In New Brunswick (Minister of Health and Community Services) v. G.(J.), the Supreme Court of Canada unanimously concluded that the trial judge should have ordered the provision of state-funded counsel for J.G. in a hearing initiated by the
9 [1999] 3 S.C.R. 46. References to this decision are indicated in square brackets in the text.
10 Peter Hogg, Constitutional Law of Canada looseleaf, 4th ed. (Scarborough: Carswell, 1997) at section 47(4)(k).
11 According to Hogg, ibid., “there is now a very broad basis for the judicial review on constitutional grounds of denials of legal aid, and every province will have to examine the design, funding and staffing of its provincial legal aid plan to see if it meets the new standard.” For an argument that there is a right to counsel in cases other than those involving imprisonment, if counsel is essential to a fair trial, see Young, above note 7.
Minister pursuant to New Brunswick’s child protection legislation, the Family Services Act. The Minister had initiated proceedings for an extension of an order for custody, initially granted for a period of six months, in relation to J.G.’s three children. J.G., who was in receipt of welfare, was unable to afford legal
representation for the hearing, and there was no provision at that time for legal aid services for such proceedings in New Brunswick.12 The trial judge decided that state-funded counsel was not necessary to ensure a fair trial in the child protection hearing,13 and the New Brunswick Court of Appeal (Bastarache and Ryan JJ.
dissenting) upheld the decision of the trial judge. The Supreme Court of Canada allowed J.G.’s appeal, unanimously concluding that the trial judge should have ordered provision of state-funded counsel “in the circumstances of this case”
[para. 75]. The court unanimously held that state-initiated child protection proceedings had potential to deprive the mother and her children of “security of the person” pursuant to section 7 of the Canadian Charter of Rights and
Freedoms; that in the absence of legal representation for J.G. in this case, the proceedings did not satisfy the “principles of fundamental justice;” and that the infringement of section 7 could not be justified pursuant to section 1 of the Charter.
There were two judgments in the Supreme Court of Canada:
• the majority judgment of Chief Justice Lamer (with which Gonthier, Cory, McLachlin, Major and Binnie JJ. concurred); and
• a concurring judgment of Justice L’Heureux-Dubé (with which Gonthier and McLachlin JJ. concurred).
Interpreting the Charter in G.(J.)
12 According to Rollie Thompson, “every legal aid plan in Canada gives top priority on the civil side to
representation of parents in protection proceedings” so that, outside of New Brunswick, the effect of G.(J.) will be modest. All the same, as Thompson suggested, the decision “will serve as a significant bulwark for protection cases against any future cuts to legal aid funding and services:” see Thompson “Annotation” (1999) 50 R.F.L. (4th) 74.
13 Although Madam Justice Athey dismissed J.G.’s motion for the appointment of state-funded counsel, her decision revealed concerns about the absence of legal representation in such proceedings. Referring to Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), [1994] 2. S.C.R. 165, she noted the “collision”
between the rights of parents to bring up their children without state interference and the need for courts to ensure the children’s well-being; and acknowledged how often parents in child protection proceedings face the challenges of “poverty, single parenthood, economic and social disadvantage and limited education....” She also identified a recommendation in a report of the New Brunswick Department of Justice which suggested that individuals should have “fair and equal access to the justice system” regardless of economic means, and stated
“In my view this policy statement is not being adhered to in situations such as this where the family, the very fabric of our society, is in jeopardy of being torn apart after state intervention.” Athey J. also ordered payment by the Minister of Justice of the “reasonable fees and disbursements” of J.G.’s counsel in relation to the motion for state-funded counsel for J.G.: (1995) 131 D.L.R. (4th) 273, at 283-284.
The majority judgment
The Supreme Court of Canada unanimously concluded that the Minister’s
application for an extension of the custody order threatened to deprive the mother of “security of the person,” pursuant to section 7 of the Charter. While state interference with parental custody could be justified to protect a child’s health and safety, the proceedings had to meet the requirement of “the principles of
fundamental justice” in section 7. A fair procedure included the mother’s effective participation:
Without the benefit of counsel, the appellant would not have been able to participate effectively at the hearing, creating an unacceptable risk of error in determining the children’s best interests and thereby
threatening to violate both the appellant’s and her children’s section 7 right to security of the person [para. 81].
The decision also concluded that the infringement of section 7 was not saved by section 1 of the Charter: a parent’s right to a fair hearing when the state seeks to suspend parental custody of children outweighs the additional costs to a legal aid programme of providing legal services, considered in the light of the
government’s entire budget [para. 100; and application of the Oakes test at para.
98].14
The concurring judgment
According to the concurring judgment, the child protection proceedings invoked not only “security of the person” but also the “liberty” interest in section 7, because the proceedings might deprive a parent of the ability to make decisions on behalf of her children and guide their upbringing [para. 118]. The concurring judgment also held that the interpretation of protected interests under section 7 of the Charter must take account of the equality values of sections 15 and 28 of the Charter. Since issues of fairness in child protection hearings also have
significance for women and men who are members of disadvantaged and vulnerable groups, the analysis of section 7 rights must take account of “the principles and purposes of the equality guarantee in promoting the equal benefit of the law and ensuring that the law responds to the needs of those disadvantaged individuals and groups whose protection is at the heart of section 15" [para. 115].
The test formulated in G.(J.)
The majority judgment concluded that a fair hearing “in the unusual circumstances of this case” [para. 83] required that J.G. be represented by
14 R. v. Oakes, [1986] 1 S.C.R. 103. The court adopted the formulation of Iacobucci J. in Egan v. Canada, [1995] 2 S.C.R. 513 that there must be 1) a legislative objective which is pressing and substantial; and 2) a means chosen to attain the legislative end which is reasonable and demonstrably justifiable in a free and democratic society (thus requiring rational connection, minimal impairment, and proportionality) [G.(J.) para. 95].
counsel, having regard to 1) the seriousness of the interests at stake; 2) the complexity of the proceedings; and 3) the capacities of the appellant [para. 75].
While agreeing with the test formulated in the majority judgment, the concurring judgment suggested a need to view these interests broadly:
I would view these interests broadly, and would therefore find that the right to funded counsel in child protection hearings, when a parent cannot afford a lawyer and the parent is not covered by the legal aid scheme, will not infrequently be invoked.... Funded counsel must be ordered whenever a fair hearing will not take place without
representation.... The trial judge’s duty to ensure a fair trial may
therefore, when necessary, involve an order that the parent be provided with legal counsel, and trial judges should not, in my view, consider the issue from the starting point that counsel will be necessary to ensure a fair hearing only in rare cases [paras. 120 and 125].
The majority judgment in G.(J.) identified a responsibility on the part of a trial judge to ensure a fair trial, if necessary by the appointment of state-funded counsel [paras. 103 and 104]. The concurring judgment indicated agreement with the majority reasoning “that it is the obligation of the trial judge to exercise his or her discretion in determining when a lack of counsel will interfere with the ability of the parent to present his or her case....” [para. 119]. An assessment of the need for representation to achieve fairness “must take into account the important value of meaningful participation” [para. 125].
S
ECTION7: “S
ECURITY OF THEP
ERSON” The reasoning in G.(J.)
According to the majority judgment, the right to “security of the person” protects
“both the physical and psychological integrity of the individual” [para. 58]. An attempt by the state to remove children from their parents’ care, whether temporarily or permanently, “... constitutes a serious interference with the psychological integrity of the parent” [para. 61], encompassed by section 7's protection for “security of the person;” Lamer, C.J. acknowledged that
determining exactly what impacts psychological integrity is not simple [para. 59].
The impugned state action “must have a serious and profound effect on a person’s psychological integrity” and the effects of the interference must be assessed objectively, “with a view to their impact on the psychological integrity of a person of reasonable sensibility” (greater than ordinary stress or anxiety, but not to the level of nervous shock or psychiatric illness) [para. 60].
The majority judgment concluded that “state removal of a child from parental custody pursuant to the state’s parens patriae jurisdiction constitutes a serious interference with the psychological integrity of the parent” [para. 61], identifying as elements of the infringement of security of the person: “the loss of
companionship of the child,” the “gross intrusion [of the state] into a private and
intimate sphere,” and the serious consequences of being stigmatized as an “unfit”
parent: “as an individual’s status as a parent is often fundamental to personal identity, the stigma and distress resulting from a loss of parental status is a particularly serious consequence of the state’s conduct” [para. 61].
The majority judgment also acknowledged that the right to security of the person extends beyond the criminal law context;15 thus, for example, the court indicated that confinement to a mental institution by the state would infringe both liberty and security of the person [para. 65]. However, to constitute an infringement of
“security of the person” in a case like G.(J.), the state must directly interfere with the psychological integrity of the parent qua parent [paras 63 and 64].16