Everything you need to know about duty counsel

Updated 22 April 2024

When ordinary people are caught in a legal battle – which can be costly, time consuming, and stressful – having a reliable lawyer on their side makes all the difference.

If they are unrepresented or have little knowledge of the law before they step into court, there are duty counsel willing to help.

This article about duty counsel can be used by lawyers as a client education piece. This can also be used by those who want to become duty counsel themselves, by having a sneak peek at their possible roles.

Who are duty counsel?

Duty counsel are lawyers who help and may represent persons in court, especially those who do not have any legal representation.

In most cases, those who cannot afford a lawyer can reach out to a duty counsel for legal advice or court representation.

Duty counsel are employed by legal aid programs, which are present in every province and territory. However, persons who want to be assisted by duty counsel are subject to certain eligibility requirements.

Roles of duty counsel

Anybody can have the misfortune of being involved in the criminal justice system or a custody battle with another parent.

This means that everyone must one day deal with navigating the court system, says Pascale Turcotte, a Duty Counsel at Legal Aid Ontario (LAO).

She provides an overview of the roles of duty counsel, whose services are essential and free.

This also ties in with the right of every Canadian to get legal advice to help them make informed legal decisions.

Watch this video for an overview of how duty counsel help clients:

For other videos related to the legal practice in Canada, check out our Multimedia page.

Assisting with court forms

Duty counsel can represent individuals without a lawyer in the early stages. “We’re in courts every day. We know how courts work, and sometimes what somebody would be anxious or lose sleep over for weeks is a form that I see every day that I fill out,” says Turcotte.

Without a duty counsel, this is something that someone would find extremely difficult to navigate and could make them lose their sense of ownership of their case, Turcotte adds.

Helping in specific areas of law

In most cases, duty counsel are assigned to specific practice areas of law, such as family law, criminal law, and the law on immigrants and refugees.

As for Turcotte, who describes herself as a hybrid bilingual duty counsel, she focuses on family criminal child protection law at LAO in Renfrew County. Most of her work is done in bail court assisting people who are held for bail. She also prepares bailing plans that help Crown Attorneys review the file to decide releases.

“My first function when people arrive in bail court is to canvass with them what their support is in the community, what kind of network they have, and what kind of plan would be suitable to meet the conditions the Crown has set to agree to a release.”

Alternatively, Turcotte says that if she creates a good plan to ensure a person’s release into the community, she can present it to the Justice of the Peace. These Justices will then be the ultimate decision-makers regarding a person’s discharge from bail court.

Supporting people in navigating the justice system

Duty counsel are also duty-bound to a case management court. They provide “summary advice” to anyone seeking legal help in navigating the justice system. This includes obtaining a police disclosure and a screening form which the Crown will review when taking an early-resolution position.

Turcotte says that she “can meet anybody in family law, immigration law, child protection law, criminal law, and have a conversation with them.”

She can then either provide summary advice or connect them with resources in the community. She also provides counseling and helps clients in framing how they will present their case and navigate the justice system.

Since many are unrepresented parties, Turcotte says her role is to give them the tools to be confident in understanding the system.

The focus is to help the most vulnerable and ensure they know what’s happening to make an informed decision. She says that anybody can seek out duty counsel in Canada. “It’s not an easy system to navigate [especially] when you have some type of disability or an impediment with language or understanding reading and writing,” Turcotte says.

What are the services of a duty counsel?

Every province and territory in Canada has a duty counsel program through their respective Legal Aids. As such, the role of a duty counsel depends on the specific court and how the service is accessible to the public in a designated area.

As discussed by Turcotte, the work of duty counsel can be summarized as follows:

• give legal advice on criminal, family, and immigration legal matters
• assist the public with certain court procedures
• help fill out forms and other court documents

Eligibility for Legal Aids

The provincial Legal Aids have eligibility criteria on who can be assisted by a duty counsel. This is to ensure that the program helps the most vulnerable and disadvantaged.

There are two common eligibilities that legal aids across Canada require for a person to avail the services of a duty counsel:

• financial qualifications
• the legal matter must be covered by the legal aid

For instance, the LAO says that a person who wants the aid of a duty counsel must demonstrate their financial eligibility through documentary support. Financial eligibility is based two tests:

• income test: only applicants whose total gross income (either annual or monthly) is below the cut-off will be qualified for duty counsel assistance
• asset test: applicant’s liquid assets (total applicant’s assets, plus that of their spouse or partner, that can be readily converted to cash) must be below the standard exemption level

Both tests are also based on the size of the applicant’s family.

When rejected for duty counsel

Persons rejected due to the eligibility requirements can still use the other services of their provincial Legal Aid.

In most cases, they can still have a fee lawyer to advise or represent them, but subject to certain payments (because it was determined that they have the financial capacity). For LAO, it’s called the certificate with a contribution agreement; while Québec’s Commission Des Services Juridiques calls this contributory legal aid.

Most legal aids will still provide rejected persons with other free services. Legal Aid BC says that rejected persons for legal representation can still get the free legal advice services and other services by duty counsel.

Applying to be assisted by a duty counsel

There are several ways to reach out to the provincial Legal Aid to seek a lawyer’s help – whether it be a duty counsel or a legal aid in general.

To illustrate, persons can apply for any of the services of Legal Aid Saskatchewan (LAS) through the following:

• official website: filling out an online application found in LAS's website, or sending a message to their contact page for them to reach out to the message sender
• through phone: calling the application center of LAS, or directly calling one of their offices to schedule an in-person appointment

These ways are also like the other Legal Aids when trying to reach out to a duty counsel.

Fixed practice areas of law

As mentioned above, duty counsel are focused on definite practice areas of law, as set by the provincial Legal Aids.

By way of example, duty counsel lawyers of Legal Aid Alberta (LAA) can assist people in the following areas of law:

• criminal cases: getting legal advice before the first court appearance, and during bail hearing, which is for both adult and youth offenders
• family cases: which may involve child custody, domestic violence, and divorce

Specific tasks according to the areas of law

A duty counsel may also be assigned to a specific task, according to their Legal Aid program.

In LAA, the above-mentioned areas of law can be broken down into other specific tasks:

Criminal

• Adult Criminal: assisting unrepresented persons, whether in custody of the law or not, by giving advice before court appearances, judicial interim release, entering election and plea, setting trial dates, etc.
• Youth Criminal: similar with the Adult Criminal, but for young offenders
• O'Connor/Mills Applications: represent clients for the determination of an O'Connor application, which attacks the credibility of the complainant or a witness
• For Cross Examination Purposes: represent the defendant to cross examine the other party’s witness who is below 18 years old

Civil

• Mental Health Review Panel Hearings: represent patients who are admitted to a mental health facility who want to object to their admission
• Emergency Protection Orders (EPO): assist the applicant and/or respondent at any time until the EPO is confirmed (e.g. application, during confirmation hearing)

This is also based on the Certificate issued to a duty counsel by the LAA.

Limitations to duty counsel

Duty counsel's services may be limited because of certain factors.

These limitations can be statutory (such as the law instituting Legal Aids, which hires the duty counsel), or due to the nature of the work of duty counsel.

Unqualified to be assisted by duty counsel

As discussed above, not everyone can be assisted by duty counsel. First, they can only help people in certain areas of the law, and second, the roles themselves are limited.

To add, people seeking help may be declined by duty counsel because of their financial capabilities.

No “retained” duty counsel

According to LAO, a duty counsel does not have an ongoing responsibility for a person’s case. This is one of the differences between duty counsel and a retained private lawyer. It means that if a person comes back to court several times, they may be engaged in the services of another duty counsel every time.

When applying for legal aid or duty counsel, the applicant cannot choose their own lawyer.

What is the difference between duty counsel and legal aid?

Legal Aid (the program itself) in the different provinces and territories are established through statutes and are funded by the government.

They provide many services, one of which is to connect unrepresented people to duty counsel.

For example, Legal Aid BC was established by BC’s Legal Services Society Act, whose primary mandates are to provide:

• legal information about certain laws
• legal advice regarding the person’s case
• representation services before the court

Oftentimes, such as for Legal Aid BC, the term “legal aids” will also refer to the free legal aid lawyer, which has a different role from duty counsel services.

In this case, the difference is that:

• legal aid lawyer: can fully represent a person in court
• duty counsel: can only give free legal advice, referrals, and representation but only for the certain procedures (e.g. early stages of a trial)

In some cases, the term “legal aids” may also refer to lawyers employed by the provincial or territorial Legal Aid, who also perform the roles of duty counsel.

How much does duty counsel make?

Here’s a comparative guide on how much a duty counsel makes in some of the provinces in Canada:

Raising awareness for duty counsel

More people are becoming aware of duty counsel services through events like Duty Counsel Day, but Turcotte says the legal community should raise more awareness. After all, it is an important role. “We can contribute to helping somebody navigate the justice system,” she says. It can be "to advise them, advocate for them, or simply connect them with resources.”

She also hopes that “everybody would be sending people to duty counsel” if somebody chooses not to retain counsel for any reason.

The role played by duty counsel is becoming more relevant nowadays, not just because the courts are faced with numerous cases, but to also bring justice closer to the people.

Related to duty counsel are pro bono lawyers - check out our Special Report on the Best Pro Bono Law Firms in Canada.