Renewing Our Commitement to Legal Aid |
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Legal Aid and the Constitution
Paper written by Eugene Kung, Barrister & Solicitor, Vancouver
The common law traditions of Forma Pauperis and proprio motu13 have instructed judges to raise issues of representation where the fairness of a hearing is an issue. However, there is currently no general constitutional right to legal aid in either the criminal or civil law spheres.
In R. v. Prosper, the Supreme Court of Canada considered whether section 10(b) of the Charter14 imposes an obligation on government to provide legal services to a person who has been arrested or detained15. The court found that section 10(b) gave a person who was arrested an opportunity to consult a lawyer, but that there was no obligation of the State to pay for that lawyer.
R. v. Rowbotham16 is the leading case for a right to state-funded counsel in the criminal law context. The Ontario Court of Appeal unanimously held that state-funded counsel was only provided when necessary to ensure a fair trial. The court held that “in cases not falling within provincial legal aid plans, subsections 7 and 11(d) of the Charter…require funded counsel to be provided if the accused wishes counsel, but cannot pay a lawyer, and representation of the accused by counsel is essential to a fair trial.”17
The leading case for state-funded counsel in civil matters is the 1999 Supreme Court of Canada case New Brunswick (Minister of Health and Community Services) v. G.(J.)18. In that case, the province attempted to extend temporary Crown wardship over three children. The mother, who was on income assistance, was not eligible for legal aid because New Brunswick’s legal aid plan only covered cases involving the permanent removal of children from their parents. The Court focused on the mother’s section 7 Charter right to ‘security of the person’ and found that without a lawyer she would not have been able to participate effectively at the hearing, resulting in a risk of error in determining the child’s best interest. The Court, however, was careful to limit the right to state-funded counsel to the specific facts of the case.
While the jurisprudence has not established a constitutional right to legal aid, there has been some progress in asserting a right to state-funded counsel in certain circumstances. However, as Prosper, Rowbotham, and G(J) indicate, the current right is assessed on a case-by-case basis. The Courts have recognized that in certain cases, publicly funded legal representation may be necessary to ensure that the principles of fundamental justices are respected.
Notes from this page:
13 Making the Case, supra n.4 at p.190 (Roach); p.60 (Bala); and fn 22 (McCallum).
14 Section 10(b) states that “Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.”
15 R v. Prosper; [1994] 3 S.C.R. 236.
16 R. v. Rowbotham [1988] O.J. no. 271.
17 Ibid at 35.
18 New Brunswick (Minister of Health and Community Services) v. G.(J.) (1999), 177 D.L.R. (4th) 124 (S.C.C.). [G(J)]. |
