6. Literacy and accessibility of justice

Access and right to legal aid

There is a series of cases that may be useful to tribunal members. They give some guidance for recognizing a person with weak literacy skills who may require additional assistance and involve access to Legal Aid.

• As a general rule, there is no constitutional right to be provided with state-funded counsel. It is for the court to determine whether the particular accused could not receive a fair trial without counsel. [R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.); R. v. Keating (1997), 159 N.S.R. (2d) 357 (N.S.C.A.)]
• These cases often arise out of situations where a litigant cannot afford counsel and has been denied legal aid assistance. With many administrative tribunals, legal aid is not even an option. Courts have recognized that where a trial judge is satisfied that an accused person lacks the means to employ counsel and that counsel is necessary to ensure a fair trial for the accused, a stay of proceedings until funded counsel is provided is an appropriate remedy under s.24(1) of the Charter.
• The Court of Appeal for Ontario in Rowbotham, supra, established a three-part test for determining when an application for state-funded counsel will be granted. The applicant must demonstrate the following:
  1. he/she is without financial means to employ counsel;
  2. legal aid funding has been refused; and
  3. his/her case is sufficiently complex to warrant the appointment of counsel, taking into consideration the capacity of the accused to comprehend the issues before the court.

The third part of the test is relevant to our discussion regarding literacy and accessibility to the justice system. This step explicitly contemplates the capacity of an accused person to understand the process and issues before the court. Where an individual is not capable, then counsel must be provided in order to ensure his/her right to a fair trial.