Access to Justice in Canada and BC

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Access to Justice in Canada and BC

 

By Chris Tuharsky

Let’s face it, going to court is not cheap. Between hiring a lawyer, court fees, etc. a person can be looking at spending tens of thousands of dollars for a relatively short proceeding. Because of this, many people do not pursue legal action when they have been wronged or they choose to not hire a lawyer and represent themselves. Both are problematic.

In recent years, access to justice has become an increasingly important topic in the legal world due to the rising costs of legal fees and services.

What is “Access to Justice”?

Access to justice can be defined in many ways. The following are some examples:

  • Meaningful access to justice means that our justice systems, and the legal services that support them, are available, understandable, and effective.[1]
  • Access to justice can mean many things. Having the financial ability to get legal assistance when you need it. Being informed of your right to counsel when your liberty is at stake. Having courts that can resolve your problem on time. But it also means knowing what tools and services are available, and how to get to them. Ultimately, it is about getting good justice for everyone.[2]
  • Access to justice means many things, such as knowing one’s rights, and how our legal system works; being able to secure legal assistance and access legal remedies; and breaking down barriers that often prevent prospective litigants from ensuring that their legal rights are respected.[3]

In sum, access to justice means that everyone is able to access Canada’s justice system in an affordable and timely manner, and that everyone has access to the proper resources and tools they need to get a fair outcome in their legal issues.

Access to Justice and the Supreme Court of Canada

The Supreme Court of Canada (“SCC”) has made some rulings regarding access to justice.

In Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59, the SCC held that court hearing fees imposed by legislation that British Columbia (“BC”) passed were unconstitutional as it denied people from accessing the superior courts. The SCC held it was unconstitutional for two reasons:

  • Hearing fees that deny people access to the courts infringe on the core jurisdiction of the superior courts which is protected by s. 96 of the Constitution Act, 1867.[4]
  • Hearing fee schemes that prevent people from accessing the courts is inconsistent with the underlying constitutional principle of the rule of law.[5] The SCC stated that “access to the courts is essential to the rule of law.”[6] In other words, “[t]here cannot be a rule of law without access, otherwise the rule of law is replaced by a rule of men and women who decide who shall and who shall not have access.”[7]

However, in Christie v British Columbia (Attorney General), 2007 SCC 21, the SCC held that a legislation that imposed a 7% tax on the purchase price of legal services in BC, which in turn would prevent poor and low-income people from seeking legal services, was constitutional. The SCC explained that there is no general constitutional right under the principle of the rule of law for a right to legal services (except in the context of s. 10(b) of the Charter when charged with a criminal offence).[8] If there was such a right, the fiscal implications of it would be enormous. The SCC stated that if such a right was recognized it would be “a huge change that would alter the legal landscape and impose a not inconsiderable burden on taxpayers.”[9]

What is BC Doing in Regards to Access to Justice?

Near the end of 2020, the Benchers of BC adopted an Access to Justice Vision for the Law Society of British Columbia, which sets out principles on meaningful access to justice for the public and how the Law Society of British Columbia will enhance and reduce barriers to access to justice.

Furthermore, every year, the Law Foundation of British Columbia, which is an independent non-profit foundation, provides funding and grants for legal aid programs and projects in BC. In 2020, it provided around $21 million in funding for legal aid programs across BC.[10]

Finally, in 2022, BC announced that it will provide $8.19 million in new, ongoing annual funding for legal aid services in the province.[11]

If you require legal aid, but cannot afford a lawyer, the following are free or low-cost options for legal services:

 

[1] “An Access to Justice Vision for the Law Society of British Columbia” by the Law Society of British Columbia at p4.

[2] “Access to Justice: A Social Imperative” by Richard Wagner, Chief Justice of Canada.

[3] British Columbia (Attorney General) v Council of Canadians with Disabilities, 2022 SCC 27 at para 35.

[4] Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59 at para 32.

[5] Ibid at para 64.

[6] Ibid at para 38.

[7] Ibid at para 38 citing B.C.G.E.U., Re, [1988] 2 SCR 214 (SCC) at p230.

[8] Christie v British Columbia (Attorney General), 2007 SCC 21 at paras 23-27.

[9] Ibid at para 14.

[10] “Annual Report 2020” by The Law Foundation of British Columbia at p11.

[11] “Province commits funding for Legal Aid BC” by BC Gov News