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Other services then legal aid/ Designation Procedures

Designation Procedures

The second paragraph of section 83.1 of the Act respecting legal aid and the provision of certain other legal services requires the Commission des services juridiques to see to it that legal services are offered “if a court order concerning the designation of counsel has been made under the Criminal Code, in particular under section 486.3 or 672.24, subsections 8 to 8.2 of section 672.5, section 684 or section 694.1 of that Code.

Section 486.3 of the Criminal Code allows the court to prohibit the accused from personally cross-examining a witness who is a minor, the victim in a case of criminal harassment or any other witness if “… the judge or justice is of the opinion that, in order to obtain a full and candid account from the witness of the acts complained of, the accused should not personally cross-examine the witness …”. In these cases, the court must ex officio designate a lawyer for the accused in order to carry out the cross-examinations.

Section 486.7 (1) allows the court, at the request of the prosecutor or a witness or on its own initiative, to make any order other than those referred to in sections 486 to 486.5 if it is of the opinion that it is necessary to ensure the security of a witness and that it is, moreover, in the interest of the proper administration of justice.

Under sections 672.24 and 672.5 Cr.C., a court or a review board of the Administrative Tribunal of Québec must ex officio designate a lawyer for an accused who has mental problems that make him unfit to stand trial or whose mental state is doubtful, so that the accused may be represented before the court or review board.

Lastly, pursuant to sections 684 and 694.1 Cr.C., the Québec Court of Appeal and the Supreme Court of Canada may ex officio designate a lawyer where “… it appears desirable in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance”.

In all these situations in which a lawyer is designated for the accused, the accused nevertheless has the right to choose his lawyer. When the accused does not or is unable to secure such services, the court may ask the Commission des services juridiques to provide counsel to the accused, at the State’s expense.

For purposes of section 486.3 Cr.C., the Commission des services juridiques, in cooperation with the community legal centres, will satisfy the court’s request by alternating, in accordance with section 83.8 of the Act, between a lawyer employed by legal aid and a lawyer in private practice. A list has been specially established for this purpose and will be updated as and when lawyers in private practice sign up or withdraw therefrom.

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© Commission des services juridiques Création: Diane Laurin - 2017