Acts and Regulations

2014, c.26 - Legal Aid Act

Section 28
Disposition versions

Full text
Issuance of legal aid certificates
28(1)No legal aid certificate shall be issued or amended unless the issuance or amendment is authorized under this section or the regulations.
28(2)Subject to the directions of the Executive Director, the regulations and policies established under this Act and the regulations, an employee for an area may issue legal aid certificates authorizing legal aid services for any of the following proceedings and any matter preliminary to any such proceedings that are anticipated:
(a) proceedings in respect of an offence under an Act of the Parliament of Canada or in respect of the Extradition Act (Canada);
(b) proceedings in respect of an offence under an Act of the Legislature;
(c) proceedings before an administrative tribunal established by an Act of the Legislature or of the Parliament of Canada;
(d) proceedings in bankruptcy;
(e) proceedings under the Divorce Act (Canada);
(f) proceedings, other than those covered by paragraphs (a) to (e), in The Court of King’s Bench of New Brunswick, the Provincial Court, The Probate Court of New Brunswick, the Supreme Court of Canada, the Federal Court or the Federal Court of Appeal; and
(g) proceedings of an appellate nature in respect of matters and proceedings covered by paragraphs (a) to (f).
28(3)With the prior approval of the Executive Director, an employee for an area may, in his or her 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 lawyer, including drawing documents, negotiating settlements and giving legal advice.
28(4)Subject to the directions of the Executive Director, the regulations and policies established under this Act and the regulations, an employee for an area may amend a legal aid certificate from time to time to alter the scope of the legal aid services authorized by that certificate.
28(5)An employee for an area shall not issue a legal aid certificate under paragraph (2)(a) to authorize legal aid services in respect of an offence punishable on summary conviction unless he or she has a current legal opinion that
(a) there is a likelihood of imprisonment or loss of means of earning a livelihood on 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 a lawyer.
28(6)Subsection (5) applies with the necessary modifications to the amendment of a legal aid certificate issued under paragraph (2)(a) to authorize legal aid services in respect of an offence punishable on summary conviction.
28(7)If the applicant has an election as to the manner in which he or she may be tried, a legal aid certificate issued in respect of proceedings referred to in paragraph (2)(a) shall authorize proceedings in Provincial Court only unless the applicant’s lawyer certifies to the Executive Director that, in his or her opinion, the interests of the accused require that he or she elect to be tried by a judge without a jury or by a court composed of a judge and jury, in which case the Executive Director may amend the certificate accordingly.
28(8)With the prior approval of the Executive Director, an employee for an area may issue or amend a legal aid certificate to authorize legal aid services for proceedings referred to in paragraph (2)(b) if
(a) there appears to be a likelihood of imprisonment or loss of means of earning a livelihood on conviction, and
(b) that employee has a current legal 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 a lawyer.
28(9)Despite subsection (8), an employee for an area may issue or amend a legal aid certificate to authorize legal aid services for proceedings referred to in paragraph (2)(b) without the prior approval of the Executive Director, if the offence with which the applicant is charged carries a mandatory term of imprisonment.
28(10)An employee for an area shall not issue or amend a legal aid certificate to authorize legal aid services in respect of paragraph (2)(c) or (d) unless he or she has a current legal 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 a lawyer.
28(11)An employee for an area shall not issue or amend a legal aid certificate to authorize legal aid services in respect of paragraph (2)(e) or (f) unless he or she has a current legal opinion that 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.
28(12)In determining the reasonableness of the proposed course of action under subsection (11), an employee for an area shall consider the matter from the standpoint of a usual lawyer 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.
28(13)Except if in the opinion of an employee for an area the circumstances of an application require the immediate issue or amendment of a legal aid certificate, the employee shall not issue or amend a legal aid certificate to authorize legal aid services in respect of paragraph (2)(g) unless
(a) the applicant has included in his or her application
(i) the opinion of a lawyer as to the advisability of instituting or defending an appeal,
(ii) a copy of the order or judgment appealed from, and
(iii) any other information that the employee requires,
(b) the employee considers that it is reasonable that the appeal be instituted or defended,
(c) the employee 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.
28(14)Repealed: 2016, c.42, s.5
28(15)Despite any other provision of this Act except subsection (9), the Executive Director may from time to time direct that an employee for an area obtain the Executive Director’s prior approval for the issuance or amendment of any type of legal aid certificate specified in the directions.
28(16)Despite any other provision of this Act, the Executive Director, with the approval of the Board, 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 services by reason of
(a) the applicant being charged with an offence the same as or similar to one for which he or she has been previously convicted, or
(b) the total number of legal aid services that the applicant is currently receiving or has received from the plan.
28(17)If the Executive Director is of the opinion that the Legal Aid Fund is in danger of being depleted, he or she may, with the approval of the Board after the Board has consulted with the Minister, limit the provision of legal aid services in proceedings or matters covered by paragraphs (2)(c) to (g) and subsection (3).
2016, c.42, s.5; 2023, c.17, s.137
Issuance of legal aid certificates
28(1)No legal aid certificate shall be issued or amended unless the issuance or amendment is authorized under this section or the regulations.
28(2)Subject to the directions of the Executive Director, the regulations and policies established under this Act and the regulations, an employee for an area may issue legal aid certificates authorizing legal aid services for any of the following proceedings and any matter preliminary to any such proceedings that are anticipated:
(a) proceedings in respect of an offence under an Act of the Parliament of Canada or in respect of the Extradition Act (Canada);
(b) proceedings in respect of an offence under an Act of the Legislature;
(c) proceedings before an administrative tribunal established by an Act of the Legislature or of the Parliament of Canada;
(d) proceedings in bankruptcy;
(e) proceedings under the Divorce Act (Canada);
(f) proceedings, other than those covered by 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, the Federal Court or the Federal Court of Appeal; and
(g) proceedings of an appellate nature in respect of matters and proceedings covered by paragraphs (a) to (f).
28(3)With the prior approval of the Executive Director, an employee for an area may, in his or her 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 lawyer, including drawing documents, negotiating settlements and giving legal advice.
28(4)Subject to the directions of the Executive Director, the regulations and policies established under this Act and the regulations, an employee for an area may amend a legal aid certificate from time to time to alter the scope of the legal aid services authorized by that certificate.
28(5)An employee for an area shall not issue a legal aid certificate under paragraph (2)(a) to authorize legal aid services in respect of an offence punishable on summary conviction unless he or she has a current legal opinion that
(a) there is a likelihood of imprisonment or loss of means of earning a livelihood on 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 a lawyer.
28(6)Subsection (5) applies with the necessary modifications to the amendment of a legal aid certificate issued under paragraph (2)(a) to authorize legal aid services in respect of an offence punishable on summary conviction.
28(7)If the applicant has an election as to the manner in which he or she may be tried, a legal aid certificate issued in respect of proceedings referred to in paragraph (2)(a) shall authorize proceedings in Provincial Court only unless the applicant’s lawyer certifies to the Executive Director that, in his or her opinion, the interests of the accused require that he or she elect to be tried by a judge without a jury or by a court composed of a judge and jury, in which case the Executive Director may amend the certificate accordingly.
28(8)With the prior approval of the Executive Director, an employee for an area may issue or amend a legal aid certificate to authorize legal aid services for proceedings referred to in paragraph (2)(b) if
(a) there appears to be a likelihood of imprisonment or loss of means of earning a livelihood on conviction, and
(b) that employee has a current legal 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 a lawyer.
28(9)Despite subsection (8), an employee for an area may issue or amend a legal aid certificate to authorize legal aid services for proceedings referred to in paragraph (2)(b) without the prior approval of the Executive Director, if the offence with which the applicant is charged carries a mandatory term of imprisonment.
28(10)An employee for an area shall not issue or amend a legal aid certificate to authorize legal aid services in respect of paragraph (2)(c) or (d) unless he or she has a current legal 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 a lawyer.
28(11)An employee for an area shall not issue or amend a legal aid certificate to authorize legal aid services in respect of paragraph (2)(e) or (f) unless he or she has a current legal opinion that 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.
28(12)In determining the reasonableness of the proposed course of action under subsection (11), an employee for an area shall consider the matter from the standpoint of a usual lawyer 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.
28(13)Except if in the opinion of an employee for an area the circumstances of an application require the immediate issue or amendment of a legal aid certificate, the employee shall not issue or amend a legal aid certificate to authorize legal aid services in respect of paragraph (2)(g) unless
(a) the applicant has included in his or her application
(i) the opinion of a lawyer as to the advisability of instituting or defending an appeal,
(ii) a copy of the order or judgment appealed from, and
(iii) any other information that the employee requires,
(b) the employee considers that it is reasonable that the appeal be instituted or defended,
(c) the employee 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.
28(14)Repealed: 2016, c.42, s.5
28(15)Despite any other provision of this Act except subsection (9), the Executive Director may from time to time direct that an employee for an area obtain the Executive Director’s prior approval for the issuance or amendment of any type of legal aid certificate specified in the directions.
28(16)Despite any other provision of this Act, the Executive Director, with the approval of the Board, 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 services by reason of
(a) the applicant being charged with an offence the same as or similar to one for which he or she has been previously convicted, or
(b) the total number of legal aid services that the applicant is currently receiving or has received from the plan.
28(17)If the Executive Director is of the opinion that the Legal Aid Fund is in danger of being depleted, he or she may, with the approval of the Board after the Board has consulted with the Minister, limit the provision of legal aid services in proceedings or matters covered by paragraphs (2)(c) to (g) and subsection (3).
2016, c.42, s.5
Issuance of legal aid certificates
28(1)No legal aid certificate shall be issued or amended unless the issuance or amendment is authorized under this section or the regulations.
28(2)Subject to the directions of the Executive Director, the regulations and policies established under this Act and the regulations, an employee for an area may issue legal aid certificates authorizing legal aid services for any of the following proceedings and any matter preliminary to any such proceedings that are anticipated:
(a) proceedings in respect of an offence under an Act of the Parliament of Canada or in respect of the Extradition Act (Canada);
(b) proceedings in respect of an offence under an Act of the Legislature;
(c) proceedings before an administrative tribunal established by an Act of the Legislature or of the Parliament of Canada;
(d) proceedings in bankruptcy;
(e) proceedings under the Divorce Act (Canada);
(f) proceedings, other than those covered by 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, the Federal Court or the Federal Court of Appeal; and
(g) proceedings of an appellate nature in respect of matters and proceedings covered by paragraphs (a) to (f).
28(3)With the prior approval of the Executive Director, an employee for an area may, in his or her 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 lawyer, including drawing documents, negotiating settlements and giving legal advice.
28(4)Subject to the directions of the Executive Director, the regulations and policies established under this Act and the regulations, an employee for an area may amend a legal aid certificate from time to time to alter the scope of the legal aid services authorized by that certificate.
28(5)An employee for an area shall not issue a legal aid certificate under paragraph (2)(a) to authorize legal aid services in respect of an offence punishable on summary conviction unless he or she has a current legal opinion that
(a) there is a likelihood of imprisonment or loss of means of earning a livelihood on 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 a lawyer.
28(6)Subsection (5) applies with the necessary modifications to the amendment of a legal aid certificate issued under paragraph (2)(a) to authorize legal aid services in respect of an offence punishable on summary conviction.
28(7)If the applicant has an election as to the manner in which he or she may be tried, a legal aid certificate issued in respect of proceedings referred to in paragraph (2)(a) shall authorize proceedings in Provincial Court only unless the applicant’s lawyer certifies to the Executive Director that, in his or her opinion, the interests of the accused require that he or she elect to be tried by a judge without a jury or by a court composed of a judge and jury, in which case the Executive Director may amend the certificate accordingly.
28(8)With the prior approval of the Executive Director, an employee for an area may issue or amend a legal aid certificate to authorize legal aid services for proceedings referred to in paragraph (2)(b) if
(a) there appears to be a likelihood of imprisonment or loss of means of earning a livelihood on conviction, and
(b) that employee has a current legal 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 a lawyer.
28(9)Despite subsection (8), an employee for an area may issue or amend a legal aid certificate to authorize legal aid services for proceedings referred to in paragraph (2)(b) without the prior approval of the Executive Director, if the offence with which the applicant is charged carries a mandatory term of imprisonment.
28(10)An employee for an area shall not issue or amend a legal aid certificate to authorize legal aid services in respect of paragraph (2)(c) or (d) unless he or she has a current legal 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 a lawyer.
28(11)An employee for an area shall not issue or amend a legal aid certificate to authorize legal aid services in respect of paragraph (2)(e) or (f) unless he or she has a current legal opinion that 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.
28(12)In determining the reasonableness of the proposed course of action under subsection (11), an employee for an area shall consider the matter from the standpoint of a usual lawyer 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.
28(13)Except if in the opinion of an employee for an area the circumstances of an application require the immediate issue or amendment of a legal aid certificate, the employee shall not issue or amend a legal aid certificate to authorize legal aid services in respect of paragraph (2)(g) unless
(a) the applicant has included in his or her application
(i) the opinion of a lawyer as to the advisability of instituting or defending an appeal,
(ii) a copy of the order or judgment appealed from, and
(iii) any other information that the employee requires,
(b) the employee considers that it is reasonable that the appeal be instituted or defended,
(c) the employee 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.
28(14)Repealed: 2016, c.42, s.5
28(15)Despite any other provision of this Act except subsection (9), the Executive Director may from time to time direct that an employee for an area obtain the Executive Director’s prior approval for the issuance or amendment of any type of legal aid certificate specified in the directions.
28(16)Despite any other provision of this Act, the Executive Director, with the approval of the Board, 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 services by reason of
(a) the applicant being charged with an offence the same as or similar to one for which he or she has been previously convicted, or
(b) the total number of legal aid services that the applicant is currently receiving or has received from the plan.
28(17)If the Executive Director is of the opinion that the Legal Aid Fund is in danger of being depleted, he or she may, with the approval of the Board after the Board has consulted with the Minister, limit the provision of legal aid services in proceedings or matters covered by paragraphs (2)(c) to (g) and subsection (3).
2016, c.42, s.5
Issuance of legal aid certificates
28(1)No legal aid certificate shall be issued or amended unless the issuance or amendment is authorized under this section or the regulations.
28(2)Subject to the directions of the Executive Director, the regulations and policies established under this Act and the regulations, an employee for an area may issue legal aid certificates authorizing legal aid services for any of the following proceedings and any matter preliminary to any such proceedings that are anticipated:
(a) proceedings in respect of an offence under an Act of the Parliament of Canada or in respect of the Extradition Act (Canada);
(b) proceedings in respect of an offence under an Act of the Legislature;
(c) proceedings before an administrative tribunal established by an Act of the Legislature or of the Parliament of Canada;
(d) proceedings in bankruptcy;
(e) proceedings under the Divorce Act (Canada);
(f) proceedings, other than those covered by 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, the Federal Court or the Federal Court of Appeal; and
(g) proceedings of an appellate nature in respect of matters and proceedings covered by paragraphs (a) to (f).
28(3)With the prior approval of the Executive Director, an employee for an area may, in his or her 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 lawyer, including drawing documents, negotiating settlements and giving legal advice.
28(4)Subject to the directions of the Executive Director, the regulations and policies established under this Act and the regulations, an employee for an area may amend a legal aid certificate from time to time to alter the scope of the legal aid services authorized by that certificate.
28(5)An employee for an area shall not issue a legal aid certificate under paragraph (2)(a) to authorize legal aid services in respect of an offence punishable on summary conviction unless he or she has a current legal opinion that
(a) there is a likelihood of imprisonment or loss of means of earning a livelihood on 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 a lawyer.
28(6)Subsection (5) applies with the necessary modifications to the amendment of a legal aid certificate issued under paragraph (2)(a) to authorize legal aid services in respect of an offence punishable on summary conviction.
28(7)If the applicant has an election as to the manner in which he or she may be tried, a legal aid certificate issued in respect of proceedings referred to in paragraph (2)(a) shall authorize proceedings in Provincial Court only unless the applicant’s lawyer certifies to the Executive Director that, in his or her opinion, the interests of the accused require that he or she elect to be tried by a judge without a jury or by a court composed of a judge and jury, in which case the Executive Director may amend the certificate accordingly.
28(8)With the prior approval of the Executive Director, an employee for an area may issue or amend a legal aid certificate to authorize legal aid services for proceedings referred to in paragraph (2)(b) if
(a) there appears to be a likelihood of imprisonment or loss of means of earning a livelihood on conviction, and
(b) that employee has a current legal 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 a lawyer.
28(9)Despite subsection (8), an employee for an area may issue or amend a legal aid certificate to authorize legal aid services for proceedings referred to in paragraph (2)(b) without the prior approval of the Executive Director, if the offence with which the applicant is charged carries a mandatory term of imprisonment.
28(10)An employee for an area shall not issue or amend a legal aid certificate to authorize legal aid services in respect of paragraph (2)(c) or (d) unless he or she has a current legal 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 a lawyer.
28(11)An employee for an area shall not issue or amend a legal aid certificate to authorize legal aid services in respect of paragraph (2)(e) or (f) unless he or she has a current legal opinion that 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.
28(12)In determining the reasonableness of the proposed course of action under subsection (11), an employee for an area shall consider the matter from the standpoint of a usual lawyer 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.
28(13)Except if in the opinion of an employee for an area the circumstances of an application require the immediate issue or amendment of a legal aid certificate, the employee shall not issue or amend a legal aid certificate to authorize legal aid services in respect of paragraph (2)(g) unless
(a) the applicant has included in his or her application
(i) the opinion of a lawyer as to the advisability of instituting or defending an appeal,
(ii) a copy of the order or judgment appealed from, and
(iii) any other information that the employee requires,
(b) the employee considers that it is reasonable that the appeal be instituted or defended,
(c) the employee has submitted the application to the area committee for that area, if one has been established, or to the Executive Director, if an area committee has not been established for that area, and
(d) the area committee or the Executive Director, as the case may be, has approved the issuing or amending of a legal aid certificate.
28(14)The Executive Director may refer to the Legal Aid Committee for its recommendation any matter requiring his or her approval under paragraph (13)(d).
28(15)Despite any other provision of this Act except subsection (9), the Executive Director may from time to time direct that an employee for an area obtain the Executive Director’s prior approval for the issuance or amendment of any type of legal aid certificate specified in the directions.
28(16)Despite any other provision of this Act, the Executive Director, with the approval of the Board, 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 services by reason of
(a) the applicant being charged with an offence the same as or similar to one for which he or she has been previously convicted, or
(b) the total number of legal aid services that the applicant is currently receiving or has received from the plan.
28(17)If the Executive Director is of the opinion that the Legal Aid Fund is in danger of being depleted, he or she may, with the approval of the Board after the Board has consulted with the Minister, limit the provision of legal aid services in proceedings or matters covered by paragraphs (2)(c) to (g) and subsection (3).