Form 82I – Affidavit on Motion for the Assignment of Counsel

Jurisdiction: Canada — Prince Edward Island

What is a Form 82I – Affidavit on Motion for the Assignment of Counsel?

Form 82I is a sworn affidavit you file with the Prince Edward Island Court of Appeal when you ask the court to assign a lawyer to your criminal appeal. You use this affidavit to present facts under oath about your case, your financial situation, and why counsel is needed in the interests of justice. It supports your motion for an order that the court appoint a lawyer for you, typically at public expense.

You usually file Form 82I after you have started a criminal appeal or when you intend to start one. The court can assign counsel for an appellant or a respondent if the court decides that having a lawyer is necessary for a fair process and you cannot afford one. The affidavit is your chance to put reliable, sworn information in front of the court so the judge can weigh your need for counsel and the complexity or importance of the issues.

Who typically uses this form?

Most often, a person convicted of a criminal offence who is appealing conviction, sentence, or both. Sometimes the Crown may be the appellant and a respondent without means may need counsel. Youths involved in criminal appeals, people serving sentences who are in custody, and self-represented appellants who have language, literacy, or cognitive barriers may also use it. You may also need this form if Legal Aid has denied you coverage and you still need a lawyer for your appeal.

Why would you need this form?

Because appellate procedure is technical and deadlines are strict. Appeals can involve complex records, transcripts, evidentiary rulings, or Charter arguments. If you cannot pay for a lawyer and cannot meaningfully present your case alone, you ask the court to assign one. The court will consider two main things: whether you can afford counsel and whether it is in the interests of justice to appoint one. Your Form 82I affidavit addresses both.

Typical usage scenarios

• You filed a notice of appeal from conviction and sentence and you are in custody with no income, limited education, and a multi-day trial record that includes expert evidence.
• You apply for assignment of counsel to ensure your grounds of appeal are properly drafted and argued.
• You want to appeal only a sentence, but the case involves pre-sentence custody credit, mandatory minimums, and complex case law.
• Legal Aid denied you because your income is slightly above the threshold, but you cannot meet a private retainer.
• You apply to the court with proof of your finances and the appeal’s complexity. Another scenario is where English is your second language and you need help understanding and presenting legal arguments on your appeal.

In each scenario, Form 82I is not the order itself; it is the sworn evidence that supports your motion for that order. The court reads your affidavit and attached exhibits before deciding the motion.

When Would You Use a Form 82I – Affidavit on Motion for the Assignment of Counsel?

You use Form 82I when you are preparing a motion to ask the Court of Appeal to assign a lawyer for your criminal appeal and you need to place facts before the court under oath. The timing is important. You should bring your motion early, ideally soon after filing your notice of appeal or as soon as you realize you cannot manage the appeal without a lawyer. Early filing helps avoid delays in ordering transcripts, perfecting the appeal, or setting a hearing date.

If you are in custody and cannot access resources, you can still swear the affidavit at your institution and file it through the registry. If you are out of custody but on strict conditions or with limited income, you can still use the form to show why legal assistance is necessary.

If you applied to Legal Aid and were refused coverage, you would attach the refusal letter and explain why you still need counsel. If Legal Aid is pending, say so and ask the court to make an assignment now or after Legal Aid’s decision. If you contacted private lawyers and received retainer quotes you cannot afford, include those details and any written estimates.

This form is most common for appellants in criminal matters, including sentence-only appeals. It can also be used by respondents who face a Crown appeal and cannot afford counsel. Youth appeals may involve parents or guardians, but the youth’s circumstances remain central. You would also use this form if you have disabilities, literacy challenges, or language barriers that make self-representation unrealistic. If the case raises complex legal issues, like admissibility of expert evidence, improper jury instructions, or Charter breaches, you would explain this complexity in your affidavit. Even in a seemingly straightforward appeal, the court may assign counsel if the sentence is severe or the person is vulnerable and living with mental health issues that affect their ability to argue the appeal.

The form is not meant for general complaints about the trial. It is focused on whether the interests of justice require a lawyer for the appeal and whether you lack the means to pay for one. You can summarize your grounds of appeal but you should not try to argue the entire appeal in this affidavit.

Legal Characteristics of the Form 82I – Affidavit on Motion for the Assignment of Counsel

Form 82I is a sworn affidavit. That means it is evidence. When you sign and swear it before a commissioner for oaths, notary public, or lawyer authorized to take affidavits, you are making a statement under oath. If your statements are intentionally false, you risk serious consequences. Because the court relies on sworn evidence to decide motions, what you include must be accurate and complete to the best of your knowledge.

Is it legally binding?

The affidavit itself is not an order; it does not compel anyone to do anything by itself. It is binding on you in the sense that you are accountable for the truthfulness of its contents. The court’s order that may result from your motion is binding. If the court grants the motion and assigns counsel, that order has legal effect, including on any agency or plan responsible for funding or arranging representation. The order can define the scope of the assignment—for example, for the entire appeal, for preparing and arguing a sentence appeal only, or for a specific motion such as an extension of time or fresh evidence.

What ensures enforceability?

First, compliance with formal requirements—proper style of cause, correct file number, sworn jurat, and exhibits properly marked—allows the court to accept and rely on your affidavit. Second, the court’s statutory authority to assign counsel in criminal appeals, combined with its inherent jurisdiction to control its own process, supports enforceability of its orders. The order will set the parameters of the assignment so the registry, the prosecution, and the assigned lawyer know what to do. If your financial circumstances change, the court may revisit the assignment, or the responsible body may seek directions.

General legal considerations include the test the court applies. You need to show that you cannot afford counsel and that assignment is desirable in the interests of justice. The interests of justice analysis usually considers factors such as the seriousness of the conviction or sentence, the complexity of the legal issues, the length and complexity of the trial record, your ability to present the appeal on your own, language and literacy barriers, mental or physical health, and whether the grounds of appeal are arguable. You do not have to prove you will win the appeal, but a completely hopeless appeal may not warrant assignment of counsel. You should also disclose any existing or potential Legal Aid coverage and any attempts to retain private counsel.

The court expects full and frank disclosure of your financial situation. If you have income, assets, or support that might fund a lawyer, you must disclose them. If you have debt, dependents, or other expenses that limit your ability to pay, you should explain them. Your affidavit can attach bank statements, pay stubs, bills, or other documents to back up your statements. The court can place weight on that evidence when deciding the motion.

Finally, understand that the assignment of counsel is not automatic. The court has discretion. It may deny the motion if you have not shown need, if Legal Aid is already available, if the appeal is unarguable, or if you have not complied with procedural requirements. It may also limit the assignment to particular steps to control cost and ensure the appeal moves forward efficiently.

How to Fill Out a Form 82I – Affidavit on Motion for the Assignment of Counsel

Approach this form as a clear, factual narrative. Your goal is to help the court see who you are, what the appeal is about, why you cannot afford a lawyer, and why the interests of justice require assigning counsel. Use headings in your affidavit to keep it organized. Keep sentences short and direct. Avoid legal arguments and stick to facts within your personal knowledge.

Follow these steps:

1) Gather key information and documents

• Court file numbers: the appeal file number (if assigned) and, if available, the trial court file number.
• Style of cause: the formal case title (for example, “His Majesty the King v. [Your Full Name]”).
• Judgment information: dates of conviction and sentence, the court and judge, and the offences.
• Appeal status: whether you filed a notice of appeal, the date filed, and what you are appealing (conviction, sentence, or both).
• Legal Aid information: application dates, decisions, and any letters you received.
• Financial records: recent pay stubs, benefit statements, bank statements, rent or mortgage statements, childcare bills, loan documents, and any other proof of income, assets, debts, and monthly expenses.
• Lawyer contacts: names of lawyers or firms you contacted, retainer quotes, and any written responses.
• Health or accessibility needs: letters or assessments that explain barriers affecting your ability to self-represent, if available.
• Grounds of appeal draft: a concise list of the issues you intend to raise.

2) Complete the heading and introductory paragraphs

• At the top, include the court name and division, the style of cause, and the file numbers. Make sure the names match your notice of appeal.
• Start with an opening line stating your full legal name, your address (or the institution where you are held), your role in the appeal (appellant or respondent), and that you make the affidavit in support of your motion to have counsel assigned.
• If you need an interpreter for the motion or the appeal, say so in the introduction.

3) Identify your status in the proceedings

• State whether you are appealing conviction, sentence, or both.
• Provide the date of conviction and sentence and the trial court location.
• State if you are currently in custody, on bail, or serving a community-based sentence. Include your anticipated release date if known.

4) Summarize the case background

• List the charges, the offences for which you were convicted, and the sentence imposed (for example, incarceration length, probation, fines, surcharges, and ancillary orders).
• Note who represented you at trial (if anyone) and whether that representation ended. Do not include privileged conversations. If you intend to allege ineffective assistance of counsel on appeal, acknowledge that you understand you may need to waive privilege for that issue. Keep it factual and brief.

5) Explain the status of your appeal

• Confirm whether you have filed a notice of appeal. Include the filing date and attach it as an exhibit if possible.
• State whether you are appealing on time or seeking an extension. If you seek an extension, say why you filed late and when you learned of your appeal rights.
• Confirm whether you ordered transcripts and whether they are available. If not, say what steps you have taken. If you cannot afford transcripts, explain that and ask for directions as part of your motion, if appropriate.

6) Set out your financial circumstances

• Provide your current sources of income and amounts. If you have no income, say so and explain how you meet basic needs.
• List assets, even if modest: bank balances, vehicles, real property, tools, or other items of value. If jointly owned, say so.
• List debts and monthly expenses: rent, utilities, food, medical costs, transportation, child support, loan payments, and other necessary expenses.
• Identify dependents you support and the amounts.
• Attach documents that support these statements and label them clearly (for example, “Exhibit A: Bank statements for the past three months”).
• Make a clear statement that you cannot afford to retain a lawyer for the appeal and why. Include any retainers quoted to you.

7) Address Legal Aid and attempts to retain counsel

• State whether you applied to Legal Aid, the date of your application, the decision, and any appeal of that decision. Attach a copy of any response as an exhibit. If the decision is pending, say so.
• List private lawyers you contacted, the dates, and the responses you received. If you have written quotes or emails, attach them.
• If you posted ads or asked for pro bono help through clinics or duty counsel, describe those steps.

8) Explain why assignment of counsel is in the interests of justice

• Identify features of your appeal that make legal representation necessary. Examples: a lengthy record, multiple trial days, complex jury instructions, expert evidence, novel legal issues, Charter arguments, potential for a substantial increase or decrease in sentence, or the risk of deportation due to conviction.
• Explain any personal barriers. Examples: limited literacy, learning disability, mental health conditions, language barriers, or inability to access legal materials in custody.
• Provide a concise summary of your intended grounds of appeal, focusing on arguability rather than detailed argument. For example: “The trial judge admitted a statement after an incomplete voir dire on voluntariness” or “The sentencing judge misapplied starting-point ranges.”
• Be factual and restrained. The purpose is to show why counsel will assist the court and ensure fairness.

9) Specify the order you seek

• Clearly state that you seek an order assigning counsel for your appeal. If necessary, define the scope (entire appeal, conviction only, sentence only, or a specific motion such as an extension of time).
• If you also seek directions about transcripts or timelines, say so briefly. The primary relief remains assignment of counsel.

10) Attach and mark exhibits properly

• Each document you rely on should be attached as a separate exhibit. Use exhibit stamps or a cover page that identifies the exhibit letter, your name, the date, and the commissioner’s signature or initials on the first page of each exhibit.
• Common exhibits include: notice of appeal, judgment or sentencing remarks if available, Legal Aid correspondence, financial records, correspondence from lawyers, and any medical or educational reports related to your ability to self-represent.

11) Swear or affirm the affidavit

• Do not sign the affidavit until you are in front of a commissioner for oaths, notary public, or lawyer authorized to take affidavits. Bring identification.
• The commissioner will complete the jurat, which states where and when you swore the affidavit and confirms your oath or affirmation. Make sure the location, date, and the commissioner’s name and status appear correctly.
• If you are in custody, ask institutional staff to arrange for a commissioner. If you need an interpreter, arrange one in advance.

12) File and serve your motion materials

• Form 82I is your affidavit. It supports your motion for assignment of counsel. You also need a notice of motion setting out the order you seek and the hearing date or a request that the court set a date.
• File your materials with the Court of Appeal registry. Ask the registry how many copies you need.
• Serve the respondent (usually the prosecution) and any other parties as required. Keep proof of service.
• If you are seeking urgent relief, contact the registry to schedule the motion as soon as possible.

Practical drafting tips:

• Use clear headings in your affidavit: Background; Appeal Status; Financial Circumstances; Attempts to Obtain Counsel; Interests of Justice; Relief Sought; Exhibits.
• Keep each paragraph short and numbered. Each paragraph should cover one point.
• Stick to facts within your knowledge. If you include information from others, identify the source and attach supporting documents where possible.
• Avoid arguments or speculation. For example, say “I received three retainer quotes between $7,500 and $15,000,” not “All lawyers overcharge.”
• Keep the tone respectful and objective. Judges rely on neutral, well-organized affidavits.

Common mistakes to avoid:

• Not swearing the affidavit properly. Unsigned, undated, or uncommissioned affidavits will be rejected.
• Missing exhibits or failing to mark them. Judges need the documents you refer to.
• Vague financial disclosure. Provide numbers and documents. “I am broke” is not enough.
• Ignoring Legal Aid. If you have not applied, the court may expect you to try first. If refused, show the refusal.
• Trying to argue the appeal in the affidavit. Save detailed arguments for your factum if counsel is assigned.
• Failing to request clear relief. State exactly what you want the court to order.

Special considerations:

• If you are alleging ineffective assistance of trial counsel as a ground of appeal, understand that you may need to waive solicitor-client privilege for that issue. Keep your affidavit to facts, and do not attach privileged communications unless you intend to waive privilege and have considered the implications.
• If your first language is not English or French, say which language you prefer and whether you need interpretation for the motion and the appeal hearing.
• If you have cognitive or mental health conditions that affect your ability to conduct an appeal, state this fact and, if available, attach a brief note or report. Do not disclose more than necessary; focus on how the condition affects your ability to manage the appeal.
• If your financial situation changes after filing, file a short supplementary affidavit to update the court. Transparency helps the court maintain confidence in your evidence.

What happens next:

• After you file and serve your motion materials, the court will schedule a hearing or decide the motion in writing. You may be asked questions about your finances and the appeal’s complexity. If the court grants the motion, it will make an order assigning counsel and, in many cases, will direct how counsel will be selected and what steps come next.
• If the motion is denied, the court will give reasons. You can still proceed self-represented, seek Legal Aid again if circumstances change, or ask the court for other directions to help you move the appeal forward.

Your goal with Form 82I is to give the judge a complete, honest, and well-organized picture of your need for counsel and the justice factors at play. If you follow the steps above, attach clear exhibits, and keep your affidavit focused on facts, you give your motion the best chance of success.

Legal Terms You Might Encounter

• An affidavit is a written statement of facts you swear or affirm are true. On this form, you are the person swearing to your financial situation, your appeal status, and why you need a lawyer assigned. The court relies on your affidavit as evidence, so it must be precise, complete, and honest.
• The deponent is the person who makes the affidavit. That is you. Your name and contact details appear at the top. You sign the form only in front of a commissioner for oaths or a notary. When you sign, you confirm the contents are true to the best of your knowledge and belief.
• A motion is a formal request for a court order within an ongoing case. Here, you ask the court to assign counsel for your appeal. This affidavit supports that motion by laying out the facts. Your motion explains the order you want. Your affidavit provides the evidence to justify it.
• Assignment of counsel means the court appoints a lawyer for your appeal. It is not the same as getting a lawyer through a legal aid plan. On this form, you show both your lack of financial means and why legal representation is necessary for a fair appeal. The court decides if it is in the interests of justice.
• Interests of justice is the standard the court applies to your request. It asks whether a lawyer is needed for the appeal to be fair. On this form, you address factors such as the complexity of the issues, your ability to present the case, language or literacy barriers, and any disabilities that affect your participation.
• Financial means refers to your real ability to pay for a lawyer. The court looks beyond income alone. On this form, you disclose income, assets, debts, regular expenses, and recent changes in your finances. If someone else pays your bills or supports you, include that. Attach proof so the judge can trust your figures.
• Grounds of appeal are the legal errors you say happened in the court below. They form the basis of your appeal. On this form, you do not argue the full case. You give a clear summary of your grounds, such as errors of law, unreasonable verdict, or improper instructions. This helps the court see why counsel may be necessary.
• Exhibits are documents you attach to your affidavit to prove key points. On this form, typical exhibits include your notice of appeal, sentencing order, proof of income, bank statements, and any legal aid decision. Each exhibit must be labeled and sworn with the affidavit. The commissioner will mark them with exhibit stamps or labels.
• Service means delivering filed documents to the other parties in the case. Your motion and supporting affidavit must be served on the respondent. On this form, you provide copies after filing. Keep proof of service, such as an affidavit of service or a courier receipt, to show the court you followed the rules.
• Commissioned means the affidavit was properly sworn or affirmed before a person authorized to take oaths. On this form, your signature and the commissioner’s signature and details must appear. The date and location of commissioning must match. Without proper commissioning, the court may refuse your affidavit.

FAQs

Do you need to fill out this form if you already applied for legal aid?

Yes. Assignment of counsel by the court is a separate process from a legal aid application. If you applied for legal aid, attach proof of the decision. If you were refused or waitlisted, say so and include the letter if you have it. The court will want to see you tried to secure representation on your own.

Do you have to swear the affidavit in person?

You must swear or affirm the affidavit in front of a person authorized to take oaths. Some commissioners accept remote commissioning. Ask before you book. Have photo ID ready. Do not sign until asked to do so by the commissioner. If you need accommodations, explain that when scheduling.

Do you have to pay a fee to file the motion and affidavit?

Some criminal appeal motions do not carry filing fees. Rules vary. Ask the registry about any fees and fee waivers. If a fee applies and you cannot pay, ask about a waiver process. If a waiver is available, complete it early so your motion does not stall.

Do you have to serve the respondent?

Yes. Serve all required parties with the motion, your affidavit, and all exhibits. Use a delivery method the court accepts. Keep proof of service. Late or improper service can delay your motion or result in an adjournment. If you need more time to serve, ask the court in advance if an extension is possible.

Do you need to attach financial documents?

Yes. Your financial disclosure must be specific and backed by documents where possible. Include recent pay stubs, benefit statements, bank statements, rent or mortgage proof, and any debt statements. If you have no income, explain how you meet basic needs and provide supporting letters or statements.

Do you need to include your full legal arguments?

No. You must outline your grounds of appeal and explain why counsel is needed. Keep it focused. Identify the issues that make representation necessary, such as complex evidentiary or sentencing points. Save full legal arguments for the appeal itself or for counsel, if assigned.

Do you need a separate notice of motion?

Usually yes. The affidavit supports your motion but is not the motion itself. File a notice of motion that states the order you seek. Then file this affidavit and exhibits as the evidence. Ask the registry if there is a specific motion form and timeline for your file.

Do you have to attend a hearing on the motion?

Often, yes. Some motions proceed in writing if the court allows it. If the court sets a hearing, attend on time with your copies and proof of service. Be ready to answer questions about your finances, your efforts to retain counsel, and why counsel is necessary for your appeal.

Checklist: Before, During, and After the Form 82I – Affidavit on Motion for the Assignment of Counsel

Before signing

• Confirm the correct court file number and style of cause.
• Write your full legal name, current address, phone, and email.
• List the decision you are appealing, with date and judge’s name.
• Note the date you filed your notice of appeal, if applicable.
• Prepare a short summary of your grounds of appeal.
• Gather financial proof: income, benefits, bank statements, rent or mortgage, utilities, debts, and any support from others.
• Collect proof of your efforts to hire a lawyer: dates of calls or emails, quotes, retainer requests, and reasons you could not proceed.
• Add any legal aid decision or correspondence.
• Identify factors that affect your ability to self-represent, such as language needs, literacy, disability, or custody status.
• Label exhibits clearly (A, B, C…) and cross-reference them in the affidavit.
• Book an appointment with a commissioner for oaths or a notary.
• Ask the registry if a separate notice of motion is required and note the filing deadline.
• Plan service on the respondent and any other required parties.
• Make sure you have enough copies for filing, service, and your records.

During signing

• Check the court heading and file number one more time.
• Read every paragraph slowly. Fix any errors before swearing.
• Make sure all dates, amounts, and names match your exhibits.
• Initial any small handwritten corrections. Do not leave blanks.
• Decide whether you will swear or affirm. Both carry the same weight.
• Sign only in front of the commissioner. Show photo ID if asked.
• Ensure the commissioner completes their section with signature, printed name, title, date, and location.
• Confirm each exhibit is marked and referenced properly.
• Ask for a copy of the commissioned affidavit and each exhibit set.

After signing

• File the notice of motion (if required) and this commissioned affidavit with the court registry before the deadline.
• Ask the registry how many sets to file and whether they need electronic copies.
• If a fee applies, pay it or submit a fee waiver, as instructed by the registry.
• Serve all required parties with stamped copies and exhibits using an accepted method.
• Prepare and file proof of service, if required, before the hearing or submission deadline.
• Calendar any response deadlines and the hearing date.
• Keep a complete set of stamped documents and proof of service in a safe place.
• Follow up with the registry to confirm the motion is scheduled or under reserve for a written decision.
• If new financial information arises, consider filing a short supplementary affidavit.

Common Mistakes to Avoid

• Don’t forget to prove your finances. Bare statements like “I cannot afford a lawyer” are not enough. Without documents and specific numbers, the court may doubt your disclosure and refuse the request.
• Don’t skip your efforts to retain counsel. The court looks for proof that you tried to hire a lawyer and could not. If you leave this out, the court may find you have not shown need and dismiss or delay the motion.
• Don’t turn the affidavit into a legal brief. This form is for facts, not argument. If you argue at length or include hearsay without saying how you know it, parts may be ignored. Stick to clear facts and attach exhibits.
• Don’t file an uncommissioned or incomplete affidavit. Missing signatures, missing commissioner details, or unmarked exhibits lead to rejection at the counter or on the motion. You risk adjournments and missed deadlines.
• Don’t neglect service. Late or improper service can delay your motion or prevent the court from hearing it. Use an approved method, serve all parties, and keep proof.

What to Do After Filling Out the Form

File your documents with the court registry. If a notice of motion is required, file it with this affidavit and all exhibits. Ask the registry about copies, formats, and any scheduling process. If the court sets timelines for responses, note them and plan your next steps.

Serve the filed materials on the respondent and any other required parties. Use a delivery method the court accepts. If you serve by courier or registered mail, keep the receipts. If you hand-deliver, consider using an affidavit of service. If rules require service within a set number of days, meet those timelines.

Track the motion date or the timeline for a written decision. If a hearing is scheduled, prepare a short outline of the key points: your financial position, your efforts to retain counsel, and the issues that make counsel necessary. Bring your full document set and proof of service to the hearing.

Correct any mistakes quickly. If you find an error after filing, do not alter the filed affidavit. Prepare a supplementary affidavit that clearly corrects or adds the missing fact. File and serve it as soon as possible. If you need permission to file late materials, ask the court.

Update the court if your circumstances change. If your income drops, you lose housing, or you receive a new legal aid decision, consider filing a brief supplementary affidavit and exhibit. The court decides based on current facts.

If the court grants assignment of counsel, expect contact from the assigned lawyer or their office. Respond promptly. Share your file materials and any deadlines. Ask how to communicate and what the next steps are. Do not contact the court about counsel selection unless instructed.

If the court denies assignment, review the reasons if provided. Consider your options:

• Apply again if you have new and significant information, such as a recent legal aid refusal or a major change in finances.
• Seek advice on preparing your appeal as a self-represented person. Focus your grounds and meet all deadlines.
• Ask the registry whether you can request that the motion be reconsidered if new evidence emerges.

Keep your records organized. Maintain a complete set of stamped filings, exhibits, and proof of service. Store electronic copies with clear file names and dates. Record every deadline in one place. Good organization reduces the risk of missed steps.

Respect confidentiality. Your affidavit contains sensitive financial and personal information. Share it only with the court and the required parties. If you include third-party personal data, consider whether it is necessary. Redact account numbers where allowed while keeping the document readable.

Mind the appeal timeline. Your motion does not pause appeal deadlines unless the court orders it. Keep prosecuting the appeal. File any required materials when due. If you receive assigned counsel, ask them how the schedule changes and what they need from you.

Prepare for the outcome. If counsel is assigned, cooperate fully so your appeal progresses. If not, focus your efforts on the key issues and request any accommodations you need for hearings, such as language or accessibility supports. Always confirm requests with the registry in writing.