Access to Justice as a Right

Do you have a right to access justice? The answer depends on two factors:

1. What do you mean by access to justice, and
2. How serious and complex is your case?

If you view access to justice as a right to basic courtroom procedures, there are limited protections that safeguard the right to “have one’s day” in court. If, however, you see access to justice as encompassing more robust procedures (like the right to counsel), your rights are significantly more limited.

The Constitution’s role in protecting access to justice is discussed below.

1. What Do You Mean by Access to Justice?

The Constitution protects the public’s ability to physically access the court and (in a strict sense) to understand what is happening during court processes. These protections align with a narrow view of access to justice — where access to justice equals access to courts (more information here).

In addition, provincial governments are prohibited from imposing court fees that cause undue hardship, if these fees prevent people from being able to appear in Court (Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59 at para 46).

If taking a broader view of access to justice, your rights become significantly more restricted. In particular, the right to legal counsel will depend on an assessment of the seriousness and complexity of a case, and a party’s ability to effectively participate without a lawyer. This is discussed in the next section.

2. How Serious and Complex is your Case?

There is no blanket right to legal representation in the Canadian legal system. This is true in both criminal and civil law. There are, however, several rights in the Canadian Charter of Rights and Freedoms that protect trial fairness. In the right individual circumstances, these provisions can create a right to legal representation. This right is significantly more robust (though not absolute) in the criminal sphere. Civil cases struggle to locate any right to counsel.

A Right to Legal Aid in Criminal Cases?

The Charter has certain guarantees that apply on “arrest or detention”, or on being “charged” with an offence. This includes (among others):

• Section 10(b): to retain and instruct counsel without delay and to be informed of that right; and
• Section 11(d): to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

In addition, s. 7 of the Charter protects life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. It is a principle of fundamental justice that a person receives a fair hearing where they are able to participate and present their case.

Contrary to popular belief, s. 10(b) does not create a right to legal aid (see R v Rowbotham, (1988) 63 CR (3d) 113 (Ont CA) at para 156). However, when it is read in conjunction with ss. 11(d) and 7, a right to legal aid can be imposed when it is essential to trial fairness. This occurs when three factors are met:

1. An accused cannot afford a lawyer. The ability to afford a lawyer is assessed by way of Affidavit evidence. An accused will submit an affidavit detailing their monthly income, expenses and typically, their unsuccessful attempts to retain counsel (see, for example, R v Smart, 2014 ABPB 175 at para 47).
2. An accused faces a threat to their life, liberty or security of the person. In criminal cases, this is typically established through a threat of jail time. It is significantly more burdensome and controversial hurdle in the civil sphere (discussed below).
3. An accused cannot effectively participate in his or her hearing without a lawyer. The ability to effectively participate in a hearing is an individual, contextualized consideration. State-funded counsel will only be essential to trial fairness where the charges are sufficiently serious and complex (see Rowbotham, ibid). This involves not only examining the case, but the accused’s ability to understand and respond to the case. This is examined by reference to an accused’s age, intelligence, education and employment background, their ability to read, their communication skills and whether they suffer from any disabilities such as mental illness or addictions (Smart, ibid at para 169).

If these factors are satisfied, a legal aid lawyer will be constitutionally guaranteed to an accused (Rowbotham at para 156). However, this safety net has many limitations. It primarily applies to representation at trial. It does not guarantee representation immediately at the time of arrest. (R v. Prosper, [1994] 1 S.C.R. 236). It does not give an accused the right to counsel when advancing an appeal that is deemed unmeritorious by legal aid (R v Robinson, 1989 ABCA 267). It also does not guarantee that a state appointed lawyer has to be present for all aspects of a trial. (see generally, Rowbotham, ibid).

A Right to Legal Aid in Civil Cases?

There are far fewer constitutional protections in the civil sphere. Charter sections 11(d) and 10(b) do not apply to civil cases. While s. 7 is not strictly confined to criminal cases, civil actions rarely trigger its protections. As the law currently stands, there is no right to civil legal aid unless s. 7 is engaged.

Section 7 is engaged whenever someone’s life, liberty or security of the person is threatened by state action. A person cannot be deprived of these guarantees unless the person has received a fair trial (one of the principles of fundamental justice). Similar to the criminal context, a fair trial can be jeopardized when a case is sufficiently serious and complex such that an unrepresented party cannot effectively participate.

There are three hurdles to satisfy for s. 7 to apply in civil cases:

1. State action – Section 7 restrains government action, which has two important implications for civil cases. First, it does not apply to interactions between private parties. Cases that do not involve the government do not trigger its protections. Second, s. 7 only applies to government action (not inaction). In other words, s. 7 does not create positive obligations on the government. It may only be used to claim that a particular state action interfered with your rights, not that you are owed government intervention or assistance (Gosselin v Quebec (Attorney General), 2002 SCC 84 at para 81).
2. A Threat to Life, Liberty and Security of the Person – Since jail time is not part of civil litigation, parties often cannot satisfy this second hurdle. Normal stress and anxiety arising from litigation is not enough (Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 at paras 56, 57). Only “serious, state-imposed psychological stress” will trigger security of the person such that s. 7 is engaged. (New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 SCR 46 at para 59).
3. The deprivation is not in accordance with the principles of fundamental justice. Trial fairness will demand a right to counsel only when the case is sufficiently complex, and the litigant lacks the capacity to understand or present their case. As in the criminal sphere, this is a case-by-case determination that looks to the particular abilities of the litigant at issue.

Despite these significant hurdles, a small collection of civil cases are serious enough to engage s. 7. New Brunswick (Minister of Health and Community Services) v G (J), [1999] 3 SCR 46 was one such case. G(J) was a child apprehension hearing. The province of New Brunswick was seeking permanent custody of a child, and that child’s mother was denied legal aid for the hearing. Since the action involved the government, the first criteria for s. 7 was satisfied. The state action (taking permanent custody of a child) created a “severe and profound effect on [the] psychological integrity” of the mother, such that her security of the person was threatened. Finally, the case was very complex, serious, and the mother was lacked the ability to effectively participate in the hearing. Therefore, she was constitutionally entitled to a state-funded lawyer.

Efforts to Expand a Right to Civil Legal Aid

Because s. 7 protections are so restrictive in civil actions, public interest groups and law societies have attempted to locate broader grounds for a right to civil legal aid. Unfortunately, these efforts have (thus far) been unsuccessful.

The Canadian Bar Association raised four arguments in favour of a constitutional right to legal aid in a case it brought on behalf of poor people. (The Canadian Bar Association v HMTQ et al, 2006 BCSC 1342):

1. Inadequate legal aid infringed the unwritten constitutional principle of judicial independence, because it forced judges to provide advice to self-represented litigants appearing before them.
2. Inadequate legal aid infringed the Rule of Law (written in the Constitution’s preamble), because without an adequate civil legal aid regime, poor people were unable to seek legal resource where their fundamental interests were at stake.
3. Section 7 was infringed, because the government repealed legal aid legislation, and this infringed poor people’s ability to get counsel when their fundamental interests were at stake; and
4. 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.

These arguments were unsuccessful. In striking the Statement of Claim, the Court (and Court of Appeal) held that unwritten constitutional principles and implicit constitutional values 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, and the s. 15 claim was deficient because it did not disclose sufficient particulars.

A similar case advanced during the same time frame also lost at the Supreme Court of Canada. In Christie v British Columbia (Attorney General), 2007 SCC 21 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, it was argued, 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. It held there was no broad constitutional right to legal aid. The Court was unwilling to impose the financial burden associated with such a broad right on the government without more solid constitutional footing.

While these decisions are disheartening, they have not stopped lawyers and academics from continuing to brainstorm on locating a broader right to civil legal aid. 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.

Annotated Bibliography

Are you interested in expanding on this research? Download our Annotated Bibliography and check our sources to help get you started.