In the legal aid literature, a recurring assertion about inequality in legal aid services focuses on gender.75 As Hughes commented, “it is a fair working assumption that in collective terms, women and men use the legal system for different purposes (as well, of course, for the same purposes);”76 in particular, statistics suggest that higher proportions of men, by comparison with women, are accused of criminal offences;77 and that women are more likely than men to require legal services for family law matters. Thus, if legal aid services are designed to provide priority for representation in criminal law matters, men will benefit from legal aid more often than women; and as Dyzenhaus argued, in the context of scarce resources for legal aid services, a “priority” area of service may become one of “exclusivity.”78 According to Hughes, this gendered pattern in the allocation of legal aid resources “implicates the state in the continued
subordination of women:”
Put another way, both women and men require the legal system to defend themselves, yet find that it is not equally available to them. To the extent that they do not have equivalent access to it, women are denied the protection of the legal system: they are, in the literal sense of the phrase, denied “the equal benefit of the law” guaranteed by
section 15.79
75 See Hughes in F.H. Zemans, P. Monahan and A. Thomas, eds., above note 56, at 29; Hughes, “Domestic Legal Aid: A Claim to Equality” (1995) 2:2 Review of Constitutional Studies 203; Mossman, “Gender Equality and Legal Aid Services: A Research Agenda for Institutional Change” (1993) 15 Sydney Law Review 30; and Des Rosiers, above note 35.
76 Hughes, “Domestic Legal Aid,” above note 75, at 205.
77 For a good analysis of women accused of criminal offences, see Dianne Martin, “Punishing Female Offenders and Perpetuating Gender Stereotypes” in Julian V. Roberts and David P. Cole, eds. Making Sense of Sentencing (Toronto: University of Toronto Press, 1999) 186.
78 Dyzenhaus, above note 59, and accompanying text.
79 Hughes “Domestic Legal Aid,” above note 75, at 206. As Hughes suggested, “the factual underpinning for the conclusion that men make greater demands on the criminal legal aid system than do women and that women have greater needs for domestic legal aid assistance needs to be definitively established.” Id. at 204. This gendered pattern of legal aid services is arguably revealed, for example, because “among other criminal charges for which men seek legal counsel are those involving abuse of women, sexual and non-sexual. Women, on the other hand, need the assistance of the legal system to defend themselves against violence by men (through seeking a restraining order, for example) or to remove themselves from abusive or otherwise subordinate domestic relationships:” Hughes, id. at 205- 206. As well, “the possibility of state-detention gives rise to a right to counsel, but the reality of spouse- detention (the inability to leave an unsatisfactory home life) does not;” and similarly, “deprivation of livelihood may justify the granting of legal aid, but the deprivation of alimony or support may not, even if the economic impact on the individual is just as serious: Des Rosiers, above note 35, at 534. In this context, Bala argued that an indigent debtor, who has failed to pay court-ordered child support, may well be entitled to state-appointed counsel before a court makes a finding that results in imprisonment for contempt;
although women may not be entitled to legal aid to seek an order for child support: Bala, above note 20, at 401. As Bala noted, however, courts have been unwilling to find that a license suspension (for failure to pay child support) results in deprivation of “liberty or security of the person:” see Westendorp v. Westendorp (2000), 8 R.F.L.
As Hughes argued, women’s claim to more equitable access to legal aid (or for a domestic legal aid programme equivalent to the criminal legal aid programme) rests, not on an economic ground, but rather on the integrity of the legal system itself and its ability to protect all members of society.80 Such an analysis reveals how protection for “security of the person” in section 7 may be linked to the equality guarantees in section 15: as Dyzenhaus suggested, if a family law litigant is unaware of her rights or unable to exercise them without state-funded counsel, the result is inequality before the law because the legal system is fostering (rather than constraining) the abuse of power and resources by the other party.81
Moreover, the increasing complexity of family law exacerbates this inequality of knowledge, resources and power.82 In this way, the fundamental values expressed in section 15 may be used to interpret the rights in the Charter, especially section 7, in relation to civil legal aid services.
In addition, in Law v. Canada (Minister of Employment and Immigration),83 the Supreme Court of Canada formulated an approach to section 15 which included the promotion of human dignity by preventing discrimination. The test
unanimously adopted by the court requires differential treatment between a claimant and others; treatment which is based on enumerated or analogous
grounds; and a discriminatory purpose or effect of the challenged law. In applying the test, the court expressly concluded that human dignity requires rejection of
“stereotypical characteristics:”
... human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits.... Human dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se, but rather concerns the
(5th) 225 (Ont. S.C.J.); Horsefield v. Ontario (Registrar of Motor Vehicles) (1999), 134 C.C.C. (3d) 161 (Ont. C.A.), varied (1999), 185 D.L.R. (4th) 711 (Ont. C.A.).
80 Hughes “Domestic Legal Aid,” above note 75, at 215. This argument may be strengthened by the fact that members of enumerated and analogous groups in section 15 are over-represented among the poor, even though poverty has not been accepted as an analogous ground: see Janet Mosher, “Poverty Law - A Case Study” in Ontario Legal Aid Review, above note 3, at 913; and Martha Jackman and Bruce Porter, “ Women’s Substantive Equality and the Protection of Social and Economic Rights under the Canadian Human Rights Act” in Status of Women Canada, Women and the Canadian Human Rights Act: A Collection of Policy Research Papers (Ottawa: Status of Women Canada, 1999) at 43.
81 Dyzenhaus, above note 34, at 487. See also Cossman and Rogerson, above note 32, at 819. See also the discussion of subordination of poor women in child protection proceedings in the United States in Colene Flynn,
“In Search of Greater Procedural Justice: Rethinking Lassiter v. Department of Social Services” (1996) 11 Wisconsin Women’s Law Journal 327. See above note 62 for further discussion of Lassiter.
82 Cossman and Rogerson, above note 32, at 777-784. See also the analysis of “unmet legal needs” and concerns about unrepresented litigants: 820-829. While this analysis focuses on family law matters, similar arguments could be made in relation to refugee hearings and other poverty law issues.
83 [1999] 1 S.C.R. 497.
manner in which a person legitimately feels when confronted with a particular law. Does the law treat him or her unfairly, taking into account all of the circumstances regarding the individuals affected and
excluded by the law?84
Such an inquiry is arguably sufficiently broad to encompass a claim about disparity in entitlement to legal aid services, at least based on the grounds of sex in relation to family law services. It might also provide a basis for claiming a right to civil legal aid services in other cases, especially when the claimant’s contextual circumstances include elements of vulnerability and “restricted access to
fundamental social institutions.”85
Any such argument fundamentally engages ideas about the meaning of rights for Canadians. As Hughes argued, “where ... an individual requires access to the legal system to realize the rights the law has given to her, lack of meaningful access is a contravention of the promise inherent in the rights.”86 She also suggested that recognition of individual rights is particularly significant since those who cannot afford legal services are so often also reliant on governmental provision of goods and services. In this way, the capacity to “make real” the entitlements created by law is an integral part of the entitlement.87 In the U.S. context, Colene Flynn explored the need for meaningful participation on the part of litigants as a goal of the justice system, suggesting that assessments of power balances (and
imbalances) is necessary to achieve decisions that are fair.88 State-funded counsel, in this context, is a means to ensuring equality for litigants in the justice system.
84 Law, at para. 53. The court held that the determination of the “appropriate comparator” and the evaluation of contextual factors to decide whether legislation demeans a claimant’s dignity must be conducted from the perspective of the claimant; the focus of the discrimination inquiry has both subjective and objective aspects (at para. 59-60). The four contextual factors include pre-existing disadvantage, the relationship between grounds and the claimant’s personal circumstances, the ameliorative purpose or effects of the law; and the nature of the interest affected. In relation to the latter factor, the court stated that it is necessary to consider whether the distinction “restricts access to a fundamental social institution or affects a basic aspect of full membership in Canadian society, or constitutes a complete non-recognition of a particular group:” Law, at para. 88.
85 For examples, see Des Rosiers, above note 35; Macklin, above note 35; Mosher, above note 80; Thompson, above note 12; and Mossman, above note 4.
86 Hughes, above note 44, at 113.
87 Hughes, above note 44, at 114, and citing Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624:
sign language interpretation is an integral part of the provision of health services, not an adjunct or separate service. Hughes made these arguments in the context of an analysis of section 7, but they overlap, to some extent at least, with the formulation of the context of discrimination in Law. See also Mossman, above note 56, at 364: “In the context of women’s greater relative poverty, ‘neutral’ categories of entitlement to legal aid services must be assessed in terms of their effects in practice (their substantive results), not simply on the basis of their use of (formal) gender neutral language.”
88 Flynn, above note 81, at 330-331. In particular, Flynn argued that the presumption of equality among litigants impeded the achievement of fairness in Lassiter because test in Matthews v. Eldridge 424 U.S. 319 (1976) failed to account for the mother’s lack of power in the proceedings: “The court afforded an indigent mother fewer, not more, procedural guarantees by not factoring into the equation her power and ability to participate in the proceeding:” id., at 332. In this way, the provision of state-funded counsel is essential to achieve equality goals.