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

March 17, 2011

How to Make Small Claims Court Cheaper

The Community Legal Assistance Society has published a new guide called "Waiving Filing Fees in BC Small Claims Court" which offers step-by-step advice on how to apply to the court for an order which allows parties to avoid these fees.

Although Small Claims Court is designed to be more accessible and less expensive than the B.C. Supreme Court, the filing fees can still be prohibitive for low-income parties.  For example, the fee for filing a claim ranges from $100-$156 depending on the amount of money at stake, while defendants must pay $26-50 to file a reply.  A complete list of filing fees can be found here.

It is also possible to apply to have court fees waived at the B.C. Supreme Court by applying for indigent status, which I wrote about here.

March 14, 2011

Paralegals Offer Free Help With Legal Documents

Volunteer paralegals in British Columbia are offering free help with drafting legal documents, including court forms, for people representing themselves in civil litigation matters (note that family law issues are excluded).  The paralegals assist clients in hour-long appointments under the supervision of volunteer duty counsel lawyers.  The Amici Curiae Pro Bono Paralegal Program is a partnership between the Law Courts Centre, Access Pro Bono BC and the Vancouver Justice Access Centre.

The pilot program runs every Tuesday evening from 6 to 8 pm at the Vancouver Justice Access Centre at 800 Hornby Street in Vancouver.  Those interested in a getting assistance with preparing legal documents can make an appointment by calling 604 660-2084. 

March 9, 2011

Why We Just Won't Fund Legal Aid

The Public Commission on Legal Aid in British Columbia, which I wrote about here, has issued its final report, called Foundations For Change.  In the report, Commissioner Len Doust, Q.C. makes seven key findings:

  • The legal aid system is failing needy individuals and families, the justice system, and our communities.
  • Legal information is not an adequate substitute for legal assistance and representation.
  • Timing of accessing legal aid is key.
  • There is a broad consensus concerning the need for innovative, client-focused legal aid services.
  • Steps must be taken to meet legal aid needs in rural communities.
  • More people should be eligible for legal aid.
  • Legal aid should be fully funded as an essential public service.
Few of these findings will be news to anyone who has experience with the legal aid system in BC.  However, the report also makes several damning statements about the current state of the legal aid system:

"While the social costs of the lack of legal aid in essential matters are difficult to measure precisely, a clogged, inaccessible system of justice necessarily results in unfair and arbitrary outcomes, often accompanied by human tragedy, and breeds contempt for the justice system and the rule of law."

"Furthermore, no other province or territory in Canada, other than British Columbia, has made such drastic reductions to its legal aid budget while coping with the same fiscal environment. In fact, Ontario has managed to increase its contribution to legal aid during the same lean economic years."

The
report has been criticized for focusing too much on anecdotal evidence and too little on practical solutions.  However, as my grandmother used to say, you can't make a silk purse out of a sow's ear.  What the legal aid system needs, not just in British Columbia, but across the country, is an injection of cold, hard cash.  By Doust's estimate, B.C. alone needs an additional $47 million to meet the basic needs of low-income residents.  The Legal Services Society's (LSS) budget is currently just $80 million.

The problem is one of perception and priorities.  The public perceives legal aid clients as unsympathetic criminals undeserving of help.  In turn, the public and their chosen politicians prioritize the need for legal aid below other social programs such as education and health care.  While legal aid supporters frequently lament its inadequate funding (and I'm no exception), the truth is that funding would increase if the public considered it a significant priority.

Of course, the public's perception of those who need access to legal aid is deeply flawed.  Set aside for the moment the merits of defending those accused of serious criminal offences (and in my view there are many).  The system's failing is more accurately captured by those it turns away.  As a volunteer, I took on some of the cases which were not covered by the LSS's stringent eligibility requirements, typically those involving low-income housing, first-time offenders, employment problems and family law issues.  

In my view, one of the most gaping holes in the legal aid system is the lack of support for family law cases involving children.  Many of the pro bono cases I handled involved obtaining child support orders for mothers who were, without exaggeration, struggling to house and feed their children.  The organizations I worked with were unable to match even a fraction of these cases with volunteer lawyers.

From a financial, social policy or moral perspective, it makes no sense to me that these situations are excluded from legal aid coverage.  From a purely fiscal standpoint, it stands to reason that a modest investment of legal aid funding in this area would save the government exponentially more dollars in health care, education, welfare and other social costs resulting from thrusting children into poverty.

Like so many other public policy issues, legal aid reform depends on us prioritizing the short term cost of doing the right thing over the debilitating longterm cost of doing the wrong thing.