Constitutional Right to Legal Aid

Joseph J. Arvay*

I

This opinion will focus on the following types of proceedings in which a right to state-funded legal aid might be claimed:

(1) civil proceedings initiated by government in which an individual’s Charter rights are threatened;

(2) civil proceedings commenced by an individual against the government to determine if the individual’s Charter rights have been violated by state action.¹

For Category (1), the courts have already held that state-funded counsel will be ordered as of right if necessary for a fair hearing in accordance with section 7 of the Charter. Consequently, one line of argument will seek to expand the range of hearings for which fairness requires state-funded counsel.

For Category (2), an argument could be made pursuant to the principles of constitutionalism and rule of law.

A further argument based on section 15 of the Charter would be applicable to both types of hearings.

In the following sections I will examine the potential arguments, first in relation to proceedings initiated by government, and second in relation to proceedings commenced by the individual.

* Joseph J. Arvay, Q.C., Arvay Finlay, Victoria, British Columbia.

1 A third type of proceeding in which the right might be asserted would be civil proceedings between private citizens. While some of the arguments set out below may apply to such proceedings, we have chosen not to address civil proceedings between private citizens in this opinion.

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I

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Section 7 of the Charter

Section 7 provides:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The analysis under section 7 is a two-step process. First, the court must determine if a person’s right to life, liberty and security is in jeopardy. If this is so, then the court must identify the particular principle of fundamental justice at stake and determine whether the government has adhered to the principle.

The provision of state-funded counsel to those accused of serious crimes predates the Charter. In R v. Rowbotham,² the Supreme Court of Canada stated that the Charter does not in terms constitutionalize the right of an indigent accused to be provided with funded counsel. However, the court held that the Charter does guarantee an accused a fair trial in accordance with the principles of fundamental justice under subsection 7 and 11(d). Thus, there is a right to funding in certain cases not falling within provincial legal aid plans if representation is necessary for the government’s actions to be in accordance with the principles of fundamental justice. Rather than obliging the government to provide state-funded counsel in all criminal cases in which the accused lacks the means to employ counsel, the court in Rowbotham held that a trial judge should consider factors such as the length and complexity of the case before issuing an order to stay a criminal proceeding.³ The courts have more recently recognized that section 7 can be engaged outside the criminal context. In 1999 the Supreme Court of Canada addressed the right to funding for counsel in the context of a non-criminal proceeding in New Brunswick (Minister of Health and Community Services) v. G.(J.).⁴ The Minister had taken the appellant’s children into custody and was applying to extend the custody order for a further six months. The appellant had been denied legal aid funding for representation at the custody hearing.

The court in G.(J.) recognized that the right to state-funded counsel can extend into the civil arena. Lamer C.J.C., for the majority, stated as follows:

2 (1988), 41 C.C.C. (3d) 1 (S.C.C.).

3 Ibid. However, the prospect of a stay has generally served as an incentive for governments to establish systematized provision of legal aid in such situations.

4 (1999), 177 D.L.R. (4^th) 124 (S.C.C.).

When government action triggers a hearing in which the interests protected by section 7 of the Canadian Charter of Rights and Freedoms are engaged, it is under an obligation to do whatever is required to ensure that the hearing be fair.⁵

Thus, an individual who invokes section 7 in order to obtain state-funded counsel should succeed at least where he or she is able to establish three things:

(a) that the individual’s section 7 rights are in jeopardy;

(b) that representation is required for the hearing to be fair; and (c) that government action “triggered” the hearing.

I will consider each of these elements in the next three sections.

(a) Hearings where Section 7 Rights are in Jeopardy

To date, the courts have recognized that section 7 interests may arise where the following rights are threatened:

• the right to make important and fundamental life choices,

• the right to choose where to establish one’s home,

• the right to nurture one’s child and make decisions on upbringing,

• the right to privacy with respect to intimate issues,

• the right to be free from physical punishment or suffering,

• the right to be free from the threat of physical punishment or suffering,

• the right to be free from impairments or risks to health,

• the right to be free from threats to psychological integrity,

• the right to be free from “overlong subjection to the vexations and vicissitudes of a pending criminal accusation,” or

• the right of control over one’s body and to choose medical treatment.⁶ In a proceeding where any of the above rights may be at risk, the first branch of the G.(J.) test will be satisfied and the question would be whether legal counsel is required for the hearing to be fair and whether government action is implicated.

Potential areas for expansion of the range of hearings in which section 7 interests may be recognized include the following:

• Obiter dicta in several Supreme Court of Canada decisions have suggested that the economic capacity to satisfy basic human needs may also be

5 G.(J.), supra at para. 2.

6 See the summary of the caselaw in Chapter 44 of P. Hogg, Constitutional Law of Canada (Toronto : Carswell, looseleaf); see also G.(J.), supra; and Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R.

307 at para. 46.

protected.⁷ If recognized, such protection could support an argument for the extension of a section 7 right to counsel to income assistance

proceedings.

• The benefit of the rule of law itself may also be a right protected by section 7. In granting leave to appeal in Polewsky v. Home Hardware Stores Ltd.,⁸ Misener J. of the Ontario Superior Court of Justice stated that it was at least arguable that imposing court fees regardless of the financial resources of the applicant may violate section 7 because the fees deny all access to the courts to those who are unable to pay them, which would arguably be a deprivation of the benefit of the rule of law, “an essential component of the liberty of the subject in this Province and to the security of the person.”⁹ Such an argument could allow section 7 to provide a right to counsel in proceedings which primarily threaten constitutional rights other than “life, liberty and security of the person” (more traditionally defined) or where an individual commences a proceeding claiming his or her Charter rights have been violated.

(b) Representation Must be Necessary to Ensure a Fair Hearing Once a court has determined that the interests protected by section 7 are

threatened, it must then determine whether the principles of fundamental justice have been respected. At a minimum, fundamental justice includes a requirement of procedural fairness.¹⁰ Procedural fairness requires that a party have an adequate opportunity of knowing the case to be met, of answering it, and putting forward the party’s own position.¹¹

In cases dealing with complex legal issues, the presence of counsel will be necessary to achieve these the requirements of procedural fairness. For example, the ability to test evidence through skilled cross-examination is an essential aspect of a full and fair hearing, and a skill which the ordinary citizen does not possess.

(c) Involvement of Government

Lamer, C.J.’s statement that the government has an obligation under section 7

“when government action triggers a hearing” may mean only that there must be some action of the government that infringes the applicant’s section 7 rights for a right to state-funded counsel to arise. However, his statement also presumes that a hearing will be provided as a matter of procedure. His reasons do not address the situation where the government takes action contrary to an individual’s section 7

7 Singh v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177 at 207; Irwin Toy v. Que., [1989]

1 S.C.R. 927 at 1003.

8 [2000] O.J. No. 81 (Ont. S.C.J.), granting leave to appeal from (1999), 40 C.P.C. (4^th) 330 (Ont. S.C.J.).

9 Paras. 14 and 15.

10 Singh, supra at para. 57.

11 Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385; Singh, supra at para. 57.

rights but no hearing is provided, nor more generally where an individual

commences an action against the government to determine if a Charter right has been violated by state action. Arguments relating to these situations are

considered in a later section.