The Ins & Outs of Legal Aid

You may have heard that, in criminal proceedings, “you have the right to counsel”. However, this adage may be more aptly phrased: “you have the right to counsel… if you can afford it”.

When charged with a criminal offence, it is a common misconception that you will automatically be appointed a state-funded lawyer if you cannot afford to hire one privately. In reality, rigorous financial and circumstantial criteria must first be met before state-funded representation will be granted. If such criteria are not satisfied, then you may be forced to retain a lawyer privately, or proceed unrepresented.

If you cannot afford to hire a lawyer privately, then your first step should be applying to Legal Aid Ontario (“LAO”) to see if you are eligible to have the government fund your legal counsel. The application process can be commenced via telephone (1-800-668-8258 toll-free, or 416-979-1446 in Toronto), or alternatively, in person by visiting the LAO office at the courthouse in which your matter is being heard.

In order for your application to be processed, you will need to provide LAO with information pertaining to your financial situation. This may include your pay stubs, bank statements, ODSP receipts, and other such documents. LAO will then use this information to assess your financial eligibility for Legal Aid. If you are an individual without any dependants, then you will likely financially qualify for Legal Aid if your annual gross income is less than $10,800. The chart below illustrates the financial requirements for various family sizes:

Family Size Individual will likely qualify for Legal Aid if his/her annual gross family income is below

1

$10,800

2

$18,684

3

$21,299

4

$24,067

5+

$26,714

Even if you financially qualify for Legal Aid pursuant to the above, you may still be denied funding if your case is not “serious” enough. That is why, in addition to submitting your financial documents to LAO, you will also likely be required to provide some court papers, such as your Charge Screening Form. Your Charge Screening Form is generally provided to you on your first court date along with your initial disclosure, and it shows what offence(s) you are being charged with and what type of sentence the Crown is seeking. Recent changes in LAO policy have made it such that, even if you satisfy all of the financial eligibility requirements, you are still unlikely to be granted Legal Aid unless the Crown is seeking jail time upon conviction of your charges. In other words, if you are charged with an offence such as Theft Under $5,000 or simple Assault, and the Crown is offering diversion (e.g. community service) or a discharge, it is highly unlikely that you will be granted Legal Aid. Furthermore, this policy seems to be getting increasingly stringent, and in the near future, Legal Aid may be refusing persons facing jail time unless the term exceeds six months.

If both your legal matter and financial situation are found to meet the LAO requirements  as discussed above, then you will be granted a Legal Aid Certificate. This Certificate can be provided to any criminal defence lawyer that accepts Legal Aid. Once this is done, that lawyer will represent you on your criminal matter, with LAO “footing the bill”.

This process of applying for Legal Aid generally takes about 2 – 3 weeks. As such, if you are unrepresented on your first court date and intend to apply for Legal Aid, it is wise to adjourn the matter for 3 – 4 weeks to allow your application to be submitted and processed.

If you already applied for Legal Aid but were refused a Certificate, you may appeal the decision. If you are not eligible for Legal Aid and cannot afford to privately retain legal counsel, there are other services that may be available to you. For example, assistance may be provided through community legal clinics, duty counsel, or LAO’s toll-free number.

For more information on Legal Aid Ontario and the application process, visit http://www.legalaid.on.ca.