Civil Litigation and the Right to Meaningfully Access Justice
Is there a Charter Right to Civil Legal Aid?
The various Charter provisions that work together in the criminal context (ss. 11(d), 10(b) and 7) are not engaged in most civil cases. Sections 11(d) and 10(b) do not apply at all to civil cases. While s. 7 is not strictly confined to criminal cases, civil actions are rarely serious enough to trigger its protections. For the time being, unless a civil case engages s. 7, there is no right to civil legal aid.
This is explained in more detail below.
Section 7 in the Civil Context
Section 7 is engaged whenever someone’s life, liberty or security of the person is threatened by state action. If engaged, a person cannot be deprived of those guarantees except in accordance with the principles of fundamental justice. It is a principle of fundamental justice that a person has a fair trial.
There are three hurdles to satisfy for s. 7 to apply:
- State action;
- A Threat to Life, Liberty and Security of the Person; and
- A deprivation of those guarantees not in accordance with the principles of fundamental justice.
Civil court actions that do not involve the government will not trigger s. 7 (because there is no state action). In addition, normal stress and anxiety arising from law suits does not meet the threshold of threatening "life, liberty or security of the person". (see, for example, Blencoe v. British Columbia (Human Rights Commission),  2 S.C.R. 307 at paras 56, 57). Only "serious, state-imposed psychological stress" will trigger security of the person. (see: New Brunswick (Minister of Health and Community Services) v. G. (J.),  3 SCR 46 at para 59).
There are, however, a small collection of civil cases that are serious enough to engage s. 7. For example, in New Brunswick (Minister of Health and Community Services) v. G. (J.),  3 SCR 46, s. 7 was invoked to provide a mother with state-funded counsel during a child welfare hearing. The provincial government was seeking permanent custody of her child, and legal aid would not represent her. In this case, the state action created a “severe and profound effect on psychological integrity”. Therefore, s. 7 was triggered.
Even if s. 7 is engaged, a person will not always be entitled to state-funded counsel unless the third hurdle is satisfied. In other words, there is no right to state-funded civil counsel unless refusing that person a lawyer will compromise trial fairness.
Fairness will demand a right to counsel in civil cases only when:
the case is complex, and
the litigant lacks the capacity to understand or present their case.
In G. (J.), the case was sufficiently complex such that mother was entitled to counsel. The case was clear that this is an exceptionally high threshold that is not easily satisfied.
A Right to Civil Legal Aid outside of Section 7?
The child apprehension cases have not created a more general right to civil legal aid. The unique nature of child apprehension cases do not lend themselves to being applied in less (for lack of a better word) traumatic civil litigation.
In addition, the child apprehension cases pegged relief to s. 7 of the Charter. As explained above, s. 7 does not arise frequently in civil matters. The Court declined to draw on any other provisions or Charter values in locating a right to legal aid.
Because s. 7 provided such strict restrictions, public interest groups and law societies began looking for an alternative route to ground a more general right to civil legal aid. Unfortunately, these efforts have (thus far) been unsuccessful. In particular, two high-profile Court losses have largely (for the time being) shut-down efforts to locate aCharter right to civil legal aid.
The first case was launched by the Canadian Bar Association (“CBA”) on behalf of low-income people. In Canadian Bar Assn. v. British Columbia, 2006 BCSC 1342, the CBA made four arguments that inadequate legal aid breached the Charter in ways not covered by G.(J.):
The unwritten constitutional principle of judicial independence was infringed, because it forced judges to provide advice to self-represented litigants appearing before them.
The Rule of Law (as referenced in the Constitution's preamble) was infringed, because without an adequate civil legal aid regime, poor people were unable to seek legal recource where their fundamental interests were at stake.
Section 7 was infringed, because the government repealed legal aid legislation, and this state action infringed poor people’s ability to get counsel when their fundamental interests were at stake; and
Section 15 equality guarantees were infringed, because failing to provide adequate legal aid discriminated against people on the basis of (among other things) gender and poverty.
The CBA lost before the British Columbia Court of Appeal. According to the Court, the Statement of Claim disclosed no reasonable cause of action. Unwritten constitutional principles and implicit constitutional values (claims 1 and 2) are not free-standing rights capable of being breached. The s. 7 claim was deficient because people do not have an automatic right to counsel just because their s. 7 fundamental interests are engaged. The s. 15 claim was deficient because it did not disclose sufficient particulars.
Near the same time, a separate (but similar) case also lost before the Supreme Court of Canada. In Christie v. British Columbia (Attorney General) the Supreme Court of Canada was asked if a tax on legal fees unconstitutionally infringed access to justice. The claimant argued that (a) access to justice was an implicit constitutional right, and (b) that the Charter’s preamble (which confirmed Canada’s adherence to the rule of law) demanded meaningful access to justice. These rights were breached by a tax that impeded the ability to access justice, because it made legal services unaffordable for low income individuals.
The Supreme Court of Canada dismissed the case. Instead of focusing on whether a tax on legal services was constitutional, it treated the case as one demanding a broad constitutional right to legal aid in all possible circumstances. The Court was unwilling to impose the financial burden associated with such a broad right on the government without more solid constitutional footing.
The Christie and the CBA cases were significant blows to the to the civil access to justice movement. These rejections have, to say the least, stifled further litigation on the right to civil legal aid. Since Christie, there have been no meaningful court cases on the general right to civil legal representation.
This decision has not, however, stopped academics from continuing to weigh in on the issue. The link below provides an outline of some arguments floating in academic circles regarding a potential right to civil legal aid.
The Future of A Right to Civil Legal Aid
Some advocates have not given up on the idea of a locating a right to civil legal aid. These academics are exploring new angles on previously tested arguments, and are reaching beyond the Charter and into the Constitution more generally (for example, see Micah B. Rankin “Access to Justice and the Institutional Limits of Institutional Courts” (2012) 30 Windsor YB Access Just 101 for discussion on access to justice and it's impact on judicial independence and impartiality).
Other advocates have taken a broader view to the Charter and accessing justice. Despite its failure to constitutionalize legal aid, it has increased access to justice when examined through a different lens. In particular, the Charter has changed many Canadians’ expectations about their legal equality rights. This has encouraged disadvantaged individuals and/or marginalized groups to use the Charter to challenge long-standing practices. In this way, it provides a catalyst for social justice goals (see: Mary Jane Mossman, “The Charter and Access to Justice in Canada” in David Schneiderman & Kate Sutherland, Charting the Consequences: The Impact of Charter Rights on Canadian Law and Politics (Toronto: University of Toronto Press Incorporated, 1997) at 271 [Mossman]).
Mossman goes on to argue that the advent of the Charter has been accompanied by significant changes in the demographic composition of law schools, and has helped create a culture that significantly engages with equality issues. As such, it is arguable that the Charter has significantly impacted the face and thinking of the legal profession. This more diverse population and rights-based thinking has brought with it an increased accessibility to the broader public.
These broader perspectives suggest that the Charter has (or can) increase access to justice by encouraging more diverse groups of people to assert their Charter rights.
For more information, please download our Annotated Bibliography below.