Increasing Efficiency and Fairness in Applications for Court- Ordered Counsel: An Evaluation of Ontario’s Rowbotham Application Pilot Project

Abstract

Under s. 10(b) of the Canadian Charter of Rights and Freedoms, individuals facing criminal charges in Canada have a constitutionally protected right to retain counsel. Two systems of state-funded counsel—provincial legal aid programs and Rowbotham orders— exist to ensure that an accused’s inability to retain private counsel does not jeopardize their right to a fair trial guaranteed by ss. 7 and 11(d) of the Charter. Rowbotham orders were created to act as a safety net for Canadians denied legal aid. Unfortunately, anecdotal evidence suggests that the Rowbotham application process produces waste and delay. In 2015, the Ontario Ministry of the Attorney General launched the Rowbotham Application Pilot Project to expedite Rowbotham applications. To date, no research has examined how much waste and delay Rowbotham applications are creating, and how effective the Pilot Project has been at expediting Rowbotham applications. In this article, I use access to information requests to the Ministry of the Attorney General and Legal Aid Ontario, one-on-one interviews with criminal defence lawyers in Ottawa and Toronto, and a limited survey of judges of the Ontario Superior Court of Justice to explore the efficacy of the Pilot Project and to make recommendations for its improvement. I argue that by wasting less defence counsel and judicial resources, the Pilot Project makes the Rowbotham application process more efficient and fair. I offer recommendations for ensuring that Rowbotham applications do not unduly delay justice, and explore avenues for future research.