IS THE RULE OF LAW THE GOLDEN RULE? ACCESSING “JUSTICE” FOR CANADA’S POOR
Kerri A. Froc*
This article argues that in order for poor people to benefit from the right to access justice under the unwritten constitutional principle of the rule of law, courts must recognize that the rule of law permits a normative evaluation of the content of laws supported and informed by express Charter rights. Traditional criticisms of the boundless nature of the rule of law under such a construct can be foreclosed by grounding the rule of law in a requirement that law promotes justice. The author undertakes an extensive critique of the Supreme Court of Canada’s decision in British Columbia (Attorney General) v. Christie, and maintains that despite recent setbacks, possibilities remain for the rule of law to fulfill Dugald Christie’s quest of making the law accessible to the poor.
Dans cet article, l'auteure maintient d'abord que pour permettre aux personnes démunies et à faible revenu de bénéficier d'un droit d'accès à la justice qui serait garanti par le principe constitutionnel non écrit de la primauté du droit, les tribunaux doivent reconnaître que la primauté du droit permet de faire une évaluation normative du contenu des lois par une utilisation des droits expressément garantis par la Charte. L'auteure affirme aussi que les critiques traditionnelles sur la trop grande portée qu'aurait la règle de la primauté du droit, ainsi interprétée, peuvent être contrées en justifiant celle-ci par la nécessité pour le droit de promouvoir la justice. Enfin l'auteure entreprend une critique exhaustive de la décision de la Cour suprême du Canada dans l'affaire Colombie-Britannique (Procureur général) c. Christie et maintient que, malgré les revers jurisprudentiels récents, il demeure toujours possible que le principe de la primauté du droit puisse permettre de réaliser l'objectif de Dugald Christie, c'est-à-dire de rendre la justice accessible aux personnes démunies et à faible revenu.
The effect of lawless acts that go unremedied is devastating on the disadvantaged.... The master key to poverty is often justice.1
* LL.M. (Candidate), University of Ottawa. I would like to thank Professors Jennie Abell and Martha Jackman of the Faculty of Law at the University of Ottawa for their encouragement and advice in writing this article. Any mistakes are, of course, my own. 1 Dugald Christie, “The poor deserve an even break from the justice system: A former lawyer says British Columbia law firms should ensure proper legal services go to those who cannot pay the hefty fees. And courts should get their priorities right” The Vancouver Sun (29 February, 2000). My article is dedicated to the memory of Dugald 460 LA REVUE DU BARREAU CANADIEN [Vol.87
Constitutional claims to “liberty,” “security of the person” and “equality” based on sections 7 and 15 of the Canadian Charter of Rights and Freedoms2 have been of limited utility to poor people seeking the courts’ recognition of violations to their civil and human rights. While there have been significant legal victories,3 there have also been shocking defeats that have underscored the apparent inability of the law to reflect how the poor experience various oppressive state actions regulating their lives.4 This is nowhere more evident than in cases concerning the right of poor people to access to justice5 in civil
Christie. 2 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 [Charter]. 3 And arguably, even these victories have been somewhat partial and contingent. For example, in Falkiner v. Ontario (Ministry of Community and Social Services) (2000), 49 O.R. (3d) 564, 189 D.L.R. (4th) 765 (C.A.), the Ontario Court of Appeal struck down the Ontario “spouse in the house” rules forcing single mothers on social assistance to be financially dependent on men living in their households. While the section 15 case succeeded, the Court refused to adjudicate the section 7 claim, despite evidence there were serious abuses of women’s liberty to live their lives as they chose free from state interference and surveillance. In Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016 [Dunmore], the Supreme Court ruled unconstitutional labour legislation which prevented agricultural workers – traditionally a marginalized and low-paid segment of the workforce – from organizing, on the basis that this violated the workers’ section 2(d) rights to freedom of association. The majority did not discuss the workers’ poverty, however, or otherwise contextualize the impact of their exclusion as members of the working poor. If the court had discussed the civil rights of poor people in a broader and contextualized sense, this might have had an impact on cases such as Federated Anti-Poverty Groups of B.C. v. Vancouver (City), 2002 BCSC 105, (2002), 28 M.P.L.R. (3d) 165. There, the British Columbia Supreme Court upheld a bylaw restricting areas where the poor could panhandle, finding that it did not violate their freedom of expression and accorded with fundamental justice under section 7. 4 See, for example, Masse v. Ontario (Ministry of Community and Social Services) (1996), 134 D.L.R. (4th) 20, 35 C.R.R. (2d) 44 (Ont. Div. Ct.); leave to appeal to C.A. denied (1996), 40 Admin. L.R. (2d) 87n; leave to appeal to S.C.C. denied [1996] S.C.C.A. No. 373 [Masse]; and Gosselin v. Quebec (Attorney General), 2002 SCC 85, [2002] 4 S.C.R. 429 [Gosselin]. In both cases, the courts rejected claims of Charter violations for levels of social assistance below subsistence levels, in Masse due to government cutbacks, in Gosselin because the claimant was under age 30 and did not participate in a workfare program. 5 For the purposes of this article, I am confining the meaning of this term to “reasonable and effective access to courts of law and the opportunity to obtain legal services from qualified professionals, that are related to the determination and interpretation of legal rights and obligations by courts of law or other independent tribunals,” as the British Columbia Court of Appeal has done in the case of Christie v. British Columbia (Attorney General), 2005 BCCA 631, [2006] 2 W.W.R. 610 at 638 2008] Is the Rule of Law the Golden Rule? Accessing “Justice”... 461 matters6 where violations of Charter rights are alleged. The Supreme Court of Canada’s decision in New Brunswick (Minister of Health and Community Services) v. G.(J.)7 was significant for its finding that the New Brunswick government had the obligation to provide funding for legal counsel in a child apprehension hearing. The finding was so narrowly circumscribed to the particular facts and circumstances of the case, however, that it has been difficult to convince the courts to recognize a right to state-funded legal services in other cases, even other child apprehension cases. Poor people seeking to rely upon G.(J.) to obtain court-ordered counsel have had to advance highly individualized analyses of their particular circumstances in order to succeed. Such cases are generally devoid of precedential value that would spark systemic change.
Reported cases where the government’s systemic failures to provide funding for legal services in civil matters, or its imposition of financial barriers to access to justice, have been found to violate the Charter are scarce. Even where there has been some success, it has been at the expense of recognition by the courts of the real impact of these actions upon those without financial means to pursue their legal rights. The systemic claims of the poor have succeeded where the courts have been able to generalize poor people’s poverty out of existence and see their impediments to access to justice as those experienced by “ordinary” (read: middle class) litigants. But while this (over-) generalization has resulted in some minor successes, it proved fatal in the most significant
[Christie (CA)]. McLachlin C.J.C. in the Supreme Court decision allowing the appeal, criticized this definition as only reflecting a certain type of access to justice, that is, “access aided by a lawyer” (British Columbia (Attorney General) v. Christie, 2007 SCC 21, [2007] 1 S.C.R. 873 [Christie]. I allow that the definition of “access to justice” is potentially very broad. As I discuss below, however, I am primarily interested in analyzing access to justice in relation to enforcing constitutional rights. In that respect, access to legal representation is almost always a necessary element of “access to justice”: John Carten Personal Law Corp. v. British Columbia (Attorney General), [1998] 3 W.W.R. 571, 153 D.L.R. (4th) 460 (B.C.C.A.) [Carten] at para. 85 per McEachern C.J.B.C. (dissenting but not on this issue). I discuss the Supreme Court Christie decision in greater detail below. 6 I do not intend to explore the right to publicly-funded counsel in the criminal context, given the specialized body of law that applies to such an issue (particularly R. v. Rowbotham (1988), 25 O.A.C. 321, 63 C.R. (3d) 113 (C.A.)), explicit mention of the right to counsel upon arrest or detention in section 10(b) of the Charter, and the greater funding from the federal government for legal aid in criminal cases. The individualized analysis in these cases is problematic as well, and to the extent that criminal cases act as the “benchmark” for the right to counsel, the courts may need to be persuaded to expand the analysis there for progress to be made on the civil side. However, these strategic considerations are beyond the scope of this article. 7 [1999] 3 S.C.R. 46, 177 D.L.R. (4th) 124 (S.C.C.) [G.(J.) cited to S.C.R.]. 462 THE CANADIAN BAR REVIEW [Vol.87 case to date: British Columbia (Attorney General) v. Christie.8 Christie represents the Supreme Court’s first opportunity to explore the potential use of the rule of law to invalidate state action that inhibits the poor’s ability to obtain legal services and access the justice system.
The case bears the name of Dugald Christie, a lawyer who “walked the walk” on the issue of access to justice, working pro bono (or nearly pro bono) for many poor clients for almost twenty years, and establishing over 60 pro bono clinics across western Canada through the organization he founded, the Western Canadian Society to Access Justice. He died tragically on July 31, 2005 while cycling across Canada to raise public awareness of the issue.9 Christie argued that a provincial tax on legal services imposed barriers to access to justice and therefore violated the rule of law, a foundational constitutional principle. While the case was successful at the British Columbia Court of Appeal, the Supreme Court of Canada rejected the claim on the basis it was grounded on the incorrect constitutional proposition that there exists a “broad, general right to legal counsel as an aspect of, or precondition to, the rule of law.”10
The Supreme Court’s pronouncements in Christie cast a dark shadow over the Canadian Bar Association (CBA)’s recent litigation attempting to secure access to justice for the poor under the rubric of the rule of law. In Canadian Bar Association v. British Columbia,11 the courts in British Columbia rejected a more specific claim: that the state’s dismantling of a legal aid system so that it does not provide sufficient funding for civil cases concerning the poor’s fundamental interests violates the rule of law and is therefore unconstitutional.12
8 Christie, supra note 5. 9 See “B.C. Legal Crusader Killed in Cycling Accident,” CBC News (1 August 2006), online: CBC News
Leave to appeal the case to the Supreme Court was refused on July 31, 2008.
With the leave refusal in Canadian Bar Association, it is uncertain whether there is any remaining utility in relying on the rule of law to advance the rights of poor people to legal services and access to the courts. The title of this article, which reflects my own ambivalence, can be read two ways. On the one hand, the “Golden Rule” in its traditional sense means, “Do unto others as you would have them do unto you.”13 On the other hand, a more recent, cynical incarnation of the Golden Rule is, “The person with the gold makes the rules.”
The rule of law could lend itself to the full recognition of poor people’s right of access to justice, adding another critical element to a contextualized analysis of the issue. That is, consideration of the rule of law may show not only that access to justice is a matter of equality, liberty, and security for poor people, but also that Canada’s constitutional democracy depends on lessening their experience of oppression through the justice system. Or it could be yet another legal term interpreted ahistorically and acontextually so as to render poverty, as a social construction reflecting relations of oppression and subordination,14 invisible. Thus, for the poor, it could simply be another in a long line of let-downs in constitutional litigation.15 The risk of the
Association, http://www.cba.org/CBA/Advocacy/legalAid/. 13 While the Golden Rule is thought to be a Christian principle, it should be noted that the concepts it invokes – empathy and unselfishly acting in another’s best interest – have resonance in the doctrines of many religions, including the Buddhist principle of “loving-kindness.” The reader should consider reference to this principle in Christian terms as a handy rhetorical device. 14 When referring to oppression and subordination, I am using these terms in an expansive sense. Their scope is best explained by Iris Marion Young, when she speaks of the “five faces” of oppression, namely: … exploitation (essentially, having one’s surplus labor extracted by another), marginalization (being expelled from useful participation in social life, including productive work), powerlessness (lack of autonomy and respectability), cultural imperialism (being subjected to universalized dominant group norms), and violence (existing in a social context that makes violence against one’s group allowable or acceptable). See Justice and the Politics of Difference (Princeton: Princeton University Press, 1990), as summarized by Radha Jhappan, “The Equality Pit or the Rehabilitation of Justice?” in Radha Jhappan, ed., Women’s Legal Strategies in Canada (Toronto: University of Toronto Press, 2002) 175 at 199-200. 15 See, for example, the references at supra note 4, and also Newfoundland & Labrador Housing Corporation v. Williams (1987), 62 Nfld. & P.E.I.R. 26, 38 D.L.R. (4th) 355 (Nfld. C.A.) (discrimination against public housing tenants does not violate 464 LA REVUE DU BARREAU CANADIEN [Vol.87 latter is palpable given the origins of the rule of law, a concept historically rooted in negative rights against state interference for the wealthy and in formal equality, and given the recent disappointments in Christie and Canadian Bar Association. In my article, I will argue that in order for the poor to benefit from the protection of the right to access justice under the rule of law as a foundational constitutional principle, the courts must recognize that the rule of law permits an evaluation of the content of laws. A holistic approach to Charter interpretation is also required, meaning that the interpretation of the rule of law must be infused with an understanding of social relations of power informed by section 15 of the Charter, and an understanding of how unremediated violations of fundamental interests restrict liberty and security of the person under section 7. Such an approach will require the courts to confront the lived reality of the poor and the barriers they face in attempting to advance their legal rights, circumstances the courts have heretofore been unwilling or unable to give full legal recognition, having instead proffered mere murmurs of sympathy at best and disdain at worst.
In Part 1 of my article, I critique the previous approach of courts to the question of the constitutional entitlement to access to justice under sections 7 and 15 of the Charter. In particular, I argue that these cases reflect the problems with categorization that have obstructed the poor’s claims under these sections generally. That is, under section 15, the requirement of the mediation of claims through particular grounds of discrimination and through the identification of “comparators” which mirror the claimants exactly except for the grounds claimed, has the Charter); Fernandes v. Director of Social Services (Winnipeg) (1992), 93 D.L.R. (4th) 402, 78 Man. R. (2d) 172 (C.A.), leave to appeal to S.C.C. refused 99 D.L.R. (4th) vii [Fernandes] (denial of social assistance funding for home care not discriminatory); Conrad v. Halifax (Country) (1993), 124 N.S.R. (2d) 251, 345 A.P.R. 251 (C.A.) (termination of welfare benefits does not violate right to life, liberty or security of the person); Clark v. Peterborough Utilities Commission (1995), 24 O.R. (3d) 7 (Ont. S.C.), appeal dismissed as moot (1998), 40 O.R. (3d) 409, 112 O.A.C. 390 (utilities deposit does not violate poor people’s rights under sections 7 and 15); and R. v. Banks, [2005] O.J. No. 98, 248 D.L.R. (4th) 119 (Ont. S.C.J.), aff’d 2007 ONCA 19, 275 D.L.R. (4th) 640 leave to appeal refused, [2007] S.C.C.A. No. 139 [Banks] (“squeegee” prohibition did not violate sections 7 or 15). These cases (excepting Banks) are discussed in further detail in Martha Jackman, “From National Standards to Justiciable Rights: Enforcing International Social and Economic Guarantees Through Charter of Rights Review,” (1999) 14 J.L. & Soc. Pol’y 69; and Martha Jackman and Bruce Porter, “Women’s Substantive Equality and the Protection of Social and Economic Rights Under the Canadian Human Rights Act,” in Women and the Canadian Human Rights Act: A Collection of Policy Research Reports (Ottawa: Status of Women Canada, 1999) 43. 2008] Is the Rule of Law the Golden Rule? Accessing “Justice”... 465 rendered their claims incoherent to the courts. Poor people are usually subject to complex and intersecting systems of oppression that construct their social identities, defying comparison with any “norm.” With respect to section 7, the categorization of “positive/negative” rights, state “action/inaction,” and “economic/civil and political” rights has meant that, to the extent that the poor cannot analogize or generalize their rights claims to those of claimants with greater means, they are unrecognizable as civil rights claims. To the extent their access to justice claims are capable of approximating this norm, they are still subject to an individualized analysis that obscures any systemic problems with access to justice in the legal system. The separation of Charter rights into conceptual “watertight compartments” only exacerbates the tendency for the courts to view these claims in an abstract, ahistorical fashion.
In Part 2, as a prelude to a discussion of the use of the rule of law in the Christie case, I discuss the various theories about the meaning of the rule of law, both from a positivist and substantivist perspective, and argue that there are equally plausible philosophical arguments supporting both perspectives. To determine which interpretation ought to be accepted, one must analyze past jurisprudence on unwritten constitutional principles in general, the rule of law in particular, and the constitutional context in which the rule of law is situated (specifically, the existence of sections 7 and 15).
In Part 3, I analyze how the rule of law principle is utilized in Christie, and argue that, despite the British Columbia Court of Appeal’s acknowledgement that the tax on legal fees constituted a violation of the right to access justice, its analysis did not loosen the rule of law from its previous categorization as a procedural principle whose legal effect is limited. Further, it perpetuated the need for the poor to fashion their access to justice claims to fit a middle class norm in order to be successful. Ironically, however, in a variation of the “damned if you do, damned if you don’t” scenario that is not unfamiliar to the poor, this generalization provided the justification for the Supreme Court of Canada to uphold the constitutional validity of the law. It permitted the Court to exaggerate the breadth of Christie’s claim and, raising the spectre of national ruin caused by boundless demand for state-funded legal services, to fall back on a positivist interpretation of the rule of law and a (con)strained interpretation of the protection afforded by “access to justice” within it.
Notwithstanding Christie, the door remains very slightly ajar to a substantive interpretation of the rule of law and the right to access to 466 THE CANADIAN BAR REVIEW [Vol.87 justice contained within it. Such an interpretation would require the rule of law to be supported and informed by poor people’s claims to equality, liberty, and security of the person under the Charter, and vice- versa. In other words, the rule of law must be understood as requiring not only orderly law-making, but justice. While Dugald Christie’s personal quest is over, his clients’ struggle lives on.
1. Poor People’s Charter Claims to Access Justice
A) The Background - How the Poor Experience the Legal System
As Janet Mosher suggests, the relationship of poor people with the law is conflicted: the law may provide for a means of subsistence (for example, government disability benefits, social assistance), but at the same time, be experienced as threatening because of its intrusion upon their lives (through, for example, retention and disclosure of personal records, monitoring and surveillance for the purpose of detecting welfare fraud).16 Low- and moderate-income Canadians experience legal problems with alarming frequency.17 They have a myriad legal needs because, among other things, their incomes may be derived, wholly or in part, from government benefits, they are frequently the targets of abuse as consumers, and their housing is often substandard and dependent on landlords who do not live up to their obligations under housing codes and human rights statutes.18 The incursion of the law into one aspect of a person’s life may lead to incursion into other aspects; social assistance recipients who are reported to child protection services by their caseworkers are one example. The intractable and mutually reinforcing nature of the poor’s legal problems means that they are “not susceptible to traditional legal solutions.”19
16 “Poverty – A Case Study” in Report of the Ontario Legal Aid Review: A Blueprint for Publicly Funded Legal Services, vol. 3 (Toronto: Ontario Legal Aid Review, 1997) [Ontario Legal Aid Review] 913 at 915. 17 See Ab Currie, “A National Survey of the Civil Justice Problems of Low and Moderate Income Canadians: Incidents and Patterns” (2006) 13 Int’l J. Legal Profession 217. He reports at 220 that a Department of Justice survey found that approximately 48% of low- to moderate-income Canadians surveyed experienced one or more law-related problems in a three-year period. Certain vulnerable groups like single parents, social assistance recipients, persons receiving disability pensions and the unemployed showed a significantly greater likelihood to experience one or more legal problems. 18 The National Council of Welfare, Legal Aid and the Poor: A Report by the National Council on Welfare (Ottawa: The National Council on Welfare, Winter, 1995), online:
Despite the foregoing generalizations, I recognize that the poor cannot be treated as a monolith. Different subordinated groups are disproportionately represented amongst the poor,20 and they are poor for different reasons.21 Further, systems of oppression that particular groups experience (like racism, patriarchy, colonialism) intersect with and are reinforced by their poverty in unique ways.22 This means that a contextual analysis of the social relations at play is requisite in order to fully understand the impact of denials of access to justice on a particular claimant. On some occasions, it will be possible to gain understanding by looking at the poor as a general group; at other times, it is necessary to discuss particular groups of poor people and the particular interlocking systems of oppression they face. It is my hope that my analysis below strikes the proper balance.
B) Why Section 15 Alone Won’t Result in Constitutional Recognition for Access to Justice
Poverty in particular is difficult for courts to analyze under section 15 of the Charter, a section whose analysis is currently mired in the need to “categorize” – to fit the experiences of subordinated groups into “grounds” of discrimination or, as more recently expressed by the Supreme Court, to find appropriate “comparators” that exactly mirror the traits of the claimant’s group but for the personal trait upon which the distinction is made in the impugned legislation.23 As Nitya Iyer explains, this particular conceptualization of grounds results in
Michael J. Trebilcock, eds., Lawyers and the Consumer Interest – Regulating the Market for Legal Services (Toronto: Butterworths, 1982) 407 at 409. 20 2003 statistics indicate that women make up 53% of persons with incomes below Statistics Canada’s low-income cut-offs (LICOs), and Aboriginal persons, recent immigrants, “visible minorities,” persons with disabilities, and female lone parents live in families below the LICOs in disproportionate numbers; Statistics Canada, Women in Canada 2005 (Ottawa: Statistics Canada, 2005) at 145, 146, 200, 228, 254, and 297. 21 See, for example, Canadian Council on Social Development, Unequal Access: A Canadian Profile of Racial Differences in Education, Employment and Income regarding the reasons for income disparities between racialized and non-racialized persons; and Moge v. Moge, [1992] 3 S.C.R. 813, [1993] 1 W.W.R. 481 (S.C.C.) at paras. 56-61 regarding the role of marital breakdown and inadequate support in women’s poverty. 22 For example, see Gwen Brodsky and Shelagh Day, “Beyond the Social and Economic Rights Debate: Substantive Equality Speaks to Poverty” (2002) 14 Can. J. Women & Law 185 [Brodsky and Day, “Debate”] (gender); Jennifer Pokempner and Dorothy Roberts, “Poverty, Welfare Reform, and the Meaning of Disability” (2001) 62 Ohio St. L.J. 425 (disability); Henry Freedman, “The Welfare Advocate’s Challenge: Fighting Historic Racism in the New Welfare System” (May-June 2002) Clearinghouse Review 31 (race). 23 See, for example, the critiques in Nitya Iyer, “Categorical Denials: Equality 468 LA REVUE DU BARREAU CANADIEN [Vol.87 separate, isolated, and decontextualized “pockets” of identity, with the dominant social identity as the “background norm against which assignments of difference are made.”24 Once a ground is claimed, all other characteristics fade into the background and are assumed to be the same as those of the dominant social identity.25 The current focus on “mirror” comparators simply pushes the problem forward by confining the analysis to the categories specified by the statute rather than the broader context of relations in society.26
Poverty is not easily analyzed under section 15, given its multi- dimensional and relational nature. More than simply an objective economic condition (lack of financial resources), it touches almost every aspect of the lives of those it affects, including the ability to exercise their constitutional rights.27 As noted above, it is interwoven in various, intersecting relations of oppression, and itself is the basis for subordination (demonstrated by the stereotyping and “victim blaming” of poor people). Because it defies categorization, the courts have refused to recognize poverty as an analogous ground, as the poor cannot meet the test of being a “discrete and insular minority” characterized by an “immutable” characteristic.28 As Iyer notes,
Rights and the Shaping of Social Identity” (1993-1994) 19 Queen’s L.J. 179 [Iyer, “Categorical Denials”]; Denise Réaume, “Of Pigeonholes and Principles: A Reconsideration of Discrimination Law” (2002) 40 Osgoode Hall L.J. 113; Daphne Gilbert, “Time to Regroup: Rethinking Section 15 of the Charter” (2003) 48 McGill L.J. 627; Douglas Kropp, “‘Categorical’ Failure: Canada’s Equality Jurisprudence – Changing Notions of Identity and the Legal Subject” (1997-1998), 23 Queen’s L.J. 201. The “mirror” test is of recent vintage, and was first articulated in Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65, [2004] 3 S.C.R. 357. 24 Iyer, “Categorical Denials,” ibid. at 190. 25 Ibid. at 192. 26 See Diana Majury and Daphne Gilbert, “Critical Comparisons: The Supreme Court of Canada Dooms Section 15” (2006) 24 Windsor Y.B. Access Just. 111 at 124. 27 Martha Jackman, “Constitutional Contact with the Disparities in the World: Poverty as a Prohibited Ground of Discrimination Under the Canadian Charter and Human Rights Law” (1994) 2 Rev. Const. Stud. 76 at 83. 28 See Masse, supra note 4; Dunmore v. Ontario (Attorney General) (1997), 37 O.R. (3d) 287, 155 D.L.R. (4th) 193 (Gen. Div.); aff’d (1999), 182 D.L.R. (4th) 471, 49 C.C.E.L. (2d) 29 (C.A.), appeal allowed but not on this issue; Dunmore, supra note 3; Banks, supra note 15. See also the recent cases of Guzman v. Canada (Minister of Citizenship and Immigration) [2006] F.C.J. No. 1443 (QL), appeal dismissed as moot [2006] F.C.J. No. 1506 (QL), leave to appeal refused, [2008] S.C.C.A. No. 4; and Bailey v. Canada [2005] F.C.J. No. 81 (QL), indicating that receipt of social assistance and (low) income level, respectively, are not sufficiently immutable to be considered analogous grounds. 2008] Is the Rule of Law the Golden Rule? Accessing “Justice”... 469
“within a capitalist liberal ideology, [socioeconomic status] is understood to be a product of individual choice and merit.”29
When poor people have to force their experience of inequality through other grounds, relations of subordination that intersect with their poverty disappear. Subordination is instead attributed to individual idiosyncrasies,30 personal choices,31 or simply unfortunate events.32 To the extent that their objective condition of having “no money” is considered, it cannot be coherently integrated into the constitutional equality analysis. This is due to the fact that “the concept of inequality is inherent to the very classification. The ‘norm,’ by definition, precludes those [so] labelled….”33 That is, it is commonly accepted that there should be disparity between those with money (the so-called “contributing members of society”) who are deemed deserving of
29 Iyer, “Categorical Denials,” supra note 23 at 190. 30 See, for example, Fernandes, supra note 15, where the Manitoba Court of Appeal found at 414 that failure to provide homecare to a person with mobility problems was not a distinction based on a personal characteristic but resulted “because he has no caregiver, because he must rely on social assistance, and because facilities available to meet his needs are limited.” See also the discussion of the heterogeneous “profile” of social assistance recipients in Masse, supra note 4 at paras. 233-236. 31 See Diana Majury, “Women Are Themselves to Blame: Choice as a Justification for Unequal Treatment,” in Fay Faraday, Margaret Denike and M. Kate Stephenson, eds., Making Equality Rights Real: Securing Substantive Equality under the Charter (Toronto: Irwin Law, 2006) 209, referring to the cases of Attorney General of Nova Scotia v. Walsh and Bona, 2002 SCC 83, [2002] 4 S.C.R. 325 (finding that matrimonial property legislation that excluded common law couples did not discriminate on the basis of marital status as it respected the choice of couples not to marry); and Gosselin, supra, note 4 (where recourse to choice is implied by what Majury identifies as McLachlin C.J.C.’s tone of “blame/censure” in finding lack of discrimination on the basis of age in the Quebec workfare program). 32 See McLachlin C.J.C.’s comments in Gosselin, ibid. at 479-80: The fact that some people may fall through a program’s cracks does not show that the law fails to consider the overall needs and circumstances of the group of individuals affected, or that distinctions contained in the law amount to discrimination in the substantive sense intended by s. 15(1). See also Canada (Attorney General) v. Lesiuk, 2003 FCA 3, 299 N.R. 307 (Fed.C.A.), concerning changes to Employment Insurance that made it more difficult for part-time workers, who were disproportionately women, to qualify for benefits. The Court found at para. 45 that these distinctions would not have the effect of making women feel less valued as workers, “[r]ather, I would imagine that they had narrowly missed qualifying because of an unfortunate confluence of events.” 33 Marcia Rioux, “Towards a Concept of Equality of Well-Being: Overcoming the Social and Legal Construction of Inequality” (1994) 7 Can. J.L. & Jur. 127 at 132, there speaking about persons with intellectual disabilities. 470 THE CANADIAN BAR REVIEW [Vol.87 social and economic goods, and those without.34 If the state decides to provide these goods to the poor notwithstanding their presumed lack of contribution, its motives are virtually unassailable as beneficent.35 Consequently, their inequality is part of the normalized backdrop of the court’s inquiry, not warranting special significance or investigation within the constitutional framework.
Perhaps it is not surprising, then, that very few cases concerning poor people’s access to justice in the civil context have contained an equality analysis. One such case, Polewsky v. Home Hardware Stores Ltd.,36 considered whether small claims court tariff fees required to set a matter down for trial were unconstitutional, on the basis that they discriminated against “indigent persons.” The Court found that “the facts of this case do not justify a finding that poverty is an analogous ground under section 15 of the Charter.”37 The equality argument in the case was markedly abbreviated, possibly due to the fact that the Court found for the claimants on the issue of whether the fee violated a free- standing common law right to access justice. Nevertheless, this is arguably part of the analytic problem; by separating these claims, the
34 To name but one example of juridical expression of normalized socioeconomic inequality see Barker v. Manitoba (Register of Motor Vehicles), [1988] 2 W.W.R. 28, [1987] M.J. No. 595 (Q.B.) at para. 42: …when deciding whether so called economic discrimination could possibly be read into the ambit of s. 15(1), it is well to keep in mind that almost any law dealing with sales or income taxes, licence fees, tariffs or social benefits will have a different and more adverse impact on some groups of persons than others. If one were to accept the policy decisions underlying these laws were subject to review by the court, then one would be led to the untenable conclusion that Parliament had by s. 15(1) intended to create an economically egalitarian society with judges as its supervisors. 35 Rioux, supra note 33 at 131. See also Sheila McIntyre, “Deference and Dominance: Equality without Substance,” in Sheila McIntyre and Sanda Rodgers, eds., Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms (Toronto: LexisNexis Canada Inc., 2006) 95 at 111, where she discusses the increasing emphasis on government purpose within the s.15(1) Charter analysis, and the consequential heavier burden upon claimants due to the difficulty in demonstrating discriminatory intent, naming Gosselin as a case in point. Arguably, the recent decision in R. v. Kapp, 2008 SCC 41, [2008] 8 W.W.R. 1 [Kapp] risks further sheltering benefits regimes from searching Charter scrutiny by increasing the deference shown to legislative intent. There, the Supreme Court ruled that if a government shows that their program has an “ameliorative or remedial purpose” and it “targets a disadvantaged group identified by enumerated or analogous grounds” under s.15(2), it is completely removed from analysis under s.15(1). 36 (2003), 66 O.R. (3d) 600, [2003] O.J. No. 2908 (Ont. S.C.J. – Div. Ct.) [Polewsky]. 37 Ibid. at para. 24. 2008] Is the Rule of Law the Golden Rule? Accessing “Justice”... 471
Court missed the chance to consider how the systemic barriers to the court process reinforce subordination of poor litigants who are members of historically marginalized groups and, in turn, how this affects justice in a constitutional democracy.
Pleau v. Nova Scotia (Supreme Court, Prothonotary)38 also concerned the constitutionality of a regulation imposing new “appearance fees,” ostensibly to pay for facilities and staff time during court hearings. Part of the claim was that these regulations violated section 15 of the Charter. Rather than directly addressing the issue of whether “socioeconomic status” or “poverty” was an analogous ground, however, the Court decided that those adversely affected by the legislation did not share any personal characteristics of a nature that would engage the Charter. Those affected were a heterogeneous group “linked only by the fact that they are pursuing remedies or relief in the courts…. The difference in treatment is based on the fact that they wish to reserve trial dates, clearly not a ground either enumerated in section 15 or analogous to any of the listed grounds.”39 The Court’s consideration of the claimants was hyper-individualized, and commonalities were identified only if they mirrored the formal distinctions made in the regulations. It is, perhaps, stating the obvious to say that this is not an approach conducive to an adverse-effects discrimination claim.
Other decisions have justified the denial of the section 15 claim based on the nature of the case for which funded counsel is sought. For instance, in Fowler v. Fowler,40 a husband, on the eve of a trial of his claim for spousal support and equalization of family property, applied to the court for an order appointing him a lawyer. He indicated that his psychological health was too frail to permit him to represent himself, and it appeared that he was on social assistance.41 The Court refused to grant an order on the basis of s.15:
It is not enough to raise a mental or physical disability and claim a breach. It must be shown that there exists a right to counsel funded by the State in this type of
38 [1998] N.S.J. No. 526, 43 C.P.C. (4th) 201 (N.S.S.C.) [Pleau]. 39 Ibid. at para. 51. See also Rasekhi-Nejad v. General Accident Assurance Co. of Canada [2004] O.J. No. 4225, 11 C.C.L.I. (4th) 220, finding that dismissal of an action of an impecunious plaintiff for failure to pay costs did not raise equality issues under section 15 of the Charter. 40 (1997), 35 O.R. (3d) 243, 151 D.L.R. (4th) 569 (Ont. Ct..J.(Gen. Div.)) [Fowler cited to D.L.R.]. 41 Ibid. at 590. The Court faulted the applicant for failing to inquire into a waiver of a fee to appeal a legal aid refusal, as “the demand for the fee is usually waived for an applicant receiving social assistance.” 472 LA REVUE DU BARREAU CANADIEN [Vol.87
litigation and that there has been a discrimination practiced upon the applicant by the denial of a certificate.42
Albeit brief, these reasons are notable for their complete failure to consider the impact of poverty; the Court assumed “disability” to be the sole factor at play in considering a discrimination claim. Further, any adverse impact of the failure to fund a family law case – particularly one wherein financial support was at issue – upon persons with disabilities living in poverty was discounted.43 Rather, the court started from the position that the claimant must show a Charter breach, not by focusing upon the adverse impact upon himself and others like him, but by demonstrating a generalized right to counsel for that type of case. The Court thereby absolved itself from the need to analyze the particular social relations at play, and how the justice system is implicated in the disadvantage of disabled persons.44
The same problem arose in the case of Quereshi v. Ontario (Human Rights Commission).45 There, the Court discussed the constitutionality of an Ontario Human Rights Code provision permitting respondents to be awarded costs against the Commission, but not permitting complainants to be awarded costs against respondents.46 The issue is significant for complainants, even though the Commission rather than the complainant is tasked with prosecuting complaints. Complainants are, almost by definition, members of subordinated groups, and may face additional costs arising out of their complaint due to the manner in which the respondent conducts its defence.47 Nevertheless, the
42 Ibid. In the decision, the Court refused to follow the case of G.M.S. v. K.S.S., [1996] O.J. No. 4487 (Ont. Ct..J. (Gen. Div.)) (QL), wherein counsel was appointed for a mother involved in a custody case. Given that G.M.S. has never been cited by any other court, it appears to be an anomaly. 43 There seems to be some issue with the court accepting that the claimant was poor, given the claim for property equalization and that the claimant’s application for legal aid was rejected for failure to provide financial disclosure (apparently due to the applicant’s lack of funds to pay fees for legal documents from the bank and the land registry). It was open to the Court, however, to reject the application on the facts, which it did not do. 44 See also Mireau v. Canada (1991), 96 Sask. R. 197, [1991] S.J. No. 643 (Sask. Q.B.), where the Court stated, with respect to the applicant’s claim of a Charter violation for the government’s failure to provide legal aid for various civil matters, at paras. 23-24: “What made him ineligible for funded counsel was the nature of the action he sought to pursue… I find that the right to funded counsel to pursue private civil litigation is not entrenched in the Charter.” 45 [2006] O.J. No. 1782, 268 D.L.R. (4th) 281 (Ont. S.C.J. – Div. Ct.) [Quereshi]. 46 Human Rights Code, R.S.O. 1990, c. H.19, s. 41(4). 47 See Scott v. Capital Cabs, D &G Taxi Ltd. and Sahota (October 18, 2006) [unreported] (Sask. H.R.T.), online: Saskatchewan Human Rights Tribunal, 2008] Is the Rule of Law the Golden Rule? Accessing “Justice”... 473
Divisional Court found no constitutional significance in the discrepancy on the basis that neither the respondents nor the complainants could be grouped according to personal characteristics, making “mirror comparators” impossible to formulate. Further, the Court maintained that the differences in treatment were warranted based on the different roles of complainants and respondents – the former’s “interests” being represented by Commission counsel at tribunal hearings. Finally:
The Ontario courts have repeatedly held that economic disadvantage alone, without more, does not justify protection under the Charter…. Permitting one party to recover costs, while denying another party the opportunity, is a distinction that does not offer any enumerated or analogous ground under s.15 of the Charter.48
Thus, the section 15 analysis considered only the formal position of complainants within the human rights process, rather than conducting a contextual analysis of the circumstances, including the disadvantaged position of complainants socially and economically.
The analyses in Pleau, Fowler and Quereshi bring to mind Majury and Gilbert’s critique of the Supreme Court’s decision in Auton (Guardian ad litem of) v. British Columbia (Attorney General).49 There, use of the “mirror” test for comparators by McLachlin J. for the majority resulted in a tortured comparison of autistic children denied funding for treatment with “non-disabled people or people suffering from disabilities other than mental disabilities seeking or receiving funding for a non-core therapy important for health, which is emergent and only recently becoming recognized as medically required.”50 As the two professors state, “[McLachlin J.] adds an element to the group that shifts the focus of the inquiry from the equality rights of children to the legislative justification for denying the funding…. She erases the children, the people, by focusing on the treatment, the thing.”51 The same could be said for the courts’ analyses above – they erase the people by focusing on the litigation.
http://www.saskhrt.ca/forms/index/Descisions/101806.htm, at para. 158, where costs were awarded to the complainant and the Commission, “to compensate for the delay and lack of preparation in raising the issue of the jurisdiction of the tribunal.” The complainant was awarded $1,000, which took into account the fact that he was from another province and incurred expenses to participate in the proceedings. 48 Quereshi, supra note 45 at paras. 108-114. 49 2004 SCC 78, [2004] 3 S.C.R. 657. 50 Ibid. at 679. 51 Majury and Gilbert, supra note 26 at 132. 474 THE CANADIAN BAR REVIEW [Vol.87
C) Section 7 Alone will Not Result in Constitutional Recognition for Access to Justice
A major impediment to claims brought by the poor under section 7 is the historical conception of civil rights within classical liberal thought, with its emphasis on the autonomous individual pursuing the “good life” freely within a large private realm, where incursions by the state had to be zealously rebuffed by the courts.52 Civil rights were thus considered a reflection of “natural and inherent traits in human beings,” which required only the right of “noninterference” against the state in order to be exercised.53 This conceptualization is often outside the lived reality of how the poor experience civil rights violations, which may occur as a result of the state’s indifference to the oppressive relations they experience or its failure to provide resources that to permit them to participate fully in society. As civil rights are “inherent” under this model, they cannot be considered dependent upon “the state … act[ing] affirmatively to create them, or ... ensur[ing] the conditions necessary for their enjoyment.”54 This includes so-called “economic” rights dependent upon the state’s outlay of funds.
As others have pointed out, however, many traditional civil rights often depend on state expenditures; for example, the right of a fair trial requires the infrastructure of a judicial system, and the right to vote requires state maintenance of an electoral system.55 Thus, the positive/negative rights dichotomy does not seem to have a logical coherence, but rather is a choice made by the courts based upon how closely the claim adheres to the “norm” of civil rights valued by the classes that historically were able to invoke them. One permutation of this phenomenon is the courts’ emphasis on finding “direct” state action affecting poor claimants as a precondition to their making a civil rights claim.56
Unfortunately, section 7 has been rooted in this concept of civil rights, not only because of its historical pedigree,57 but also because of
52 Brodsky and Day, “Debate,” supra note 23 at 204. 53 Martha Jackman, “What’s Wrong With Social and Economic Rights?” (2000) 11 N.J.C.L. 235 at 238. 54 Ibid. at 238. 55 This point was made by Margot Young, “Section 7 and the Politics of Social Justice,” (2005) 38 U.B.C.L. Rev. 539 at 550. 56 See the Court’s insistence upon this in Gosselin, supra note 4, even as three of the decisions (McLachlin C.J.C. for the majority, Arbour J. dissenting and Bastarache J., dissenting but not on this point) grappled with the meaning of the term in the context of the case. 57 Rosalie Abella, “Diversity in Rights Theory: Untangling the Difference between 2008] Is the Rule of Law the Golden Rule? Accessing “Justice”... 475 its legislative history and the explicit decision to exclude a reference to the right to property.58 As the argument goes, to interpret section 7 as including economic security and liberty interests would be to permit the right to property, “having been shut out of the front door, [to] enter by the back.”59 Accordingly, the courts are averse to adjudicating claims with an economic component on the basis that such claims are “political” and represent a disguised attempt to have the courts legislate.60 At its core, however, this characterization dismisses any conception of socioeconomic rights as “real” rights and relegates them to “inspirational guide-posts for the development of future government policy.”61
It appears, therefore, that problems with categorization plague the section 7 analysis with much the same results as the poor’s claims under section 15. The courts’ interpretation of the right to liberty and security of the person under section 7 as excluding any consideration of economic disparity, combined with the multidimensional manner in which this disparity affects the lives of the poor, means that any interests that are given recognition under this section have limited
Civil and Human Rights” (1996) 7 N.J.C.L. 255 at 259. 58 See Re B.C. Motor Vehicle Act [1985] 2 S.C.R. 486, 24 D.L.R. (4th) 536 (S.C.C.) at 504-05, where Lamer J. discussed the legislative history of section 7. Martha Jackman argues in “From National Standards to Justiciable Rights: Enforcing International Social and Economic Guarantees through Charter of Rights Review,” (1999) 14 J.L. & Soc. Pol’y 69 at 76-79 that to use this history to reject poor people’s claims is to ignore the rationale behind the decision to omit property interests from section 7 – a concern that entrenching such a right could interfere with government’s attempt to regulate in the areas of the environment, zoning, land use, and natural resources. 59 Peter Hogg, Constitutional Law of Canada, 3rd ed., looseleaf (Scarborough: Thomson Carswell, 1997) at 44-15. The Supreme Court in Irwin Toy v. Quebec [1989] 1 S.C.R. 927, 58 D.L.R. (4th) 577 (S.C.C.) at 1003 did leave the door open slightly, stating that while “economic rights” are not contained in section 7, “This is not to declare, however, that no right with an economic component can fall within ‘security of the person.’” Despite frequent citations in claimants’ and interveners’ facta, this statement has yet to be cited by any court to support recognition of socioeconomic rights under section 7. 60 Lorne Sossin, Boundaries of Judicial Review: The Law of Justiciability in Canada (Toronto: Thomson Canada Ltd., 1999) at 195. 61 Ibid. at 194, citing Colleen Sheppard, “A Review of Lucie Lamarche, Perspectives occidentals du droit international des droits économiques de la personne” (1995-1996) 41 McGill L.J. 907 at 913. Sossin cites Masse, supra note 4, as an illustration of the court’s concern about the legitimacy in evaluating the inclusiveness of social benefits schemes. There, O’Brien J. at 55 agreed with Professor Hogg that adjudicating such claims potentially “… would bring under judicial scrutiny all of the elements of the modern welfare state… issues upon which elections are won and lost.” 476 LA REVUE DU BARREAU CANADIEN [Vol.87 application to them.62 For example, state-imposed barriers frustrating the ability of the poor to panhandle have been found not to violate section 7, despite the fact that this claim conforms, in general terms, to an assertion of a traditional “negative liberty” right to pursue one’s own interests.63 Again, part of the oppression of subordinated groups is that, historically, their interests were not seen as “fundamental” interests included in life, liberty and security of the person, and thus were not viewed as worthy of protection. This analytic piece of the constitutional puzzle is lost when section 15 is not considered in tandem with section 7.
The Supreme Court first directly addressed the constitutionality of the state’s failure to provide funded counsel in civil cases in G.(J).64 The case concerned a mother of three children who was poor and in receipt of social assistance. She was denied legal aid for representation in child apprehension proceedings. The Court ruled that the mother did have a constitutional right to legal aid services under section 7 (the section 15 claim being abandoned on appeal).
The case is significant for the Court’s finding that removal of one’s children by the state results in mental anguish so severe that it infringes security of the person. In coming to that determination, however, the Court failed to situate the circumstances of Ms. G. within their particular social and historical context, including a state apprehension system with a history of over-involvement with and over-surveillance of poor families, particularly those headed by single mothers.65 Instead,
62 See Mary Eaton, “Patently Confused: Complex Inequality and Canada v. Mossop” (1994) 1 Rev. Const. Stud. 203 at 218, where she describes this phenomenon with respect to the Supreme Court’s interpretation of “family status” discrimination under the Canadian Human Rights Act as excluding any consideration of sexual orientation: If, as [the Chief Justice] argues, the omission of sexual orientation [as a ground of discrimination] means that family status discrimination must be interpreted as a matter of law in a heterosexual way, what of the other extant guarantees? On this logic, the omission of sexual orientation would mean that only heterosexual women, heterosexual religious, racial and ethnic minorities, heterosexual people with disabilities, and so on, are covered by the Act. As discussed below, the exception is where those so excluded are able to access the right by aligning their interests with those of the “norm.” 63 See Banks, supra note 15 at 151: “Recognizing such an economic right in section 7 of the Charter would just as surely bring under judicial scrutiny all of the elements of the modern welfare state as would the recognition of a claim to some form of state largesse.” 64 Supra note 7. 65 Karen Swift, Manufacturing “Bad Mothers”: A Critical Perspective on Child Neglect (Toronto: University of Toronto Press, 1995), especially at 48-49 and 85-86 2008] Is the Rule of Law the Golden Rule? Accessing “Justice”... 477 the Court discussed in a generalized way “the parental interest in raising and caring for a child.”66 Further, the state action that “trigger[ed]”67 the hearing wherein Charter interests were engaged was the apprehension itself, so only its impact upon the parent’s psychological integrity was considered. The impact of the state’s failure to provide legal aid, including the psychological stress of having to self-represent, particularly in circumstances of economic deprivation that may affect one’s ability to present one’s case in court, was insulated from review. The effect of the proceedings upon a parent’s psychological integrity was mentioned only in the process of determining whether counsel was required to ensure the fairness of the trial.68 Such lack of attention to the justice system is surprising given that the Court emphasized that the circumstances with which section 7 is concerned must engage the “justice system and its administration.”69
In going on to consider whether the deprivation was in accordance with “fundamental justice,” Lamer C.J.C. eschewed an evaluation of the entire New Brunswick legal aid system. Instead, he imported a test from criminal jurisprudence to determine if counsel was required for a fair hearing: depending on the seriousness of the issues at stake, the complexity of the proceedings, and the capacities of the parent, the government may be required to provide an indigent parent with state- funded counsel. The highly individualized application of the criteria was emphasized repeatedly: “[i]n the circumstances of the case, the appellant’s right to a fair hearing required that she be represented by counsel;”70 “a parent need not always be represented by counsel in order to ensure a fair hearing;”71 the requirement of counsel might “be
(respecting single mothers); and Caroline Knowles, Family Boundaries: The Invention of Normality and Dangerousness (Peterborough: Broadview Press, 1996) at 71-73. Both Knowles and Swift point out that the construction of “dangerousness” or “bad motherhood” in the child welfare context is also highly racialized. We know virtually nothing about Ms. G.’s personal characteristics or her circumstances from the Court’s decision, though the ins and outs of the New Brunswick legal aid system are outlined in meticulous detail. There is an irony to this, given the Court’s repeated insistence that the case is not a systemic challenge, and that whether funded counsel is required for child apprehension cases must be decided on a “case by case” basis (discussed below). 66 G.(J.), supra note 7 at 78. 67 G.(J.), Ibid. at 56. 68 Ibid. at 84: “The parent must adduce evidence, cross-examine witnesses, make objections and present legal defences in the context of what is to many a foreign environment, and under significant emotional strain.” 69 Ibid. 70 Ibid. at 83. 71 Ibid. at 87. 478 THE CANADIAN BAR REVIEW [Vol.87 only in rare cases;”72 “[t]he seriousness and complexity of a hearing and the capacities of the parent will vary from case to case;”73 the criteria for appointment of funded counsel must be applied on a “case by case basis;”74 and the right is not “absolute.”75
Patricia Hughes refers to this individualization of claims as a “painful parsing” that reflects the tension “between a liberal and [a] relatively strict interpretation of the section.”76 Despite the fact that “it is difficult to imagine that there are many cases in which this branch of the chief justice’s criteria [capacities of the parent] would not be met,”77 the Court remained doggedly focused on the claimant and her perceived lack of skills and capacities, rather than systemic or societal barriers to accessing justice. The problem was presented in terms of some parents “who are often members of the least advantaged groups” having “little education and difficulty communicating”78 rather than a justice system that is for many, and in particular for those without the means to hire counsel, unresponsive, unintelligible79 and unaccommodating80 of their needs. In other words, the fault lies not in the system, but in the claimant.81
The Court’s failure to address broader issues in the New Brunswick legal aid system was presented as a matter of “deference;” indeed, the Court cited the government’s “wide latitude in discharging its constitutional duty,” and stated that it “need not and should not tell the
72 Ibid. at 93-94. 73 Ibid. 74 Ibid. 75 Ibid. at 96. 76 Patricia Hughes, “New Brunswick (Minister of Health and Community Service) v. G.J.: En Route to More Equitable Access to the Legal System?” (2000) 15 J. L. & Soc. Pol’y 93 at 100. 77 Mary Jane Mossman, “New Brunswick (Minister of Health and Community Services v. G.(J.): Constitutional Requirements for Legal Representation in Child Protection Matters” (2000) 12 C.J.W.L. 490 at 503. 78 G.(J.),supra note 7 at 88. 79 See the Report of the Canadian Bar Association Task Force on Systems of Civil Justice (Ottawa: The Canadian Bar Association, 1996), particularly at paragraph 3. In Carten, supra note 5, at para. 85, McEachern C.J.B.C. (dissenting but not on this issue), sensitively discussed the difficulties of litigants in Charter litigation, calling that area of law a “mystery to most lawyers, let alone private citizens.” 80 See, for instance, Canadian Forum on Civil Justice, The Civil Justice System and the Public: Communication and Access Barriers for those with Disabilities (Edmonton: Canadian Forum on Civil Justice, January 2006). 81 See Hughes’ point in supra note 76 at 94, that such an individualized analysis “ignores the crucial role law plays as a system which includes some people and excludes others in Canada.” 2008] Is the Rule of Law the Golden Rule? Accessing “Justice”... 479
Government of New Brunswick what specific delivery system should have been employed.”82 The foregoing implies that systemic challenges to legal aid systems are “political” (read: not asserting “real” rights), and thus insulated from searching Charter analyses.
G.(J.) may be unfavourably compared to Chaoulli v. Quebec (Attorney General).83 There, a majority of the Court struck down Quebec’s prohibition upon private health care insurance on the basis that, coupled with long wait times, it violated patients’ section 7 rights. In contrast to G.(J.), evidence in the case was derived from two appellants granted public interest standing. One was a patient critical of his treatment in the Quebec health care system (but not currently on a wait list); the other was a doctor who wanted to provide private-sector health care. By virtue of their public interest standing, the litigants were able to present a factual context that went far beyond their respective experience, verged upon the hypothetical, and encouraged the Court in turn to make a decision “just as sweeping and abstract.”84 As the dissenting judges pointed out, the weak fact base could have resulted in the judges refusing to strike down the legislation but leaving it open to individual claimants to apply to the courts on a case-by-case basis to enforce their rights to state-funded treatment.85 Instead, the Court chose to locate the section 7 violation not in particular individualized circumstances, as it did in G.J. , but rather in the health care system itself based upon examples where the system might violate a patient’s physical or psychological integrity. Given that the majority was at pains to contrast the case with seemingly positive, systemic claims requiring “the government to spend money on health care, or… waiting times be reduced,” or a “freestanding constitutional right to health care,”86 the difference between the Court’s approach in G.(J.) and that in Chaoulli appears to reside in the fact that in the latter case, there was a greater
82 G.(J.), supra note 7 at 89. 83 2005 SCC 35, [2005] 1 S.C.R. 791[Chaoulli]. 84 See Kent Roach, “The Courts and Medicare: Too Much or Too Little Judicial Activism?” in Colleen Flood, Kent Roach, and Lorne Sossin, eds., Access to Care, Access to Justice: The Legal Debate over Private Health Insurance in Canada (Toronto: University of Toronto Press, 2005) 184 at 187-88. 85 Binnie and Lebel JJ. pointedly noted that the claimants succeeded in demonstrating only that the “s.7 interest [is] potentially affected in the case of some Quebeckers in some circumstances;” see Chaoulli, supra note 83 at 882 [emphasis in the original]. One of their reasons at 907 for finding the legislation consistent with fundamental justice was that it provided for reimbursement for out-of-province health care expenses, and enforcement of patients’ rights to this mechanism could be supervised by the courts on a “case-by-cases basis”. 86 Ibid. at 843 (per McLachlin C.J.C. and Major J., concurring). 480 LA REVUE DU BARREAU CANADIEN [Vol.87 ability of the claimants to align with classical “negative rights”87 and majoritarian interests.88
Reported cases after G.(J.) tend to show that its influence in mandating appointment of state-funded counsel in civil cases has been limited. Even in child apprehension cases, courts have limited the ambit of impugned state action to the physical apprehension itself, thus precluding subsequent events involving child welfare officials from serving as “triggers” leading to the engagement of section 7.89 Where
87 See Roach, supra note 84 at 193. While Lorne Sossin disputes the positive/negative rights dichotomy, as do I, he appears to accept that the Court was appealing to this dichotomy in the case: “Towards a Two-Tier Constitution? The Poverty of Health Rights,” in Flood, Roach, and Sossin, supra note 84 at 170-73. 88 Chaoulli, supra note 83 at 845-46, per McLachlin C.J. and Major J.: “It is common ground that the effect of the prohibition on insurance is to allow only the very rich, who do not need insurance, to secure private health care in order to avoid the delays in the public system.” The dissent points out at 899-901 the impact of the proliferation of private medicine upon those who have no financial choice but to rely on the public system – further delays due to doctors’ “private sector patient preference.” 89 In Mills v. Hardy, 2000 NSCA 140, [2000] N.S.J. No. 386 (N.S.C.A.) (QL), the Court ruled that the father’s claim for custody was a “proceeding between two parents,” even though the children were with the mother under an interim supervision order. Perhaps more striking from a Charter perspective is the case of Children’s Aid Society of London and Middlesex v. T.C, [1999] O.J. No. 5506 (Ont. S.C.J.) (QL). In that case, funded counsel was denied on the basis that the mother had already consented to a final order granting custody of her children to her parents, and the Children’s Aid Society was simply seeking to end the supervision of the custody order. Therefore, there was no “state action” but rather simply the state wanting to “withdraw from the situation.” The mother wished to challenge the underlying order based on abuse by her father and her brother (who visited the home) and also inappropriate comments the grandmother made to the children. The mother had cerebral palsy and advised the court she felt unequipped to communicate and advance her interests at the hearing. The reasons why she had not disclosed the abuse before, and the dynamics at play between an apparent single mother with a disability being asked by the state to consent to a permanent custody order are left unexamined. These issues have significant gender and disability implications; see Dick Sobsey and Tanis Doe, “Patterns of Sexual Abuse and Assault” (1991) 9 Sexuality and Disability 243 at 243-45 (finding girls and women with disabilities more likely to have experienced sexual assault than non-disabled females); and R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33 at para. 77 (regarding the rape myth of “recent complaint”). In contrast, funded counsel was ordered in I.N. v. Newfoundland (Legal Aid Commission) (2000), 196 Nfld. & P.E.I.R. 336 (N.S.C.). where the main proceeding was an order for adoption. The mother had already consented to a permanent placement order, but wished to contest the adoption order, as the children were adopted without her knowledge. The Court appointed counsel based upon the “serious and complex allegations,” and noted the mother’s lack of skills to represent herself effectively. Though the case was decided after G.(J.), the Court granted counsel based on the court’s parens patriae jurisdiction, rather than section 7 of the Charter. 2008] Is the Rule of Law the Golden Rule? Accessing “Justice”... 481 these proceedings are found to engage section 7, application of the individualized G.(J.) criteria has resulted in denial of state-funded counsel where “meaningful” representation was provided under the legal aid regime,90 or the applicant did not meet the financial requirements for appointment of counsel.91 Any attempt to bring evidence regarding the systematic failings of the legal aid system to compensate lawyers sufficiently to permit proper preparation is dismissed as irrelevant.92
There has been no extension of the principles of G.(J.) to family law93 or human rights cases94 because of the absence of a state antagonist, nor to general litigation cases seeking payment or waiver of hearing costs because of the categorization of the claimant’s interest as economic.95 Attempts to extend its reach to immigration deportation
90 Winnipeg (Child and Family Services) v. A.(J.), 2003 MBCA 154, [2003] M.J. No. 454 (Man. C.A.) (QL) [A.(J.)]; J.W. v. M.E.S., 2000 BCSC 758, [2000] B.C.J. No. 985 (B.C.S.C.) (QL). See also Native Child and Family Services of Toronto v. J.M., [2007] O.J. No. 605, [2007] W.D.F.L. 2012 (Ont. Sup. Ct. Jus.) (no violation of section 7 where mother given the opportunity to consult with duty counsel during the course of the wardship hearing). 91 See Family and Children’s Services of Guelph and Wellington v. K.F., [2001] O.J. No. 4548, [2002] W.D.F.L. 46 (Ont. C.J.), where the Court found at para. 42 that, with a combined income of $54,000, “They are parents with a reasonable income who, with a reworking of their priorities, should be able to retain counsel.” 92 A.(J.), supra note 90 at paras. 51-53. 93 P.C. v. C.G., 2007 NBQB 355, 47 R.F.L. (6th) 399 (N.B.Q.B.); DeFehr v. DeFehr, 2002 BCCA 139, [2002] B.C.J. No. 418 (B.C.C.A.) (QL); Ryan v. Ryan, 2000 NSCA 10, [2000] N.S.J. No. 13 (N.S.C.A.)(QL); and Miltenberger v. Braaten, 2000 SKQB 443, [2000] S.J. No. 599 (Sask. Q.B.)(QL). The Court in D.G. v. A.G., 2007 NLUFC 22, 270 Nfld. & P.E.I.R. 42 refused to rule that counsel could never be ordered in a civil proceeding where custody was at issue, but dismissed the application based on the facts of the case (mother qualified for legal aid, but did not want to be represented by a legal aid lawyer). 94 Hawkes v. Prince Edward Island (Human Rights Commission), 2007 PESCAD 1, 794 A.P.R. 115. It should be noted, however, that the Court seemed influenced by the fact that the claimant was a “frequent litigant;” see para. 5. Faro (Town) v. Carpenter, 2007 YKSC 33, 159 A.C.W.S. (3d) 732, was a judicial review of a decision of the Yukon Human Rights Commission, and therefore the complainant was not a direct litigant. However, the Court refused to appoint counsel as amicus curiae to represent the complainant’s position because the state was not adverse to the complainant. Even though the role of the Commission on judicial review was significantly limited, its counsel could still assist the court on the central issue of bias; as well, the complainant would be reasonably able to participate given his employment as a journalist and broadcaster. 95 Quereshi, supra note 45 at para. 92. While decided before G.(J.), Pleau, supra note 38 and Polewsky, supra note 36, are to the same effect. 482 THE CANADIAN BAR REVIEW [Vol.87 cases have been similarly unsuccessful, though these decisions seem to have turned upon the application of the individualized criteria rather than a generalized prohibition.96
Thus, it is apparent that access to justice claims based upon section 7 suffer from the same deficiencies as section 7 claims based on poverty generally: the emphasis on individual evaluation, preventing a contextualized, systemic analysis of barriers to justice for subordinated groups; the focus on “negative” rights; the acceptance of a strict interpretation of state action; and the reluctance to consider cases as engaging section 7 where an economic component exists. In these cases, once the “economic” claim is rejected, the courts dismiss socioeconomic circumstances as irrelevant. Individual claimants are completely categorized by virtue of their engagement with the justice system, and analyses of their circumstances are devoid of a social context that is critical, particularly to section 15.
2. The Rule of Law and Unwritten Constitutional Principles
A) Two Competing Visions – Rule of Law Theory
Given the confined scope of sections 7 and 15 in ensuring that those of limited means are able to receive needed legal services, the rule of law presents some tantalizing possibilities. The rule of law is mentioned in the preamble of the Charter, and is thought to be included through necessary implication97 in the preamble to the Constitution Act, 1867.98 It is considered one of the “unwritten” constitutional principles, “in the sense that [it is] exterior to the particular sections of the Constitution Acts.”99 While the notion of unwritten constitutional norms has been brought to the fore both in judgments100 and in a controversial speech
96 Canada (Minister for Public Safety and Emergency Preparedness) v. Muse, 2005 FC 1380, [2005] F.C.J. No. 1699 (QL); Canada (Minister of Citizenship and Immigration) v. Seifert [2004] F.C.J. No. 1243 (QL). 97 Reference re: Manitoba Language Rights (Man.), [1985] 1 S.C.R. 721, [1985] 4 W.W.R. 385 (S.C.C.) at 63. 98 The Preamble to the Constitution Act, 1867 (U.K.) 30 & 31 Vict. c.3, s.133, states Canada is to have “a constitution similar in principle to that of the United Kingdom.” 99 Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3, [1997] 10 W.W.R. 417 (S.C.C.) [Judges Reference cited to S.C.R.] at 64. 100 See Re: Resolution to Amend the Constitution, [1981] 1 S.C.R. 753, 11 Man. R. (2d) 1 (S.C.C.) at 905-06 [Patriation Reference], regarding the unwritten “federal principle” of the Constitution; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, 100 D.L.R. (4th) 212 (S.C.C.) 2008] Is the Rule of Law the Golden Rule? Accessing “Justice”... 483 by McLachlin C.J.C.,101 the notion that our written constitution is merely a manifestation of certain foundational, unwritten constitutional principles has been accepted in Canadian constitutional law for over a half century.102
Philosophically, the rule of law has a venerable, and indeed ancient, history beginning with Plato’s notion of “law as master of government,” and furthered by Aristotle’s embellishment of the rule of law as the rule of reason, the law being “intelligence without appetite.”103 It was enshrined in the 1215 Magna Carta as a result of political struggle between feuding aristocrats seeking to check the power of the monarchy to rule104 by establishing the principle “Quod Rex non debet esse sub homine, sed sub Deo et lege” – “That the King ought not to be under any man but under God and the Law.”105 Through the writings of political philosophers like Thomas Hobbes and John Locke, it became a principle that operated as a check on government’s regarding the constitutional status of “unwritten legislative privileges,” and the subsequent cases regarding other unwritten principles, discussed below. 101 “Remarks of the Right Honourable Beverley McLachlin, P.C., Given at the Lord Cook Lecture in Wellington, New Zealand, December 1, 2005,” online: Supreme Court of Canada, http://www.scc-csc.gc.ca/aboutcourt/judges/speeches/Unwritten Principles_e.asp. A subsequent mischaracterization of McLachlin C.J.C.’s speech eventually led to Conservative MP Maurice Vellacott’s resignation: Janice Tibbetts, “Put Rights before Constitution,” National Post (December 5, 2005) A1; “Tory MP Apologizes for Saying Judges Play God with Law” Edmonton Journal (May 9, 2006) A7; Kirk Makin, “Attack on Judiciary Shatters Strategic Silence” Globe and Mail (May 10, 2006) A5; “No ‘Godlike’ Court, Just Working Judges,” Editorial, Globe and Mail (May 10, 2006) A14. 102 Reference re Alberta Statutes, [1938] S.C.R. 100, [1938] 2 D.L.R. 81 (S.C.C.); Switzman v. Elbling, [1957] S.C.R. 285, 7 D.L.R. (2d) 337 (S.C.C.) (political speech); Roncarelli v. Duplessis, [1959] S.C.R. 121, 16 D.L.R. (2d) 689 (S.C.C.) [Roncarelli] (rule of law). Patricia Hughes argues this notion may in fact reach back to Supreme Court decisions of the late nineteenth and early twentieth century, and remarks: The acknowledgement of a broader range of fundamental constitutional principles has accompanied the growth of constitutionalism since 1982, and indeed, may be seen as a concomitant of the shift to a regime of constitutional supremacy. See “Recognizing Substantive Equality as a Foundational Constitutional Principle” (1999) 22 Dal. L.J. 5 at 9 [Hughes, “Recognizing Substantive Equality”]. 103 Brian Z. Tamanaha, On the Rule Of Law: History, Politics and Theory (Cambridge: Cambridge University Press, 2004) at 8-9; Ernest Weinrib, “The Intelligibility of the Rule of Law,” in Allan Hutchinson and Patrick Monahan, eds., The Rule of Law: Ideal or Ideology (Toronto: Carswell, 1987) 59 at 60. 104 Allan Hutchinson and Patrick Monahan, “Democracy and the Rule of Law,” in Hutchinson and Monahan, ibid. 97 at 102. 105 Ibid. See also Bhatnager v. Canada (Minister of Employment and Immigration), [1988] F.C.J. No. 265 (QL), at para. 1 regarding the origin of this phrase. 484 LA REVUE DU BARREAU CANADIEN [Vol.87 expropriation of citizens’ private property106 and, in that form, travelled to the American colonies.107
Most modern discussion of the rule of law begins with A.V. Dicey, and his 1885 treatise on English constitutional law.108 His “three principles” of the rule of law are neatly summarized by Peter Hogg and Cara Zwibel:
First, the rule of law meant the supremacy of regular law over “arbitrary power.” … Dicey’s second meaning of the rule of law was “equality before the law” by which he meant that officials were bound by the same laws as ordinary subjects. … The third meaning of the rule of law was that the constitution was a by-product of the common law, not any constitutional instrument….109
Since Dicey’s time, elaboration of these principles and, in particular, whether they permit a substantive evaluation of laws, has been hotly contested. One group of theorists subscribes to a highly procedural, or “positivist” notion of the rule of law wherein predictability and certainty of laws are of crucial importance. According to this conception, the rule of law requires a system of positive laws, publicly declared, that are binding and enforced upon government and citizens alike. For positivists, the rule of law cannot justify an evaluation of the content of its laws, as to do so would be to confuse the rule of law “with justice, equality, human rights or the dignity of the individual. When assessing if a state is a rule of law state, one is simply to look and see if that state has a defined and enforced legal system.”110
Like those under the classical conception of civil rights, the inhabitants of a rule of law state are liberal subjects, defined by reason (rather than social relations or context), driven by self-interest, interested primarily in individual rights against government, and assumed equal in status to fellow citizens.111 Thus, the only notion of
106 Hutchinson and Monahan, supra note 104 at 104. 107 Ibid. at 105; see also Steven Kautz, “Liberty, Justice and the Rule of Law” (1999) 11 Yale. J.L. & Human. 435 at 456, quoting George Washington’s letter to the Hebrew Congregation of Newport of August 1790: “Every one shall sit in safety under his own vine and fig tree, and there shall be none to make him afraid.” 108 Peter Hogg and Cara Zwibel, “Rule of Law/The Rule of Judges: The Rule of Law in the Supreme Court of Canada” (2005) 55 U.T.L.J. 715 at note 1. 109 Ibid. at 715. 110 Douglas Simsovic, “No Fixed Address: Universality and the Rule of Law” (2001) 35 R.J.T. 739, at 749. 111 See Olufemi Taiwo, “The Rule of Law: The New Leviathan?” (January 1999) 12 Can. J.L. & Jur. 151; Sheila McIntyre, “Backlash Against Equality – The ‘Tyranny’ 2008] Is the Rule of Law the Golden Rule? Accessing “Justice”... 485 power within this analysis is that of the state against individuals. Equality within this concept of the rule of law is understood as purely formal: treating likes alike, with equal application of the law to everyone.112 But this concept of equality has never served vulnerable groups particularly well, given their construction in law and society as different and inferior.
For other theorists, the rule of law has meaning only if it stands in protection of “justice.” In other words, there is a necessary connection between the upholding rule of law and the content of law. This is not a new concept.113 Those subscribing to this view believe that one cannot distinguish between form and content in the rule of law: it is but a hollow shell if the law itself is arbitrary or unfair. Laws must be capable of “justification”
… whereby the legality of a person’s treatment, at the hands of the state, depends on its being shown to serve a defensible view of the common good (broadly understood to mean for the good of a community whose members are accorded equal respect and dignity, according to some rational account of their collective well-being). It is not sufficient for laws or government policies to be accurately applied to particular persons, in accordance with their true meaning or proper interpretation; the associated distinctions made between persons, or groups of persons, must also be capable of justification.114
What constitutes the “common good” may be contested within the polity, and may be controversial. The fact that it may change in accordance with social consensus is not inconsistent with the principles underlying the rule of law, but “[t]here must be compatibility in each case, with those general principles of justice and the public welfare that the justification of other laws and policies typically invokes or
of the ‘Politically Correct’” (1993) 38 McGill L.J. 1; and Kautz, supra note 107, at 438- 40. 112 Robin Elliot, “Reference, Structural Argumentation and the Organizing Principles of Canada’s Constitution” (2001) 80 Can. Bar Rev. 67 at 115. 113 See David Dyzenhaus, “Form and Substance in the Rule of Law: A Democratic Justification for Judicial Review” in Christopher Forsyth, ed., Judicial Review and the Constitution (Oxford and Portland, Oregon: Hart Publishing, 2000) 141 [Dyzenhaus, “Form and Substance”] at 141 (referring to Hobbes and Bentham); Luc Tremblay, The Rule of Law, Justice, and Interpretation (Montreal & Kingston: McGill-Queen’s University Press, 1997) at 166 et seq. (discussing Cicero and later, Thomas Aquinas); and Tamanaha, supra note 101 at 9 (referring to Aristotle and Plato’s exhortation that law must serve the good of the community – “law, when good, should be supreme”). 114 T.R.S. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford: Oxford University Press, 2001) at 2. 486 THE CANADIAN BAR REVIEW [Vol.87 assumes.”115 In other words, the common good is understood “according to a reasonable interpretation of that ideal, consistent with basic constitutional values.”116 Further, the process by which the law is justified based on notions of the common good must be open and transparent, “susceptible of challenge, modification and substantial revisions based upon reasoned argument and public debate,”117 including in open court.118
Luc Tremblay’s approach to the question of what content the rule of law requires is derived from the notion of the “rule of law as justice,” that is, “a conception of law in which the fundamental characteristic of its constitutive principles is to promote justice.”119 In his view, the law is formally just (roughly conforming to the notion of formal equality in which the law consistently and coherently treats likes alike),120 materially just (adhering to a substantive notion of justice that conforms to “fundamental moral values of the law”),121 and equitable (the notion of individualized justice).122 Such a conceptualization requires judges to interpret the law as an integrated whole, selecting the decision that “coheres best, or at least to as great a degree as any other decision, with
115 Ibid. at 122. 116 Ibid. at 124. 117 Ibid. at 249. 118 Ibid. at 8. 119 Tremblay, supra note 113, at 166. This appears also to have been accepted by the wider international community, shown in Conference on Security and Cooperation in Europe, “Document of the Copenhagen Meeting of the Conference on the Human Dimension,” June 29, 1990, reprinted in 29 I.L.M. 1305 (1990): … the rule of law does not mean merely a formal legality which assumes regularity and consistency in the achievement and enforcement of democratic order, but justice based upon the recognition and full acceptance of the supreme value of the human personality and guaranteed by institutions providing a framework for its fullest expression. 120 Tremblay, ibid. at 169-70. 121 Ibid. at 171-72. In Tremblay’s view this means that judges do not have to ascribe to “natural law,” another criticism of the positivists. Rather than attempting to ascertain an absolute order that exists apart from human creation, they determine what is “right” by considering and weighing the general principles of law at play. He implies at 180 these norms may be partial and contingent, but must be “accepted as morally just within the community to which the law applies.” 122 Ibid. at 173. I think here Tremblay is using equity as a signpost that the formal structures of the law are working an inequity and require revision, rather than constructing these claims as “outside the law,” an indulgence granted to individuals. Equity in Tremblay’s sense is rather akin to the contextual interpretation required under section 15 – looking at the real circumstances of the affected group to see if the effect of the law is inequity. 2008] Is the Rule of Law the Golden Rule? Accessing “Justice”... 487 the whole system”123 rather than selecting between competing concepts of justice.
Positivists contest the above conceptualization on the basis that it obfuscates governance issues and the need for certainty in laws with a controversial (and ultimately subjective) notion of “justice” that, by reverting to the rule of law, “seeks a weight for itself to which it is not entitled,”124 and imposes an impermissible “extrinsic purpose” upon the law.125 Besides, “in any relatively stable society over time the law will come to express some or other vision of the common good. That vision will provide the substantive values that get implemented and enforced through the institutions which together make that society into one governed by the rule of law.”126 Those advocating a vision of the rule of law that incorporates substantive visions of justice are thus accused of wanting the rule of law to mean “everything”127 which is just a short step away from it meaning nothing.
Thus, if the rule of law is to remain coherent under a substantive perspective and counter the arguments of the positivists, there must be some limitations on the content it prescribes under the rubric of justice. David Dyzenhaus approaches this problem by employing a notion of “legality” which would be violated if legislators went “legally mad” (by, for example, prohibiting judges from judging or permitting “absurd arrogations of authority by a tribunal”) or engaged in the “profaning” of legal values, such as through the passage of apartheid laws.128
The above is just a brief snapshot of the theories. The important principle that arises out of the above discussion is that the rule of law, like other legal concepts, is not a monolith, but rather a contested site
123 Ibid. at 178; see also Ronald Dworkin, A Matter of Principle (Cambridge: Harvard University Press, 1985) at 16 where he argues that a justice model (what he calls the “rights model”) presupposes adherence to consistency and enforceability of laws that the proceduralist version of the rule of law requires. 124 Dyzenhaus, “Form and Substance,” supra note 113 at 146. 125 See Ernest Weinrib’s discussion regarding the distributive justice model of the rule of law in supra note 103 at 76, and Allan’s discussion of the theories of F.A. Hayek regarding the illegitimacy of “social justice” purposes in law in supra note 114 at 115. 126 Allan, ibid. at 163. 127 See Hogg and Zwibel’s description of these theorists, supra note 108 at para. 6; William C. Whitford, “The Rule of Law,” (2000) Wis. L. Rev. 723 at 742 arguing that a broad definition of the rule of law negatively affects its “moral force”; and Singh v. Canada (Attorney General), [2000] 3 F.C. 185, 183 D.L.R. (4th) 458 (Fed. C.A.) at para. 33: “Advocates tend to read into the principle of the rule of law anything which supports their particular view of what the law should be.” 128 Dyzenhaus, “Form and Substance,” supra note 113 at 168-69. 488 LA REVUE DU BARREAU CANADIEN [Vol.87 of struggle over meaning. The question, simply put, is whether the rule of law is the “rule of ‘good’ law.”129 Arguing that the rule of law permits a normative evaluation of the content of laws does not misconstrue, render incoherent, or pervert the original meaning of the rule of law. Whether or not it ought to be given a substantive interpretation (and, if so, what the rule of law actually entails – what is “justice,” for example?) and what should happen if the state contravenes such an understanding of the rule of law, are the subjects of the next section.
B) Canadian Judicial Treatment of the Rule of Law
The rule of law is one of many unwritten constitutional principles that, in theory, influences, and is influenced by, Charter rights of equality, liberty and security of the person. As will be discussed below, unwritten constitutional principles ought to be read harmoniously with one another and with Charter rights. Through an examination of the jurisprudence, I show that this harmony has not yet been achieved; construction of the rule of law leading up to Christie suffered from similar problems with categorization that continue to inhibit recognition of poor people’s rights to access justice under sections 7 and 15 of the Charter. Still, the jurisprudence leaves open the possibility of a fuller contextual interpretation of the rule of law that mandates consideration of whether the content of a particular law accords with “justice,” and focuses on relations between people rather than abstract categories.
While the Supreme Court has not completely enumerated all “unwritten constitutional principles,”130 the ones that it has recognized thus far are federalism, democracy, constitutionalism and the rule of law, respect for minorities,131 and judicial independence.132 The extent to which they are to be given legal force is a matter of some debate, which is reflected in the Court’s ambivalent (and arguably contradictory) statements on the issue. For instance, in the case of the Quebec Secession Reference,133 the Court described the unwritten principles both as an interpretive tool,134 and as giving rise to
129 Hogg and Zwibel, supra note 108 at para. 7. 130 In Reference re Quebec Secession, [1998] 2 S.C.R. 217, 161 D.L.R. (4th) 385 (S.C.C.) at 240 [Quebec Secession Reference cited to S.C.R.], the Court rather coyly describes the four unwritten principles “which are relevant to the question before us (although the enumeration is by no means exhaustive).” 131 Ibid. 132 Judges Reference, supra note 99. 133 Supra note 130. 134 Ibid. at 248. In the Judges Reference, supra note 99 at 71, this was expressed 2008] Is the Rule of Law the Golden Rule? Accessing “Justice”... 489 substantive legal obligations constituting limitations on government action.135 The Court has also referred to them as being part of the preamble to the Charter, which has “no enacting force.”136 As a result of this ambiguity, Jean Leclair has written that “the principles might engender obligations of variable normative force.”137 Whether a court will intervene will depend on its determination of its role and whether the issue “is best left to the political process.”138
The unwritten principles appear to have had their greatest effect when the Court has utilized them in conjunction with express Charter rights, rather than considering them as “stand alone” principles by which to evaluate state action. In the Judges Reference,139 the Court declared salary reductions for judges, determined without independent judicial compensation commissions, to be constitutionally invalid pursuant to subsection 11(d) of the Charter, which provides that a person “charged with an offence” has the right to a “fair and public hearing by an independent and impartial tribunal.” Despite this finding, Lamer C.J.C. went further to identify a broader source for judicial independence – unwritten constitutional principles. The Court readily acknowledged that sections 96 to 100 of the Constitution Act, 1867 protect only the independence of superior, district and county court judges (not provincial court judges) and, “even then, not in a uniform or consistent manner,” while section 11(d) expresses too narrow a concept of judicial independence because it applies only to judges with penal jurisdiction.140 Nevertheless, the Court ruled all salary reductions for provincial court judges, both civil and criminal, to be unconstitutional and invalid unless determined by a judicial compensation commission. “Gaps in the express terms of the constitutional scheme”141 were left to be filled by the unwritten constitutional principle of judicial independence, which in the earlier as, “The express provisions of the Constitution should be understood as elaborations of the underlying, unwritten, and organizing principles found in the preamble to the Constitution Act, 1867.” 135 Ibid. at 249-50. 136 Patriation Reference, supra note 100 at 805; Judges Reference, supra note 97 at 68. 137 Jean Leclair, “Canada’s Unfathomable Unwritten Constitutional Principles,” (2002) 27 Queen’s L.J. 389 at 406 [emphasis added]. 138 Ibid. This ambivalence may also be seen in the manner in which the Court decided the Quebec Secession Reference, namely finding that Quebec and all other members of confederation had a “duty to negotiate,” but that this duty could not be enforced legally! 139 Supra note 99. 140 Ibid. at 65. 141 Ibid. at 69. 490 THE CANADIAN BAR REVIEW [Vol.87 words of the Court has no enacting force of its own. Accordingly, while the Court relied on section 11(d) to ground a declaration of invalidity, the lacunae in the section meant that “the real source of power [lay] elsewhere than in the written provision.”142
The first contemporary143 consideration of the rule of law as a foundational constitutional principle occurred in Reference re: Manitoba Language Rights (Man.),144 where it was found that rule of law included the basic requirement of “the creation and maintenance of an actual order of positive laws.”145 The legal force of the rule of law was held to temporarily validate Manitoba’s entire system of statutes that, because of an unmet requirement that it be translated into French, would otherwise have been invalid. Thus, the rule of law did have legal effect, though some commentators have noted that it was only to uphold the validity of statutes rather than the converse.146
The Court’s ambivalence as to how interventionist it may be when a law is found to violate unwritten constitutional principles has seeped into its consideration of whether to accept a positivist or substantive vision of the rule of law. In the Quebec Secession Reference, the Court distinguished between the unwritten constitutional principle of democracy and the rule of law. The former was explicitly described in substantive terms; it was “not simply concerned with the process of government,”147 but contained constitutional values such as human dignity, social justice and equality.148 It meant more than majority rule alone; it required listening to “dissenting voices.”149 The rule of law, on the other hand, was described formalistically as containing three procedural principles: 1) the law governs the acts of both government and private persons; 2) there is a positive order of laws; and 3) the
142 Leclair, supra note 137 at note 30. 143 In the 1959 decision of Roncarelli, supra note 102, the rule of law was invoked to invalidate the cancellation of a liquor license by the Quebec Liquor Commission at the behest of then-Premier Maurice Duplessis for political reasons. 144 Supra note 97. 145 Ibid. at 749 S.C.R.. 146 Leclair, supra note 137 at 411. 147 Quebec Secession Reference, supra note 129 at 64. 148 Ibid. citing R. v. Oakes, [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200 (S.C.C.) at 136. 149 Ibid. at 256. 2008] Is the Rule of Law the Golden Rule? Accessing “Justice”... 491 relationship between the state and the individual must be regulated by law.150 The foregoing distinction is surprising given that the Court indicated at the outset that the principles “function in symbiosis” and any one principle cannot “be defined in isolation from the others.”151
The procedure-based description of the rule of law in the Quebec Secession Reference was confirmed a few years later, first in Babcock v. Canada (Attorney General),152 and then in British Columbia v. Imperial Tobacco Canada Ltd.,153 a case concerning the constitutionality of legislation that eased the evidentiary burden on the government in litigation against tobacco companies to recover health care costs. Writing for the Court in the latter case, Major J. reiterated the three principles underlying the rule of law in the Quebec Secession Reference, and went on to note:
So understood, it is difficult to conceive of how the rule of law could be used as a basis for invalidating legislation such as the Act based on its content. That is because none of the principles that the rule of law embraces speak directly to the terms of legislation.154
On the other hand, it may have been appropriate in the particular context of the case155 to argue that the right of “big tobacco” to use certain litigation strategies should not trump the British Columbia legislature’s attempt to recoup health care funds and punish tobacco companies economically for the harms they have caused. To the extent, however, that the Court suggested that the rule of law permits only a
150 Ibid. at 257-58. 151 Ibid. at 248. 152 2002 SCC 57, [2002] 3 S.C.R. 3 at 30. 153 2005 SCC 49, [2005] 2 S.C.R. 473 [Imperial Tobacco]. 154 Ibid. at 497-98. 155 This contextual analysis would include the values of democracy described by the Court in the Quebec Secession Reference, supra note 128. These include those outlined above, as well as “faith in social and political institutions which enhance the participation of individuals and groups in society.” The latter would include the health care system, as “a keystone tenet of government policy”: Eldridge v. British Columbia (Attorney General) [1997] 3 S.C.R. 624, [1998] 1 W.W.R. 50 (S.C.C.) at para. 50. 492 LA REVUE DU BARREAU CANADIEN [Vol.87 purely procedural evaluation of laws,156 it left little room for consideration of substantive equality.157
The positivist categorization of the rule of law dominates the “access to justice” decisions. The first of these cases is British Columbia Government Employees’ Union v. British Columbia (Attorney General),158 where the Chief Justice of the British Columbia Supreme Court (on his own motion) enjoined union picketing of courthouses in the province. The Supreme Court of Canada upheld the order by having recourse to the principle of access to justice within the rule of law, which it called the “very foundation of the Charter:”
[I]t would be inconceivable that Parliament and the provinces should describe in such detail the rights and freedoms guaranteed by the Charter and should not first protect that which alone makes it in fact possible to benefit from such guarantees, that is, access to a court.159
While the decision is significant for its recognition that the right to access justice is implicit in the rule of law, it ignored countervailing considerations about whether the content of the order comported with the rule of law, specifically, the freedom to express disapproval of the state and to call upon it to justify its laws.160
156 A recent decision of the Court suggests that its statements in this regard are not as unequivocal as it appears. In Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350, the Court reproduced the same quote from Imperial Tobacco that is cited above, and stated at 418, “Even if this dictum leaves room for exceptions, Mr. Charkaoui has not established that the IRPA [the legislation under judicial review] should be one of them” [emphasis added]. See also Christie, supra note 5 at 883 where the Court states, “However, in Imperial Tobacco, this Court left open the possibility that the rule of law may include additional principles [other than the three procedural principles previously enunciated].” Thus, the Court appears to be saying that while invalidating laws based on their content is not the rule of law’s main purpose, it still could be utilized in this fashion. This is supported by Mark Carter in “The Rule of Law, Legal Rights in the Charter, and the Supreme Court’s New Positivism” (2008) 33 Queen’s L.J. 453 at 473 where he maintains that despite the ruling in Imperial Tobacco, “there is no sign that the Court is committed to positivism as a general philosophy.” 157 Hughes, “Recognizing Substantive Equality,” supra note 102, at 32-33. 158 [1988] 2 S.C.R. 214, 53 D.L.R. (4th) 289 (S.C.C.) [BCGEU]. 159 Ibid. at 229. 160 Allan, supra note 114 at 2. An argument at least deserving of consideration is the fairness of a judge making such an order, on his own motion, and ex parte, affecting non-litigants’ Charter rights of freedom of expression. Instead of integrating the rule of law and freedom of expression analysis, the Court bootstrapped its finding of section 1 justification for the expression violation upon its separate finding that the injunction comports with the rule of law (thus making the picket “unlawful”). 2008] Is the Rule of Law the Golden Rule? Accessing “Justice”... 493
In Pleau,161 the Nova Scotia Supreme Court found that court hearing fees violate the rule of law by impeding, impairing or delaying access to the courts. Fees that “can be reasonably afforded by citizens in general” will not usually be deemed constitutionally invalid,162 but the hearing fee was of a different constitutional import. Because it related to time in court, “its effect [was] to put a ‘price on accessing the courts,’ a price on justice…. Although there are many financial consequences in launching a civil lawsuit, one of them must not be the time in court.”163
The case recognizes that economic barriers to accessing justice are unconstitutional, which represents advancement in the law; however, the decision contains neither insight nor analysis regarding the differential impact of fees on poor persons not covered by legal aid. As noted above, the Court rejected both the section 7 and 15 claims, and made no reference to the rule of law in the analysis of these rights, or vice-versa. The notion of economic barriers to access to justice was viewed in a circumscribed, abstract fashion, while the reasonableness quotient of the fees seemed to increase the further one was away from the bench. The court gives us neither a sense of what proportion the hearing fee bears to litigation fees paid at large, nor of the systemic impact court fees have generally upon poverty law litigation.
The Polewsky decision on the constitutionality of court fees similarly emphasized that the BCGEU decision does not require an unrestricted right of recourse to the courts, and it is not unconstitutional to charge reasonable court fees.164 The Ontario Divisional Court found, however, that access to justice requires that “for persons with demonstrated inability to pay prescribed fees and with meritorious cases, there must be a statutory provision to which they can resort for relief from the requirement to pay fees.”165
161 Supra note 38. 162 Ibid. at para. 104. 163 Ibid. at para. 120-121. 164 Supra note 36 at 627-28. The case was based upon a “common law constitutional right” of access to justice, however, this concept obviously conforms to the unwritten constitutional principle contained within the rule of law. Both Pleau and Polewsky, and later the British Columbia Court of Appeal decision in Christie, relied on the same English case, R. v. Lord Chancellor, ex p. Witham [1997] 2 All E.R. 781, and so the difference is likely semantics. Further, at 631 of Polewsky, the Divisional Court relied upon the rule of law as “additional support” for its decision. 165 Polewsky, ibid. at 626. 494 THE CANADIAN BAR REVIEW [Vol.87
While the decision represents an improvement upon Pleau in that it more directly considered the impact of fees upon the poor, it failed to take a systemic approach to the question of fees. Following Polewsky, the approach to whether court fees will be waived is still highly individualized, and indeed is based upon a narrow test of “indigence;” a person must prove that, but for a waiver or reduction of fees, he or she would not be able to proceed with their case. There is no sense as to how this will be evaluated. Indeed, all references to poverty and access to justice appeared rather abstract. There was no consideration of the lived reality of the working poor who may, for example, have an income below the low-income cut-offs or high debt. They would be considered in the “but for” test without thought as to their unique legal needs. There was no discussion of substantive equality, nor of any heightened constitutional imperative to assist the poor in litigating cases related to their fundamental interests under the Charter.
3. Why Christie Didn’t Do Justice, but Could166
The British Columbia Court of Appeal decision in Christie167 may be seen against the backdrop of these cases, though it does not refer to them. The facts found to support a declaration of constitutional invalidity of a provincial tax on legal services at the trial level (and upheld on appeal) were contained in affidavits filed by Christie. They showed that he provided legal services for low-income clients who were ineligible for legal aid or had cases that legal aid would not fund (except some disbursements on a discretionary basis). In his and his clients’ affidavits, there were numerous poignant examples of low- income clients who were adversely affected by the tax: those with claims against the Victims Compensation Fund, personal injury claims, medical negligence claims, and estate issues.168 These were all matters that affected the ability of his clients to provide for themselves and their families. He deposed that his clients could not pay his hourly rate plus the tax, and if he could not charge the minimum amount that he did, he could not continue to practise law. The result would be that many of these clients would not have any legal representation or advice at all. No other professional services were so taxed by the British Columbia government. The stated purpose of the tax was to fund legal aid, but instead the taxes raised were put into general revenue. As noted above,
166 Apologies to Rhadha Jhappan, from whom I adapted her charming subtitle, “Why Gals Don’t Do Justice But Should,” from “The Equality Pit or the Rehabilitation of Justice,” supra note 14. 167 Christie (CA), supra note 5. 168 Christie v. AG of B.C. et al., 2005 BCSC 122, [2005] B.C.W.L.D. 1624 [Christie (BCSC)] at paras. 47-54. 2008] Is the Rule of Law the Golden Rule? Accessing “Justice”... 495 the issue was whether the legislation undermined the rule of law by restricting access to justice. No violation of an express Charter provision was claimed.
Newbury J.A. gave the decision for the majority, invalidating the tax on the basis of its inconsistency with the rule of law. She prefaced her remarks on the substance of the case by noting that the issue between the parties was “whether the state can impose an additional financial burden on those seeking to obtain legal services” and had nothing to do with whether the government had to provide and pay for counsel for poor people.169 Thus, while the claim can be considered a systemic one, it was circumscribed by the court to one akin to “negative rights” claims under section 7.
Following the Supreme Court of Canada cases previously discussed, Newbury J.A. accepted that the rule of law has constitutional status, and that access to justice is incorporated within this principle. She also accepted, following a decision on an earlier challenge to the tax that failed for evidentiary reasons, that the tax impeded access to justice.170 While initially seeming to question whether there is a practical distinction between the positivist and substantive interpretations of the rule of law,171 Newbury J.A. attempted to distinguish Imperial Tobacco and its seeming disapproval of using the rule of law to invalidate legislation “based on its content” by firmly categorizing access to justice as a procedural concern. She indicated that if access to justice is denied, laws cannot be given effect:
Not only would individuals be unable to have their rights determined vis-à-vis the government or other private persons, governments would also be stymied in the execution of many of their executive and enforcement functions. Viewed in this context, the invocation of access to justice is not a challenge to legislation “based on its content.” The principle operates at a more basic - one might even say threshold – level. It is content-neutral, just as courts of law are impartial between litigants.172
169 Christie (CA), supra note 5 at 644-45. 170 Carten, supra note 5. 171 Christie (CA) supra, note 5 at 659: [I]f the Province were to enact a statue that expressly permitted picketing of a courthouse or otherwise contemplated interference with public access to courts of law or to legal services, [would] that enactment… prevail (assuming a judicial determination could be made despite the statute) over the unwritten principle of the rule of law.... Would the rule of law be satisfied as long as “manner and form” requirement were complied with? 172 Ibid. at 660. 496 LA REVUE DU BARREAU CANADIEN [Vol.87
This analysis of access to justice is so devoid of context and so generalized that even government litigants are considered amongst those affected (even though the impugned legislation relates to the imposition of a government tax that adversely affects low-income people). It is “equal opportunity” transferred to the courthouse steps. To the extent that the poor were considered, it was only as part of the general public that might be adversely affected:
At the end of the day, I am not persuaded we should attempt to draw a line or lines between such persons. The right of access to justice is held by all, and should not be trivialized or minimized as if it were a benefit to which only some are entitled without hindrance from government.173
Again, there was no hint that there is a differential impact of the tax upon low-income people, that their cases are any different than those of other litigants, or that cases concerning vital constitutional rights of historically vulnerable people should have any particular significance. Their interests in access to justice are equated to people who may be relatively economically privileged but encounter hardship due to “a large claim or catastrophic event that requires major [legal] expenditure.”174
Once the British Columbia Court of Appeal transmogrified Christie’s claim from one concerning the poor into one concerning adverse impact upon the (middle class) public, it was only another small analytic step for the Supreme Court of Canada to portray the claim as fundamentally even more expansive: namely, as asserting the “general right to be represented by a lawyer in court or tribunal proceedings where legal rights or obligations are at stake.”175 McLachlin C.J.C. described this as a “broad right” that would cover “virtually all legal proceedings,”176 and would “impose a not inconsiderable burden on taxpayers.”177 By this manoeuvre, Christie’s claim, which could reasonably be perceived as asserting a “negative” right to prevent the government from dipping its hand into the pockets of poor people attempting to retain counsel, was recast into a claim that the courts have traditionally rejected – a “positive” socioeconomic rights claim requiring the expenditure of government funds.
173 Ibid. at 662. This is in contrast to the manner in which the British Columbia Supreme Court characterized the issue from Christie’s pleadings and evidence, namely, “Does the Act Deny Low Income Persons Access to Justice”: see Christie (BCSC), supra note 168 at para. 66. 174 Ibid. 175 Christie, supra note 5 at 880. 176 Ibid. 177 Ibid. at 881. 2008] Is the Rule of Law the Golden Rule? Accessing “Justice”... 497
In characterizing the case as involving a broad generalized claim to constitutionally-guaranteed access to lawyers in every case (as opposed to a systemic claim focused on adverse effects of a law upon low- income persons), the Court was able to disregard any particular disparate impact of the tax upon Dugald Christie’s clients. Further, it essentially found the evidence from Christie and his clients too particular to ground the facts of the more general claim:
Counsel for Mr. Christie argued before us that the state cannot constitutionally add a cost to the expense of acquiring counsel to obtain access to justice when that cost serves no purpose in furthering justice. This assumes that there is a direct and inevitable causal link between any increase in the cost of legal services and retaining a lawyer and obtaining access to justice. However, as the Attorney General points out, the economics of legal services may be affected by a complex array of factors, suggesting the need for expert economic evidence to establish that the tax in fact adversely affects access to justice.178
As he was advancing a “general” claim, the Court implied that Christie ought to have marshalled expert statistical evidence about the causal effect of the tax upon the entire public’s access to lawyers. Leaving aside the practical impossibilities of demanding such exacting evidence from Christie,179 this bordered on requiring proof of a negative, namely that a proportion of the population was not able to retain counsel because of the tax. Comparing the affidavit evidence here with the virtual “absence of any concrete adjudicative facts”180 in the successful constitutional challenge in Chaouilli again puts into stark relief the privileging of what the Court constructs as “negative rights” claims over “positive” economic claims of the poor, but this time in the guise of enforcing evidentiary rules.181
178 Ibid. at 885-86. 179 The Court accepted at 877-78 that, during the years at issue, Christie’s income did not exceed $30,000, and that even the administrative costs of setting up an accounting system was unduly burdensome. 180 Roach, supra note 84 at 188. 181 See Danielle Pinard, “Institutional Boundaries and Judicial Review – Some Thoughts on How the Court is Going About Its Business: Desperately Seeking Coherence” (2004) 25 Sup. Ct. L. Rev. (2d) 213 where she demonstrates how the Supreme Court’s obscures its “activism” (assessing cases against to its own understanding of the empirical world) through the selective application of evidentiary rules in different cases. Lucie Lamarche discusses the larger social trend in the current era of “extreme poverty management” of relying upon expert “benchmarks” and “indicators” of poverty, themselves subjective and political exercises, and discounting the poor’s own stories of how they experience material deprivations; see “The ‘Made in Québec’ Act to Combat Poverty and Social Exclusion: The Complex Relationship 498 THE CANADIAN BAR REVIEW [Vol.87 Having cast the claim in this absolutist light, the Court came to the conclusion that it was unsupportable for two reasons. First, the right to access courts enunciated in BCGEU is “not absolute”: section 92(14) of the Constitution Act, 1867, which confers provincial jurisdiction to legislate in relation to the “administration of justice in the Province,”
… implies the power of the province to impose at least some conditions on how and when people have a right to access the courts. Therefore B.C.G.E.U. cannot stand for the proposition that every limit on access to the courts is automatically unconstitutional.182
Just because a government is constitutionally empowered to act, however, does not absolve it from conforming to unwritten constitutional principles when it does take action. These principles may in fact impose significant constraints on the exercise of constitutional powers. Referring back to the Judges Reference, section 100 of the Constitution Act, 1867 empowers Parliament to set the salary of federally-appointed judges, but such power is constrained by section 11(d) and the unwritten constitutional principle of judicial independence, which requires the establishment of independent and impartial tribunals to recommend judicial salary levels prior to Parliament setting them. Therefore, it does not logically follow that the existence of section 92(14) powers displaces a broad imperative to respect the right of access to the courts.
Second, while acknowledging that the rule of law could contain more principles than the three enumerated in previous decisions, the Court doubted whether “a broad general right to legal counsel [is] an aspect of, or precondition to, the rule of law.”183 If that were the case, section 10(b) of the Charter, which provides for the right to retain and instruct counsel upon “arrest or detention,” would be redundant.184 Again, it is difficult to see how this reasoning comports with the Judges Reference185 wherein the unwritten constitutional principle of judicial independence was held to apply generally, both civilly and criminally, between Poverty and Human Rights,” in Margot Young, Susan Boyd, and Gwen Brodsky, eds., Poverty: Rights, Social Citizenship and Legal Activism (Vancouver: UBC Press, 2007) 139; and “The Right of Women Not to be Poor: Good Intentions but Wrong Human Rights Policy” (Greenberg Lecture, University of Ottawa, October 31, 2007) [unpublished]. 182 Christie, supra note 5 at 881-82. 183 Ibid. at 883-84. 184 Ibid. at 884. The Court made a similar statement in Imperial Tobacco, supra note 152 at 500, that the claimant’s assertion that the rule of law contained an element requiring fair civil trials was an attempt to broaden section 11(d). 185 Supra note 99. Carter, supra note 156 at 466 also notes this inconsistency in 2008] Is the Rule of Law the Golden Rule? Accessing “Justice”... 499 provincially and federally. It did not render section 100 of the Constitutional Act, 1867 or section 11(d) of the Charter redundant. Such overlap, as Hughes maintains, is to be expected given that the unwritten principles are the source of the express provisions, and provide consistency in their interpretation.186 Similarly, the Court has never suggested that another accepted unwritten principle, respect for minorities, would render explicit constitutional protections for linguistic minorities or Canada’s Aboriginal peoples redundant.187 Consequently, the rationale that because of this purported constitutional redundancy, a general right to legal counsel does not exist for both criminal and civil cases, rings hollow.
While Christie foreclosed recognition of a certain kind of generalized access to justice claim under the rule of law, the decision did not completely eliminate the possibility of a successful systemic access to justice claim by the poor. As I mentioned above, McLachlin C.J.C. noted that the list of principles contained within the rule of law is not closed, and emphasized that its ruling was only that general access to legal services is not a fundamental part of the rule of law.188 Instead of asserting a right to counsel in “all proceedings where rights and obligations are at stake,”189 a claimant could assert that there are certain rights and obligations that have particular significance under the rule of law that give rise to an entitlement to counsel, namely those whose violation generate a government obligation of “justification.” Undoubtedly, these include Charter claims on the basis of fundamental interests. Further, despite its statement that the “right affirmed in B.C.G.E.U. is not absolute,” it also did not confine access to justice to the formal, physical structures of a court. Last, the Court specifically relation to the Imperial Tobacco case. 186 Hughes, “Recognizing Substantive Equality,” supra note 102 at 15, citing the Judges Reference, ibid. In Judges Reference, the Court described the unwritten constitutional principles at 69 as “the very source of the substantive provisions of the Constitution Act, 1867. As I have said above, those provisions merely elaborate those organizing principles in the institutional apparatus they create or contemplate.” There is nothing to suggest that the unwritten constitutional principles, particularly the rule of law referenced in the preamble of the Charter, do not function in the same manner in the Constitution Act, 1982. 187 It appears in the Quebec Secession Reference, supra note 130 at 287-88 that the obligation of Quebec, in the event of “a clear democratic expression of support for secession,” to enter negotiations “in which aboriginal interests would be taken into account” is not found in the explicit recognition of aboriginal rights in the constitution, but rather the unwritten principle of respect for minorities. The Court therefore found it unnecessary to consider the specific contours of the explicit constitutional provisions. 188 Christie, supra note 5 at 883-84. 189 Ibid. at 884. 500 LA REVUE DU BARREAU CANADIEN [Vol.87 left open “the possibility that a right to counsel may be recognized in specific and varied situations” under the rule of law.190 Here, the Court could have used the adjectives “individualized” or “case by case” to describe the type of situations in which the right to counsel should be evaluated under the rule of law, as it did for claims made exclusively under section 7 in G.(J.). The use of this language suggests that in the future, the Court could recognize a systemic claim involving a particular group of claimants who have had their right to access justice as expressed within the rule of law, violated.
Nevertheless, the Supreme Court’s decision to deny leave in Canadian Bar Association191 demonstrates that any future attempt to fit a systemic “test case” into the narrow parameters left open by Christie would be fraught with peril. In that case, the CBA sued on behalf of poor people,192 claiming that the drastic cuts by British Columbia’s provincial government to legal aid in 2002193 did not permit them to obtain legal services in matters where their fundamental interests were threatened. The CBA claimed that these inadequacies violated the Charter by breaching the rule of law, the norm of substantive equality, the independence of the judiciary, and the express rights, sections 7, 15(1) and 36(1)(c). In a motion brought by government to strike the claim, the British Columbia Supreme Court had to decide whether the CBA satisfied the test for public interest standing, including whether there was a “serious issue” to be tried.
Though the case primarily deals with procedural issues relating to standing, we see the same categorizations coming up that plagued previous access to justice cases. Brenner C.J. defined the issue in the case as a “failure to legislate or a failure to have a scheme in place that meets appropriate constitutional criteria,”194 the breadth of which caused the court to find there was no “serious issue” to be tried under the test for public interest standing. Further, with respect to the CBA’s standing to assert claims to benefit poor people, the court compared the
190 Ibid. at 885. 191 Canadian Bar Association, supra note 11. 192 “Poor people” were defined in the claim as those living on low incomes defined by Statistics Canada LICOs. 193 The cuts drastically limited family law coverage to cases involving violence, virtually eliminated immigration coverage, and eliminated all “poverty law” cases: see Alison Brewin and Lindsay Stephens, Legal Aid Denied: Women and the Cuts to Legal Services in BC, (Vancouver: Canadian Centre for Policy Alternatives and LEAF, September 2004) at note 20. Poverty law in that context referred to legal problems experienced by persons that met the legal aid income guidelines, regardless of the type of case. 194 Canadian Bar Association BCSC, supra note 11 at 54. 2008] Is the Rule of Law the Golden Rule? Accessing “Justice”... 501 poor to the unborn in the standing case of Borowski v. Canada (Attorney General),195 that is, “an amorphous group of individuals whose Charter rights may have been, or in the future may be, breached by the operation (or more accurately the non-operation) of a public program.”196 Brenner C.J. rejected the notion that the poor suffered from barriers to bring such claims themselves, as they could marshal the resources of “publicly-minded counsel in the best traditions of the profession.”197 Thus, while sections 7 and 15 are not mentioned, here again we see the categorization of the poor’s claims as “positive obligations,” their construction as a group so far from the norm that they are “amorphous.” They are simply people with “no money” who can set about finding pro bono counsel to assist them with their constitutional claims, and thus obtain relief from their plight on an individualized basis.
Regarding the rule of law, Brenner C.J. found that the principle can be used only to limit government action, not to require action. Further, he stated, following Imperial Tobacco, that “[u]nwritten constitutional principles are not free-standing rights that are capable of being breached.”198 Sections 7 and 15 were analyzed separately, and dismissed based on the manner in which they were pled. He also criticized the fact that a systemic claim had been made under section 7, finding (pursuant to G.(J.)) that an individualized assessment of the need for counsel is required.199
On appeal, the British Columbia Court of Appeal again considered the arguments concerning the rule of law, section 7, and section 15 separately, as “watertight compartments.” The Court did manage to soften the hard edges of Brenner C.J.’s analysis on the rule of law by accepting “unwritten constitutional principles may give rise to
195 [1989] 1 S.C.R. 342, 57 D.L.R. (4th) 231 (S.C.C.). 196 Canadian Bar Association BCSC, supra note 11 at 56. 197 Ibid. at 58-59. 198 Ibid. at 66. Because the Supreme Court in Christie never proceeded past the initial question of whether a general right of access to counsel existed, it never had to decide the import of the violation of such a right, including whether unwritten principles merely constrained government action or imposed obligations, and whether they themselves could invalidate government action, apart from any other violation of an explicit Charter provision. These remain open questions. 199 McLachlin C.J.C. in Christie, supra note 5 at 884 categorized the decision in G.(J.) as stating “that the right to counsel outside of the s.10(b) context is a case- specific multi-factored inquiry.” The right to counsel claim in G.(J.), however, was based upon section 7 of the Charter alone and not upon any unwritten constitutional principle. 502 THE CANADIAN BAR REVIEW [Vol.87 substantive legal obligations or legal remedy.”200 It upheld the lower court’s ruling that that the CBA’s pleadings advancing a “broad-based systemic claim”201 should be struck, however, on the basis that such a claim could not succeed given the Supreme Court of Canada’s reasoning in Christie. With respect to section 7, the Court of Appeal found that Christie and G.(J.) require a case-by-case analysis and that CBA’s statement of claim, “devoid of particulars of individuals, their cases, and their jeopardy, does not raise a justiciable issue on s.7.”202 On the sufficiency of the section 15 claim, the Court of Appeal appears to have found the lack of a natural comparator group as determinative.203
The Supreme Court of Canada, as is typical, did not provide reasons for the denial of leave, and so we are left to wonder whether the Court simply did not feel it necessary to hear a case on the narrow issue of public interest standing, or whether it intended to send a message about systemic claims to access to justice under the Charter. In any event, the result is a precedent-setting appellate decision that will be difficult to overcome.
So what is left for the poor within the rule of law? As Stephen Golub stresses in the international development context, valorizing the formal structures of the “rule of law orthodoxy” – the bricks and mortar
200 Canadian Bar Association v. British Columbia [2008] B.C.J. No. 350 (B.C.C.A.) (QL) at para. 44. 201 Ibid. at para. 45 [emphasis in original]. 202 Ibid. at para. 50. 203 The Court of Appeal’s reasoning suggests this, though the terseness and obliqueness of the analysis at para. 51 resists a definitive conclusion on the point: In particular, a s.15 enquiry requires the court to not only review the particular deficiency alleged, but to do so in the context of a comparator group that is chosen bearing in mind the characteristics of the individual. Although the Association contends that it is for the trial judge to determine whether there is a Charter breach justifying the relief sought, the plaintiff is still required to plead material facts that warrant the court’s enquiry into the matter. This means there must be a pleading that, if all the facts are taken as true, can lead to the relief sought. Such is not the case here. The CBA’s Statement of Claim alleged disparate impact of the regime on the poor as a group, with particular negative effects upon Aboriginal persons, those with language or cultural barriers, persons with disabilities, racialized groups, women, and sexual minorities, thus suggesting relevant comparators (non-Aboriginal persons, those from dominant linguistic or cultural groups, able-bodied persons, etc.). This underscores the fact that the Court of Appeal was likely reacting to the fact that no one, discrete comparator group could fully capture the claimed discrimination, not that the pleadings did not set out relevant comparator groups. 2008] Is the Rule of Law the Golden Rule? Accessing “Justice”... 503 of the courthouse, the independent judiciary, the written and publicly accessible laws – while “failing to fortify the capacities and power of the poor” means that the “orthodoxy… is a house without a foundation.”204 Nevertheless, even if the rule of law foundation is cracked by the constraints placed on it by the Supreme Court, it does not mean the building is condemned. As mentioned above, the Supreme Court has not specifically precluded a systemic claim based on access to justice. The jurisprudence does make clear that for such a systemic claim to succeed, a different conceptual framework must be utilized. As will be argued below, that conceptual framework is “justice.”
C) Out of Categories and Into Justice
As a result of the problems with categories and comparisons that have plagued the section 15 analysis, many commentators have called for an alternative approach that, rather than force a claimant’s experience through a ground, looks first to experience and then grounds as touchstones to identify “all the relationships [of inequality] implicated in the particular claim.”205 Such an approach finds support in L’Heureux-Dubé J.’s dissent in Egan v. Canada,206 where she deplored the prevailing equality framework that focused upon grounds rather than social relations, obscuring the real impact of the law upon historically disadvantaged groups. Her solution was to start the analysis by looking at the “impact of the distinction on particular groups,” which recognizes that “disadvantage arises from the way in which society treats particular individuals, rather than from any characteristic inherent in those individuals....”207
Gwen Brodsky and Shelagh Day advance this analysis one step further by arguing that the problem with litigating poor people’s claims under sections 15 and 7 does not exclusively relate to categorizations within the rights. Rather, it also relates to categorization amongst the rights. That is, the courts characterize such claims as “social and economic” – distinct from, and subordinate to, civil and political rights
204 Stephen Golub, “A House without a Foundation” in Thomas Carothers, ed., Promoting the Rule of Law Abroad: In Search of Knowledge, (Washington, D.C.: Carnegie Endowment for International Peace, 2006) 105 at 106. 205 Iyer, “Categorical Denials,” supra, note 23 at 204; see also Gilbert, supra, note 23 at 633-34, where she states: The enumerated grounds might be relevant in assisting the claimant and the court to identify a main characteristic of the group (e.g. gendered or racialized), but the focus is on identifying a group with whom the claimant shares a history of marginalization or social vulnerability. 206 [1995] 2 S.C.R. 513, 124 D.L.R. (4th) 609 (S.C.C.) [cited to S.C.R.]. 207 Ibid. at 551-52. 504 LA REVUE DU BARREAU CANADIEN [Vol.87 claims208 in terms of their legal enforceability.209 The claims of the poor often involve constitutional challenges to the under-inclusiveness of benefits regimes and therefore slip through the cracks of this separation. They are viewed as, if not non-justiciable, then “not engag[ing] judicial responsibility in the same way” as classic “negative liberty” claims.210
Brodsky and Day’s solution to the conception of rights as hierarchical “watertight compartments” lies in the concept of “indivisibility” in international law, which:
… stands as an acknowledgement that, in lived experience, rights are interdependent. The basic recognition, which is well established in international human rights law, is that for people who are poor, civil and political rights can be meaningless. … Without implementing social and economic rights, governments can only realize civil and political rights for the economically privileged.211
In their view, indivisibility is an acknowledgement that civil and political rights are social and economic rights, as the two depend on one another for existence – one cannot exercise personal autonomy and have physical and psychological integrity if one’s means of subsistence are threatened.212 Similarly, BCGEU recognized that the exercise of constitutional rights is utterly dependent upon the ability to access courts to enforce those rights, and could form the basis of an “indivisibility” argument.
Other Supreme Court jurisprudence in support of an integrated interpretation of the Charter might, in turn, support explicit recognition of the need to integrate and reconcile the rule of law with sections 7 and 15. In principle, the Court has stated that the Charter protects a non- hierarchical “complex of interacting values” whose rights and freedoms must be interpreted in light of one another.213 In the context of access to justice specifically, L’Heureux-Dubé J., concurring in G.(J.),
208 Brodsky and Day, “Debate,” supra note 22 at 198. 209 Ibid. at 195. Two of the cases cited by the authors are Masse, supra, note 4 and the lower court decisions in Gosselin, supra note 4 (ultimately upheld by the Supreme Court of Canada after the publication of their article). 210 Brodsky and Day, ibid. at 210; see also my comments on Kapp, supra note 35 regarding the Supreme Court’s interpretation of the interplay of section 15(1) and section 15(2). 211 Brodsky and Day, ibid. at 201. 212 Gwen Brodsky and Shelagh Day, “Women’s Poverty is an Equality Violation,” in Faraday, Denike and Stephenson supra note 31 at 322. 213 R. v. Lyon (1988), 44 D.L.R. (4th) 193, 37 C.C.C. (3d) 1 at 20 (S.C.C.). See also R. v. Mills, [1999] 3 S.C.R. 668, 180 D.L.R. (4th) 1 (S.C.C.) at 689, and 2008] Is the Rule of Law the Golden Rule? Accessing “Justice”... 505 advocated an integrated approach to interpreting rights. She stated that “all Charter rights strengthen and support each other… and s. 15 plays a particularly important role in the process.”214 When one considers all of the rights as an integrated whole, categorizations like “positive” and “negative” begin to break down, as Arbour J. noted in Gosselin,215 because most rights are both inside and outside these categories depending on context.216
If anything, the principle of integrated interpretation applies with even greater force to unwritten constitutional principles, given the Court’s statement in the Quebec Secession Reference that the “individual elements of the Constitution are linked to the others, and must be interpreted by reference to the structure of the Constitution as a whole.”217 Thus, not only do the unwritten interpretive principles influence interpretation of the express provisions of the Charter,218 the express provisions should influence our understanding of those principles. This means more than having recourse to “Charter values” in interpreting the rule of law; it gives the principle legal effect through rights claims. While recognizing that they are mere expressions of the unwritten principles, including the rule of law, Charter rights may be used as “touchstones,” as in the Judges Reference, that ground declarations of invalidity.
Furthermore, the integration of rights and the rule of law would be a sterile exercise if the latter did not permit any analysis of legal substance. As we have seen above, acceptance of the positivist theory of the rule of law is not universal. According to accepted rules of interpretation, if there are two plausible interpretations, the one that best conforms to Charter values ought to govern.219 And the interpretation that best conforms is that the rule of law governs the
Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391 at para. 80, citing Dubois v. The Queen, [1985] 2 S.C.R. 350, [1986] 1 W.W.R. 193 (S.C.C.) at 365. 214 Supra note 7 at 99. See also Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, [1989] 2 W.W.R. 289 (S.C.C.) [Andrews cited to S.C.R.] at 185, describing section 15 as a right that “applies to and supports all other rights guaranteed by the Charter.” 215 Supra note 4; Arbour J. was in dissent, but not on this point. 216 Kropp, supra note 23, discusses this in terms of people finding themselves “inside” and “outside” a ground contemporaneously, which leads to understanding as to what differences the ground is attempting to suppress to maintain coherence, and the artificiality of boundaries between the grounds. 217 Quebec Secession Reference, supra note 130 at 248. 218 Judges Reference, supra note 99. 219 Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. 506 THE CANADIAN BAR REVIEW [Vol.87 content of laws as well as the process by which they are passed and enforced. Incorporating only formal equality into the rule of law analysis (as in the positivist version of the concept) has meant in practice that only the privileged, or those who are able to align themselves with the privileged, have benefited from its protection; we can see this in cases like Pleau and Polewsky. While the poor were able to make some initial inroads by attempting to demonstrate that they were “similarly situated” to a dominant group, Christie has demonstrated that any gains so achieved were ultimately short-lived.
From the first case interpreting section 15, the courts recognized that upholding only formal equality,220 that is, requiring that the law treat “likes alike,” had the effect of shielding from scrutiny underlying (and possibly discriminatory) assumptions as to what makes a person like, or unlike, another.221 Thus, to understand the real effect of an impugned law, one must utilize a “purposive and contextual” approach that looks at the entire context of the affected group of which the claimant is putatively a member as it is actually situated in society, in order to determine whether the law has the effect of demeaning the claimant’s dignity as a human being or a member of Canadian society.222
Given that the importance of substantive equality and contextual analysis in the section 15 jurisprudence has never been seriously at issue, Patricia Hughes has argued that “the substantive equality framework developing in the Charter jurisprudence begins to speak to what is consistent with ‘law’ in a pluralist, democratic, liberal state. Accordingly it would not be a significant shift to think of it as one of the constituent elements of this fundamental principle of Canadian constitutional law.”223 On the other hand, if a substantive conception simply imports section 15 jurisprudence into the rule of law analysis, it is unlikely to be of any independent use in an access to justice claim. If
(Markham, Ont.: Butterworths, 2002) at 367. 220 This does not mean that formal equality has no place under section 15, or the rule of law for that matter, particularly for those groups against whom legislation continues to make explicit distinctions, for example, non-citizens under anti- terrorism/immigration legislation, and gay, lesbian, bisexual and transgendered persons under legislation regulating relationships and families. 221 See Andrews, supra note 214 at 164. 222 R. v. Turpin, [1989] 1 S.C.R. 1296, 34 O.A.C. 115 (S.C.C.) at 1326; R. v. Swain, [1991] 1 S.C.R. 933, 47 O.A.C. 81 (S.C.C.) at 991-92; and Law v. Canada, [1999] 1 S.C.R. 497, 170 D.L.R. (4th) 1 (S.C.C.) at 508 and 534-41. 223 Patricia Hughes, “The Rule of Law and the Meaning of Equality” (1999) [unpublished, archived at the Bora Laskin Law Library, University of Toronto] at 41. 2008] Is the Rule of Law the Golden Rule? Accessing “Justice”... 507 different, it runs afoul of the admonition in Imperial Tobacco,224 and now Christie,225 that one cannot broaden and therefore make redundant the terms of existing Charter rights through recourse to the rule of law, and would likely be seen as an impermissible attempt to inject moral or political considerations into this unwritten constitutional principle.226
In my view, the latter problem is avoided if the rule of law is properly interpreted. The rule of law must have its own content, albeit influenced by rights, if it is to answer the potential criticisms above. It must be content that is also influenced by the underlying principles that govern the form of law. As Ernest Weinrib argues, the separation between form and content is artificial, each being “correlative and interpenetrating”227 and playing a role in determining the intelligibility of law – the understanding of what law is. In his view, law is understandable as law because it effects an expected (rational) ordering of relationships – that they be just.228 As we can see from the discussion of theory above, this also accords with Tremblay’s notion of the rule of law as justice,229 and Dyzenhaus’ notion of fundamental “legality” governing the substance of laws within the rule of law.230
Such a concept also finds support in McLachlin C.J.C.’s 2005 speech, where she advocated judges applying “judicial conscience” so that “law” is not made out of what “cannot be just:”
… the legitimacy of the judiciary depends on the justification of its decisions by reference to a society’s fundamental constitutional values. This is what we mean when we say the task of judges is to do justice. Judges who enforce unjust laws – laws that run counter to fundamental assumptions about the just society – lose their legitimacy. When judges allow themselves to be co-opted by evil regimes, they are no longer fit to be judges. This is the lesson of the Nuremburg trials. It is also a lesson, however, that should embolden judges when faced with seemingly more mundane manifestations of injustice.231
224 Supra note 153 at 500. 225 Supra note 5 at 884. 226 It was possibly these anticipated hurdles that caused Hughes to rethink importing substantive equality into the rule of law and argue instead for recognizing it as a stand-alone unwritten constitutional principle; see Hughes, “Recognizing Substantive Equality,” supra note 102, particularly at 32-34. 227 Weinrib, supra note 103 at 64. 228 Ibid. at 72. Admittedly however, Weinrib does not foresee substantive equality being included in justice, following Aristotelian notions of corrective and distributive justice. 229 Tremblay, supra note 113. 230 Dyzenhaus, “Form and Substance,” supra note 113. 231 Supra note 101 [emphasis added]. 508 LA REVUE DU BARREAU CANADIEN [Vol.87
According to the Chief Justice’s last statement, concerns about injustice within the rule of law need not be confined to situations of “legal madness” of a magnitude like genocide or apartheid.
Interestingly, “justice” has also been touted as a concept that would assist in getting out of the bind of categorization that hampers the access of vulnerable groups to section 15, and would focus more directly on lived experiences of dominance and oppression. Similarly, it may also assist in the rule of law analysis. Radha Jhappan points to “justice” as a concept that has been neglected by equality-seeking groups, and “confined to exchanges between philosophers.”232 She argues that, not only does the concept explicitly infuse section 7 but, barring an “extraordinarily pedantic positivist reading,”233 the Charter as a whole. This is particularly apt vis-à-vis the rule of law in light of the integrative analysis required in interpreting the unwritten constitutional principles described above.
It is important, however, that justice itself not become an abstract, liberal notion of independent individuals focused on distribution of material goods and possessions. Justice is dynamic and relates to:
… the extent to which institutional conditions support people’s ability to develop and exercise their capacities and express their experience, as well as their ability to participate in determining their actions and conditions of action.234
In a nutshell, “injustice” is about oppression and domination, and “justice” is about “thorough social and political democracy.”235 So, how would section 15 and section 7 assist in linking the poor’s entitlement to counsel to enforce constitutional rights, for example, with this notion of “justice” under the rule of law? As Jhappan notes, this conceptualization of justice is contextual,236 though it still remains connected to notions of a “just society,” or “the common good.” As Ken Norman argues, extrapolating from John Rawls, included within this understanding is a conception of justice which he refers to as “justice as fairness.” That is, he argues that “basic necessities are essentially a
232 Jhappan, supra note 14 at 195. 233 Ibid. at 205. 234 Ibid. at 200. 235 Ibid. 236 Jhappan’s list of possible justice claims at ibid. relate to “the organization of government institutions, decision-making rules and procedures, the social division of labour… [or] ‘the cultural imperialism which marks and stereotypes some groups at the same time as it silences their self-expression.’” 2008] Is the Rule of Law the Golden Rule? Accessing “Justice”... 509 right of democratic participation,” and critical to the legitimacy of the “liberal democratic project.”237 In the context of access to justice, the notion of the common good can be understood as a general commitment to the welfare state,238 and specifically a commitment to ensure legal services for those who cannot afford them. At least since modern legal aid programs came into being in most Canadian provinces and territories between the late 1960s and the 1970s,239 a general social consensus about the need for government to provide some level of legal services to those unable to afford them has existed.240
A contextual analysis (assisted by equality jurisprudence, complicating notions of democracy),241 would mean that the power inherent in the making of laws is laid bare – identifying who is able to name a challenge to law as “procedural” or “substantive,” or a claim as “positive” or “negative,” and who benefits from such distinctions. As the rule of law depends on laws being freely subject to challenge and demands that government justify them,242 the lack of protection for vulnerable groups within the democratic process, coupled with the lack of means to challenge laws that violate their constitutional rights, call into question the very legality of the system. So framed, access to justice is no longer on the horns of the “positive” and “negative” rights dilemma and is instead recast as necessary for the legitimacy of the legal system; moreover, it can no longer be seen as merely an
237 Ken Norman, “The Charter as an Impediment to Welfare Rollbacks: A Meditation on ‘Justice as Fairness’ as a ‘Bedrock Value’ of the Canadian Democratic Project” in Young, Boyd and Brodsky, supra, note 181, 297 at 299-300. As Norman notes, this is not a claim for poverty eradication through “wealth distribution” by the courts, but is more limited in scope, namely that an aspect of justice is focused upon the least advantaged having the necessary resources for social inclusion. 238 Dyzenhaus, “Normative Justifications for the Provision of Legal Aid,” in Ontario Legal Aid Review, supra note 16, 475 at 482. 239 Mary Jane Mossman, “Community Legal Clinics in Ontario” (1983) 3 Windsor Y.B. Access Just. 375 at 378; Jennie Abell, “Ideology and the Emergence of Legal Aid in Saskatchewan” (1993) 16 Dal. L.J. 125 at 127-28. 240 Mary Jane Mossman, “The Charter and Access to Justice in Canada,” in David Schneiderman and Kate Sutherland, eds., Charting the Consequences: The Impact of Charter Rights on Canadian Law and Politics (Toronto: University of Toronto Press, 1997) 274 at 277. 241 See the statements of Wilson J. in Andrews, supra note 214 at 152, referring to non-citizens as a group “lacking in political powers and as such vulnerable to having their interests overlooked and their rights to equal concern and respect violated.” Majority rule is thus recognized as insufficient to ensure that the rights of all persons in Canadian society are respected. That democracy as an unwritten constitutional principle includes the protection of vulnerable groups was also recognized in the Quebec Secession Reference, supra, note 130. 242 Allan, supra note 114 at 8. 510 THE CANADIAN BAR REVIEW [Vol.87
“economic” issue. Nor can it be cast as simply a claim to a general right to access legal services for all litigants.
Bringing section 7 within the rule of law analysis would illuminate fundamental issues at play in cases that involve poor litigants, and focus squarely on the government’s role in the provision of legal services. Without the constitutional concepts associated with section 7, there is a danger that the rule of law analysis will not give any particular significance to the state’s failure to ensure access to justice in cases affecting poor people’s fundamental rights, as in Christie. The “sting” of such government action (or inaction) is not simply that access to justice, as a general philosophical concept, is hindered, but that other constitutional rights are rendered meaningless as a result. One example where such a distinction might be critical would be a constitutional challenge to the federal government’s recent elimination of the Court Challenges Program, which provided funds for equality and language rights test cases, justified as a cost-saving measure.243
Denial of funding for legal services to the poor begins to look like a “profaning of legal values” in Dyzenhaus’ sense: such lack of meaningful access to assert meritorious claims related to fundamental constitutional rights flouts the very notion of legality This is perhaps what the Supreme Court in BCGEU meant by the “inconceivability” of rights being extended without a means of access.244 While BCGEU is often presented as a case purely about physical access to the courts, it should be noted that intangible barriers to accessing justice were also at issue in that case, namely an “obligation of conscience not to breach the picket line.”245 It thus supports the consideration of economic barriers in the access to justice analysis and, indeed, the Court in Christie refrained from distinguishing BCGEU on this basis.
Canadian Bar Association246 demonstrates that without the courts’ acceptance of a holistic interpretation of the rule of law that uses companion claims under these sections as “touchstones” grounding a declaration of invalidity, and a resulting analysis of whether the
243 See Treasury Board of Canada Secretariat, “Backgrounder – Effective Spending” (25 September, 2006), online:
4. Conclusion
I started this article with the question of whether the rule of law was the “Golden Rule.” As I have discussed, it is possible that the rule of law may be used in service of the more noble expression of the term only if it is interpreted to permit a normative evaluation of laws. I am not so naïve as to think that this alone would be sufficient to ensure that this unwritten principle is used to alleviate oppression, rather than further entrench it. While not uniformly so, it would be fair to say that the courts to date have been skeptical of the constitutional claims of poor people as a group. Inviting greater intervention by the courts through a substantive interpretation of the rule of law poses a risk that it will be used to invalidate progressive legislation that redistributes resources in their favour.247
These contentions are not unlike the criticisms by the left of the Charter as a whole, namely that it opened the door to “largely unfettered judicial authority… [a] problem compounded by the perception of these rights as individualistic, exclusionary, and not amenable to group-based analysis or collective action,”248 which would leave social benefits legislation in particular vulnerable to attack.249 Obviously, this potential is deserving of careful consideration. Past history suggests, however, that the real challenge for the poor is finding
247 I am grateful to one of the anonymous reviewers of this article for suggesting that I address this possibility. 248 Diana Majury, “The Charter, Equality Rights, and Women: Equivocation and Celebration” (2002) 40 Osgoode Hall L.J. 297 at 301. The critiques cited by Majury as embodying this sentiment are Joel Bakan, “Constitutional Interpretation and Social Change: You Can’t Always Get What You Want (Nor What you Need)” (1991) 70 Can. Bar Rev. 307; Andrew Petter and Allan C. Hutchinson, “Rights in Conflict: The Dilemma of Charter Legitimacy” (1989) 23 U.B.C. L. Rev. 531; and William E. Conklin, “Access to Justice As Access to a Lawyer’s Language” (1990) 10 Windsor Y.B. Access Just. 454. 249 Andrew Petter, “The Politics of the Charter” (1986) 8 Sup. Ct. L. Rev. 473. See also Judy Fudge, “The Public/Private Distinction: The Possibilities of and the Limits to the Use of Charter Litigation to Further Feminist Struggles” (1987) 25 Osgoode Hall L.J. 485; and Harry J. Glasbeek, “A No-Frills Look at the Charter of Rights and Freedoms or How Politicians and Lawyers Hide Reality” (1989) 9 Windsor Y.B. Access Just. 293. 512 LA REVUE DU BARREAU CANADIEN [Vol.87 effective means to challenge legislation that does not take their circumstances into account or targets them for ill treatment for reasons of political expediency. Concerns that a substantive version of the rule of law risks too much for poor people place too much faith in the ability (or desire) of legislators to design legislation that betters their lives, and is unnecessarily pessimistic regarding, as Gwen Brodsky phrases it, “the potential of courts to be positive contributors to the equality project.”250 Brodsky points out that a critical factor for the latter to be realized is ensuring subordinated groups are able to participate effectively in Charter litigation. In other words, the very fact that a substantive concept of the rule of law would support an entitlement of poor people to effective access to justice, may itself be a bulwark against the principle being (mis)interpreted to roll back legislative gains. While this is obviously not a complete answer, I believe this shows that, at the very least, arguing for a substantive vision of the rule of law is not inherently more risky than other litigation in which a substantive interpretation of Charter concepts is sought.
Further, the notion of the rule of law as a substantive concept is inextricably bound to its context within the express constitutional guarantees, specifically section 15 and section 7. I do not disagree that enabling a judicial evaluation of content under the rubric of the rule of law, without more, would result in a breathtaking (possibly limitless) expansion of judicial review. As I argue above, the rule of law, in accordance with this contextual interpretation, requires not insignificant restraint in the scope of analysis. It requires that a court consider whether the impugned government act casts a shadow on justice, on our very notion of what law ought to be. This would encompass notions of laws as public and realistically capable of being susceptible to challenge in relation to their conformity with the common good, understood to include substantive equality and respect for the well-being of all.
Thus, perhaps a more apt characterization is that the rule of law is a “golden thread.” This metaphor captures the “complex interconnectedness of principles”251 and rights that must be interpreted in an integrated fashion in order to pursue poor people’s systemic
250 Gwen Brodsky, The Transformation of Canadian Human Rights Law, (D. Jur. Thesis, Osgoode Hall Law School, 1999) [Ann Arbor: University Microfilm International, 1999] at 38. 251 Benjamin Berger, “Trial by Metaphor: Rhetoric, Innovation and the Juridical Text” (2002) A.J.A. Court Review 30 at 36. There, the “golden thread” is discussed as a metaphor for proof beyond a reasonable doubt. The use of this metaphor for justice connotes the Foucauldian notion of “networks of power.” 2008] Is the Rule of Law the Golden Rule? Accessing “Justice”... 513 claims to access justice. It also illustrates the interconnected web of social relations and sites of power, freed from their categories, that can be considered within the notion of “justice” in the rule of law: the meaning of democracy; the real experiences of the poor and their ambivalent relationship to law, and actual relations of social power that permits dominant groups to name who is deserving of legal services under law, who are the people that ought to be assisted, and even the construction of poverty and the poor themselves. This is a lofty ambition for an ancient concept that was not meant for the likes of the poor – but one upon which we cannot give up.