No right to tax-free counsel: Supreme Court

Globe and Mail Update

The Charter of Rights does not provide litigants with a blanket right to obtain legal counsel, the Supreme Court of Canada ruled Friday morning.

The Court made the statement while unanimously upholding a B.C. tax on legal services that critics had criticized as forming a barrier to those who cannot afford legal services.

“Access to legal services is fundamentally important in any free and democratic society,” the judges said, in a ruling that identified no single author.

“In some cases, it has been found essential to due process and a fair trial. But a review of the constitutional text, the jurisprudence and the history of the concept does not support the respondent's contention that there is a broad general right to legal counsel as an aspect of, or precondition to, the rule of law.”

The ruling soured the legacy of Dugald Christie, a Vancouver lawyer who died several months ago when he was struck by a car as he bicycled across Canada to raise money for his cause – access to justice for the poor. Mr. Christie was just outside Sault Ste. Marie when he was killed.

“Notwithstanding our sympathy for Mr. Christie's cause, we are compelled to the conclusion that the material presented does not establish the major premise on which the case depends – proof of a constitutional entitlement to legal services in relation to proceedings in courts and tribunals dealing with rights and obligations,” the court said Friday.

Enacted in 1993, the British Columbia's Social Service Tax Amendment Act imposed a 7-per-cent tax on the price of legal services. While the province maintained that its purpose was to fund legal aid, the proceeds were put into general revenue. This made it difficult to ascertain how much actually ended up enhancing access to justice.

In upholding the tax, the Supreme Court said that its ruling does not foreclose the possibility that in certain, very specific circumstances, it may find that a fundamental right to counsel is guaranteed by the Charter of Rights and Freedoms.

“The right to access the courts is not absolute and a legislature has the power under s.92(14) of the Constitution Act, 1867, to impose at least some conditions on how and when people have a right to access the courts,” it said.

“We conclude that the text of the constitution, the jurisprudence and the historical understanding of the rule of law do not foreclose the possibility that a right to counsel may be recognized in specific and varied situations. But at the same time, they do not support the conclusion that there is a general constitutional right to counsel in proceedings before courts and tribunals dealing with rights and obligations.”

David Stratas, a Toronto constitutional lawyer with Heenan Blaikie LLP, said that the court has ruled out a “broad right of free access to justice for all on every occasion.

“In other words, government does not have to set up a 'Judicare' scheme where people have cost effective access to legal services in all contexts at all times,” Mr. Stratas said. “While the door is slammed shut on broad claims of access to justice without obstacles, it remains ajar for individual claims based on good evidence showing tough circumstances.”

Mr. Stratas said that the claimant's aim was too sweeping. “The problem with the claim was that it tried to strike out the tax on all occasions in all contexts without sufficient evidence in support of such a sweeping remedy,” he said. “A more surgical approach based on a few clients' circumstances might have gotten further.”

"Another way of seeing the case is that the litigant gave the court only half the deck of cards - just the cards showing the hardship of the tax," Mr. Stratas said. "The court needed the other half of the deck, which is the fiscal impact of striking down the tax. If you are seeking sweeping relief, you need sweeping evidence in support."

The SCC Ruling