If you can’t get legal aid for your criminal trial, you can ask a judge to stay (temporarily discontinue) your charges until the government gives funding for a lawyer to represent you. You may have a right to do this under the Canadian Constitution and your right to a fair trial. This is called a Rowbotham application.

A Rowbotham application may be granted if you:

• need a lawyer but can’t afford one, AND
• have applied for legal aid and been refused (even after appealing the decision), AND
• face a serious criminal charge, AND
• face a complex criminal charge, AND
• the court finds that you wouldn’t receive a fair trial without a lawyer.

This booklet explains:

• Why a judge can stay your charges until the government gives funding for a lawyer.
• When and how to ask for a stay until the government gives funding for a lawyer (your Rowbotham application).
• What you have to prove.
• How to prepare for court.
• What happens in court.

As part of the Canadian Constitution, the Charter of Rights and Freedoms says you have the right to a fair trial. Judges have a duty to protect this right. The courts have decided that sometimes a person can’t have a fair trial if they don’t have a lawyer.

If you need a lawyer and you’ve been denied legal aid, you have the right to ask a judge to stay your charges until the government pays for a lawyer for you. Whether the judge agrees to order a stay depends on your financial situation and the nature of your charges. You have to prove the following things to the judge.

To convince the judge to order a stay, you need to prove the following four points. You’ll put this information in your Rowbotham application (see How do I prove the four points?).

1. You’ve been denied legal aid, and you applied to have the decision reviewed and you were denied again.
2. You can’t afford a lawyer.
3. You face a serious charge.
4. You can’t defend yourself because the charge is too complex.

Later, you’ll give the judge supporting documents. If the judge decides you need a lawyer to get a fair trial and orders a stay, you won’t have to return to court for your trial unless the Attorney General (the government) agrees to pay for your lawyer. The Attorney General might agree to pay for your lawyer after seeing your application materials and documents without the need for a court hearing.

To make a Rowbotham application, you first apply to the court to ask for an official delay called a stay of proceedings.

Your application is made up of the following two forms (see the Forms section below):

• Notice of Application and Constitutional Issue — a document that tells the federal government, provincial government, and Crown counsel office that you’re asking for your case to be temporarily discontinued until you have a government-funded lawyer to represent you.
• Affidavit — a written statement with your background information that you swear or affirm to be true to the best of your knowledge. You’ll attach the documents about your finances and the letters from Legal Aid BC to the Affidavit. Affidavits must be sworn in front of a lawyer, notary public, or a commissioner for taking affidavits.

Fill out both forms, following the instructions in the left-hand columns. See below for more information about how to prepare your forms. 

Try to start your application as soon as you find out you can’t get legal aid. Follow the same steps even if your trial has started.

Complete the two forms (see the Forms section). The Notice of Application and Constitutional Issue form and the Affidavit form will be your Rowbotham application.

1. Print both forms and fill them out, following the instructions in the left-hand columns on each form.
2. Take the Affidavit form to a lawyer, a notary public, or a commissioner to be sworn or affirmed and signed. (You can usually find a commissioner at the court registry who can do this for free.)
   This means that: 
   • you swear or affirm in front of them that the information in the affidavit is true, and
   • then you sign the form.
3. Sign the Notice of Application and Constitutional Issue.
4. Make four copies of the signed Notice of Application and Constitutional Issue AND the signed Affidavit.

Your trial may be heard in Provincial Court or Supreme Court, depending on what kind of offence you’re charged with. It might also depend on how you choose to be tried. (For some offences, you have a choice of courts.)

If you don’t know which court will hear your trial, ask a lawyer or the court registry to explain where you should apply. (To find a lawyer, see Where can I get legal help?) If you do know, apply at the courthouse where your trial will be heard.

File the forms at the court registry where your trial will be heard (or file in the BC Supreme Court registry if you don’t know the level of court where your trial will be heard).

1. Take the originals and the 4 copies of the Notice of Application and the Affidavit forms with you to the court registry where your case will be heard.
    
2. The registry staff will: 
   • look at the forms and ask you to fix any mistakes, and
   • give you the file number and a fix-date.
     
     The fix-date is a date for you to attend court to schedule your application to be heard in front of a judge. This date must be at least two weeks after the date the government gets your application.
      
3. Add the court file number and the fix-date to all the copies. The registry staff will: 
   • stamp all the documents,
   • keep the originals, and 
   • give you back the other four stamped copies.

Your application is now filed with the court.

Now you serve your application on the government. The contact information is on the Notice of Application and Constitutional Issue form.

Send these documents by registered mail or by email, so you keep track of them and have proof of delivery. If you use registered mail, you can check Canada Post’s website to see that they’ve been delivered.

1. Send a copy of the Notice of Application and Constitutional Issue AND the Affidavit to each of the following offices: 
   • The Crown office that is responsible for your file. Ask the registry staff to confirm the Crown’s address for service (copy 1).
   • The Attorney General of Canada. Contact information is on the Notice of Application and Constitutional Issue form (copy 2).
   • The Attorney General of BC (copy 3). Contact information is on the Notice of Application and Constitutional Issue form. Visit the Attorney General website at gov​.bc​.ca/​j​u​stice and search for the ​“serving legal documents on the Attorney General” page for more information.
2. Keep one copy of each document for yourself (copy 4).

Once the government lawyer gets your Notice of Application and Constitutional Issue and your Affidavit, they’ll send you a letter explaining the next steps in the process.

Whether or not you hear from the government lawyer, you must attend court for the fix-date. If you don’t attend, your application may be removed from the court list, so you won’t be able to ask a judge to grant a Rowbotham order.

You can still make a Rowbotham application if your trial has already started. If you appear in court without a lawyer, the judge will probably ask you if you plan to represent yourself. Do the following:

• Tell the judge: ​“I want to make a Rowbotham application because I can’t afford a lawyer and I’ve been denied legal aid.”
• Complete the steps in the section How do I start my Rowbotham application? above. 
• Tell the judge if you: 
  • filed your documents at the court registry,
  • sent copies to the Attorney General of BC, Attorney General of Canada, and Crown counsel, OR
  • haven’t filed or served your documents, and then say when you plan to file and serve them.

After you send copies of your Notice of Application and Constitutional Issue and your Affidavit to the Attorney General of BC, the Attorney General of Canada, and Crown counsel, you’ll get a letter from a government lawyer. If you need help understanding the letter, ask a lawyer. To find a lawyer, see the section Where can I get legal help?

This letter will ask you to prove four points:

1. that you were denied legal aid, and have run out of all options to have the decision reviewed,
2. what your financial situation is,
3. how serious your charges are, AND
4. how complex your charges are.

Read the following section and refer to the Checklist of points to cover in court on a Rowbotham application to find out what information you need to provide to answer the government lawyer’s questions and prove the four points.

It takes time to gather all your supporting documents to provide to the court and counsel for the Attorney General (government lawyer), so start right away.

Your supporting documents will help the government lawyer determine whether you qualify for a Rowbotham order. If your documents are incomplete, the government lawyer might ask you to give more information.

You’ll also attach your supporting documents to an affidavit to file in the court registry for the judge to review if a hearing proceeds. See the section What do I do once I have my supporting documents? below to find out what to do after you’ve gathered your documents.

Provide your documents from Legal Aid BC

• Provide your letter from Legal Aid BC telling you that you can’t get legal aid. It explains why they denied your application.
• If the Legal Aid letter also says you can appeal, provide proof to the court that you appealed or asked for a review but were turned down again.
• Be prepared to provide any other documents from Legal Aid BC that show you were denied legal aid and the reasons why. If you’ve lost any of them, ask your contact person at Legal Aid BC for copies.

The government lawyer may ask you to sign an authorization form allowing them to obtain this information directly from Legal Aid BC. If you sign the form and return it, you don’t need to provide copies of those letters yourself. (It’s a good idea to check with a lawyer before signing any documents. See the section Where can I get legal help?)

Provide a clear picture of your finances (income and expenses), from the time you first learned you faced charges until now

• Make a list of your finances. Include the following information: 
  • your job situation
  • your monthly income and household expenses, including any support payments you make
  • your assets and debts (if you have any)
  • your dependants (such as children that you support)
  • financial details about any adult who lives with you and contributes to your household expenses (make sure to get their permission first)
  • what you’ve done to save or borrow money to pay for a lawyer and how much money you’d need
• Gather documents to prove anything you say about your finances, including: 
  • deposit statements, if you get welfare or disability benefits
  • pay stubs, if you have a job
  • personal financial statement (the government lawyer will give you a form when you apply)
  • your most recent income tax return and Canada Revenue Agency (CRA) assessment
  • bank and credit card statements
  • receipts for support payments and all other expenses (such as rent, utilities, transportation, and food)
  • statements for loans and investments

Explain how much you think it would cost to hire a lawyer

The cost of a lawyer depends on how long your trial is expected to last. Ask a few lawyers for a written estimate of their time and fees for a case like yours. Or you can make your own notes from their answers to your questions. (To find a lawyer, see the section Where can I get legal help?)

• Show:
  • that you tried to find a lawyer who’ll work for free, OR
  • that you tried to find a lawyer who’ll work for a low rate you can afford, AND
  • what it’ll cost to have a lawyer defend you.

What if you don’t give enough information about your finances?

• If you don’t include enough financial information in your application, the government lawyer may: 
  • oppose your application, OR
  • ask the judge to delay setting a hearing date until you give more information.

If you still don’t give enough information, and if a hearing is held, the judge might dismiss your application. This means it won’t be allowed and your trial will go ahead without a lawyer paid for by the government.

You need to prove that you’re charged with a serious offence. Usually serious means you’ll probably go to jail if you’re convicted.

You face a serious charge if:

• you face a mandatory minimum jail sentence (this means the judge has to follow certain rules about how to sentence you).
  
  OR
   
• the Crown counsel will ask for a jail sentence if you’re convicted.

Get Crown counsel’s position on sentencing

• Ask Crown counsel to write down their position on sentencing. This is what’s likely to happen if you’re convicted after a trial.

Crown counsel’s position on sentencing might be different from their initial sentencing position. The initial sentencing position, which you usually get with your documents about your charge when you first go to court, only states Crown counsel’s position if you plead guilty.

Show that the penalties will seriously affect your life

• Explain that the penalties you likely face if you’re convicted will seriously affect your life. For example, the sentence for a serious offence will affect your family or your job: 
  • If you have children, a conviction could affect your parental rights or obligations.
  • You’ll lose your job or be banned from working in certain jobs if you’re convicted.

Some consequences you likely face are usually not considered serious enough to succeed on this type of application unless you also face a jail sentence. The following are not seen as serious consequences on their own, but may be serious if they happen along with other factors:

• • a criminal record,
  • travel restrictions, OR
  • losing your driver’s licence.

You need to prove that your case is too complex for you to defend yourself. For example:

• Your case may raise technical legal issues (such as a violation of the Charter).
• The trial procedure may be too difficult for you to follow.
• There may be too much evidence or too many witnesses for you to handle on your own (especially if you’re in jail).
• You have a medical or mental health condition that affects your ability to represent yourself.

Talk to a lawyer

• Ask a lawyer to explain what’s complex about your case (see the section Where can I get legal help?). If you can, talk to a lawyer before you go to court. This way you can have all the information you need to show the judge your case is complex and that you need a lawyer to defend you. Also, ask the lawyer to help you plan your defence. 
  
  You may qualify for some free brief legal advice services. See the section Where can I get legal help? for available services.

Give information about your ability to defend yourself

• Provide the following information to help them decide if you’re able to defend yourself: 
  • your education level
  • your reading, writing, and speaking abilities
  • anything that makes it difficult for you to speak for yourself (such as a disability or illness)
  • your knowledge of the criminal process

Make 2 copies of all your supporting documents to attach to an Affidavit and file at the court registry.

If you can, attach all your supporting documents to another Affidavit that states that it’s accurate and complete.

Put your court file number at the top. If you need help with this, ask the court registry or a lawyer. To find one, see the section Where can I get legal help?

• File this new Affidavit (see step 2 below) and send a copy of it to the government lawyer.

If you can’t attach the supporting documents to an Affidavit and file it: 

• Send a copy of your unfiled documents to the government lawyer right away (see the Notice of Application and Constitutional Issue form for contact information). 
  
  If a hearing will be held, the government lawyer will attach the documents to their own affidavit and file them. After the government lawyer reviews your documents, they’ll respond to you. 

• Take the new Affidavit with the original documents and the 2 copies to the same court registry where you filed your Notice of Application and Constitutional Issue and your Affidavit forms.
• The registry staff will stamp the first page of the copies and keep the original. Keep a copy for yourself.
• Your documents are now filed with the court. 
• Send all your documents to the government lawyer (to the address they provided in the letter they sent to you after they received your application).

Before you get the government’s position on your application, you may receive one or more letters from the government lawyer asking you to provide additional documents or information. Make sure you don’t make any admissions about the allegations against you during this process. Ask a lawyer to review your response before you provide any additional information.

You might have to appear in court one or more times (for interim appearances) to tell the court about your progress. If you don’t agree with or understand what the government lawyer is asking for, tell the judge at your next court appearance.

Once the government lawyer receives your documents, they’ll tell you the government’s position on your application. You’ll probably receive a letter to tell you whether the government consents to or opposes your application. But you may find out first at a court appearance.

Not all Rowbotham applications need a hearing. A judge will hold a hearing of your application if the government lawyer:

• opposes your application and you decide you still want to proceed with it, OR
• makes an offer to settle your application that you don’t agree with.

If a judge holds a hearing of your application, do the following to prepare for court.

Use the Affidavit form below and the Checklist of points to cover in court on a Rowbotham application as a guide to organize your thoughts. Think about how you can prove the four points that the judge will use to make a decision.

Remember, you can use:

• Your own testimony
• Your Affidavit
• Other documents (such as letters, forms, bank statements, and pay stubs)
• Witnesses

The law on Rowbotham applications says that your own testimony or testimony by a witness isn’t enough to prove you qualify. You need documents that support what you or the witness plans to say. Use those documents while you give your testimony.

The government lawyer is allowed to see copies of all the documents you plan to use at the hearing before the hearing takes place. Prepare your documents well ahead of time. Send them to the government lawyer before the hearing. If you don’t, your hearing might be adjourned.

Ask a lawyer to go over the four points and what you can expect in court. (See the section Where can I get legal help?)

If you don’t get legal help, you can still attend your hearing to prove the four points. To prepare for the hearing, follow the instructions in this resource. The judge will know what you’re asking for.

Whether you make a Rowbotham application before or after your trial starts, the judge may hold a hearing. At your hearing, the following will happen.

You present your arguments and evidence first. If you’re in:

• Provincial Court — Call the judge ​“Your Honour”
• Supreme Court — Call the judge ​“Justice”

You need to prove the four points

You need to convince the judge that:

1. you’ve been denied legal aid, and you applied to have the decision reviewed and you were denied again,
2. you can’t afford a lawyer,
3. you face a serious charge, AND
4. you can’t defend yourself because the charge is too complex.

You need to give evidence for all four points

To present your evidence, you can:

• testify under oath,
• refer to your filed Affidavit,
• present your documents (such as pay stubs, receipts, bank statements), AND
• call witnesses (if you have any).

Your documents must support anything you or your witnesses say. If you don’t provide your documents to the government lawyer before the hearing and you try to provide unfiled documents at the hearing, the judge may adjourn your hearing.

You may need to answer questions about your application

The government lawyer may ask you and your witnesses questions about your application. The judge may have questions too.

When you speak to the judge, refer to your documents or other parts of your evidence that support the four points you need to prove.

If the judge finds a problem with your application

If the judge says you made a mistake in your application or some documents are missing, don’t give up. Ask the judge:

• what you should have done in the first place, AND
• for an adjournment so you can fix the mistakes and come back to court.

The government lawyer will probably try to prove that you can defend yourself because:

• the charge isn’t serious or complex, OR
• you can afford a lawyer.

They might also ask the judge to dismiss your application if any information or documents are missing or incomplete.

After the government lawyer has finished speaking, you can speak again. This is a chance to reply to points made by the government lawyer. When you address the judge, only talk about the parts of your evidence that support the points you’re trying to make.

After you and the government lawyer both present your evidence, the judge will decide if they’ll grant your application. Sometimes the judge will reserve their judgment, which means they need time to think about the matter and will provide their decision at a later date.

• If the judge decides you should have a government-funded lawyer, they’ll order a stay of proceedings. This means you’ll return to court for your trial only if the government agrees to pay for your lawyer, and not until that happens.
• If the judge denies your application, you can’t appeal it. But if your circumstances change before the end of the trial, you can make another legal aid application and/​or Rowbotham application.

Use this checklist to help you prepare what you need to prove in court. Remember that your own testimony or testimony from witnesses must be supported with documents. The law on Rowbotham applications says that your own testimony or testimony by a witness isn’t enough to prove you qualify (see the text box Think about what to tell the judge, in the section How do I prepare for a hearing at court?).

Make a list of the information you need to gather as supporting documents.

Print the forms and fill them out. Follow the instructions in the left-hand column of each form.

You need four copies of each form (see the notes at the end of each form).