Access to Justice: Human Rights and Legal Aid, by Linda McKay-Panos

Legal Aid is defined as a system which provides individuals with access to the legal system (and more specifically to legal representation) who otherwise might not have had the means to do so (Department of Justice Canada. Legal Aid, online: http://www.justice.gc.ca/eng/pi/pb-dgp/arr-ente/lap-paj.html ). Because Canadians see a great deal of American television, we often are misinformed about the right to legal counsel in Canada. Under the Canadian Charter of Rights and Freedoms (Charter), s. 10(b), everyone who is detained or arrested has the right to “to retain and instruct counsel without delay and to be informed of that right”. There is nothing in the Charter with regard to being entitled to paid representation nor is there mention of legal representation in civil matters.

Some legislation and legal decisions indicate situations where the government must provide Canadians with legal counsel. Most of these involve criminal matters. For example, the Youth Criminal Justice Act (section 25(4)) provides that a judge can order legal representation for a young person in a criminal matter. In addition, Criminal Code sections 684 and 694.1 state that judges at the Court of Appeal or the Supreme Court of Canada can assign state-funded lawyers to an accused if the judge determines that legal representation is desirable in the interests of justice, and if the accused demonstrates that he or she is unable to afford the costs of private counsel.

The Supreme Court of Canada (SCC) ruled that there is no constitutional right of access to counsel (Christie v. British Columbia, [2007] 1 S.C.R. 873). Nevertheless, under certain circumstances, publicly funded legal counsel must be given to a person who is charged with a criminal offence. In R. v. Rowbotham, [1988] 41 C.C.C. (3d) 1 (S.C.C.), the SCC ruled that s. 7 and s. 11(d) of the Charter give criminal defendants the right to counsel if legal representation is necessary to ensure that the accused obtains a fair trial. The court also concluded that judges have the right to appoint counsel for accused in criminal cases where the lack of legal representation would compromise the accused’s right to a fair trial (even if he or she has been denied legal aid (pp. 69-70)). When deciding that an accused person needs legal counsel in a criminal matter, judges determine if the accused has financial need, is facing complex trial proceedings and facing the possibility of imprisonment.

There are also limited circumstances where it may be necessary in a civil matter for a party to have government-funded legal representation. In New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46, the Government of New Brunswick was seeking temporary custody of the appellant’s children. She was denied a legal aid certificate, on the grounds that the program did not cover cases involving custody.  The SCC held that in the specific circumstances of the case, the Government of New Brunswick had a constitutional obligation to provide G.J. with state-funded counsel. Although this case was considered by many people to be a “landmark case”, it has been narrowly applied to situations involving only government action and not cases between private parties.

Poverty activists, bar associations and other stakeholders have argued that although there is no right to counsel per se under the Canadian Constitution, access to justice and rule of law considerations require that, at minimum, access to legal counsel is an important policy matter (Adrian Scotchmer, “The Right to Counsel: Policy Reasons for Fundamental Reforms to Promote Access to Justice in Light of the Christie Decision” 2008 1(1) Osgoode Hall Review of Law and Policy, pp. 36 to 87). However, despite a Canadian’s right to legal counsel, or the policy reasons they should have adequate legal representation, the legal aid programs in some Canadian jurisdictions appear to take a narrow interpretation of the right/policy.

In 2007, Chief Justice (SCC) Beverly McLachlin publicly noted concerns about access to justice and the court system when she said, “the most advanced justice system in the world is a failure if it does not provide justice to the people it is meant to serve”. She said that access to justice is critical but that, “unfortunately many Canadian men and women find themselves unable, mainly for financial reasons, to access the Canadian justice system.” She also pointed out that people representing themselves before judges are delaying other cases as judges try to explain complex legal proceedings to unrepresented litigants. The lack of access to legal representation doesn’t only affect poor people. Increasingly middle class Canadians are unable to access courts because of rising legal costs. (Remarks of the Right Honourable Beverly McLachlin, P.C., Presented at the Empire Club of Canada, Toronto, March 8, 2007 online: http://www.scc-csc.gc.ca/court-cour/ju/spe-dis/bm07-03-08-eng.asp).

If legal aid is akin to health care and education—it is a social right that should be accessible to all Canadians regardless of financial status—then the current trend in cutting Legal Aid programs is very troubling. In Alberta, for example, the Legal Aid program is funded by the Provincial Government, Federal Government (through contribution agreements and Social Transfer) and the Alberta Law Foundation. Funding to the Legal Aid program in Alberta was recently reduced and the program changed. Starting June 28, 2010, Legal Services Centres (LSCs) operating in Edmonton and Calgary perform an upfront assessment of the clients’ legal needs. In many cases, the client will be given a referral to another agency. If a single person’s monthly net income is above $2,700, they will be given a referral to another agency and no other assistance. If the monthly net income is between $1,750 and $2,700, then the client will be eligible for legal advice by staff lawyers, brief assistance (e.g., assistance with court forms), information that will help the person resolve the issue or better deal with the justice system, or referrals to other agencies for assistance. These clients will not be eligible for “full representation by a lawyer in court”. Individuals whose net income is below $919 (annual net income level $11,000) are eligible for “full representation”. If the individual earns between $919 and $1,225, he or she will be required to contribute to a portion of their costs for legal representation. As a result of the changes, the eligibility guidelines for full representation were decreased by 30% (Legal Aid Alberta website: http://www.legalaid.ab.ca/).

In addition to financial eligibility requirements, there are limits to the types of cases that Legal Aid Alberta can take. Legal aid is “most often offered for serious criminal charges (where there is a strong likelihood of someone going to jail or losing their job); charges laid under the Youth Criminal Justice Act,” family law (e.g. child support, child welfare, parenting/guardianship) or immigration cases. Clients facing civil areas such as wills and estates, dependant adult and trustee matters, employment, income support, landlord-tenant disputes and debt are no longer offered full certificates. They are eligible for brief services and legal advice through a central service centre in Edmonton (Legal Aid Alberta website: http://www.legalaid.ab.ca/).

Finally, Legal Aid Alberta changed its “Choice of Counsel Policy”. Clients no longer have the right to choose their lawyer. Clients can indicate a preferred lawyer, but Legal Aid reserves the right to appoint a lawyer from a list of lawyers who take legal aid cases (Legal Aid Alberta website: http://www.legalaid.ab.ca/).

Underfunding an already inadequately funded program denies access to justice to many Albertans. What can be done about this crisis? While there are some legal services provided pro bono by lawyers, law schools, and community legal organizations (e.g., Calgary Legal Guidance), these agencies cannot absorb the additional needs created by the lack of government funding for legal aid. The Canadian Bar Association launched a test case in an effort to expand legal aid programs. In British Columbia, CBA’s legal challenge to cuts in legal aid programs was denied because the judge held that the CBA did not have standing to make the challenge (Canadian Bar Association v. British Columbia et al, [2006] B.C.J. No. 2015, 1 W.W.R. 331; appeal denied, [2008] B.C.J. No. 350, 290 D.L.R. (4th) 617 (B.C.C.A.); leave to appeal to the Supreme Court of Canada denied, [2008] S.C.C.A. No. 185 (S.C.C.)). In addition, stakeholders across Canada have made recommendations for ways that governments, lawyers, law societies and others could contribute to a solution.

In the meantime, many Canadians are being denied access to justice, which if not a human right, is certainly a moral right and a policy worthy of support.

This article is a Reprint from Law Now, 2010.

This entry was posted in Access to Justice. Bookmark the permalink.

Leave a Reply