Failure to Fund: The Link between Canada's Legal Aid Crisis & Unconstitutional Delay in the Provision of State-Funded Legal Counsel
National Journal of Constitutional Law, Vol. 35, No. 1, 2015
29 Pages Posted: 11 Aug 2016
Date Written: December 1, 2015
Access to state-funded legal counsel is a constitutional right in Canada for at least some criminal accuseds. This counsel is currently being provided through two primary mechanisms — administrative legal aid programs and a court-order process. The latter is contingent on showing that all legal aid remedies have been exhausted and, when used to address the unique circumstances of a particular accused, has the potential to complement a well functioning administrative process by providing extraordinary relief for exceptional cases.
Unfortunately, the potential of this model has not been realized. Instead, the court-order process is being routinely and increasingly used to compensate for a chronically under-funded legal aid program that uses financial eligibility criteria as a rationing device rather than as a metric with which to assess an accused’s actual ability to pay for her own legal counsel. This article argues that delay resulting from such a system is attributable to the state and must be assessed under s. 11(b) of the Charter, which guarantees the right to be tried within a reasonable time. Further, the singular remedy available for violations of s. 11(b) means that the ongoing failure to sufficiently fund legal aid programs could ultimately result in an inability to prosecute certain criminal accuseds regardless of the strength of the substantive case against them.
Keywords: legal aid, delay, constitution, 11(b), counsel, state, funding, criminal law, accused, Charter
JEL Classification: D31, D63, E65, G28, H10, H29, I39, K14, L38
Suggested Citation: Suggested Citation