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Rowbotham – The Road to Acquittal

Criminal charges can have a devastating impact on anyone’s life. There is a lot at stake. Your liberty, for one. But also your livelihood, your relationships, and your personal integrity. Hiring a criminal defence lawyer to represent you is fundamental to your defence, and often the only way to mitigate the damage before it is done.

But there is a cost.

Lawyers are expensive, and for good reason. Litigation is costly, lengthy and time consuming. Individuals who cannot afford to pay a lawyer often apply for state-funded assistance through Legal Aid Ontario. But in order to do so, you have to meet a strict eligibility test.

The criteria to qualify for Legal Aid Ontario’s certificate program are harsh. A single individual will not be eligible for publicly funded representation if they earn more than $12,135 per year. For families of two, the cut-off is $20,993. The eligibility threshold maxes out at $30,016 for families of five or more. These figures fall well-below the low-income cut-offs established by Statistics Canada.

Let’s put that in simple terms – unless you live in poverty, you will not get a lawyer. The Canadian Charter of Rights and Freedoms speaks of access to counsel – a right that is effectively denied to the poor and middle-class.

Access to justice, deemed “abysmal” in Canada, is unashamedly being denied to individuals because they own property or have a modest income. The working class is most at risk. People who make too little but not enough are left to fend for themselves, at a time when we’re told by the Chief Justice of the Supreme Court of Canada that access to justice is the most pressing challenge facing the administration of justice.

There is one option of last resort to obtain counsel and preserve your right to a fair trial.

A Robowtham application is an solution for those who don’t qualify for legal aid and still can’t afford to pay legal fees out of pocket. In other words – most middle class people. It’s based on the premise that all accused persons have a right to a fair trial. This right is deeply entrenched within our constitution, as reflected in sections 7, 10(b) and 11(d) of the Charter.

If a judge decides that an accused person can’t afford to hire a lawyer and that a lawyer is essential to a fair trial, the Ontario Court of Appeal in Rowbotham insisted that proceedings may be stayed (suspended) under s. 24(1) of the Charter until such time as funding is provided. In other words, if the state does not fund counsel the state cannot continue the prosecution.

Instead of having a representative from legal aid decide whether or not you qualify, a judge decides. And unlike LAO’s decision-making process, judges have an obligation to ensure that accused persons rights are not compromised by their inability to pay. The Ontario Court of Appeal has made it clear that judges are mandated to ensure all accused persons receive a fair trial, and that the government has a positive obligation to fund counsel of choice in all but rare instances.

Rowbotham orders used to be considered exceptional, because it was hard to imagine a situation where state-funded legal aid programs would deny an indigent accused person funding for counsel. That is no longer the case. More and more, individuals are going to the courts to request state-funded representation because legal aid has failed to protect their rights. And these applications have been granted in an overwhelming number of cases. To read more about these developments, check out this blog post by AGP partner, Michael Spratt.

It is the sad reality that you now often need a lawyer not only to defend your charges but also to fight for your right to even have a lawyer. Our firm has successfully argued dozens of Robowtham applications over the years – both at the pre-trial and trial stage of proceedings (Click here for a recent example.)

We can assist you by bringing a Rowbotham application and by ensuring that your rights are not imperilled.

Please Contact us to learn more.

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