INTRODUCTION AND BRIEF DESCRIPTION
If legal aid is not granted to an accused person and a counsel is assigned, the Attorney General shall pay the fees and expenses of the counsel if the accused is unable to pay.
SECTION WORDING
672.5(8.1) Where counsel is assigned pursuant to subsection (8) and legal aid is not granted to the accused pursuant to a provincial legal aid program, the fees and disbursements of counsel shall be paid by the Attorney General to the extent that the accused is unable to pay them.
EXPLANATION
Section 672.5(8.1) of the Criminal Code of Canada is an essential provision that deals with the appointment of legal counsel and the payment of fees and disbursements for an accused person who cannot afford to retain a lawyer. The provision applies when an accused person has applied for legal aid but has been refused by the provincial legal aid program. In such a situation, the court may assign counsel to the accused to ensure that they receive a fair trial. The section mandates that the fees and disbursements for this court-appointed counsel should be paid by the Attorney General if the accused person is unable to pay them. This means that the government will provide financial assistance to ensure that the accused person receives adequate legal representation. However, it is important to note that the provision only applies if legal aid is not granted to the accused person. The aim of this provision is to ensure that the administration of justice is fair and equal for all individuals, regardless of their financial circumstances. Without this provision, those who cannot afford to pay for legal representation may not receive adequate representation in court, and this could result in an unfair trial. By ensuring that every accused person has access to legal representation, this provision helps to promote the rule of law and protect the rights of individuals who are charged with criminal offences. In conclusion, Section 672.5(8.1) of the Criminal Code of Canada plays a critical role in ensuring that every accused person has access to legal representation, regardless of their financial situation. This provision helps to promote fairness and equality in the justice system, which is essential for upholding the rule of law and protecting the rights of individuals.
COMMENTARY
Section 672.5(8.1) of the Criminal Code of Canada is an important provision in the Canadian criminal justice system. This section deals with the assignment of counsel for accused individuals who cannot afford legal representation. Under this provision, if an individual is unable to obtain legal aid from a provincial legal aid program, and counsel is assigned to the accused pursuant to subsection (8), the fees and disbursements of the assigned counsel will be paid by the Attorney General to the extent that the accused is unable to pay them. This provision is essential for ensuring that accused persons who cannot afford legal representation are not deprived of their right to a fair trial. It recognizes that access to justice is a fundamental principle of the Canadian legal system and that no accused person should be at a disadvantage simply because they cannot afford to hire a lawyer. The provision also ensures that private lawyers who are assigned to represent accused persons without legal aid funding are fairly compensated for their services. This is important for encouraging lawyers to take on these types of cases and ensures that the accused receives the best possible representation, regardless of their financial circumstances. It is important to note that the provision only applies to individuals who are unable to afford legal aid from a provincial program. Legal aid is available to Canadians who cannot afford to hire a lawyer for their criminal case. However, there are eligibility requirements that must be met to qualify for legal aid, and in some cases, an individual may not meet these requirements and still be unable to afford representation. This is where Section 672.5(8.1) comes into play, providing an avenue for accused persons who fall outside the scope of legal aid to still receive legal representation. The provision has been subject to some criticism, with some arguing that it does not go far enough in ensuring access to justice for all Canadians. Critics argue that the eligibility requirements for legal aid are too strict, and many individuals who need representation are still unable to qualify for assistance. This leaves them with no choice but to rely on assigned counsel, which may not be as effective as a private lawyer. Despite this criticism, Section 672.5(8.1) remains an important provision in ensuring access to justice for accused persons who cannot afford legal representation. It recognizes the importance of a fair trial and compensates lawyers for taking on these cases. While there may be room for improvement in the provision and in the legal aid system more broadly, it is an essential component of the Canadian criminal justice system.
STRATEGY
Section 672.5(8.1) of the Criminal Code of Canada is important for defense counsel and accused persons. It specifies that when legal aid is not granted by a provincial legal aid program, the fees and disbursements of counsel will be paid by the Attorney General to the extent that the accused is unable to pay them. This provision ensures that an accused person has access to legal representation, which is a fundamental right in Canadian criminal law. There are several strategic considerations that counsel can use to ensure that their clients benefit from this provision. The first consideration is to ensure that the accused person qualifies for counsel under this provision. Counsel should be familiar with the provincial legal aid programs and the criteria for eligibility. If the accused person is not eligible for legal aid, then counsel can request that the Attorney General pay the fees and disbursements of the counsel. This provision applies to all accused persons who are unable to pay for their legal representation, regardless of their financial status or other factors. The second consideration is to negotiate the fees and disbursements with the Attorney General. Counsel should be aware of the prevailing rates for legal services in the jurisdiction and should be prepared to justify their fees and disbursements. Counsel should also be prepared to negotiate a fair and reasonable fee with the Attorney General. This may involve submitting a detailed account of the work done by counsel and the expenses incurred in the case. The third consideration is to ensure that the fees and disbursements are paid in a timely manner. Counsel should make sure that their invoices are properly documented and submitted to the Attorney General within the prescribed time frames. Counsel should also be prepared to follow up with the Attorney General's office to ensure that the fees are paid on time. Finally, counsel may consider hiring a professional billing service to manage the billing and collection process. This will ensure that the fees and disbursements are properly documented and submitted in a timely manner and that they are collected promptly. This will free up counsel's time to focus on the case and provide effective representation to the accused person. In summary, section 672.5(8.1) of the Criminal Code of Canada is an important provision that guarantees an accused person's right to legal representation. Counsel should be familiar with the provisions of this section and be prepared to use it to ensure that their clients have access to legal representation. Some strategic considerations include ensuring eligibility, negotiating fees and disbursements, ensuring timely payment of fees, and hiring a professional billing service. With these strategies in place, counsel can provide effective representation to their clients and ensure that their clients receive a fair trial.