Four themes are evident in this review of the cases and academic literature:
• Charter interpretation as an evolutionary process;
• the increasing complexity of the legal system in Canada;
• the need to foster participation in society, particularly for those who are most disadvantaged; and
• the role of judicial discretion.
Charter interpretation as an evolutionary process
This review of the decided cases on some aspects of sections 7 and 15 of the Charter reveals how much the meaning of these sections has evolved in the jurisprudence of the Supreme Court of Canada. Although the evolution of law is hardly a new idea, it is nonetheless important to acknowledge the evolutionary nature of decision-making in relation to Charter protections. Thus, while critical of some developments in Supreme Court jurisprudence, Hughes reiterated how the court has expressly confirmed that Charter rights are not “frozen,”94 and that an approach which restricts the evolution of Charter protections may undermine the goal of reflecting social change in law. Similarly, even before the G.(J.) decision, the Ontario Legal Aid Review suggested that it was “not at all clear that courts would refrain from intervening and finding unconstitutionality if
confronted with what appeared to be a plainly discriminatory feature of a legal aid scheme or a level of service that was considered to be so inadequate that the judiciary could not preside over fair trials.”95 Thus, if it can be shown that there is
93 For example, see M. v. H., [1999] 2 S.C.R. 3. In response to the decision in the Supreme Court of Canada, the Ontario legislature enacted The Amendments Because of the Supreme Court of Canada Decision in M. v. H.
Act, 1999, S.O. 1999, c.6.
94 Hughes, above note 75, at 51, and citing Hunter v. Southam Inc., [1984] 2 S.C.R. 145.
95 Ontario Legal Aid Review, above note 3, at 82.
a recognizable need for civil legal aid services to achieve important objectives that are consistent with underlying values of the Charter, a court may hold that the evolution of the Charter requires recognition of a constitutional right to state-funded counsel in civil matters.
Increasing complexity of the law and legal regulation
As the academic literature reveals, concerns have been expressed about the rapid pace of legal change and the problems which are experienced by many Canadians in becoming aware of their legal rights and obligations, and implementing them in practice. In the case of family law, for example, Cossman and Rogerson described the major developments that have taken place in family law within the past thirty years: “Put simply, this period of time has seen massive social changes and several waves of legal reform which have generated an increasing and
overwhelming demand for legal services in the family law area.”96 This kind of rapid change has also occurred in relation to other areas of civil law, as well as in the criminal law context.97 The point here is that the need for legal aid services is in part a reflection of relatively greater legal intervention in our daily lives.
According to Hughes, an understanding of the extent to which law has become increasingly pervasive and complex means that we must adopt “systemic”
approaches to the issue of legal aid services:
... access to the legal system is properly characterized as a systemic matter and not merely one which may be a problem for individuals. As with any right or interest, some individuals will need to claim it more than others, but it is, I would suggest, fundamental to our existence as citizens (in the broad sense of the term). Once lack of access is seen as a systemic “problem,” it is more likely that it will be understood that it requires a systemic solution. This does not automatically mean a particular form of legal aid, but legal access programs which deliver a variety of services as appropriate.98
This formulation of the need for access to legal services suggests that the need may be more complex than previously, both in terms of categories of legal problems and also in the kinds of services which may be needed. In this context, the increasing complexity of law and legal regulation represents a significant factor to be considered in determining whether societal changes require a response that fosters more effective access to legal advice and assistance,
including a constitutional right to state-funded counsel for a wide variety of civil matters.
96 Cossman and Rogerson, above note 32, at 778.
97 For some analysis and critique in relation to sentencing issues, for example, see Roberts and Cole, eds., above note 77.
98 Hughes, above note 44, at 113.
Participation and access rights (especially for vulnerable Canadians) Recognition of a constitutional right to state-funded counsel in civil proceedings also helps to foster participation by vulnerable and disadvantaged Canadians in processes of decision-making which affect their lives. As Nedelsky suggested, it is important to have:
... an opportunity to be heard by those deciding one’s fate, to
participate in the decision at least to the point of telling one’s side of the story.... [A] hearing designates [parties] as part of the process of
collective decision-making, rather than as passive, external objects of judgment. Inclusion in the process offers ... a sense of dignity,
competence and power.99
For those who are most vulnerable and disadvantaged, however, the right to participate in proceedings which affect their lives will frequently require legal assistance. Thus, the right to participate is without substantive content in the absence of meaningful arrangements for legal services, arrangements which will also ensure that decision-making is informed about all the facts and circumstances and thereby more just.100 As Hughes explained, the decision in G.(J.) is all too similar to other civil proceedings:
J.G. was, it must be said, asking for very little: only the chance to explain as effectively as she could why she should be able to keep her children.
But the legal system requires that she do that in a certain way in a certain environment. Legal counsel mediates Ms G’s story and the legal structure into which it must fit. On its face, Ms G. and others in her position will be entitled to that interpreter of the law and of the norms of the system which will decide such an important aspect of their life. Even so, one is left thinking that the court missed an opportunity in G.(J.) to say more about the need for civil legal aid....101
The right to state-funded counsel in civil matters, many of which profoundly and seriously affect the lives of vulnerable and disadvantaged Canadians, provides the means for their substantive access and meaningful participation in legal
proceedings.
Discretion and facts
The test adopted in G.(J.) for determining whether a trial judge should order state-funded counsel is highly discretionary, involving an assessment of three factors:
the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the litigant [para. 75]. In relation to each of these factors, there is a need for the trial judge to weigh the circumstances in individual cases, and to determine whether there is a need for state-funded counsel, having regard to the
99 Nedelsky, above note 44, at 27.
100 Thompson, above note 12.
101 Hughes, above note 44, at 116 (Emphasis added).
financial needs of the applicant and the inter-relationship of the three factors.
Thus, it appears that an applicant with few abilities to participate effectively may require counsel in a matter which is less complex than a matter in which a more capable applicant is involved. In family law matters, moreover, Bala argued that the facts are highly relevant to the exercise of judicial discretion:
... to successfully invoke the Charter in a family law case, it is essential to have a sympathetic factual context, either in terms of the general issues raised or the specific litigant before the court, or preferably both.... [It] is clear that judges are only willing to invoke the Charter if the specific facts or the general context of this type of case suggests that this is likely ... to be “the right thing to do.” The courts are only willing to use the Charter in the family law cases to promote human dignity or social justice, or to promote the interests of children.102
In this context, it appears that a constitutional right to state-funded counsel in civil matters may depend on highly discretionary decision-making and the facts in individual cases. Indeed, Dyzenhaus argued that the provision of legal aid should be determined, not on the basis of abstract legal categories, but rather in relation to the interests engaged by the circumstances of individual cases.103
The discretion exercisable by a trial judge, as outlined in G.(J.) in relation to the principles of fundamental justice, reflects the traditional judicial power to order state-funded counsel in appropriate criminal matters. As the court explained in Re White and the Queen, a trial judge may exercise discretion to order state-funded counsel where, because of the complexity of the case, the seriousness of the criminal charges, or other circumstances such as the accused’s lack of knowledge or skills, the judge concludes that counsel is needed to ensure a fair trial.104 As is apparent, there is great similarity between the traditional test for the exercise of discretion as set out in cases like Re White and the Queen and the formulation of the test adopted by both the majority and the concurring judgments in G.(J.). The significance of extending this discretion in G.(J.) is thus twofold: a trial judge may now exercise this discretion in some civil matters (at least child protection) as well as in criminal cases; and the power to do so is now mandated, not just by the court’s inherent power to ensure a fair trial, but also by the requirement of fundamental justice in section 7 of the Charter. Moreover, as the Ontario Legal Aid Review noted, the scope of section 7 is broader than the requirement of a fair trial in section 11(d).105 In this context, it is arguable that there is a constitutional
102 Bala, above note 20, at 375.
103 Dyzenhaus, above note 34. This issue is further addressed below in relation to section 1 and appropriate responses on the part of provincial legal aid programmes.
104 Above note 5. According to the Ontario Legal Aid Review, this judicial power was not eradicated by the establishment of provincial legal aid programmes in Canada, so that it is possible for a court to exercise its discretion in favour of an accused who has been denied legal aid services. As well, the jurisprudence
concerning this judicial discretion has now informed the interpretation of Charter provisions such as section 11(d) concerning the right to a fair trial. See Ontario Legal Aid Review, above note 3, at 74-75.
105 Ontario Legal Aid Review, above note 3, at 79.
requirement to ensure fairness and fundamental justice in both civil and criminal matters, and that the exercise of judicial discretion must conform to these Charter requirements. In this way, the exercise of judicial discretion may now be
structured by the requirements of the Charter.
Thus, having regard to these underlying constitutional values, it is arguable that the Charter must be interpreted in accordance with current needs, that the legal system continues to become ever more complex, that there is a need to foster and ensure the participation of the most disadvantaged Canadians in the legal process, and that the exercise of judicial discretion is constrained by the requirements of fundamental justice and the goal of a fair trial. These broad themes, which emerge from a review of the jurisprudence about state-funded counsel in criminal and civil proceedings provide a context for re-evaluating the legal arguments relevant to the evolution of a right to civil legal aid.