COLUMN: Poor decision to toss legal aid appeal

Poor people in B.C. who can’t afford to access the legal system will find no comfort in a recent judgement of the B.C. Court of Appeal.

That’s because the court threw out a claim, commenced by the Canadian Bar association (CBA) in 2005, which, if successful, would have established a constitutional right for poor people to have access to legal aid funding for family, and other civil matters. (Poor people being defined as those “who lack sufficient means to obtain proper advice and to obtain redress, including legal representation if necessary.”)

But don’t blame the Court of Appeal. Blame the parties responsible for the pathetic level of funding for legal aid in B.C. and the rest of Canada, namely the provincial and federal governments.

The CBA’s claim, which was opposed by both the federal and provincial governments, was based on three legal arguments.

Firstly, that inadequacy in B.C. civil legal aid funding is contrary to the rule of law, which guarantees meaningful and equal access to the law, since the poor are denied access to legal aid.

Secondly, that inadequate funding breaches the Charter of Rights and Freedoms, which guarantees the protection of “life liberty and security” of all Canadians, and which prevents discrimination “on the basis of income status or poverty.”

Thirdly, that such under funding breaches Canada’s legal obligations as set out in international human rights law to ensure the “rights of Poor People to equality before the courts.”

At the B.C. Supreme Court the CBA claim was dismissed by Chief Justice Brenner in part because “Charter breaches can only be established in the context of individual breaches.” This means that the Court can only deal with alleged Charter breaches based upon the facts in a particular set of circumstances, for example, if an individual with a direct interest in the action claimed a Charter breach. The CBA, a national bar association, was considered by the court to have no such direct interest.

Brenner also rejected any claim of a breach of international human rights standards, on the basis that such “agreements do not create enforceable rights unless and until they have been incorporated into domestic Canadian law.”

The Court of Appeal sided with the reasoning of Brenner and dismissed the CBA claim.

The court is essentially saying that only an individual with a direct interest can claim a Charter breach, based upon the facts of his, or her, particular circumstances. The irony however, is that the poor do not have adequate financial resources to go to court in the first place.

And reasonable access to justice is certainly not just a serious dilemma faced by those considered to be low-income. The escalating cost of justice is also a serious obstacle to all but the wealthiest of Canadians.

While the court clearly decided that access to legal aid is not a guaranteed “right”, there is no doubt in my opinion that access to adequate legal aid funding, is simply the “right” thing for both federal and provincial governments, to do.

Scott Taylor is a lawyer and legal analyst.

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