Acts and Regulations

L-2 - Legal Aid Act

Section 12
Disposition versions

Full text
Legal aid certificates
12(1)Subject to the directions of the Provincial Director and policies established by the Law Society, an area director may issue legal aid certificates authorizing legal aid for proceedings and matters preliminary to anticipated proceedings
(a) in respect of an offence under an Act of the Parliament of Canada or in respect of the Extradition Act, chapter E-21 of the Revised Statutes of Canada, 1970 or the Fugitive Offenders Act chapter F-32 of the Revised Statutes of Canada, 1970,
(b) in respect of an offence under an Act of the Legislature,
(c) before an administrative tribunal established by an Act of the Legislature or of the Parliament of Canada,
(d) in bankruptcy,
(e) under the Divorce Act, chapter D-8 of the Revised Statutes of Canada, 1970, or the Divorce Act, 1985, chapter 4 of the Statutes of Canada, 1986,
(f) other than those covered in paragraphs (a) to (e), in The Court of Queen’s Bench of New Brunswick, the Provincial Court, The Probate Court of New Brunswick, the Supreme Court of Canada or the Federal Court of Canada, and
(g) of an appellate nature in respect of matters and proceedings described in such of paragraphs (a) to (f) as are in force.
12(2)With the prior approval of the Provincial Director, an area director may, in his discretion, issue a legal aid certificate authorizing legal services, other than those associated with judicial and administrative proceedings, that are customarily within the scope of the professional duties of a barrister and solicitor, including drawing documents, negotiating settlements and giving legal advice.
12(3)An area director may amend a legal aid certificate from time to time to alter the scope of the legal aid authorized by that certificate.
12(4)An area director shall not issue or amend a legal aid certificate under paragraph (1)(a) to authorize legal aid in respect of an offence punishable on summary conviction unless he is of the opinion that
(a) there is a likelihood of imprisonment or loss of means of earning a livelihood upon conviction,
(b) there are in existence circumstances that would serve to mitigate the severity of the penalty that may be imposed, or
(c) because of extraordinary circumstances, it is in the interests of justice that the applicant be represented by counsel.
12(5)Where the applicant has an election as to the manner in which he may be tried, a legal aid certificate issued in respect of proceedings under paragraph (1)(a) shall authorize proceedings in Provincial Court only unless the applicant’s solicitor certifies to the area director that, in his opinion, the interests of the accused require that he elect to be tried by a judge without a jury or by a court composed of a judge and jury, in which case the area director may amend the certificate accordingly.
12(6)With the prior approval of the Provincial Director an area director may issue or amend a legal aid certificate to authorize legal aid for proceedings included in paragraph (1)(b) if
(a) there appears to be a likelihood of imprisonment or loss of means of earning a livelihood upon conviction, and
(b) the area director is of the opinion that
(i) there is a possible defence to the charge,
(ii) there are in existence circumstances that would serve to mitigate the severity of the penalty that may be imposed, or
(iii) because of extraordinary circumstances, it is in the interests of justice that the applicant be represented by counsel.
12(6.1)Notwithstanding subsection (6), an area director may issue or amend a legal aid certificate to authorize legal aid for proceedings included in paragraph (1)(b) without the prior approval of the Provincial Director, where the offence with which the applicant is charged carries a mandatory term of imprisonment.
12(7)An area director shall not issue or amend a legal aid certificate to authorize legal aid in respect of paragraph (1)(c) or (d) unless he is of the opinion that the applicant has an interest that ought to be raised or protected in the matter or proceeding and that it is in the interests of justice that the applicant be represented by counsel.
12(8)An area director shall not issue or amend a legal aid certificate to authorize legal aid in respect of paragraph (1)(e) or (f) unless, in his opinion, it is reasonable under the circumstances of the case to institute or defend the proceedings, or to continue the action or defence to the action, as the case may be.
12(9)In determining the reasonableness of the proposed course of action under subsection (8), an area director shall consider the matter from the standpoint of a usual solicitor and client relationship, taking into account the possibility of success, the cost of the proceedings in relation to the anticipated loss or recovery, and the likelihood of enforcing judgment.
12(10)Except where in the opinion of the area director the circumstances of an application require the immediate issue or amendment of a legal aid certificate, an area director shall not issue or amend a legal aid certificate to authorize legal aid in respect of paragraph (1)(g) unless
(a) the applicant has included in his application
(i) the opinion of his solicitor as to the advisability of instituting or defending an appeal,
(ii) a copy of the order or judgment appealed from, and
(iii) such other information as the area director requires him to provide,
(b) the area director considers that it is reasonable that the appeal be instituted or defended,
(c) the area director has submitted the application to the area committee for that area, if one has been established, or to the Provincial Director, if an area committee has not been established for that area, and
(d) the area committee or the Provincial Director, as the case may be, has approved the issuing or amending of a legal aid certificate.
12(11)The Provincial Director may refer to the Legal Aid Committee for its recommendation any matter requiring his approval under paragraph (10)(d).
12(12)Notwithstanding any other provision of this Part, the Provincial Director may from time to time direct that an area director obtain his prior approval for the issuance or amendment of any type of legal aid certificate specified in such directions.
12(13)Notwithstanding any other provision of this Part, the Law Society, with the approval of the Minister, may from time to time establish policies and issue directions defining circumstances under which an applicant may be determined to be ineligible as a recipient of legal aid by reason of
(a) the applicant being charged with an offence the same as or similar to one for which he has been previously convicted, or
(b) the total amount of legal aid that the applicant is currently receiving or has received from the plan.
12(14)Where the Law Society is of the opinion that the Legal Aid Fund is in danger of being depleted, it may, with the approval of the Minister, issue directions to the Provincial Director limiting the providing of legal aid in matters included in paragraphs (1)(c) to (g) and subsection (2).
1971, c.11, s.12; 1973, c.54, s.2; 1979, c.41, s.73; 1983, c.46, s.6; 1987, c.6, s.51; 1993, c.21, s.12; 2008, c.43, s.10
Legal aid certificates
12(1)Subject to the directions of the Provincial Director and policies established by the Law Society, an area director may issue legal aid certificates authorizing legal aid for proceedings and matters preliminary to anticipated proceedings
(a) in respect of an offence under an Act of the Parliament of Canada or in respect of the Extradition Act, chapter E-21 of the Revised Statutes of Canada, 1970 or the Fugitive Offenders Act chapter F-32 of the Revised Statutes of Canada, 1970,
(b) in respect of an offence under an Act of the Legislature,
(c) before an administrative tribunal established by an Act of the Legislature or of the Parliament of Canada,
(d) in bankruptcy,
(e) under the Divorce Act, chapter D-8 of the Revised Statutes of Canada, 1970, or the Divorce Act, 1985, chapter 4 of the Statutes of Canada, 1986,
(f) other than those covered in paragraphs (a) to (e), in The Court of Queen’s Bench of New Brunswick, the Provincial Court, The Probate Court of New Brunswick, the Supreme Court of Canada or the Federal Court of Canada, and
(g) of an appellate nature in respect of matters and proceedings described in such of paragraphs (a) to (f) as are in force.
12(2)With the prior approval of the Provincial Director, an area director may, in his discretion, issue a legal aid certificate authorizing legal services, other than those associated with judicial and administrative proceedings, that are customarily within the scope of the professional duties of a barrister and solicitor, including drawing documents, negotiating settlements and giving legal advice.
12(3)An area director may amend a legal aid certificate from time to time to alter the scope of the legal aid authorized by that certificate.
12(4)An area director shall not issue or amend a legal aid certificate under paragraph (1)(a) to authorize legal aid in respect of an offence punishable on summary conviction unless he is of the opinion that
(a) there is a likelihood of imprisonment or loss of means of earning a livelihood upon conviction,
(b) there are in existence circumstances that would serve to mitigate the severity of the penalty that may be imposed, or
(c) because of extraordinary circumstances, it is in the interests of justice that the applicant be represented by counsel.
12(5)Where the applicant has an election as to the manner in which he may be tried, a legal aid certificate issued in respect of proceedings under paragraph (1)(a) shall authorize proceedings in Provincial Court only unless the applicant’s solicitor certifies to the area director that, in his opinion, the interests of the accused require that he elect to be tried by a judge without a jury or by a court composed of a judge and jury, in which case the area director may amend the certificate accordingly.
12(6)With the prior approval of the Provincial Director an area director may issue or amend a legal aid certificate to authorize legal aid for proceedings included in paragraph (1)(b) if
(a) there appears to be a likelihood of imprisonment or loss of means of earning a livelihood upon conviction, and
(b) the area director is of the opinion that
(i) there is a possible defence to the charge,
(ii) there are in existence circumstances that would serve to mitigate the severity of the penalty that may be imposed, or
(iii) because of extraordinary circumstances, it is in the interests of justice that the applicant be represented by counsel.
12(6.1)Notwithstanding subsection (6), an area director may issue or amend a legal aid certificate to authorize legal aid for proceedings included in paragraph (1)(b) without the prior approval of the Provincial Director, where the offence with which the applicant is charged carries a mandatory term of imprisonment.
12(7)An area director shall not issue or amend a legal aid certificate to authorize legal aid in respect of paragraph (1)(c) or (d) unless he is of the opinion that the applicant has an interest that ought to be raised or protected in the matter or proceeding and that it is in the interests of justice that the applicant be represented by counsel.
12(8)An area director shall not issue or amend a legal aid certificate to authorize legal aid in respect of paragraph (1)(e) or (f) unless, in his opinion, it is reasonable under the circumstances of the case to institute or defend the proceedings, or to continue the action or defence to the action, as the case may be.
12(9)In determining the reasonableness of the proposed course of action under subsection (8), an area director shall consider the matter from the standpoint of a usual solicitor and client relationship, taking into account the possibility of success, the cost of the proceedings in relation to the anticipated loss or recovery, and the likelihood of enforcing judgment.
12(10)Except where in the opinion of the area director the circumstances of an application require the immediate issue or amendment of a legal aid certificate, an area director shall not issue or amend a legal aid certificate to authorize legal aid in respect of paragraph (1)(g) unless
(a) the applicant has included in his application
(i) the opinion of his solicitor as to the advisability of instituting or defending an appeal,
(ii) a copy of the order or judgment appealed from, and
(iii) such other information as the area director requires him to provide,
(b) the area director considers that it is reasonable that the appeal be instituted or defended,
(c) the area director has submitted the application to the area committee for that area, if one has been established, or to the Provincial Director, if an area committee has not been established for that area, and
(d) the area committee or the Provincial Director, as the case may be, has approved the issuing or amending of a legal aid certificate.
12(11)The Provincial Director may refer to the Legal Aid Committee for its recommendation any matter requiring his approval under paragraph (10)(d).
12(12)Notwithstanding any other provision of this Part, the Provincial Director may from time to time direct that an area director obtain his prior approval for the issuance or amendment of any type of legal aid certificate specified in such directions.
12(13)Notwithstanding any other provision of this Part, the Law Society, with the approval of the Minister, may from time to time establish policies and issue directions defining circumstances under which an applicant may be determined to be ineligible as a recipient of legal aid by reason of
(a) the applicant being charged with an offence the same as or similar to one for which he has been previously convicted, or
(b) the total amount of legal aid that the applicant is currently receiving or has received from the plan.
12(14)Where the Law Society is of the opinion that the Legal Aid Fund is in danger of being depleted, it may, with the approval of the Minister, issue directions to the Provincial Director limiting the providing of legal aid in matters included in paragraphs (1)(c) to (g) and subsection (2).
1971, c.11, s.12; 1973, c.54, s.2; 1979, c.41, s.73; 1983, c.46, s.6; 1987, c.6, s.51; 1993, c.21, s.12; 2008, c.43, s.10
Legal aid certificates
12(1)Subject to the directions of the Provincial Director and policies established by the Law Society, an area director may issue legal aid certificates authorizing legal aid for proceedings and matters preliminary to anticipated proceedings
(a) in respect of an offence under an Act of the Parliament of Canada or in respect of the Extradition Act, chapter E-21 of the Revised Statutes of Canada, 1970 or the Fugitive Offenders Act chapter F-32 of the Revised Statutes of Canada, 1970,
(b) in respect of an offence under an Act of the Legislature,
(c) before an administrative tribunal established by an Act of the Legislature or of the Parliament of Canada,
(d) in bankruptcy,
(e) under the Divorce Act, chapter D-8 of the Revised Statutes of Canada, 1970, or the Divorce Act, 1985, chapter 4 of the Statutes of Canada, 1986,
(f) other than those covered in paragraphs (a) to (e), in The Court of Queen’s Bench of New Brunswick, the Court of Divorce and Matrimonial Causes, the Provincial Court, The Probate Court of New Brunswick, the Supreme Court of Canada or the Federal Court of Canada, and
(g) of an appellate nature in respect of matters and proceedings described in such of paragraphs (a) to (f) as are in force.
12(2)With the prior approval of the Provincial Director, an area director may, in his discretion, issue a legal aid certificate authorizing legal services, other than those associated with judicial and administrative proceedings, that are customarily within the scope of the professional duties of a barrister and solicitor, including drawing documents, negotiating settlements and giving legal advice.
12(3)An area director may amend a legal aid certificate from time to time to alter the scope of the legal aid authorized by that certificate.
12(4)An area director shall not issue or amend a legal aid certificate under paragraph (1)(a) to authorize legal aid in respect of an offence punishable on summary conviction unless he is of the opinion that
(a) there is a likelihood of imprisonment or loss of means of earning a livelihood upon conviction,
(b) there are in existence circumstances that would serve to mitigate the severity of the penalty that may be imposed, or
(c) because of extraordinary circumstances, it is in the interests of justice that the applicant be represented by counsel.
12(5)Where the applicant has an election as to the manner in which he may be tried, a legal aid certificate issued in respect of proceedings under paragraph (1)(a) shall authorize proceedings in Provincial Court only unless the applicant’s solicitor certifies to the area director that, in his opinion, the interests of the accused require that he elect to be tried by a judge without a jury or by a court composed of a judge and jury, in which case the area director may amend the certificate accordingly.
12(6)With the prior approval of the Provincial Director an area director may issue or amend a legal aid certificate to authorize legal aid for proceedings included in paragraph (1)(b) if
(a) there appears to be a likelihood of imprisonment or loss of means of earning a livelihood upon conviction, and
(b) the area director is of the opinion that
(i) there is a possible defence to the charge,
(ii) there are in existence circumstances that would serve to mitigate the severity of the penalty that may be imposed, or
(iii) because of extraordinary circumstances, it is in the interests of justice that the applicant be represented by counsel.
12(6.1)Notwithstanding subsection (6), an area director may issue or amend a legal aid certificate to authorize legal aid for proceedings included in paragraph (1)(b) without the prior approval of the Provincial Director, where the offence with which the applicant is charged carries a mandatory term of imprisonment.
12(7)An area director shall not issue or amend a legal aid certificate to authorize legal aid in respect of paragraph (1)(c) or (d) unless he is of the opinion that the applicant has an interest that ought to be raised or protected in the matter or proceeding and that it is in the interests of justice that the applicant be represented by counsel.
12(8)An area director shall not issue or amend a legal aid certificate to authorize legal aid in respect of paragraph (1)(e) or (f) unless, in his opinion, it is reasonable under the circumstances of the case to institute or defend the proceedings, or to continue the action or defence to the action, as the case may be.
12(9)In determining the reasonableness of the proposed course of action under subsection (8), an area director shall consider the matter from the standpoint of a usual solicitor and client relationship, taking into account the possibility of success, the cost of the proceedings in relation to the anticipated loss or recovery, and the likelihood of enforcing judgment.
12(10)Except where in the opinion of the area director the circumstances of an application require the immediate issue or amendment of a legal aid certificate, an area director shall not issue or amend a legal aid certificate to authorize legal aid in respect of paragraph (1)(g) unless
(a) the applicant has included in his application
(i) the opinion of his solicitor as to the advisability of instituting or defending an appeal,
(ii) a copy of the order or judgment appealed from, and
(iii) such other information as the area director requires him to provide,
(b) the area director considers that it is reasonable that the appeal be instituted or defended,
(c) the area director has submitted the application to the area committee for that area, if one has been established, or to the Provincial Director, if an area committee has not been established for that area, and
(d) the area committee or the Provincial Director, as the case may be, has approved the issuing or amending of a legal aid certificate.
12(11)The Provincial Director may refer to the Legal Aid Committee for its recommendation any matter requiring his approval under paragraph (10)(d).
12(12)Notwithstanding any other provision of this Part, the Provincial Director may from time to time direct that an area director obtain his prior approval for the issuance or amendment of any type of legal aid certificate specified in such directions.
12(13)Notwithstanding any other provision of this Part, the Law Society, with the approval of the Minister, may from time to time establish policies and issue directions defining circumstances under which an applicant may be determined to be ineligible as a recipient of legal aid by reason of
(a) the applicant being charged with an offence the same as or similar to one for which he has been previously convicted, or
(b) the total amount of legal aid that the applicant is currently receiving or has received from the plan.
12(14)Where the Law Society is of the opinion that the Legal Aid Fund is in danger of being depleted, it may, with the approval of the Minister, issue directions to the Provincial Director limiting the providing of legal aid in matters included in paragraphs (1)(c) to (g) and subsection (2).
1971, c.11, s.12; 1973, c.54, s.2; 1979, c.41, s.73; 1983, c.46, s.6; 1987, c.6, s.51; 1993, c.21, s.12