Bar association will seek Charter rulings on when Canadians have the right to legal representation

The Canadian Bar Association is turning to the courts to do what legislators haven't done – fix the country's legal aid funding crisis.

The CBA is taking a number of test cases to court to establish some base-line rulings on Canadians' right to legal representation, CBA president Guy Joubert said in Iqaluit recently.

CBA president Guy Joubert, who visited Iqaluit at the beginning of the month to help the Nunavut Bar Association celebrate its 10th anniversary, told Nunatsiaq News that not only is legal aid in Canada chronically under funded, it's also an inconsistent patchwork, subject to the "vagaries of government budgets and changing politics."

The issue has special relevance to Nunavut, where federal funding formulas to support legal aid were flawed from the outset, leaving the territory constantly having to play catch-up, said justice minister Keith Peterson (see sidebar.)

As the crisis deepens, Joubert said the CBA is launching a number of test cases "to bring constitutional challenges to the courts."

The aim is to build a body of common law decisions to establish when Canadians have the right to the services of a lawyer.

That will also mean the right to legal aid when they can't afford to pay for that lawyer.

Access to justice has always been one of the main priorities of the CBA, Joubert said, and the availability of legal aid is an important tool for ensuring access to justice.

He noted that legal aid funding has been decreasing gradually across the country, and along with that decline has come "an increase in the number of unrepresented litigants before the courts."

While legal representation is still generally guaranteed in criminal matters, Joubert said, in non-criminal, or civil, issues, many Canadians, especially those in the middle-class, do not meet eligibility criteria.

But these civil cases, for example evictions or child custody, can be just as important as criminal matters.

Joubert cited the case of New Brunswick vs. J.G., from the 1990s, in which a woman who was faced with losing temporary custody of her child was unable to afford a lawyer to represent her.

The judge said she was not entitled to legal aid because it was only a temporary custody issue, but the CBA appealed the decision all the way to the Supreme Court of Canada which, in a landmark 1999 decision, ruled that section 7 of the Canadian Charter of Rights and Freedoms "guarantees every parent the right to a fair hearing when the state seeks to obtain custody of their children."

Ironically, Joubert said, cuts in spending on legal aid may actually be making the justice system more expensive for Canadian taxpayers.

Citizens appearing in court on their own, without the help of a lawyer, can now tie up the courts for days in cases that would previously have been settled within hours.

"It causes a backlog," he said, "adding huge costs and leading to justice denied or delayed."

"We hear stories from lawyers about unrepresented litigants who should have won their cases but didn't," he added. "Judges will explain procedures to these people, but they can't give advice."

The bar association is now meeting with CBA member lawyers who will take on these test cases "pro bono," meaning they will act without requiring payment from the person filing the complaint.

The aim is to identify the best cases to take forward as tests.

"It's a long-term project," he said. "Some cases will succeed, and some won't."

"It won't happen overnight. But we need to have certainty, by building a body of law."

Nunavut's business case for legal aid funding

The funding agreement with the federal government to pay for legal aid in Nunavut was flawed from the beginning, justice minister Keith Peterson said in an interview.

It didn't recognize the territory's "unique challenges and circumstances," which include 25 communities spread out over a huge geographic area, and a high ­proportion of the population absolutely dependent on legal aid for representation.

And with much more demand on the system 10 years after the creation of Nunavut, he added, federal funding hasn't kept pace.

The result is legal aid lawyers who are paid far less than crown prosecutors, with poorer housing packages, bigger workloads and less staff support – all of which leads to higher burnout rates.

The situation reached a crisis last fall when a number of lawyers left at the same time, Peterson said.

It's more stable now, but the justice department is still lobbying for a bigger slice of the legal-aid pie from the ­federal government.

"One of our officials was down in Ottawa last week to present our business case for additional support," Peterson said. "And I hope to meet with my federal justice ­colleague to continue the discussion later this year."