If someone is charged with an offence and if they wish to retain a lawyer to represent them, then they are expected to make the necessary arrangements to pay for that lawyer. In Ontario, individuals can fund their legal counsel in one or more of the following ways:
Individuals are normally expected to pay legal counsel with their own private funds, either at an hourly rate or through a block fee. The retainer agreement may be at the lawyer’s normal rate or it may be at reduced rates through programs like JusticeNet for persons with low-income that do not qualify for a legal aid certificate.
If the authorities have seized property or money from someone in the course of a criminal investigation, then that person can bring a pre-trial application under subparagraph 462.34(4)(c)(ii) of the Criminal Code for the release of reasonable legal expenses – if the application is successful, then the court will order the authorities to give back some or all of that property or money to the lawyer to pay for the costs of legal fees. Depending on the outcome of the case, the individual may be expected to repay these costs to the authorities.
Persons who have been charged with an offence can apply to Legal Aid Ontario for a legal aid certificate. If the certificate is granted, then the government will pay for the costs of the person’s defence. Individuals may qualify for a certificate if their income is low and if their charges are sufficiently serious. There are three possible stages to obtaining a legal aid certificate.
First, an individual can apply on their own behalf by contacting Legal Aid Ontario. Applications can be made in custody, by telephone, or in person at local offices and at some courthouses.
Second, if an individual has been denied legal aid, then they can appeal the decision through Legal Aid Ontario’s internal appeals process.
Third, if an individual has still been denied legal aid through the appeals process, then the individual – sometimes with the help of the lawyer that they want to hire – can bring a pre-trial application (called a “Rowbotham application”) under section 7 and subsection 11(d) of the Charter of Rights and Freedoms. If the application is successful, then the court will stay the proceedings under subsection 24(1) of the Charter until Legal Aid Ontario provides the individual with a legal aid certificate.
At the end of a case, individuals who have been acquitted of their charges are not entitled to be awarded costs, except in extremely rare cases. In other words, unless the prosecution committed misconduct, the government will not pay an individual back for the cost of their lawyers just because they were found not guilty. Individuals charged with offences should not expect to be awarded costs and must try to fund their defence with one of the other options listed above.
Our team offers free consultations to discuss your case and to explore your options for funding your defence. Michael, Matthew, and Aileen are members of JusticeNet and all of our lawyers accept Legal Aid Ontario certificates.
This blog post is part of our Canadian criminal justice series – we hope that these blog posts will shed some light on the Canadian criminal justice system for clients and potential clients, members of the community, and law students. Feel free to e-mail us at email@example.com propose any changes or updates.