A Constitutional Right to Civil Legal Aid

Patricia Hughes^*

This assessment of “arguments to support the existence of a constitutional right to legal aid in Canada,” particularly civil legal aid, concludes that while many of the current parameters established by the Supreme Court of Canada’s jurisprudence are not encouraging of a constitutional right to legal aid, either criminal or civil, there is at least one argument which may be made in support which relies in part on issues which the court has not yet been required to address.

Before considering the arguments in support, it is necessary to identify the boundaries within which the court has addressed legal aid or the right to publicly-funded counsel. Since these are well-known, I do not consider them in detail;

nevertheless, it is important to situate consideration of arguments for a constitutionally entrenched legal aid within the current situation.

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To date, the only recognized constitutional right to publicly-funded counsel reflects the statutory and pre-Charter common law situation as it applies to the criminal law context: where necessary for an accused to have a fair trial, the judge has the discretion to order state-funded counsel (sections 684(1) and 694.1 of the Criminal Code and section 11 of the Young Offenders Act, R.S.C. 1985, c.Y-1); R.

v. Ewing and Kearney (1974), 18 C.C.C. (2d) 356 (B.C.C.A.); Re White and the Queen (1976), 32 C.C.C. (2d) 478 (Alta. C.A.)). Provincial appellate courts have interpreted section 7 of the Canadian Charter of Rights and Freedoms to give judges the discretion to order state-funded counsel where necessary for a fair trial, taking into account factors such as the seriousness of the charge and its

consequences, the complexity of the case and the capacity of the accused to represent her or himself: R. v. Rowbotham (1988), 25 O.A.C. 321 (C.A.); R. v.

Robinson (1990), 51 C.C.C. (3d) 452 (Alta. C.A.); R. v. Rain, [1998] A.J. No.

1059 (C.A.) (Q.L.) (lv. to appeal to S.C.C. dismissed), [1998] S.C.C.A. No. 609

* Dr. Patricia Hughes, Dean of Law, University of Calgary.

(Q.L.). Without explicitly approving the “Rowbotham criteria,” the Supreme Court of Canada has extended a modified version to civil proceedings in which a party is subject to state-induced stress, specifically child protection proceedings:

New Brunswick (Minister of Health and Community Services v. G.(J.), [1999] 3 S.C.R. 46.

None of these cases establishes a constitutional right to legal aid, in contrast to an ad hoc right to publicly-funded counsel in the circumstances of the particular case, subject to a trial judge’ s assessment of the relevant criteria. Judicial determinations may have an impact on a province’s legal aid plan (such as

requiring it to pay rates higher than the tariff to permit the accused to retain senior counsel: R. v. Chan, [2000] A.J. No. 1223 (Q.B.) (Q.L.), although the government may also pay for counsel through other means: G.(J.), (supra)). (For refusals to appoint counsel, see Re Monroe and the Queen (1990), 97 N.S.R. (2d) 361 (S.C.), aff’d 98 N.S.R. (2d) 174 (C.A.); Panacui v. Legal Aid Society (Alta.) (1987), 80 A.R. 137 (Q.B.); Rockwood v. The Queen (1989), 49 C.C.C. 129 (N.S.C.A.)); and for cases in which counsel have been appointed for a variety of reasons in

different contexts, because of the complexity or extraordinary nature of the cases, see R. v. L.C.W., [2000] S.J. No. 145 (Q.B.) (Q.L.)(accused permitted two

counsel); R. v. Dedam, [2001] N.B.J. No. 186 (Prov. Ct.) (Q.L.) (although the penalty was a fine, the case raised issues of national importance); R. v. Chan (2000), 145 C.C.C. (3d) 494 (Alta. C.A.) (a bail hearing); and R. v. Fok, [2000]

A.J. No. 1182 (Q.B.) (Q.L.) (in order to determine pre-trial whether an accused requires state-funded counsel for the trial).

In the criminal context, the Supreme Court of Canada has spoken to this issue only in the context of section 10(b) of the Charter, the guarantee to retain and instruct counsel without delay and to be informed thereof when under arrest or detention: R. v. Brydges, [1990] 1 S.C.R. 190; R. v. Bartle, [1994] 3 S.C.R. 173;

R. v. Prosper, [1994] 3 S.C.R. 236; R. v. Matheson, [1994] 3 S.C.R. 328.

In doing so, the court has consistently and unanimously said that section 10 does not establish a constitutional right to a duty counsel type system. Thus a full bench unanimously held in Prosper, supra, that section 10(b) does not impose a substantive constitutional obligation on governments to establish a duty counsel system. While Lamer C.J. (as he then was) extolled the virtues of these systems and while the court may be willing to provide remedies indirectly consequent on the failure to establish a duty counsel system (for example, excluding evidence because an impecunious accused may not have had legal counsel since there was no publicly-funded system), the court has not taken the next step of requiring that a system be established.

Lamer C.J. concluded in Prosper, supra, that the court should not infer a

constitutional obligation to establish a duty counsel system because of the lack of an expressly stated right under section 10, the rejection by the framers of the Charter of an amendment for publicly-funded counsel, the fact that it would

require the government to establish programs and the cost. L’Heureux-Dubé J., dissenting on the application of section 24(2) in Prosper, supra, explicitly rejected arguments that the “living tree” approach supported a conclusion that constitutional interpretation had evolved to the point where state-funded duty counsel should be constitutionally guaranteed: this theory, she said, “has never been used to transform completely a document or add a provision which was specifically rejected at the outset.” These comments and reasons must be treated seriously in developing any argument for a constitutionally entrenched right to legal aid, whether in the criminal or civil context.

The section 10 cases have not raised the issue of a right to state-funded counsel at trial or on appeal, a point on which members of the court have been emphatic.

This right has been addressed only at the appellate court level under section 7 of the Charter, as indicated above. The approach taken by the appellate courts in this context has been applied by the Supreme Court of Canada, not in a criminal case, but in G.(J.), supra, a civil case dealing with private sphere interests, the custody of children. It is crucial, though, that the Crown was the applicant in G.(J.). The court held that J.G. could not have a fair hearing in a child protection proceeding if she did not have legal representation, as a result of her level of education and ability to function in the legal system. Given the seriousness of the interest at stake, she was entitled to publicly-funded counsel. Although the challenge had been brought to the New Brunswick domestic legal aid plan, which did not fund interim custody applications (as opposed to permanent wardship applications), the court held that the government could provide counsel in whatever way it chose (the government had amended the plan to cover custody applications brought by the Crown prior to the hearing before the Supreme Court).

In summary, the only constitutionally entrenched right to publicly-funded counsel has been established in the criminal context and the civil context where the Crown is involved. It should be noted that attempts have been made to establish a right to legal aid in private disputes without success: Miltenberger v. Braaten, [2000] S.J.

No. 599 (Q.L.); Ryan v. Ryan, [2000] N.S.J. No. 13 (C.A.) (Q.L.); Mills v. Hardy, [2000] N.S.J. No. 386 (C.A.) (Q.L.). None of these decisions has addressed the matter in any detail, however, more or less assuming that G.(J.), supra, did not apply to private disputes.

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The starting point for any consideration of an entrenched constitutional right to legal aid must begin with Lamer C.J.’s comments in G.(J.), supra. These comments reflect the unanimous view of the court in the cases to date:

The omission of a positive right to state-funded counsel in section 10, which, as I said in Prosper, should be accorded some significance, does not preclude an interpretation of section 7 that imposes a positive constitutional obligation on governments to provide counsel in those cases when it is necessary to ensure a fair hearing ... [T]he significance of the omission of a positive right to state- funded counsel under section 10 is that section 7 should not be interpreted as providing an absolute right to state-funded counsel at all hearings where an individual’s life, liberty, and security is at stake and the individual cannot afford a lawyer.

Accordingly, while a blanket right to state-funded counsel does not exist under section 10, a limited right to state-funded counsel arises under section 7 to ensure a fair hearing in the circumstances I have outlined above. [emphasis in original]

Since establishing a right to legal aid in the (private) civil context not only faces difficulties similar to those in the criminal context, but also raises its own

difficulties, I am limiting my comments to the civil context and even more so, to the civil private context. The shared difficulties are that the court has consistently stated that there is no constitutional right to legal aid; it has also been reluctant to interpret the constitution as imposing a duty of positive action on governments;

and it is wary of directing the government to expend significant amounts of money. The additional problem facing any effort to sustain an argument for a constitutional right to legal aid for private civil disputes is obviously the necessity of finding state action in the context of private disputes.