P ROGRAMMES V IOLATE SECTION 15 E QUALITY R IGHTS

Given the limits of the case-by-case approach to obtaining legal aid, and the judicial rejection of any general right to state-funded counsel, some advocates have attempted to use section 15 of the Charter to obtain more government funding for legal aid. To establish an infringement of section 15(1), applicants must show that they are not receiving equal treatment before or under the law or that the law has a differential impact on them in terms of the protection and benefit accorded by law, and that the difference in treatment or impact is discrimination on grounds enumerated in section 15 of the Charter or on

analogous grounds. Proof of discrimination requires proof that the applicant faces burdens, obligations or disadvantages because of a distinction based on personal characteristics of the individual or group that are immutable, like race, or

changeable only at unacceptable cost to personal identity, like language, religion, or sexual orientation.⁴² The denial of legal aid funding for many kinds of legal proceedings could be held to be a discriminatory denial of the equality guaranteed by section 15 on three grounds: a) poverty; b) sex; c) province of residence.

Poverty

Poor people are disadvantaged in pursuing legal remedies because they lack the financial resources to hire lawyers to represent them. Poor people may also be

39 See Winters v. Legal Services Society (1999), 137 C.C.C. (3d) 371 (S.C.C.).

40 Mooring v. Canada (National Parole Board), [1996] 1 S.C.R. 75.

41 An applicant for funded legal aid for an immigration inquiry should be able to distinguish the decision in A.B. v.

Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 14, in which the Federal Court of Appeal denied an application for an order that the federal government provide funding for counsel for preparation time beyond the limit set by the provincial legal aid plan. Without deciding whether there was a right to state-funded counsel in the circumstances, the court ruled that the federal government had no constitutional obligation to provide legal aid to an individual for a matter covered under the provincial legal aid plan when it already contributed to the provincial plan. The provincial government had not been made a party to the application.

42 Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; R. v. Turpin, [1989] 1 S.C.R. 1296; R. v. Swain, [1991] 1 S.C.R. 933 at 992; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at 529; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 at 216.

disadvantaged because, given the social and cultural constraints of living in poverty, they may have limited knowledge of legal rights or feel less entitled to assert them.⁴³ Poverty is not an enumerated ground in section 15, but there is judicial authority at the level of a provincial court of appeal for considering poverty as an analogous ground.⁴⁴ Recognizing poverty as an analogous ground would conform with the values of self-respect and self-worth that the Supreme Court has said are to be protected by section 15,⁴⁵ and the poor present the

characteristics that the Supreme Court looks for in identifying analogous grounds:

they are “lacking in political power, disadvantaged, or vulnerable to becoming disadvantaged or having their interests overlooked.”⁴⁶ However, because the poor are a “disparate and heterogeneous group,” rather than a “discrete and insular minority,”⁴⁷ judges have been unwilling to find that poverty is an analogous ground, or that the indigent should not be required to pay court fees.⁴⁸

Even if poverty were accepted as an analogous ground, it is hard to characterize restrictions on eligibility for legal aid based on the matter applied for, or the income of the applicant, as restrictions based on irrelevant personal characteristics of the accused.⁴⁹ Legal aid is a benefit not available to all members of society, but all applicants are treated in the same way. Where the government has created a programme to ameliorate some of the disadvantages of living in poverty,

43 Ian Morrison and Janet Mosher, “Barriers to Access to Civil Justice for Disadvantaged Groups” in Ontario Law Reform Commission, Rethinking Civil Justice: Research Studies for the Civil Justice Review, vol. 2 (Toronto, 1996) at 650-663; Janet Mosher, “Poverty Law -- A Case Study” in Ontario Legal Aid Review, A Blueprint for Publicly Funded Legal Services: Report of the Ontario Legal Aid Review, vol. 3 (Toronto, 1997) 913-957 at 914-918, 924-925.

44 R. v. Rehberg, [1994] N.S.J. No. 35 (N.S. C.A.) paras. 83-87 (finding that the man-in-the-house rule disqualifying women from eligibility for welfare benefits is a denial of section 15 equality rights); Dartmouth/Halifax County Regional Housing Authority v. Sparks, [1993] N.S.J. No. 97 (N.S. C.A.) (finding that the exemption of tenants in public housing from the security of tenure provisions in provincial residential tenancies legislation is a denial of section 15 equality rights).

45 Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at 530.

46 Corbiere v. Canada, [1999] 2 S.C.R. 203 at 252, per L’Heureux-Dube, Gonthier, Iacobucci and Binnie, JJ..

47 Masse v. Ontario (Ministry of Community and Social Services) (1996), 143 D.L.R. (4th) 20; leave to appeal to the Ont. C.A. and the S.C.C. denied.

48 Polewsky v. Home Hardware Stores Ltd., [1999] O.J. No. 4151 (Ont. Sup. Ct. of Justice) holding that the fees necessary to initiate or defend actions in Small Claims Court did not violate section 15 rights to access to the courts. In making this ruling, Gillese, J., over-ruled Polewsky v. Bank of Montreal, [1999] O.J. No. 2606 (Ontario Ct.

of Justice G.D. -- St. Thomas Small Claims Court), ordering the court clerk to waive payment of the prescribed fees. The decision of Misener, J., in Polewsky v. Home Hardware Stores, [2000] O.J. No. 81 (Ont. Sup. Ct. of Justice), granting Polewsky leave to appeal, offers some hope that Gillese J.’s ruling may be overturned. Note that in Pleau v. Nova Scotia (Supreme Court, Prothonotary), [1998] N.S.J. No. 526 (N.S. Sup. Ct. -- Chambers), MacAdam, J., rejected a section 15 challenge to hearing or appearance fees for court time, struck down the fees as unconstitutional at common law because they denied or hindered access to the courts.

49 Mireau v. Canada (1991), 96 Sask. R. 197 at 207, denying an application for state-funded counsel to pursue a remedy for numerous alleged Charter violations rights.

decisions about eligibility do not create distinctions which result in discrimination unless the eligibility criteria are unrelated to the purposes of the programme.⁵⁰ The decision of the Supreme Court in Eldridge may provide a way out of this analytical impasse. In a rare unanimous decision, the court declared that a

provincial government’s failure to provide funding for sign language interpreters for deaf people as necessary to permit them to receive medical services was a violation of their section 15 rights.⁵¹ Even though the state had no constitutional obligation to provide medical services, once it did so, it had to ensure that deaf people received the same level of medical care as the hearing population. This obligation existed even though the disadvantage faced by the deaf was not a result of government action. To rule otherwise would permit governments to provide benefits to the general population without ensuring that disadvantaged members of society have the resources to take full advantage of those benefits -- a view of section 15 that Justice La Forest described as “thin and impoverished.”⁵² This obligation to take positive action to extend the scope of a benefit to previously excluded classes of persons should apply as well to compel the government to make legal aid available so that the poor can access the courts and enforce rights and remedies provided by law.

Sex

Legal aid programmes vary considerably among the thirteen provincial and territorial jurisdictions in Canada, with respect to financial eligibility

requirements, matters covered, funds available to the programme, and modes of service delivery, but preliminary empirical research suggests that in all of the programmes, significantly more legal aid funding goes to male applicants than to female applicants. The imbalance exists because legal aid is generally available for criminal but not civil matters, and men more than women face criminal charges.⁵³ Facially neutral provisions are nonetheless discriminatory if they impact adversely on a group included under an enumerated or analogous ground.⁵⁴ Thus, although the legal aid programmes do not explicitly deny legal aid coverage to women, they may be held to violate women’s equality if there is

50 Masse v. Ontario (Ministry of Community and Social Services) (1996), 143 D.L.R. (4th) 20; leave to appeal to the Ont. C.A. and the S.C.C. denied.

51 Eldridge v. British Columbia (Attorney-General), [1997] 3 S.C.R. 624.

52 Eldridge v. British Columbia (Attorney-General), [1997] 3 S.C.R. 624 at 677-678.

53 M. J. Mossman, “Gender, Equality, Family Law and Access to Justice,” (1994) 8 International Journal of Law and the Family 357-373; LEAF-NB, Access to Justice in New Brunswick: The Adverse Impact of Domestic Legal Aid on Women (Fredericton, 1996); Report of the Task Force on Gender Equality in the Legal Profession, Touchstones for Change: Equality, Diversity and Accountability (Ottawa: Canadian Bar Association, 1993).

54 Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536; Eldridge v. British Columbia (Attorney-General), [1997] 3 S.C.R. 624 at 670-675.

sufficient empirical evidence that they significantly disadvantage women as compared to men.⁵⁵

In N.B. v. G.(J.), Justice L’Heureux-Dubé held that the denial of legal aid for parents in child protection proceedings was a denial of the equality guaranteed by section 15 of the Charter, because women, and especially single mothers, are

“disproportionately and particularly affected” by these proceedings. Justice L’Heureux-Dubé also noted the likelihood that these parents would be members of other disadvantaged and vulnerable groups, particularly visible minorities.

Thus, in determining how to protect section 7 rights, and the principles of

fundamental justice, courts must “take into account 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 these disadvantaged individuals and groups whose protection is at the heart of section 15.”⁵⁶

These comments suggest the possibility for expanding legal aid coverage beyond the confines of state action where necessary to ensure that women are able to benefit equally with men in accessing the legal remedies provided them. The arguments for state-funded legal aid to ensure equal access to the law are

particularly compelling for women who want to leave an intimate relationship but need legal aid to obtain support payments and property entitlements for

themselves and their children, as being shut out of the courts in these circumstances may well involve risks to security of the person and liberty.⁵⁷ Arguments on positive obligations based on the Eldridge decision apply with even more force to the disadvantage faced by women as compared with men in accessing legal aid and the equal benefit and protection of the law.