If you cannot afford a criminal lawyer and legal aid has refused you, four options remain. Duty counsel covers you in court on the day. A limited retainer pays for a lawyer for one part of the case. An initial retainer starts a full defence. Where the charge is serious and the accused is without means, a court can order the prosecution stayed until the state pays for counsel.
The gap between the legal aid cut-off and what private counsel costs is real, and it catches working people every week. Here is how to work inside it.
Duty Counsel Is Free at the Courthouse
Duty counsel are lawyers at the courthouse who advise people on covered criminal matters. There is no financial test and no cost. New Brunswick advises going early. Duty counsel explain the court process and give advice on a plea, an adjournment, bail and sentencing. In New Brunswick, they may appear with you to enter a plea.
They do not carry the file between dates. Treat duty counsel as the thing that stops you from being pushed into a plea you do not understand while you arrange something better. The first appearance chapter sets out what that date is for.
Ask Legal Aid Anyway, and Keep the Written Refusal
Apply even if you expect to be refused. The written refusal is the document that supports the last option, and it costs nothing to obtain.
Both provincial plans have an internal appeal. New information about your exposure to jail, an immigration consequence, or a Crown position that has hardened will sometimes change a coverage decision that was made on thin information.
A Limited Retainer Buys the Part of the Case That Decides the Outcome
Most criminal files have one or two moments that decide the outcome. A contested bail hearing, the review of disclosure that shows whether the charge can be sustained, a Charter application about a search or a breath demand, and sentencing submissions.
A lawyer can be retained for one of those alone under a written limited scope agreement, with the client handling the routine appearances. That is a smaller number than a full defence, and it puts the money where it changes the result. Retaining counsel only for a bail hearing is the most common version of this.
The Initial Retainer Is Paid Into Trust Before the File Opens
The firm quotes an initial retainer after a first call. It is paid into the firm’s trust account before the file opens. Ask what the retainer covers, what it excludes, and what would require a further retainer.
If the full retainer is out of reach, say so on the first call. Ask whether the firm can act on the part of the case that matters most under a limited retainer. Treat a firm that will not explain what its retainer covers with caution.
A Court Can Order Counsel Paid for by the State Where the Trial Would Otherwise Be Unfair
Where an accused cannot afford a criminal lawyer, has been refused legal aid, and faces a charge serious or complex enough that a fair trial is not possible without counsel, a court can stay the proceedings until the state funds a lawyer. The application takes its name from the leading Ontario Court of Appeal decision on the point and it is argued in courts across the country, including in both provinces where the firm practises.
The evidence is your finances, the legal aid refusal, and the complexity of the case. It is not granted for a simple summary matter and it is not a way around a legal aid decision you dislike. On a serious indictable charge with Charter issues and expert evidence, it is a real remedy grounded in the fair trial guarantee in the Charter.
An Appeal Has Its Own Funding Provision
If you are convicted and cannot pay for an appeal, section 684 of the Criminal Code lets the court of appeal assign counsel where it appears desirable in the interests of justice and the appellant lacks the means. Whether the provincial legal aid plan pays depends on its own rules, so ask the legal aid office.
That is a separate route from the trial-level application. The appeal court decides it, and legal aid does not. Move quickly, because appeal periods are short.
Representing Yourself Costs More Than It Saves in Most Cases
Self-represented accused lose cases they should win, because the rules of evidence and the procedure for a Charter application are not intuitive and no judge can coach you through them.
If you must appear alone, do three things. Read the disclosure before any plea. Enter no plea at the first appearance. Tell the court you are seeking counsel. That statement gives the record a reason for the adjournment. Anything you say in court is on the record permanently.
What the Firm Does When Money Is the Obstacle
The firm defends charges in New Brunswick and Nova Scotia. The first conversation is free and it includes a straight answer about the likely cost and about whether legal aid is the better route for you.
Where a full retainer is out of reach, ask about acting on the most important part of the case under a limited retainer. The firm defends many kinds of criminal law matters, and what we can do depends on the charge.
FAQ
Will the Judge Give Me a Lawyer If I Ask?
Not on request alone. A judge can adjourn to let you retain counsel, and on a serious charge a formal application supported by financial evidence and a legal aid refusal can lead to a stay until counsel is funded.
Can I Get My Money Back If the Charge Is Withdrawn Early?
That depends on the retainer agreement. Money paid into trust stays yours until the firm bills for work done, and any unused balance is returned. Ask what the retainer covers before you sign.
Is a Cheaper Lawyer Worse?
Not necessarily. Rates vary with experience, location and how busy the lawyer is. Ask how many charges of your type the lawyer has taken to trial, and compare those answers across lawyers instead of comparing rates.
Does a Guilty Plea Save Money?
It saves fees, and it produces a criminal record that lasts. Plead only after reading the disclosure and getting advice about whether the Crown can prove the charge.