section 2


The Criminal Code defines the term counsel in section 2, as including any barrister or solicitor licenced to practice law in the jurisdiction.


2. In this Act, "counsel" means a barrister or solicitor, in respect of the matters or things that barristers and solicitors, respectively, are authorized by the law of a province to do or perform in relation to legal proceedings;


Historically, there was a distinction between barristers and solicitors. In Canada, this distinction no longer applies, and accordingly, the Criminal Code defines the term "counsel" as including both barristers and solicitors. In either case, they must be licenced by the law of the jurisdiction to act in relation to legal proceedings.


Any accused person is entitled to counsel of choice, as guaranteed by section 10(b) of the Charter. This right is not, however, unfettered. An accused may get to choose counsel, but counsel need not accept their case. Moreover, while all provinces currently have a Legal Aid plan, there is generally no obligation for the province to fund any counsel, but rather only counsel who are prepared to work at the current Legal Aid rates. Recently, legal aid lawyer job action and work to rule have been partially successful at negotiating more reasonable rates for counsel, giving those who are impecunious easier access to more counsel, however, these victories have not been without setback. Most poignantly the case Ontario v. Criminal Lawyers Association of Ontario determined that while rates can be set by the Court, generally, the going rate will be set by the Attorney General of the particular jurisdiction.


The Criminal Code of Canada contains over 800 sections. When divided amongst its subsections, there are well over 4000 components that can affect the process by which any give charge is handled. Accordingly, the best strategy for anyone who has been charged is to retain counsel who has experience in the specific area of criminal law.



If I am charged with a criminal offence, do I need to have a lawyer?


There is no specific requiring in the Criminal Code for an accused to have counsel. However, there are limitations as to what a self-represented accused will be permitted to do. For example, if a person is charged with a domestic assault, sexual assault or other charge where the Court considers the witness to be "vulnerable", the accused will not be permitted to cross-examine that witness. Thus, counsel would be appointed pursuant to section 486. Moreover, there will be limitations on the dissemination of disclosure as a result of the Martin Report, which requires that disclosure be kept in the secure possession of counsel. Thus, while there is no direct mandate for an accused to have counsel, it is highly advisable when charged with a criminal offence to retain a lawyer who practices in criminal law to assist. Most jurisdictions have a Legal Aid plan that can assist in times of impecuniosity. Alternatively, many lawyers offer payment plans. Moreover, in rare instances, funding applications known as Rowbotham applications can be conducted, which forces to state to assist. Rowbotham cases are, however, the exception to the rule, and require full disclosure of the accused's financial situation.


A case from the Ontario Court of Appeal in which the province was directed to fund an accused's defence. This case became the basis of many further funding applications, and has been cited in hundreds of further decisions on the topic of counsel funding.
A case from the Supreme Court of Canada which determined how the fees of appointed counsel can be determined in the event of an impecunious client.


Tobias Okada-Phillips is a criminal defence lawyer in Ottawa, Ontario.