It is something we grow up thinking we know: everyone has a right to a lawyer. But, especially in Canada, that right is not absolute. Everyone has the right to contact a lawyer, but not usually the right to have representation.
We always hear about right to representation in American television dramas. This comes from the American Sixth Amendment, which grants “Assistance of counsel for...defence” in criminal cases.1 To ensure that this right is extended to people of low socioeconomic status, the government staffs Public Defender offices with lawyers who take on any client who cannot afford to pay for representation.2
Unfortunately, like many government programs, the Public Defender offices find themselves overburdened. Lack of funding has led to staffing cuts, while caseloads continue to rise. Lawyers are frustrated, finding it increasingly difficult to provide their clients with the level of assistance they both deserve and have a right to. This contributes to the high incarceration rates in America, especially among marginalized minority communities.3
Here in Canada we have only a specific right to counsel in three instances. The most common of these comes from section 10 of the Charter of Rights and Freedoms. The Charter guarantees that, upon arrest, the detainee will have an opportunity to contact a lawyer.4 Police have a responsibility to assist in making that contact.5 However, police only need to facilitate this opportunity once. Once counsel has been meaningfully contacted police can begin interrogation and the accused has no right to recontact counsel unless there is a change in their charges.6
This is not to say that we have no resources for people who are in need of representation. Part of the right to counsel is the right to be advised about the existence of Legal Aid, and in most jurisdictions provided with a toll free number that can be used to contact them.7 In Alberta, our Legal Aid service provides representation, usually through lawyers in private practice taking Legal Aid files, for a subsidized fee.8 They help people who are charged with any offenses serious enough to have a likelihood of imprisonment, as well as some civil and family matters.9
In some jurisdictions, additional services exist to help people accused of less serious crimes and involved in minor civil disputes. Here in Edmonton, Student Legal Services of Edmonton helps people of low socioeconomic status and University of Alberta undergraduate students. This student run organization cannot give advice (being made up of students rather than lawyers), but can help people find their way through the justice system. Come back tomorrow for our interview with Neil Thompson, the Executive Coordinator of the organization, for more information about this program.
The second category of right to counsel is in youth criminal matters. This is the category which most closely resembles the American right to counsel. Section 25 of the Youth Criminal Justice Act describes a right to counsel that specifies that all youth who cannot retain counsel are eligible for Legal Aid, or the appointment of counsel in lieu of such a program.10
The third and least common type of right to counsel is a Rowbotham application. In rare cases, the accused might slip through the cracks. Their case is too complex to be handled without a lawyer, but they have still been rejected by Legal Aid. In these rare cases, the Judge can appoint a lawyer at public expense to ensure that the accused receives a fair trial.11
Competent legal representation is important to a fair and justice system. It is an unfortunate reality that many of those who need representation the most are unable to obtain it on their own. Our systems attempt to bridge that gap, but could use reforms and more funding. However, they are helping people and providing valuable service to those in need. Hopefully these programs can expand in the future.
1US Const amend VI.
2Oliver Laughland, “The Human Toll of America’s Public Defender Crisis”, The Guardian (7 September 2016), online: <https://www.theguardian.com/us-news/2016/sep/07/public-defender-us-criminal-justice-system>.
4Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 10(b) [Charter].
5R v Manninen,  1 SCR 1233, 41 DLR (4th) 301.
6R v Sinclair, 2010 SCC 35,  2 SCR 310.
7R v Brydges,  1 SCR 190,  SCJ No 8.
8Legal Aid Alberta, Legal Aid Alberta Rules, p 1, online: <http://www.legalaid.ab.ca/information-resources/Documents/Rules%20and%20Policies/LAA%20Rules%20Dec%207%202015.pdf>
9Ibid, p 4-6.
10Youth Criminal Justice Act, SC 2002, c 1, s 25(4).
11Legal Aid Alberta, Rowbotham Application Information, online: <http://www.legalaid.ab.ca/information-resources/Documents/Court%20Ordered%20Counsel/Rowbotham%20Application%20Information.pdf>.