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Legislative Assembly of New Brunswick
Status of Legislation - First Reading Bill
An Act to Amend the Legal Aid Act
 
Legislature :
55
Session :
1
Bill No. :
81
Member :
Hon. Mr. Green, Q.C.
First Reading :
2004-6-29
Second Reading :
2004-6-30
Committee of the Whole :
2004-6-30
Amended :
Third Reading :
2004-6-30
Royal Assent :
2004-6-30
Download PDF :
  Bill 81         
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Text of Bill :

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:



1                           The Legal Aid Act, chapter L-2 of the Revised Statutes, 1973, is amended by adding after section 24 the following:



PART III



25                        In this Part



"area" means a region of New Brunswick designated in the regulations;



"area committee" means an area legal aid committee appointed under section 33;



"barrister" or "solicitor" means a member of the Law Society entitled to practise law in the courts of New Brunswick;



"employee" means a person employed under this Part for the purposes of the administration of the plan and includes an employee referred to in section 44;



"Law Society" means the Law Society of New Brunswick;



"legal aid" means professional services provided under this Part and the regulations;



"Legal Aid Committee" means the Legal Aid Committee appointed under section 27;



"Minister" means the Minister of Justice and includes any person designated by the Minister to act on the Minister's behalf;



"person", in relation to an applicant for legal aid, means a natural person;



"plan" means the plan known as Legal Aid New Brunswick that is established under this Part and the regulations;



"Provincial Director" means the Provincial Director of Legal Aid appointed under section 28;



"student" means a student-at-law under the Law Society Act, 1996.



26(1)               For the purposes of upholding the administration of justice and ensuring the continuation of the provision of legal aid, the Minister may establish a plan in accordance with this Part and the regulations to be known as Legal Aid New Brunswick.



26(2)               The Provincial Director shall administer the plan in accordance with this Part, the regulations and any policies established under this Part and the regulations.



26(3)               Subject to the approval of the Minister, the Provincial Director shall establish policies in accordance with this Part and the regulations governing the administration of the plan.



26(4)               The Regulations Act does not apply to any policies established under this Part and the regulations.



27(1)               The Minister may appoint a standing committee in accordance with this Part and the regulations to be known as the Legal Aid Committee that shall



(a)               advise and make recommendations to the Provincial Director on policy matters;



(b)               advise the Provincial Director on matters of law; and



(c)                perform such other duties as may be assigned by this Part and the regulations or by the Minister.



27(2)               The Minister shall appoint the Chair of the Legal Aid Committee.



28                        The Minister shall appoint a Provincial Director of Legal Aid and may establish the terms of his or her employment.



29                        The Provincial Director shall establish an office for legal aid in the Province and may employ such clerical assistance as he or she considers necessary.



30(1)               In accordance with this Part, the regulations and the policies established under this Part and the regulations, the Provincial Director may direct all employees concerning the performance of their duties.



30(2)               In accordance with this Part, the regulations and the policies established under this Part and the regulations, the Provincial Director may direct all barristers and solicitors appointed, employed or contracted with under section 32 concerning the performance of their duties.



31(1)               The Provincial Director may establish a regional legal aid office for each area and may employ such clerical assistance for the area as he or she considers necessary.



31(2)               The duties of the employees for an area include:



(a)               the issuing of legal aid certificates;



(b)               the preparation of lists of barristers and solicitors serving on legal aid panels;



(c)                the appointment of duty counsel to courts within the area;



(d)               the approval of accounts for fees and disbursements of duty counsel; and



(e)                such other functions as are assigned by the Provincial Director, this Part and the regulations.



32(1)               On any terms approved by the Minister, the Provincial Director may appoint, employ or contract with barristers and solicitors for the provision of legal aid.



32(2)               The terms approved by the Minister may identify provisions of this Part and the regulations that will not apply to a barrister and solicitor appointed, employed or contracted with or that will apply with modifications.



33(1)               The Provincial Director may appoint an area legal aid committee for an area.



33(2)               An area committee shall consist of not less than three persons.



33(3)               Any employee for an area shall act as secretary of the area committee for that area.



33(4)               An area committee shall perform the functions assigned to it in this Part and the regulations.



34(1)               Upon the request of the Minister, the Legal Aid Committee shall conduct an investigation



(a)               to determine if this Part and the regulations have been complied with in respect of an application made under this Part, or



(b)               into any other matter relating to the administration of this Part.



34(2)               The Provincial Director, a duty counsel, a member of an area committee, an employee and a barrister or solicitor appointed, employed or contracted with under section 32 shall, upon a request by the Legal Aid Committee,



(a)               give to the Legal Aid Committee all possible assistance in carrying out the investigation, and



(b)               provide the Legal Aid Committee with any application, report, statement, record, document or other information requested by the Legal Aid Committee.



34(3)               At the conclusion of its investigation under this section, the Legal Aid Committee



(a)               shall report its findings to the Minister, and



(b)               may make recommendations to the Minister in respect of its findings if, in its opinion, circumstances so warrant.



35(1)               There is established a fund to be known as the Legal Aid Fund.



35(2)               The Minister is the custodian of the Legal Aid Fund and the Legal Aid Fund is held in trust by the Minister.



35(3)               The Legal Aid Fund shall be held for the purposes of this section in a separate account in the Consolidated Fund.



35(4)               The purpose for the Legal Aid Fund is to provide funding for the plan.



35(5)               Payments for the purposes of subsection (4) shall be a charge upon and payable out of the Legal Aid Fund.



35(6)               The following are payable out of the Legal Aid Fund:



(a)               expenses attributable to the establishment and administration of the plan including salaries, allowances, retainers, office expenses, travelling expenses, advertising expenses, insurance premiums and superannuation contributions;



(b)               fees and disbursements to barristers and solicitors for the provision of legal aid and the remuneration of barristers and solicitors appointed, employed or contracted with under section 32; and



(c)                such other sums as are authorized by this Part or the regulations to be paid out of the Legal Aid Fund.



36                        The Auditor General of New Brunswick shall examine and report to the Minister annually on the accounts and financial transactions of the plan.



37                        Subject to the approval of the Minister, any form required under this Part or the regulations shall be in the form provided by the Provincial Director.



38(1)               The Lieutenant-Governor in Council may, by Order in Council, set a scale of fees by which the value of professional services is assessed and the percentage of the assessed value that may be paid for legal aid.



38(2)               The Lieutenant-Governor in Council may, by Order in Council, establish the remuneration to be paid to barristers and solicitors appointed, employed or contracted with under section 32.



38(3)               The Regulations Act does not apply to an Order in Council under subsection (1) or (2).



39                        Subject to section 40, Parts I and II do not apply on and after the commencement of this section.



40(1)               Subject to subsections (2) to (38), sections 8 to 21 are adopted for the purposes of this Part and apply to the provision of legal aid and the administration of the plan.



40(2)               Subject to subsections (5), (6), (10), (14), (15), (16), (19), (21) and (22), references to "area director" in the provisions adopted under subsection (1) shall be read as "employee for an area".



40(3)               In section 8, as adopted under subsection (1),



(a)               the references to "Law Society" in subsections 8(1) and (2) shall be read as "Provincial Director",



(b)               the reference to "July" in subsection 8(1) shall be read as "October", and



(c)                the reference to "November" in subsection 8(2) shall be read as "December".



40(4)               Section 9, as adopted under subsection (1), shall be read without reference to "section 6 and".



40(5)               The reference to "in a manner and form prescribed in the regulations to the area director for the area" in subsection 11(1), as adopted under subsection (1), shall be read as "in the manner prescribed by regulation to an employee for the area".



40(6)               The reference to "The Provincial Director or an area director may cancel a legal aid certificate issued by him or by a former area director for that area where he is satisfied that" in subsection 11(4), as adopted under subsection (1), shall be read as "The Provincial Director or an employee for an area may cancel a legal aid certificate issued by him or her or by a former employee for that area where he or she is satisfied that".



40(7)               Subsection 11(5), as adopted under subsection (1), shall be read as follows:



11(5)               Where a legal aid certificate is cancelled, the applicant, unless exempted from this provision by the Provincial Director on the ground that its application would prove unjust as against the applicant, shall reimburse the Minister for the cost to the Minister of providing legal aid to the applicant up to the time at which the certificate is cancelled, and the amount payable is a debt owing to the Crown in right of the Province and may be recovered by action in the name of the Crown in right of the Province in any court of competent jurisdiction.



40(8)               Subsection 11(7), as adopted under subsection (1), shall be read as follows:



11(7)               The amount that an applicant agrees to pay under subsection (6) is a debt owing to the Crown in right of the Province and may be recovered by action in the name of the Crown in right of the Province in any court of competent jurisdiction; however, where at any time such amount exceeds the cost to the Minister of providing legal aid to the applicant, the debt shall, at that time, be deemed to be an amount equal to the cost to the Minister of providing legal aid to the applicant.



40(9)               The reference to "Law Society" in subsection 11(8), as adopted under subsection (1), shall be read as "Minister".



40(10)            The references to "or an area director" and "or the area director" in subsection 11(9), as adopted under subsection (1), shall be read as "or an employee for an area" and "or the employee", respectively.



40(11)            The references to "Law Society" in paragraphs 11(10)(a) and (b), as adopted under subsection (1), shall be read as "Crown in right of the Province".



40(12)            The reference to "established by the Law Society" in subsection 12(1), as adopted under subsection (1), shall be read as "established under this Part and the regulations".



40(13)            An employee shall not act under subsection 12(4), paragraph 12(6)(b) and subsections 12(7) and (8), as adopted under subsection (1), unless the employee has a current legal opinion pertaining to the proceeding or matter preliminary to an anticipated proceeding.



40(14)            The references to "area director" in subsection 12(5), as adopted under subsection (1), shall be read as "Provincial Director".



40(15)            The reference to "the area director" in paragraph 12(6)(b), as adopted under subsection (1), shall be read as "that employee".



40(16)            Subsection 12(10), as adopted under subsection (1), shall be read as follows:



12(10)            Except where in the opinion of an employee for an area the circumstances of an application require the immediate issue or amendment of a legal aid certificate, the employee shall not issue or amend a legal aid certificate to authorize legal aid in respect of paragraph (1)(g) unless



(a)               the applicant has included in his or her application



(i)         the opinion of his or her solicitor as to the advisability of instituting or defending an appeal,



(ii)       a copy of the order or judgment appealed from, and



(iii)    such other information as the employee requires,



(b)               the employee considers that it is reasonable that the appeal be instituted or defended,



(c)                the employee has submitted the application to the area committee for that area, if one has been established, or to the Provincial Director, if an area committee has not been established for that area, and



(d)               the area committee or the Provincial Director, as the case may be, has approved the issuing or amending of a legal aid certificate.



40(17)            The reference to "Law Society" in subsection 12(13), as adopted under subsection (1), shall be read as "Provincial Director".



40(18)            Subsection 12(14), as adopted under subsection (1), shall be read as follows:



12(14)            Where the Provincial Director is of the opinion that the Legal Aid Fund is in danger of being depleted, he or she may, with the approval of the Minister, limit the provision of legal aid in proceedings or matters included in paragraphs (1)(c) to (g) and subsection (2).



40(19)            Subsection 13(4), as adopted under subsection (1), shall be read without reference to "by the area director".



40(20)            The reference to "comité d'aide juridique" in subsection 13(6) of the French version, as adopted under subsection (1), shall be read as "Comité d'aide juridique".



40(21)            The reference to "the area director" in subsection 13(7), as adopted under subsection (1), shall be read as "an employee for the area".



40(22)            The reference to "the area director of that area" in subsection 14(1), as adopted under subsection (1), shall be read as "an employee for that area".



40(23)            Subsection 14(6), as adopted under subsection (1), shall be read without reference to "death or".



40(24)            Section 14.1, as adopted under subsection (1), shall be read as follows:



14.1                  Subject to subsection 14(6), if a barrister and solicitor has been appointed, employed or contracted with under section 32 for the provision of legal aid, an employee may require the holder of a legal aid certificate to retain that solicitor, in which case subsections 14(3), (4) and (7) do not apply.



40(25)            Subsection 15(1), as adopted under subsection (1), shall be read as follows:



15(1)               Where a barrister or solicitor provides professional services to a holder of a legal aid certificate other than those services that are authorized by the legal aid certificate, he or she is not entitled to be paid for those services out of the Legal Aid Fund.



40(26)            Section 15, as adopted under subsection (1), shall be read without reference to subsection 15(2.1).



40(27)            References to "Law Society" in subsections 16(1), (3), (4), (6) and (7), as adopted under subsection (1), shall be read as "Minister".



40(28)            Subsection 16(9), as adopted under subsection (1), shall be read as follows:



16(9)               An amount payable under subsection (1), (3) or (4) is a debt owing to the Crown in right of the Province and may be recovered by action in the name of the Crown in right of the Province in any court of competent jurisdiction.



40(29)            References to "Law Society" in subsections 16.1(4) and (5), as adopted under subsection (1), shall be read as "Minister".



40(30)            The reference to "Law Society" in section 17.1, as adopted under subsection (1), shall be read as "Provincial Director".



40(31)            The reference to "Law Society" in section 18, as adopted under subsection (1), shall be read as "Minister or Crown in right of the Province".



40(32)            Section 19, as adopted under subsection (1), shall be read as follows:



19                        Communications between an applicant for legal aid, on the one hand, and the Provincial Director, a member of the Legal Aid Committee, a duty counsel, a member of an area committee, an employee or a barrister or solicitor appointed, employed or contracted with under section 32, on the other hand, which would be privileged if made between a client and his or her solicitor, are privileged in the same manner and to the same extent as solicitor and client communications.



40(33)            Section 19.1, as adopted under subsection (1), shall be read as follows:



19.1(1)          Notwithstanding section 19, where the Legal Aid Committee conducts an investigation under section 34, the Legal Aid Committee may require the Provincial Director, a member of the Legal Aid Committee, a duty counsel, a member of an area committee, an employee and a barrister or solicitor appointed, employed or contracted with under section 32 to disclose to it any communication referred to in section 19.



19.1(2)          No member of the Legal Aid Committee shall



(a)               disclose, publish or communicate to any person any application, report, statement, record, document or other information provided under subsection 34(2) or any communication disclosed under subsection (1), or



(b)               use such application, report, statement, record, document or other information or communication except for the purposes of subsections 34(1) and (3).



40(34)            Paragraph 20(b), as adopted under subsection (1), shall be read as follows:



(b)               prescribing oaths of office and secrecy as conditions of appointment, employment or entering into a contract under this Part;



40(35)            Paragraph 20(c), as adopted under subsection (1), shall be read as follows:



(c)                respecting the functions of the Provincial Director, duty counsel and other persons appointed, employed or contracted with for the purposes of this Part;



40(36)            Section 20, as adopted under subsection (1), shall be read without reference to paragraph 20(q).



40(37)            Paragraph 20(r.1), as adopted under subsection (1), shall be read as follows:



(r.1)            respecting the provision of legal aid by barristers and solicitors appointed, employed or contracted with under section 32;



40(38)            Section 20, as adopted under subsection (1), shall be read without reference to paragraph (t).



41(1)               The Minister is responsible for the administration of this Part and may designate one or more persons to act on the Minister's behalf.



41(2)               The Provincial Director may act on behalf of the Minister in all matters relating to this Part and for the purposes of this Part is a person designated to act on the Minister's behalf.



42                        Nothing in this Part shall be interpreted so as to oblige the Minister to provide legal aid in respect of which no money has been appropriated by the Legislature.



43                        The person holding the office of Provincial Director of Legal Aid on the commencement of this section shall be deemed to have been appointed the Provincial Director under section 28.



44(1)               The Law Society shall continue to employ employees for the purposes of the administration of the plan, including the employees administering the plan on the commencement of this section, but this subsection shall not be interpreted as prohibiting the Law Society from dismissing or disciplining an employee for cause.



44(2)               The Law Society shall provide to employees referred to in subsection (1) the same benefits and apply the same terms and conditions of employment as those applicable to other employees of the Law Society.



44(3)               The Minister shall reimburse the Law Society for any expenditure it incurs in relation to employees referred to in subsection (1) if the expenditure is reasonably and necessarily incurred by the Law Society for the purposes of the administration of the plan.



44(4)               The Minister may pay an amount referred to in subsection (3) out of the Legal Aid Fund established under section 35.



44(5)               If there is any dispute as to the amount to be reimbursed under subsection (3), the Minister's determination of the amount is final.



44(6)               Notwithstanding subsection (3), an employee referred to in this section is not a person employed in the Civil Service under the Civil Service Act or a person employed in the Public Service under the Public Service Labour Relations Act.



45                        The office for legal aid established under section 3 shall be deemed to be the office established under section 29.



46                        A regional legal aid office established under section 4 shall be deemed to be an office established under section 31.



47                        A barrister or solicitor appointed under section 4.1 or employed or contracted with under subsection 24(2) shall be deemed to have been appointed, employed or contracted with under section 32.



48                        An area legal aid committee in place on the commencement of this section shall be deemed to have been appointed under section 33.



49(1)               The Legal Aid Fund established under section 7 is forfeited to the Crown in right of the Province.



49(2)               Upon the commencement of this subsection, the Law Society shall immediately transfer to the Minister any amount on hand on the commencement of this subsection with the Law Society for the purposes of the administration of the plan and the provision of legal aid and any amount on deposit to the credit of the Legal Aid Fund on the commencement of this subsection.



49(3)               After the commencement of this subsection, if the Law Society receives any amount for the purposes of the administration of the plan and the provision of legal aid or if any amount is deposited to the credit of the Legal Aid Fund established under section 7, the Law Society shall immediately transfer the amounts to the Minister.



49(4)               Any amount to be transferred under subsection (2) or (3) is a debt owing to the Crown in right of the Province and may be recovered by action in the name of the Crown in right of the Province in any court of competent jurisdiction.



49(5)               If the Law Society does not transfer any amount under subsection (2), the persons holding the offices of President, Vice-President and Treasurer of the Law Society on the date of the commencement of this subsection are jointly and severally liable to pay the amounts to the Minister.



49(6)               If the Law Society does not transfer any amount under subsection (3), the persons holding the offices of President, Vice-President and Treasurer of the Law Society on the date of the receipt of the amount if the amount has not been deposited to the credit of the Legal Aid Fund established under section 7 or on the date of the deposit of the amount to the credit of the Legal Aid Fund, as the case may be, are jointly and severally liable to pay the amounts to the Minister.



49(7)               Any amount transferred to the Minister under subsection (2) or (3) or paid to the Minister under subsection (5) or (6) shall be deposited to the credit of the Legal Aid Fund established under section 35.



49(8)               Notwithstanding subsection 78(3) of New Brunswick Regulation 84-112 under the Legal Aid Act and any other authorization, the signing officers for the Legal Aid Fund established under section 7 are any two of the Chair of the Legal Aid Committee, any member of the Legal Aid Committee and the Provincial Director.



49(9)               If there is no Legal Aid Committee appointed under section 27, the signing officer for the Legal Aid Fund established under section 7 is the Provincial Director.



50                        No action, application or other proceeding lies or shall be instituted against the Minister or the Crown in right of the Province as a result of the enactment of this Part.



51(1)               This Part or any provision of it is repealed on the date or dates established in an Order in Council made by the Lieutenant-Governor in Council.



51(2)               The Regulations Act does not apply to an Order in Council made under subsection (1).



2(1)                   Until the repeal of section 1 of this Act or the repeal of Part III of the Legal Aid Act as enacted by section 1 of this Act, whichever occurs first, the following amounts shall be deemed to be held in trust for the Minister of Justice and shall be used only for the purposes of the administration of the plan known as Legal Aid New Brunswick and the provision of legal aid:



(a)               any amount that the Law Society of New Brunswick has on hand on or receives after the date this Act received first reading in the Legislative Assembly for the purposes of the administration of the plan and the provision of legal aid, and



(b)               any amount that is deposited to the credit of the Legal Aid Fund established under section 7 of the Legal Aid Act on or after the date this Act received first reading in the Legislative Assembly.



2(2)                   Until the commencement of section 1 of this Act or the repeal of section 1 of this Act, whichever occurs first, the Law Society of New Brunswick shall



(a)               continue to employ employees for the purposes of the administration of the plan known as Legal Aid New Brunswick, including the employees administering that plan on the date this Act received first reading in the Legislative Assembly, but this paragraph shall not be interpreted as prohibiting the Law Society of New Brunswick from dismissing or disciplining an employee for cause, and



(b)               provide to the employees referred to in paragraph (a) the same benefits and apply the same terms and conditions of employment as those applicable to other employees of the Law Society of New Brunswick.



2(3)                   Until the commencement of section 1 of this Act or the repeal of section 1 of this Act, whichever occurs first, any appointment of a barrister or solicitor under section 4.1 of the Legal Aid Act and any employment of or contract with a barrister or solicitor under subsection 24(2) of the Legal Aid Act is valid for all purposes if the appointment, employment or contract is in force on the date this Act received first reading in the Legislative Assembly.



2(4)                   Until the commencement of section 1 of this Act or the repeal of section 1 of this Act, whichever occurs first, any appointment of a barrister or solicitor made under section 4.1 of the Legal Aid Act on or after the date this Act received first reading in the Legislative Assembly and any employment of or contract with a barrister or solicitor made under subsection 24(2) of the Legal Aid Act on or after that date is valid for all purposes.



2(5)                   Until the commencement of section 1 of this Act or the repeal of section 1 of this Act, whichever occurs first, the person holding the office of Interim Provincial Director of Legal Aid on the date this Act received first reading in the Legislative Assembly shall continue to hold office and shall be deemed to have been appointed as the Provincial Director of Legal Aid under section 3 of the Legal Aid Act.



2(6)                   Notwithstanding subsection 78(3) of New Brunswick Regulation 84-112 under the Legal Aid Act and any other authorization, the signing officer for the Legal Aid Fund established under section 7 of the Legal Aid Act is the Provincial Director.



3                           No action, application or other proceeding lies or shall be instituted against the Minister of Justice or the Crown in right of the Province as a result of the enactment of this Act.



4(1)                   This Act or any provision of it is repealed on the date or dates established in an Order in Council made by the Lieutenant-Governor in Council.



4(2)                   The Regulations Act does not apply to an Order in Council made under subsection (1).



5                           Section 1 of this Act or any provision of it comes into force on a day or days to be fixed by proclamation.



EXPLANATORY NOTES



Section 1



New provisions.



Sections 2 and 3



Transitional provisions.



Section 4



Repeal provision.



Section 5



Commencement provision.
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Legend
* Private Bill
** Bill referred to Standing Committee on Law Amendments
+ Private Member's Public Bill
++ Motion for second reading defeated
+++ Debate at second reading adjourned
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