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Supreme Court won’t scrap tax on legal services

|Written By Helen Burnett

While the Charter of Rights and Freedoms may give clients the right to a lawyer in certain situations, the Supreme Court of Canada has ruled no general constitutional right to counsel exists.

Focusing initially around the narrower issue of B.C.’s seven-per-cent tax on legal services, British Columbia (Attorney General) v. Christie was brought forward by Dugald Christie, a B.C. litigation lawyer who challenged the constitutionality of the tax, arguing that the effects of the tax would make it impossible for some of his low-income clients to retain him to pursue their claims.

The chambers judge found the tax breached a fundamental constitutional right to access to justice for low-income persons and declared it unconstitutional to that extent. The majority of the Court of Appeal upheld that decision.

The B.C. government appealed to the Supreme Court. Christie’s argument was for the constitutionalization of access to justice aided by a lawyer where rights and obligations are at stake before a court or tribunal. Tragically, Christie was struck and killed near Sault Ste. Marie, Ont., last year as he cycled across Canada, raising funds for his cause. His case was argued by Darrell Roberts, Robin Bajer, and Linda Nguyen of Miller Thomson LLP’s Vancouver office.

While it was sympathetic to Christie’s cause, and emphasized the importance of a lawyer’s role in maintaining the rule of law, the Supreme Court ruled in favour of the province. It dismissed the cross-appeal because of a lack of proof of a constitutional entitlement to legal services for proceedings dealing with rights and obligations.

In its decision, the unanimous majority wrote: “Access to legal services is fundamentally important in any free and democratic society. 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.

“If the reference to the rule of law implied the right to counsel in relation to all proceedings where rights and obligations are at stake, then s. 10(b) of the Canadian Charter of Rights and Freedoms, which provides for a right to retain and instruct counsel and to be informed of that right ‘on arrest or detention,’ would be redundant,” says the decision.

While there may not be a broad right to legal counsel, the court noted that s. 7 of the Charter has implied “a right to counsel as an aspect of procedural fairness where life, liberty, and security of the person are affected.”

Frits Verhoeven, president of the B.C. branch of the Canadian Bar Association, which acted as an intervener in the case, told Law Times that B.C. is the only province where legal services are taxed separately.

“It causes a barrier to accessing justice for anybody needing legal services of any kind; regardless of ability to pay or any other ground, this tax stands in the way,” he says.

“The court didn’t back away from the concept that there’s a fundamental right to access to justice, but it wouldn’t take the next step, which is that one needs legal counsel to access justice and that taxing that service should not be allowed,” says Verhoeven.

The court also said the general right to be represented that Christie sought was broad and would cover almost all cases that come before courts or tribunals as well as legal advice, services, and disbursements.

“Although the respondent attempted to argue otherwise, the logical result would be a constitutionally-mandated legal aid scheme for virtually all legal proceedings, except where the state could show this is not necessary for effective access to justice,” the court said.

“What is being sought is not a small, incremental change in the delivery of legal services. It is a huge change that would alter the legal landscape and impose a not inconsiderable burden on taxpayers.”

Cheryl Milne, vice chairwoman of the constitutional, civil liberties, and human rights section of the Ontario Bar Association, says, “It didn’t shut down that right to counsel issue for good, in the sense that there certainly is room for argument that in the right kinds of cases there is that right to counsel, whether it’s under a s. 7 argument. It’s just that they’ve ruled out an argument that it’s based on a concept of the rule of law.”

However, as a legal aid lawyer in the Ontario clinics system, she says she hoped the court would leave a more broad definition and been more sympathetic to the kinds of clients Christie was arguing for.

“I think that we face a huge problem in our courts of unrepresented litigants in areas of law that are critical to their lives, and it might very well be that in the right case, one could argue for that kind of right to counsel,” says Milne.

“Lawyers were looking at it from a more broad perspective from just the tax issue . . . the broader implications of establishing a right to counsel that goes beyond the specific provisions of the constitution.”

She adds that while some lawyers would have been disappointed if it the court had gone the other way with its decision, others would have scrambled to figure out how to pay for all of the lawyers requiring funding.

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