International Judicial Opinions Addressing Equal Access to Justice

Supreme Court of Canada holds "fair hearing" guarantee of Canadian Charter of Rights and Freedoms requires provincial government to fund free lawyer for indigent parents involved in proceedings deciding whether government can continue to retain custody of their children -- also announces the test for determining the right to free counsel where legal aid is not available is "directly proportional to the seriousness and complexity of proceedings and inversely proportional to the capacities of" the indigent litigants involved in the proceeding.

BACKGROUND: In a factual situation reminiscent of the one the U.S. Supreme Court confronted twenty years earlier in Lassiter v. North Carolina, the Supreme Court of Canada has reached the opposite result. In both cases the government already had taken custody of a mother's children. In Lassiter, the government was seeking to permanently terminate the mother's parental rights, while in New Brunswick the government only sought to continue to deprive the mother of her children for a further six months. But the Supreme Court of Canada found this lesser deprivation required appointment of government funded counsel for an indigent mother in order to satisfy the "fair hearing" guarantee of that nation's Charter of Rights and Freedoms . This provides a sharp contrast to the U.S. Supreme Court's Lassiter opinion denying such a right even for the more serious and permanent decision the trial court was making in that case.

Also notable is the fact the issue of a constitutional right to counsel in civil cases even arose in Canada. Most Canadian provinces, including the three largest (Ontario, Quebec, and British Columbia) have statutory provisions that guarantee counsel to poor people in all or nearly all civil cases, including the type of child custody issues involved in New Brunswick v. J.G. Those Canadian provinces invest from four to nearly ten times as much per capita in civil legal services for the poor as does the United States. In 1985, however, a new government came to power in the small province of New Brunswick and reduced its legal aid program substantially. New Brunswick continued to guarantee lawyers to poor parents in proceedings permanently depriving them of the custody and parental relationship with their children. But in one of the government's economy moves it denies them counsel in hearings where the government could only take temporary custody of those children.

THE FACTS OF THE CASE: In one of the several opinions written by members of the court in New Brunswick v. J.G., a justice observed it had taken eleven years for a test case to reach Canada's highest court challenging New Brunswick's limitation on legal aid. (This helps account for the court's decision to hear the appeal even though it had become moot.) In this case, the New Brunswick government already had taken custody of the mother's three children and sought a six month extension of its custody over those children. J.G. asked the court to appoint counsel in that custody proceeding. J.G. advised she had sought and been denied representation by legal aid since the province's legal aid law did not allow assistance in such cases. The appellate court ruled against the request for counsel, too. As the case proceeded through the appellate process, however, the six months of temporary custody expired and the government filed for another extension of its custody. This time a lawyer agreed to represent the mother on a pro bono basis, but conditioned on this generosity not impairing the constitutional challenge to the trial court's denial of government-paid counsel. The lawyer won this second custody hearing and the trial court returned the children to their mother, J.G.

Thus, by the time the Supreme Court of Canada was deciding whether to accept the case on appeal, it was moot and could have no effect on whether J.G. continued to have custody of her own children.

THE OPINION: The Chief Justice wrote the main opinion for the court, but several other justices added concurring opinions, some joined by other members of the court.

Chief Justice Lamer first explained why the Supreme Court had agreed to hear this moot case. "Although the appeal is moot, the issue of whether a parent has the right to state-funded counsel at a custody hearing is undoubtedly of national importance and the Court should exercise its discretion to decide it....Similar cases may arise in the future and the Court has an opportunity to clarify the law and provide guidance. Moreover the issue is by its nature evasive of review and will ordinarily have expired before reaching the Supreme Court of Canada. The issue in this case may be moot but it is not abstract."

The Chief Justice then explained which section of the Charter applied and why. "The protection of s. 7 of the Canadian Charter of Rights and Freedomes is not restricted to purely criminal or penal matters. The right to security of the person protects both the physical and psychological integrity of the individual from state actions. The right . . . does not protect the individual from the ordinary stresses and anxieties which a person of reasonable sensibilities might suffer as a result of government action....

"A restriction of security of the person arises when state action has a serious and profound effect on a person's psychological integrity. The effects must be assessed objectively from the perspective of their impact on the psychological integrity of a person of reasonable sensibility....A custody application by the state interferes with the parent-child relationship in a distressing and grossly intrusive manner. It often stigmatizes the parent as unfit. The combination of stigmatization, loss of privacy and disruption of family is sufficient to be a restriction of security of the person."

Chief Justice Lamer then turned to the critical issue: what does the Charter guarantee when the state files a custody application. "Section 7 guarantees every parent the right to a fair hearing when the state seeks to obtain custody of their children. Leaving J.G. unrepresented would have been a restriction of her right to security of the person not in accordance with the principles of fundamental justice. The principles of fundamental justice that apply to child protection proceedings are both substantive and procedural. The state can only intervene where it is necessary to protect the best interests of the child but there must be a fair procedure for making that determination. A fair hearing requires that the parent has the opportunity to present her or his case effectively. Effective participation enhances the judge's ability to make an accurate determination. Here, the statutory scheme allows a parent to present evidence, cross-examine witnesses, and make representations but does not provide funds for indigent parent so retain counsel. In the circumstances of this case, taking into account the seriousness of the interests at stake, the complexity of the proceedings and the capacities of J.G., the right to a fair hearing required the government to provide counsel....

"A fair hearing will not always require an individual to be represented by counsel when a decision is made that affects an individual's right to life, liberty, or security of the person. Whether representation is necessary is directly proportional to the seriousness and complexity of the proceedings and inversely proportional to the capacities of the parent.

Finally, the Chief Justice dealt with the question whether it could order the government of New Brunswick to pay the indigent parent's lawyer with tax funds. "Assuming without deciding that the policy of not providing state-funded counsel qualifies as a limit prescribed by law and that the objective of controlling legal aid expenditures is pressing and substantial, the deleterious effects of the policy far outweigh the salutary effects of any potential budgetary savings.

"The only remedies available to a judge faced with a prospective breach of s. 7 after concluding that a subsequent hearing without counsel would be unfair are to order the government to provide counsel or to stay the proceedings. In child custody proceedings, a stay is inappropriate since it would result in a return of the children to the parent. Accordingly the government must provide counsel and it is not for the court to direct how that should be done....It would be open to the government to amend its policy [regarding legal aid] to read in discretion or provide parents with state-funded counsel through another means."

Justice L'Heureux-Dube found an additional provision of the Charter supported the right to counsel in this case. "This case also implicates issues of equality guaranteed by s. 15 of the Charter which should be considered in interpreting the scope and content of the rights guaranteed by s. 7....Child protection proceedings disproportionately affect women and especially single mothers....Issues of fairness in child protection hearings have particular importance for members of disadvantaged and vulnerable groups, particularly visible minorities, aboriginal people and the disabled. Thus, it is important to ensure that the analysis of s. 7 in this case takes into account the principles and purposes of the equality guarantee in promoting equal benefit of the law and ensuring that the law responds to disadvantage individuals and groups whose protection is at the heart of s.15."

This is an application for a declaratory order to the effect that persons who have a right to security of tenure in terms of the Extension of Security of Tenure Act("ESTA") and the Land Reform (Labour Tenants) Act ("Labour Tenants Act") and whose tenure is threatened or has been infringed, have a right to legal representation or legal aid at State expense under certain onditions, and other relief. The first respondent entered an appearance to defend but later withdrew from participating in the case. The second respondent id not enter an appearance, choosing rather to abide the decision of the Court. The application is premised on the fact that the right to secure tenure or alternative redress is guaranteed in the Bill of Rights to the Constitution of the Republic of South Africa Act, ("the Constitution"). Section 25(6) of the Constitution reads:

With a view to giving effect to section 25(6) of the Constitution, the Parliament enacted the Labour Tenants Act and ESTA. these acts define the extent to which a large number of rural and peri-urban people whose tenure of land is legally insecure, are entitled to legally secure tenure. However, a very large number of the people for whose benefit the Labour Tenants Act and ESTA were enacted, do not enjoy that entitlement when their rights are infringed or threatened with infringement. This is so because they are overwhelmingly poor and vulnerable people with little or no formal education. When their tenure security is threatened or infringed, they do not understand the documents initiating action or the processes to follow in order to defend their rights. On the other hand they cannot afford the fees for a lawyer to represent them because of their poverty. As a result they are quite often unable to defend or enforce their rights and their entitlement under the Constitution, the Labour Tenants Act and ESTA. The Legal Aid Board is the institution through which the Government provides legal aid to the indigent. However, most of these people or a large number of them are not able to obtain legal services through the Legal Aid Board. Several reasons can be identified for this situation:

(a) The number of lawyers practising in the rural areas is small. Most attorneys prefer to practise in the cities and towns where there is a pool of reasonably well to do (comparatively speaking) clientele. (b) Of the few lawyers practising in the rural areas most have very close social and professional connections with landowners in the district. As a result many of them are reluctant to represent labour tenants and occupiers against the landowners. In its circular no 5 of 1998, the Legal Aid Board states: "[I]n many rural areas local attorneys are unwilling to act against prominent local farmers." (c) The Legal Aid Board has always paid very modest fees with the result that very few lawyers have been prepared to do legal work on instructions from the Legal Aid Board. This has had the effect that the pool of lawyers from whom legal aid representation could be sought is small. (d) The situation described in paragraph (c) above was aggravated in 1999 when the Legal Aid Board reduced its tariff of fees. Some of the lawyers who were at the time representing litigants on instructions from the Legal Aid Board, withdrew as representatives of such litigants.

As a result of the above, very many poor, illiterate litigants appear in court unrepresented. Labour tenants and occupiers form a significant portion of such litigants. There is a need to assist labour tenants and occupiers to protect their constitutionally guaranteed rights. One of the ways in which the rights of labour tenants and occupiers, as outlined in section 25 of the Constitution and further expanded upon in the Labour Tenants Act and ESTA, can be protected is to ensure that their right in terms of section 34 of the Constitution is upheld. This means that labour tenants and occupiers are entitled to a fair trial before they can be evicted and for the trial to be fair it is necessary that the labour tenant or occupier understands his or her rights under the law and the complexities of a trial. Where he or she does not understand, there is a need for legal representation, or at the very least, an explanation of his or her rights by the judicial officer. Given the order I intend making it is important that information about the rights of labour tenants and occupiers to a just and fair trial be disseminated as widely as possible. The issue of judicial officers informing litigants about their rights arose in criminal cases in the period before South Africa was a constitutional state. It is to that field of law that I look for guidance. The rights of an accused were then understood not to include the right to legal aid. The right of the accused was a right to representation, if he or she could afford it and obtain it. The question then arose whether the judicial officer was under a duty to inform the accused of that right to legal representation. The question arose crisply in S v Radebe; S v Mbonani. Goldstone J (Van der Merwe J concurring) referred to:

The court held further as follows:

This approach was followed in a number of cases culminating in the endorsement of the approach by the Supreme Court of Appeal. Once it is found that there is a right to representation at State expense in certain civil cases, I can conceive of no logical reason why a judicial officer should not inform the person appearing before him/her of that right, and how to exercise it. There is no logical basis for distinguishing between criminal and civil matters. The issues in civil matters are equally complex and the laws and procedures difficult to understand. Failure by a judicial officer to inform these litigants of their rights, how to exercise them and where to obtain assistance may result in a miscarriage of justice. The following order is made: