This forum is not purely dedicated to legal discourse. While I may attempt to 'raise the bar' with some pieces relating to law and being a criminal defense lawyer in Toronto, I also plan to use this blog as a medium to express my often critical thoughts on the daily grind that is life. Throw in some random videos and internet fodder, and the bar is sure to be lowered.


Sunday, 6 November 2011

Legal Aid or Band-Aid? Criminal Law and Ontario's Inadequate Public Funding System. Part 3 of 8


State Obligation to Ensure Adequate Legal Aid
1) Legal Aid and The Rule of Law
In order to identify the underlying justification for the state’s obligation to provide legal aid, if indeed it has one, a basic issue of legal theory must be considered.  The underlying normative foundation for the state’s obligation to provide some form of legal aid is to be found in this country’s shared commitment to the Rule of Law as an essential feature of the Canadian judicial-political system.
The development of democratic societies has been accompanied by the adoption of the Rule of Law.  Essentially this requires governmental action to be bound by rules which are fixed and announced beforehand - rules which make it possible to foresee with fair certainty how the authorities will use their force and powers in given circumstances and to plan one’s individual affairs accordingly.  
Two features of the concept of the Rule of Law are particularly relevant in the present context.  First, it is inherent in the notion of substituting arbitrary measures with legal rules that the rules can be known.  The rules must be transparent and available to the general public because, after all, secret law is repugnant in a liberal democracy.  This hallmark of a democratic society, that each of its citizens will have equal protection under its laws, will be meaningless if that society fails to meet this “publicity condition.”[1]  Second, it is implicit in the notion of the Rule of Law that the state’s obligation is not one of merely disclosing the law, but rather one of disclosing the law in a fashion which makes it accessible to the individual.  Individuals must have access to the law, in the sense that they are enabled to understand their obligations or their rights in relation to the state, and to plan their affairs as a result.  Hence, the link between the Rule of Law and an obligation imposed upon the state to provide assistance to citizens in facilitating their understanding of the law is as follows:  If a state enacts laws which are so complex that many of those who are subject to them cannot acquire a necessary understanding of them, the laws to which they are subject do not meet the first publicity condition.  Thus, there is a state obligation to facilitate meaningful access to its laws.  This, however, does not necessarily lead inescapably to the conclusion that the state has an unlimited obligation to provide publicly funded lawyers to all citizens who encounter difficulty in obtaining access to a particular law.  Rather, in a democratic society committed to the Rule of Law, a publicity condition is inherent in the use of law by the state, and the complexity of that law may, in turn, impose an obligation on the state to facilitate access to the effective use of that law in some fashion.
As a matter of principle, the underlying rationale for the state’s obligation to facilitate access to the law is not restricted to any particular kind of law or type of legal situation.  The normative foundations for legal aid do not assist in making an argument for giving priority to one domain of law over another with respect to accessing legal aid resources.  However, it is arguably easiest to justify imposition of an obligation on the state to fund legal aid in the criminal law context.  First, it is in the domain of criminal law that the accused individual is at risk of losing his or her physical liberty, and this factor engages the important value we place on not losing one’s freedom.  Second, in the context of criminal law, the accused is pitted against the massive resources of the state, and it may be argued that simple obligations of fairness require the state to provide assistance to an accused person facing such an unequal contest.


2) Express and Implied Statutory Legal Obligations
This section outlines the constitutional and statutory law which imposes both express and implicit legal obligations on the government to fund legal aid services.  Principal attention is focused on those guarantees in the Canadian Charter of Rights and Freedoms and the relevant provisions of federal statutory schemes.  When viewed in their totality, and considered alongside their common law interpretations, these enactments appear to impose such obligations on the government.

A) The Canadian Charter of Rights and Freedoms
 There are a number of guarantees set forth in the Canadian Charter of Rights and Freedoms which either provide a clear foundation for a constitutional right to counsel under current law or have the potential to provide a basis for expansion of this right.  The relevant sections are:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with principles of fundamental justice

10. Everyone has the right on arrest or detention
(b) to retain and instruct counsel without delay and to be informed of that right

11. Any person charged with an offence has the right....
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal

15. Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability


                                    i)       Rights upon Arrest or Detention - Section 10(b)
Section 10(b) confers a right to retain and instruct counsel without delay and, as well, the companion right to be informed of that right upon arrest or detention.  Although, the jurisprudence of section 10(b) indicates that this section does not provide a foundation for a right to counsel at trial, the Supreme Court has held that this right extends beyond the mere right to hire counsel or to be informed of that right.
In R. v. Brydges,[2] the Court held that a detainee should be informed “of the existence and availability of the applicable systems of duty counsel and Legal Aid in the jurisdiction, in order to give the detainee a full understanding of the right to retain and instruct counsel.”[3]  The Court also held that the right to retain and instruct counsel has come to include “the right to have access to immediate, although temporary, advice from duty counsel irrespective of financial status.”[4]  The Court thus appeared to approve of the availability of such publicly funded services even if it did not directly require that they be established.  However, the provinces have since accepted the implicit invitation to develop duty counsel service hotlines for the purpose of providing immediate and temporary advice to detainees at public expense.
In the later case of R. v. Prosper,[5] however, the Court clearly indicated that the establishment of these duty counsel schemes was not mandatory for Charter purposes.  The police must give an arrestee the immediate opportunity to consult a lawyer but there is
no state obligation to provide for or finance that lawyer.  In holding that the Charter does not expressly guarantee a right to publicly funded counsel, the Court reflected on the drafting process that led to the final wording of the Charter.  In 1981, an attempt had been made to include in section 10 language requiring the provision of counsel to persons “without sufficient means to pay for counsel”[6] where the interests of justice so require.  This proposed amendment was subsequently rejected.  Chief Justice Lamer warned against ignoring this fact and L’Heureux-DubĂ©, J. stated that she was not prepared to use the “living tree” approach to constitutional interpretation to “add a provision which was specifically rejected at the outset.”[7]
 Further, the Court suggested that imposing a positive obligation to establish such services would constitute an inappropriate interference with the governments’ allocation of limited resources.  The Court also indicated a reluctance to adopt a view which would carry with it the implication that “in provinces and territories where no duty counsel system exists the logical implication would be that all arrests and detention are prima facie unconstitutional”.[8]   Prosper thus creates a significant barrier to arguing for a general right to state-funded counsel, especially in the criminal law context.

                                    ii)       The Right to a Fair Hearing - Section 11(d)
 Section 11(d) secures to a person charged with an offence the right to a fair and public hearing.  A number of proceedings have now established that, in cases of sufficient seriousness and complexity, the accused cannot receive a fair trial without counsel.  For example, In R. v. Rowbotham,[9] the Ontario Court of Appeal held that, as a result of the length and complexity of a drug prosecution, the accused was entitled to funded counsel.  The Court of Appeal was prepared to enforce the right to counsel even though one of the accused enjoyed a level of income that made her ineligible for assistance under the Legal Aid Plan.  It was the court's view that, even though found ineligible, she could not afford to retain counsel for the complex and lengthy proceeding which she faced.  

There may be rare circumstances in which legal aid is denied but the trial judge, after an examination of the means of the accused, is satisfied that the accused, because of the length and complexity of the proceedings or for other reasons, cannot afford to retain counsel to the extent necessary to ensure a fair trial. In those circumstances, even before the advent of the Charter, the trial judge had the power to stay proceedings until counsel for the accused was provided.[10]


This is a direct recognition of the previously mentioned imbalance of power that exists when an individual is pitted against the machinery of the state.  The individual in a serious and technically complex case cannot effectively represent themselves against the resources and expertise of the prosecution.  Identifying the requirement of competent legal representation in this environment sufficiently addresses the power imbalance, ensures a relatively equal playing field, and reduces the inherent risk of a wrongful conviction.
It is to be noted that the courts have not yet secured to the accused a right to choose counsel subject to Prosper.  Thus, restrictions on choice of counsel or on the amount to be paid to counsel under the legal aid plan are not likely considered to be constitutional violations.

                                        iii)      The Right to Life, Liberty and Security of the Person – Section 7
 Section 7 inherently comes into play in criminal matters because an accused person clearly faces the risk that, if convicted, his or her liberty will be lost.  Since the deprivation of liberty or security of the person can occur only in accordance with the principles of fundamental justice, and it is clear that the notion of fundamental justice includes a concept of procedural fairness, it could be argued that procedural fairness would include a right to counsel in criminal proceedings, especially when the unrepresented accused is subject to the limitless machinery of the state. 
The section 7 guarantees have been recognized by the Supreme Court of Canada as an additional basis for a constitutional right to counsel especially in the context of serious and complex criminal matters.  In Rowbotham, the Court stated that the Charter does not explicitly constitutionalize the right of an accused to be provided with state-funded counsel.  However, the court held that the Charter does guarantee an accused a fair trial in accordance with the principles of fundamental justice under subsections 7 and 11(d).  Thus, there is a right to funding in certain cases not falling within provincial legal aid plans if representation is necessary for the government’s actions to be in accordance with the principles of fundamental justice.  Rather than obliging the government to provide state-funded counsel in all criminal cases in which the accused lacks the means to employ counsel, the court in Rowbotham held that a trial judge should consider factors such as the length and complexity of the case before issuing an order to stay a criminal proceeding.[11]
Moreover, the courts have recognized that section 7 can trigger the right to state-funded counsel that potentially extends into the civil arena.  In 1999, the Supreme Court of Canada addressed the right to funding for counsel in the context of a non-criminal proceeding in New Brunswick (Minister of Health and Community Services) v. G.(J.).[12]  The Minister had taken the appellant’s children into custody and was applying to extend the custody order for a further six months.  Although the appellant had been denied legal aid funding for representation at the custody hearing, Lamer CJ opened the door for state-funded counsel:  

When government action triggers a hearing in which the interests protected by section 7 of the Canadian Charter of Rights and Freedoms are engaged, it is under an obligation to do whatever is required to ensure that the hearing be fair.[13]
 
            Thus, an individual who invokes section 7 in order to obtain state-funded counsel could succeed at least where he or she is able to establish that the individual’s section 7 rights are in jeopardy, that representation is required for the hearing to be fair, and that government action “triggered” the hearing.  It is trite to say that this has resounding implications on criminal actions.
Section 7, then, provides strong grounds for an argument for a constitutional right to legal aid in a wide range of government-initiated processes where it can reasonably be argued that the life, liberty or security of the person is potentially threatened.  A right to counsel will arise wherever the interests at stake in the hearing are significant and particularly where the government is represented by counsel.  Consequently, it could strongly be argued that existing legal aid programs have been “constitutionalized,” and expansion of such programs constitutionally mandated, in the sense that a failure by government to provide legal aid for civil and criminal actions may well result in a stay of proceedings on a case-by-case basis.  Therefore, as the wording of section 7 is sufficiently broad, it could provide a constitutional foundation for publicly funded counsel in the criminal context.[14] 
                                    
                                         iv)      The Right to Equality – Section 15
The equality rights secured by section 15 of the Charter could be used to argue that a lack of legal resources, which could have a differential impact on disadvantaged groups, might constitute discrimination on a prohibited ground under section 15.  For example, if funding with respect to legal aid relating to mental health issues were severely curtailed or withdrawn, discrimination on the basis of a disability might be argued.  More generally, however, a constitutional attack on an inadequate legal aid scheme might be mounted on the basis that the justice system itself is discriminatory on the basis of an analogous ground, that is, poverty.
Recognizing poverty as an analogous ground would conform with the values of self-respect and self-worth that the Supreme Court has said are to be protected by section 15. However, it is likely that judges are unwilling to find that poverty is an analogous ground because the poor are a “disparate and heterogeneous group rather than a discrete and insular minority.”[15]  Yet, when granting leave to appeal to the Ontario Court of Appeal in Polewsky v. Home Hardware Stores Ltd., Misener J. found that “a very good argument can be made” that poverty is an analogous ground.[16]  He held that it was at least arguable that imposing court fees regardless of the financial resources of the applicant may violate section 7 because those fees could deny all access to the courts to those who are unable to pay them.  This would arguably be a deprivation of the benefit of the Rule of Law, “an essential component of the liberty of the subject in this Province and to the security of the person.”[17]


[1] Dyzenhaus, David “Normative Justifications for the Provision of Legal Aid,” in John D. McCamus (Chair) (ed.), Report of the Ontario Legal Aid Review:  A Blueprint for Publicly Funded Legal Services (Toronto: Queen’s Printer, 1997) at 477
[2] R. v. Brydges (1990), 53 C.C.C. (3d) 330
[3] Ibid. at 23
[4] Ibid.
[5] R. v. Prosper (1994), 92 C.C.C. (3d) 353
[6] R. v. Prosper, supra note 16 at 30
[7] Ibid. at 70
[8] Ibid. at 32
[9] R. v. Rowbotham (1988), 41 C.C.C. (3d) 1
[10] Ibid at 69
[11] Ibid at 87
[12] New Brunswick (Minister of Health and Community Services) v. G.(J.) (1999) 3 S.C.R. 46
[13] Ibid at 2
[14] McCamus Report, supra note 4, at 83
[15] McCallum, Margaret, “Is There a Constitutionally-Protected Right to Legal Aid in Canada?” in Making the Case:
The Right to Publicly-Funded Legal  Representation in Canada (Ottawa: Canadian Bar Association, 2002) at 15
[16] Polewsky v. Home Hardware Stores, (2000), 71 C.R.R. (2d) 330 (Ont. Sup. Ct. of Justice) at 11
[17] Ibid. at 15

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