Is the Rule of Law the Golden Rule? Accessing “Justice” for Canada’S Poor

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 2009 CanLIIDocs 143 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 2009 CanLIIDocs 143 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 2009 CanLIIDocs 143 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.

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