BACKGROUNDER What are my ptins frm here? If yu have been denied Legal Aid and cannt affrd t pay fr a lawyer, there is anther ptin. Yu can apply t the Nva Sctia Prvincial Curt t ask fr a lawyer wh will be funded fr yu. This is called a Rwbtham applicatin. A Rwbtham applicatin is named after the Ontari Curt f Appeal decisin in R v. Rwbtham, [1988] OJ N 271, 41 CCC (3d) 1 (ONCA). Yu can search and read mre abut the Rwbtham decisin n the Internet. The decisin in Rwbtham means that yu have a cnstitutinal right t have a lawyer if it is necessary fr fairness f trial and if yu have unsuccessfully tried all pssible ways t find a private r publicly funded lawyer t take yur case. If yur applicatin is successful, the curt will stay (pause) the case. Next, the Attrney General will lk at the Curt s rder and decide if the csts f a lawyer shuld be paid fr in yur case. The Attrney General is the tp gvernment lawyer. Nva Sctia has ne and s des the Federal gvernment. Which Attrney General will decide abut funding the csts f a lawyer t represent yu is dependent n the type f ffence yu are charged with. Usually it will be the Attrney General f Nva Sctia wh decides, but if yu are charged with a federal ffence, such as a drug ffence, then the Attrney General f Canada will make the decisin abut funding. The Attrney General f Nva Sctia funds the Rwbtham lawyer if yur applicatin is successful, n matter if yu are charged with a federal ffence r nt. If the Attrney General agrees with yur applicatin, then yu will have t find a lawyer t take n yur case. Yu will nt be expected t pay fr the lawyer yurself because the lawyer s csts will be cvered fr yu. If at all pssible, it is strngly recmmended that yu get advice frm a lawyer t help yu with this applicatin. Where d I apply? The infrmatin prvided here is nly fr Rwbtham applicatins in the Nva Sctia Prvincial Curt. If yur case will be tried in Nva Sctia Prvincial Curt, then yu must submit yur applicatin t the Nva Sctia Prvincial Curt. If yur case will nt be heard in Nva Sctia Prvincial Curt, yu wuld apply t the curt that will hear yur case. 1
Fr example, if yur case will be tried in the Nva Sctia Supreme Curt, yu wuld make the applicatin t the Supreme Curt, nt the Nva Sctia Prvincial Curt. This is because the frms r prcesses fr this applicatin may be different in the Nva Sctia Supreme Curt. If my Rwbtham applicatin is successful, what will the lawyer d? The lawyer will represent yu at trial. He r she will d this in a number f ways, such as questining witnesses and making arguments t the curt. Rwbtham lawyers are usually nly prvided fr trials. It is very unlikely fr the curt t apprve a Rwbtham applicatin fr any ther part f a case. This is because the trial is usually the lngest and mst cmplicated part f the prceeding, s there is a much greater chance f unfairness t yu. Trial is als where the verdict f guilty r inncent is decided, s the stakes are higher. See the Ontari case R. v. Valenti 2010 ONSC 2433 fr mre infrmatin. The factrs fr a successful Rwbtham applicatin are explained belw. What des the applicatin invlve? Yu have t cnvince the curt that yur applicatin shuld be apprved. If yu are successful, the curt can temprarily stay (pause) the case until yu have retained a lawyer. Yu must include evidence t supprt yur Rwbtham applicatin. At the very least, this evidence must fcus n tw areas, (1) fairness f trial and (2) that yu cannt affrd t pay fr a lawyer. These are explained in mre detail belw. 1. Can there be a fair trial withut a lawyer? There are many reasns that effect the curt s decisin abut whether a lawyer is necessary fr a fair trial. Yu shuld bring up these factrs in yur applicatin. The factrs include: i. seriusness f the charge; ii. chance f ging t jail if yu are cnvicted; iii. hw cmplex the case is; iv. length f the trial; v. yur educatin level; vi. yur reading and writing skills; and vii. experience r knwledge yu have with the criminal prcess. 2
These factrs are imprtant t mentin in yur ntice f applicatin, yur affidavit and/r yur brief (there are mre details n these in the next sectin, titled Hw d I present this evidence t the curt? ). 2. Are yu unable t affrd t pay fr a lawyer? It must be very clear that yu cannt affrd t hire a lawyer. The types f evidence yu must include fr this are: i. Prf f denial frm Nva Sctia Legal Aid. Yu must nt qualify fr Legal Aid. This prf must include an appeal f the riginal decisin t nt prvide Legal Aid. The appeal must have been denied as well, r else this requirement will nt be made ut. There are a number f steps t prve this denial f Legal Aid. They are listed here. a. Yu will have t sign a Release f Infrmatin. This frm will be prvided t yu by the Attrney General f Nva Sctia. b. This release gives permissin t Nva Sctia Legal Aid t release yur applicatin and all f the financial infrmatin yu prvided t them with yur Legal Aid applicatin. Yu shuld als prvide the Legal Aid Appeal Cmmittee Summary Sheet and/r the Legal Aid Appeal Cmmittee decisin t the curt because it gives the reasn why yur appeal was denied. c. Legal Aid will prvide a cpy f yur applicatin and the financial infrmatin yu gave them t the Attrney General f Nva Sctia and the Prvincial Curt. Legal Aid will als cnfirm t the Attrney General that yu d nt qualify fr Legal Aid. ii. Yu must shw the curt that yu cannt affrd t hire a lawyer n yur wn. It is imprtant t knw that the judge will lk at yur entire husehld incme when he r she decides if yu can affrd a lawyer, nt just yur wn individual incme. This means the judge will take int accunt the incme f yur spuse r ther family members. There are many ther factrs that will be cnsidered by the judge t determine if yu can affrd t hire a lawyer. The evidence yu prvide shuld fcus n: a. the amunt f expenses yu have, including business and family expenses, and any current daily living expenses; b. yur effrts t save mney t pay fr a lawyer since charges were laid; c. any attempts yu made t brrw mney t pay fr a lawyer. This includes effrts t brrw frm children, parents r ther family members; d. emplyment and incme, including attempts t btain emplyment r btain additinal emplyment t increase yur incme and be able t pay fr a lawyer; 3
e. effrts t lk fr lawyers wh are willing t wrk at a rate yu can affrd; f. if there is anything yu can sell r use t raise funds t help yu pay fr a lawyer; and g. the value f any ther items yu receive a financial benefit frm, even if that item is registered in smene else s name r being held r used by smene else. Hw d I present this evidence t the curt? T make this applicatin t the curt and present all the infrmatin in the right way, there are certain frms yu will have t cmplete as part f the curt s prcess. The necessary frms are listed belw and draft frms are available n the Curts f Nva Sctia website. Yu can cmplete these frms and submit them t the persn r address nted n each frm. Be careful when submitting these frms t be sure that yu submit each ne t the crrect lcatin. Als, please ensure that yu keep fr yurself a cpy f all frms and any dcuments yu attach. Ntice f Applicatin see Frm 1.A. This lets the curt knw that yu are making a Rwbtham applicatin. This is where yu set ut the reasns fr yur applicatin. Release f Infrmatin (Waiver) frm see Frm B. This is the frm yu will send t Nva Sctia Legal Aid t give permissin fr the release f infrmatin regarding yur Legal Aid applicatin, including prf that yu were denied Legal Aid. Affidavit see Frm 2.A. An affidavit presents yur swrn evidence. Swrn evidence means that yu have prmised that the infrmatin in yur affidavit is true. In the affidavit, yu must include infrmatin abut yur financial situatin. Yu shuld include and attach all dcuments that prve yur written statements. These dcuments might include bank slips, pay stubs, incme tax returns, credit reprts, listings f bank accunts r investment hldings, credit applicatins, emplyment histry, unin memberships and mre. Yu can als give sme additinal evidence at the hearing f yur Rwbtham applicatin. A lawyer fr the Attrney General might ask yu questins abut the evidence yu include in yur affidavit. This is knwn as a crss-examinatin. Frm 2.A is a sample affidavit t shw hw an affidavit shuld be written. 4
Brief (ptinal) - Evidence, such as facts, has t g int yur Affidavit. Yu can als prepare a brief, which is a dcument similar t a letter. The brief is ptinal. This gives mre detail abut the reasns yu have included in yur Ntice f Applicatin (see abve r Frm 1.A). The fcus is n why yur applicatin shuld succeed. These reasns wuld include the factrs nted abve under the heading What des the Applicatin invlve? By writing abut these factrs, yu can be sure the urt knws that yu cannt affrd a lawyer and that yu need a lawyer in rder t have a fair trial. Yu can include the names f ther curt decisins that yu feel are helpful t yur case, but d nt include printuts f thse cases. 5