The Cost of Canada’s Legal Aid Crisis: Breaching the Right to State-Funded Counsel within a Reasonable Time

Abstract

This paper argues that Canada’s ongoing legal aid crisis risks rendering criminal trials involving poor people unconstitutional. Part I explores jurisprudence relating to the rights of criminal accuseds to legal representation. Here it is explained that although the government is not required to provide every individual with state-funded counsel, it is required to do so where the accused is incapable of paying for a lawyer and representation is necessary to ensure a fair trial. Failure to do so in these circumstances is in violation of the Charter. Part II demonstrates that where state-funded legal representation is constitutionally required but not provided in a timely fashion, the resulting delay is institutional in nature and thus attributable to the Crown. Where this kind of delay is unreasonable, it too violates the accused’s Charter rights. Finally, part III explains that while violations of the right to counsel may be remedied with a temporary stay to allow for retention of a lawyer, violations of the right to be tried within a reasonable time can only be remedied with a permanent stay in proceedings. As a result, the constitutional deficiencies created by the legal aid crisis could ultimately result in an inability to prosecute many criminal accuseds.

Keywords: legal aid crisis, right to counsel, right to trial within reasonable time, Canadian charter, criminal