March 22, 2011

Is There a Constitutional Right to Legal Aid?


Madam Justice Newbury of the B.C. Court of Appeal once wrote that in a constitutional law context, access to justice consists of, “reasonable and effective access to courts of law and the opportunity to obtain legal services from qualified professionals, that are related to the determination and interpretation of legal rights and obligations by courts of law or other independent tribunals.”[1]

The decline in government funding for legal aid has made Justice Newbury's twin criteria, that is reasonable access to the courts and the ability to obtain legal services, increasingly elusive.  

Legal aid cuts have also renewed interest in the academic and legal community about the existence of a constitutional right to access to justice.  Legal scholars generally agree that the constitution offers no such explicit right, noting that the oft-cited right to legal counsel in criminal cases does not actually require the government to pay the accused’s legal fees.[2]  

Courts have, however, found that the common law, the constitution and the principle of the rule of law do mandate a right to legal aid in some circumstances.[3]  For example, this right exists in some criminal cases where there is a possibility of a jail sentence and in civil cases involving government-initiated challenges to child custody.[4]

Despite the courts’ reluctance to find an overarching constitutional right to access to justice, some legal experts are hopeful that the courts’ refusal to rule out such a right combined with helpful statements in some access to justice decisions might someday pave the way for the judiciary to increase the scope of the government’s obligation to provide legal aid.[5]  

Much of this hope derives from an SCC decision dating back to 1988 where the court stated, “[w]e have no doubt that the right to access to the courts is under the rule of law one of the foundational pillars protecting the rights and freedoms of our citizens.”[6]  However, the SCC has since rejected the argument that that the rule of law entails an overarching right to legal aid, while leaving the door open to the possibility that certain situations may require the government to provide legal assistance.[7]

At the forefront of the movement to establish a judicially-imposed right to legal aid is the Canadian Bar Association (“CBA”), which commissioned legal opinions from leading access to justice lawyers and professors on the issue.[8]  Unfortunately, a subsequent test case on the constitutional right to access to justice was dismissed for lack of standing at the pre-trial stage by the B.C. Supreme Court .  The B.C. Court of Appeal upheld the dismissal and the SCC did not grant leave to appeal.[9]  

It remains to be seen whether the test case can be reconfigured to remedy the standing problems which led to its dismissal.  Until then, the scope of the right to legal aid remains unresolved.  However, it is clear that measured against Madam Justice Newbury’s two criteria, the ability to use the courts and obtain legal services from qualified professionals, access to justice remains widely unavailable in Canada.

[Adapted from my Masters of Law thesis, "Rights Without Remedies: The Court Party Theory and the Demise of the Court Challenges Program"]


[1]  Christie v. British Columbia (Attorney General), [2005] B.C.J. No. 2745 (C.A.) at para. 30, rev’d [2007] S.C.J. No. 21 but not on this point.
[2]  Vicki Schmolka, ed. Making the Case: The Right to Publicly-Funded Legal Representation, (Ottawa, Canadian Bar Association, 2002) at 2E. 
[3] Ibid.
[4] See New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46
[5] See e.g. Kerri Froc, “Is the Rule of Law the Golden Rule: Accessing ‘Justice’ for Canada’s Poor” (2009) 87 Can. Bar. Rev. No. 2 459 at 511-513 and Michael Trebilcock, Legal Aid Service Review 2008 (Toronto: Ministry of Attorney General, 2008) at 9 where the author discusses the conclusions of the “Blueprint for Publicly-funded Legal Services” (the “McCamus Report”) with respect to a constitutional requirement for access to justice.
[6] B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214 at paras. 25-26.
[7] Christie v. British Columbia (Attorney General), 2007 SCC 21 at 20-27.
[8] Schmolka, supra note 1 at iiE.
[9] The Canadian Bar Association v. HMTQ et al, 2006 BCSC 1342, aff’d 2008 BCCA 92, leave to appeal refused, [2008] S.C.C.A. No. 185

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