidence.

(2) When, in a court of Saskatchewan:

(a) the constitutional validity or constitutional applicability of any law isbrought into question; or

(b) an application is made to obtain a remedy;

the court shall not adjudge the law to be invalid or inapplicable nor shall it grantthe remedy until after notice is served on the Attorney General ofCanada and onthe Attorney General for Saskatchewan in accordance with this section.

(3) When, in a court ofSaskatchewan, the validity or applicability ofa proclamation,regulation or Order in Council made or purportedly made in the execution of apower given by an Act ofthe Legislature is brought into question on grounds otherthan those mentioned in subsection (2), the court shall not adjudge the proclamation,regulation or Order in Council to be invalid until after notice is served on theAttorney General for Saskatchewan in accordance with this.section.

(4) Subject to subsection (5), a notice mentioned in subsection (2) or(3) is requiredto be served at least 14 days before the day of argument.

(5) The court may, on an exparte application made for the purpose, order anabridgement of the time for service of a notice mentioned in subsection (2) or (3).

S

CONSTITUTIONAL QUESTIONS C. C-29

(6) A notice mentioned in subsection (2) or (3) is required:

(a) to be headed in the action, cause, matter or proceeding in which thequestion arises or application is made;

(b) to state:

(i) the law or provision thereofin question; or

(ii) the right or freedom alleged to be infringed or denied;

(c) to state the day and place for the argument of the question; and

(d) to give the particulars that are necessary to show the point to be argued.

(7) The Attorney General for Saskatchewan is entitled as ofright to appear and beheard either in person or through counsel in any action, cause, matter orproceeding to which subsection (2) or (3) applies.

(8) The Attorney General of Canada is entitled as ofright to appear and be heardeither in person or through counsel in any action, cause, matter or proceeding towhich subsection (2) applies.

(9) Where the Attorney General of Canada or the Attorney General forSaskatchewan appears in an action, cause, matter or proceeding to whichsubsection (2) or (3) applies, he is a party for the purposes of appeal from anadjudication therein respecting the validity or applicability of a law or respectingentitlement to a remedy.

198384, c.31, s.2; 198990, c.54, sA; 1999, cA,s.2.

Reference pursuant to taxation agreement9(1) Where pursuant to an agreement with the Government of Canada enteredinto under The Taxation Agreement Act, 1952, The Taxation Agreement Act,chapter 58 of The Revised Statutes of Saskatchewan, 1953, The Tax RentalAgreement Act, 1957, The Income Tax Act, chapter 62 of The Revised Statutes ofSaskatchewan, 1965, The Income Tax Act, chapter 1-2 of these Revised Statutes orThe Income Tax Act, 2000, or an agreement of a like nature and having likepurposes, a matter is to be referred to the Court ofAppeal, it shall be referred to thecourt and the form and terms ofthe reference shall be such as may be agreed uponby the parties to the agreement or ifthey cannot agree the form and terms shall bedetermined by the Chief Justice of Saskatchewan upon the application of eitherparty.

(2) The Attorney General of Canada and the Attorney General of any otherprovince that after the first day ofJanuary, 1952, entered or hereafter enters intoan agreement with the Government of Canada of a like nature and having likepurposes to an agreement mentioned in subsection (1) may appear before the courtand be heard as a party in respect ofany matter referred under this Act pursuant tothat agreement.

R.S.S. 1978, c.C29, s.9; 2000, c.I.2.0l, s.142.

iviemoers ecuon a%., v’s.

LAW SOCIETY MEMBERS’ SECTION

Suggested

Procedure in

Applications for

Court Appointed

Counsel at a Rate

Higher than the

Legal Aid Tariff Application made by counsel on behalf of an accused:

1. The application shall be by notice of motion in accordance with Rule 447.

3. Included in the material filed in support of the application should be:

(b) written confirmation from the Saskatchewan Legal Aid

Commission that it will not be representing the accused; and

(c) written assurance of application having been faxed to the

Executive Director.

Application made by an unrepresented accused:

for Legal Aid.

3. Included in the material to be filed in support of the application should be:

http://www.lawsociety.sk.caJnewlook/Ivlembers/LegalAidTariff.htm

Home

There have been an increasing number of applications within criminal proceedings for the

appointment of counsel at a rate higher than the Legal Aid Tariff. A need has been

expressed for a protocol that will ensure appropriate material before the court, adequate

notice to the Department of Justice and timely resolution of applications. The following is

the procedure that should be followed when an application of this type is being made.

2. The application shall be served by fax upon the Executive Director of Court

Services at (306) 787-8737.

(a) a Financial Statement of the Applicant (Form 67), or, a Waiver

of Financial Statement (Form 68) executed by the Department of

Justice and the Respondent (printed forms are also available at the

Local Registrar’s Office);

1. If it appears to the judge in any criminal proceeding that the accused may be

entitled to the assistance of court appointed counsel and the accused has not yet

applied for Legal Aid, the judge may adjourn the matterwhile ,the accused applies

2. If in any criminal proceeding the accused advises the court that Legal Aid will not

be representing him, and it appears to the judge hearing the matter that the

accused may require the assistance of court appointed counsel at a rate higher

that the Legal Aid Tariff, the judge may set a date and time for an application for

court appointed counsel and shall cause the Executive Director of Court Services

to be notified of the hearing.

4/17/05

Members section rage L UI L

(a) a Financial Statement of the Applicant (Form 67), or, a Waiver

of Financial Statement (Form 68) executed by the Department of

Justice and the Respondent; and

(b) written confirmation from the Saskatchewan Legal Aid

Commission that it will not be representing the accused.

Updated 19 Feb 2001 01:59 PM Back t>to

http://www.lawsociety.sk.ca/newlooklMembers/LegalAidTariff.htm 4/17/05