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News and Views Issue 3: Spring 2000

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Is There a Constitutional Right to Paid Legal Counsel in a Civil Law Matter?: An Analysis of the Supreme Court of Canada's Findings in New Brunswick (Minister of Health and Community Services) v. G. (J.).

By Barbara Billingsley, Assistant Professor, Faculty of Law, University of Alberta

According to recent reports, the number of self-represented litigants coming before Canadian courts is on the rise [ 1 ]. Although this trend can be attributed to a number of factors, at least some of the people who appear in civil court proceedings without a lawyer do so because they don't qualify for legal aid [ 2 ]. Do such litigants have a constitutional right to paid legal counsel? According to the Supreme Court of Canada's September 10, 1999, ruling in New Brunswick (Minister of Health and Community Services) v. G.(J.) [ 3 ], the answer to this question is a carefully qualified "yes". The Supreme Court found that, in certain circumstances, Section 7 of the Canadian Charter of Rights and Freedoms [ 4 ] obligates the government to provide a private litigant with paid legal counsel. But how far does this finding go in genuinely advancing the cause of indigent litigants for state-funded counsel? Arguably, the decision in J.G. does not make great strides toward alleviating the systemic funding problems encountered by poor litigants. Nevertheless, the decision probably does go as far as possible in providing such litigants with a constitutional avenue for obtaining state-funded counsel without radically changing the Court's traditional interpretation of Charter rights.

The Facts in J.G.

J.G. arose from an application by the New Brunswick Minister of Health and Community Services to extend an existing order granting the Minister custody over the Appellant's children for six months. At the request of duty counsel who appeared for the Appellant, the Court set the matter down for a full hearing in order to allow the Appellant to challenge the application. The Appellant, who was indigent and receiving social assistance, applied for legal aid in order to retain counsel for the custody hearing. This request was denied because custody applications were not covered by the existing legal aid guidelines. The Appellant then brought an application for an order to compel the provincial government to provide paid counsel to represent her in the custody proceedings. The Appellant's application was based on the argument that any custody finding made against her in the absence of paid legal representation on her behalf would constitute a denial of her right to liberty or security of the person contrary to Section 7 of the Charter. Both the Court of Queen's Bench motions judge and a majority of the New Brunswick Court of Appeal dismissed the Appellant's application, concluding that the government's failure to provide the Appellant with legal aid for the custody hearing did not violate Section 7 of the Charter [ 5 ].

The Supreme Court's Ruling in J.G.


The Supreme Court of Canada's decision in J.G. is provided by two judgments, with the principal judgment written by Chief Justice Lamer (as he then was) and a concurring judgment written by Madame Justice L'Heureux-Dubé. With respect to the alleged infringement of Section 7, Lamer C.J. focussed on the Appellant's right to security of the person and concluded that, while this right does not protect an individual from the ordinary stresses and anxieties that a person of reasonable sensibility would suffer as a result of government action [ 6 ], security of the person does come into play where state action has a serious and profound effect on a person's psychological integrity [ 7 ]. The state's attempt to remove a child from parental custody constitutes a serious interference with the parent's psychological integrity because of the potential loss of companionship for the parent, the obvious loss of privacy and intimacy for the parent, and the social stigma which is likely to be imposed upon any parent by the removal of a child [ 8 ]. Lamer C.J. declined to determine whether the Appellant's right to liberty was engaged on the facts given the "differing views expressed about the scope of the right to liberty in the Court's previous judgments" [ 9 ].

Madame Justice L'Heureux-Dubé agreed with Chief Justice Lamer's findings on the right to security but went on to find that state interference in parental decision-making and custody also impacts upon the right to liberty guaranteed by Section 7. Relying upon Justice LaForest's comments in B. (R.) v. Children's Aid Society of Metropolitan Toronto [ 10 ], L'Heureux-Dubé J. held that nurturing, caring for, and making decisions for a child are part of the liberty interests of a parent which are clearly implicated in custody proceedings [ 11 ].

Having found that a child custody hearing seriously impacts upon at least a parent's right to security of the person, the Court next considered whether fundamental justice requires that a parent have access to legal counsel at such a hearing. On this point, both Lamer C.J. and L'Heureux-Dubé J. found that fundamental justice requires a custody hearing to be fair and that fairness in turn mandates that the parent be provided with an opportunity to present his or her case effectively [ 12 ]. In some circumstances, the effective presentation of the parent's case will require the parent to be represented by counsel [ 13 ]. Circumstances to be considered include the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the parent [ 14 ]. Applying these considerations to the case at bar, both Justices found that principles of fundamental justice entitled the Appellant in the case at bar to be represented by legal counsel paid for by the state since the Appellant could not afford counsel on her own.

Looking at the specific circumstances of the Appellant's case, Lamer C.J. noted that the custody hearing seriously affected the parent's interests, especially given the fact that the Minister was seeking to extend a custody order when the Appellant had already been separated from her children for over a year. Further, the hearing was scheduled for three days and was expected to be legally complex, with the Minister planning to produce 15 affidavits plus expert reports and with all other parties being represented by counsel. Finally, the record did not indicate that the Appellant possessed the superior intelligence, education, communication skills, composure and familiarity with the legal system which an unrepresented parent would require in order to effectively represent his or her case [ 15 ].

Generally, L'Heureux-Dubé agreed with these reasons for finding that the circumstances of the case required the Appellant to be provided with legal counsel. Nevertheless, she also added several caveats and comments. First, L'Heureux-Dubé J. emphasized that Section 7 must be interpreted in accordance with other Charter rights, and in particular, with regard to the equality rights set out in Section 15 [ 16 ]. She noted that custody issues disproportionately involve women and single mothers and therefore raise questions of gender equality. This called for an interpretation which "takes into account the principle and purposes of the equality guarantee in promoting the equal benefit of the law and ensuring that the law responds to the needs of those disadvantaged individuals and groups whose protection is at the heart of s. 15" [ 17 ]. Second, L'Heureux-Dubé J. stressed that, in assessing the seriousness of the interests at stake in a child custody application, the court should not place undue weight on whether the application is for temporary or permanent custody and instead should be attentive to the fact that temporary applications are often part of a process that leads to permanent custody orders, such that the seriousness of the proceeding must be considered in relation to both short term and longer term parental interests [ 18 ]. Third, with respect to the court's consideration of a parent's ability to represent himself or herself, L'Heureux-Dubé J. stressed that the personal capabilities in question should not be the same capabilities which are assessed in determining the parent's fitness as a parent [ 19 ]. The capabilities under consideration on the legal representation question should include the parent's education level, linguistic abilities, facility in communicating, age, and similar indicators. These characteristics "will vary among those whose liberty and security interests are affected by child protection proceedings, but none of them will have considerable effects on the determination of the ultimate result of the Minister's application" [ 20 ].

Finally, with respect to the second constitutional question, the Court unanimously concluded that the Section 7 Charter breach was not justifiable under Section 1. In particular, the Court found that the government's objective in limiting legal aid expenditures is not of sufficient importance to justify the denial of a parent's right to a fair hearing in a custody matter [ 21 ]. The "deleterious effects of the policy far outweigh the salutary effects of any potential budgetary savings" [ 22 ].

How Does J.G. Impact on a Litigant's Ability to Obtain State-Funded Legal Counsel?


The Supreme Court's ruling in J.G. can be characterized as both a loss and a victory for the advocates of a right to state-funded legal counsel for indigent litigants. Since the advent of the Charter, Canadian courts have been clear and consistent in concluding that none of the rights or freedoms delineated in the Charter provides a positive right to paid legal counsel [ 23 ]. To the extent that J.G. reiterates this fundamental position, this case may be viewed as a loss for the cause of state-funded counsel. On the other hand, the ruling in J.G. does break new ground by definitively establishing that, in certain circumstances, the right to a fair hearing implicit in Section 7 of the Charter mandates the provision of state-funded legal counsel even in the absence of an express, substantive right to paid legal counsel. While this interpretation of Section 7 has been previously employed by Canadian courts in the context of criminal cases [ 24 ], J.G. is the first Supreme Court case to apply this interpretation to a civil proceeding [ 25 ]. Thus, albeit in a limited way, the J.G. ruling is arguably a victory for the proponents of state-funded counsel.

Still, from a practical perspective, although the ruling in J.G. does provide indigent litigants with a constitutional basis for seeking state-funded legal counsel where no such basis existed before, the decision also appears to impose serious limits on the situations in which this constitutional argument may be successfully invoked. At minimum, the decision certainly establishes that an indigent parent facing a custody hearing initiated by the state is entitled to paid legal counsel if the circumstances of the case indicate that the parent would not receive a fair hearing without legal representation. However, the extent to which this entitlement can be expanded beyond the specific facts of J.G. or beyond the realm of custody matters in general is significantly curtailed by the implied and express limits of the Court's ruling.

The first implicit limitation on the scope the J.G. ruling arises from the fact that J.G. is a Charter case. Canadian law clearly indicates that, in order for the Charter to apply to any case, the matter must involve an impugned government action [ 26 ]. In J.G., the Supreme Court does not specifically address the need for a government actor but proceeds on the assumption that the Minister's application for custody constitutes such an action. Significantly, in analysing the Section 7 right to security of the person, the Court focuses on the potential results of the child custody application brought by the Minister and not on the state's decision to deny legal aid funding to the Appellant. This approach appears to verify the finding of previous courts that the Charter does not directly obligate the state to provide legal funding for indigent persons. In other words, the failure of the government to provide legal aid coverage does not itself constitute "government action" of a type to merit Charter review. Instead, the obligation to provide funding arises only if the funding is being sought by an individual who is involved in litigation which concerns a government action [ 27 ]. Accordingly, in order to successfully rely upon J.G. to bring an application for state-funding under the Charter, a litigant apparently must first establish that the litigation in question involves some sort of impugned government action independent of the funding issue.

A second and more explicit limitation on an applicant's ability to successfully apply for state-funded counsel arises from the Court's definition and description of the right to security of the person. In J.G., the court is careful to note that child custody matters raise questions of personal security for the parent because of the deeply intimate emotional and social elements which are involved in parenting and which adversely impact upon a parent whose children are taken away by the state. Although the court does not expressly limit security of the person to situations of child custody, the court's comments do indicate that, in order for security of the person to be called into question, an individual's personal integrity must be at risk. Accordingly, in keeping with previous case law, the court in J.G. refuses to interpret the Section 7 security right as protecting purely economic interests [ 28 ]. Since the vast majority of civil litigation cases revolve around economic considerations, J.G. probably cannot be successfully relied upon to obtain state-funded counsel for most litigants. Nevertheless, J.G. arguably does open the door to the provision of state-funded legal counsel in civil litigation matters which impact on personal matters outside of the economic realm. Examples which come to mind include administrative law matters such as immigration hearings, professional disciplinary hearings, human rights cases and possibly even landlord and tenant matters [ 29 ].

Finally, the most direct and obvious limitation which the J.G. decision places on a litigant's ability to obtain state-funded counsel under the Charter arises from the Court's conclusion that the requirement of paid counsel is ultimately a matter of court discretion. This finding means that the ability of a litigant to successfully obtain state-funded counsel depends upon the facts of the case in question. Again, while some might argue that this fact dependent right to paid counsel at least opens the door to state-funded counsel for private litigants, others would point out that this approach also leaves the court with the ability to slam the door shut. At the very least, it must be conceded that this discretionary approach does little to resolve systemic funding access problems because it does not consider inherent problems with the funding system, but focuses on the problems which might be encountered if a given proceeding continues without state-funded counsel being provided.

Conclusions: J.G.-Not the Answer to Legal Aid Funding Problems


Undoubtedly, the Supreme Court's ruling in J.G. falls severely short of fulfilling the hopes of indigent litigants for state-funded legal counsel. The decision fails to provide an answer to the systemic funding problems associated with legal aid because the decision does not mandate or advocate a wholesale revision to government funding programs under the banner of the Charter. On the contrary, the decision follows previous case law in finding that the Charter does not provide individuals with a positive guarantee of paid legal counsel and in refusing to interpret Section 7 of the Charter as protecting purely economic interests. Nevertheless, this case does offer indigent litigants some hope of successfully applying for paid counsel under Section 7 of the Charter if security of the person is at issue and if circumstances indicate that the litigant will not receive a fair hearing without paid counsel. Outside of these parameters, it appears that indigent litigants must look to legislators and to government policy-makers for relief rather than relying upon the courts.

  1. See for example, J. Middlemiss, "Who Needs a Lawyer" (October 1999) 8:6 National (Canadian Bar Association) 12 and Czutrin, Coo and Chapnik, JJ., Judicial Committee Report on Self-Represented Litigants, (Ontario Superior Court), October 8, 1999. Note that this report and this paper are restricted to a discussion of civil court proceedings and do not deal with the criminal law realm. Return to Article

  2. Middlemiss, ibid. at 14. Return to Article

  3. [1999] S.C.J. No. 47 (QL) [hereinafter "J.G."]. Return to Article

  4. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c.11. Return to Article

  5. The motions judge was unable to decide the funding issue prior to the date set for the custody hearing. Given the nature of the hearing and considering the best interests of the children, however, all parties agreed that the custody hearing should proceed as scheduled and without prejudice to the Appellant's right to retroactively pursue her application for state-funding. Duty counsel represented the Appellant at the custody hearing on a pro bono basis. Ultimately, the Court granted the Minister's request for an extension of the custody order. (Supra note 3 at Para. 8 & 9).

    Given the Court's finding in the custody hearing, the Appellant's application for state-funded legal counsel was technically moot by the time this application was heard by the Court. The issue of mootness did not arise in argument, however, because of the parties' agreement that the custody hearing would not prejudice the Appellant's right to proceed with her Charter challenge. Nevertheless, the Supreme Court of Canada did address the mootness issue, concluding that this was an appropriate case for the court to exercise its discretion in favour of hearing the matter. Applying the three part test established by the Supreme Court of Canada in Borowski v. A.G. Canada [1989] 1 S.C.R. 342, Chief Justice Lamer held that the present case satisfied the three criteria relevant to the Court's exercise of its discretion in favour of hearing a moot issue. First, the case had an appropriate adversarial context, with vigorous argument being made by both sides. Second, hearing the case was an appropriate expenditure of judicial resources because the question of whether a parent has a right to state-funded counsel at a custody hearing is of national importance. Further, in order to decide the funding question, the court would inevitably have to consider a moot case since any custody matter is likely to be heard by a court before the funding issue can be considered. Finally, the Court was not overstepping its institutional role in deciding the case because the issue raised was not abstract and was founded upon concrete government action. (Supra note 3 at Para. 41-48). Return to Article

  6. Ibid. at Para. 59. Return to Article

  7. Ibid. at Para. 60. Return to Article

  8. Ibid. at Para. 61. In making this finding regarding a parent's right to security of the person, Chief Justice Lamer was careful to expressly point out that only state action which directly interferes with the psychological integrity of the parent qua parent will impact on the right to security (Para. 63-64):

    Not every state action which interferes with the parent-child relationship will restrict a parent's right to security of the person. For example, a parent's security of the person is not restricted when, without more, his or her child is sentenced to jail or conscripted into the army. Nor is it restricted when the child is negligently shot and killed by a police officer . . .

    While the parent may suffer significant stress and anxiety as a result of the interference with the relationship occasioned by these actions, the quality of the "injury" to the parent is distinguishable from that in the present case. In the aforementioned examples, the state is making no pronouncement as to the parent's fitness or parental status, nor is it usurping the parental role or prying into the intimacies of the relationship. In short, the state is not directly interfering with the psychological integrity of the parent qua parent. The different effect on the psychological integrity of the parent in the above examples leads me to the conclusion that no constitutional rights of the parent are engaged. Return to Article

  9. Ibid. at Para. 56. Return to Article

  10. [1995] 1 S.C.R. 315. Return to Article

  11. Supra note 3 at Para. 117-118. As noted by Madame Justice L'Heureux-Dubé, this expanded interpretation of liberty beyond the idea of freedom from physical restraint has periodically been adopted by portions of the Supreme Court of Canada but to date has not been endorsed by a majority of the Court. For further discussion on this point, see P. Hogg, Constitutional Law of Canada, 4th Student Ed., (1996) at 830-833. Return to Article

  12. Ibid. at Para. 73 (Chief Justice Lamer) and at Para. 119 (Justice L'Heureux-Dubé). Return to Article

  13. Ibid. at Para. 73-75 (Chief Justice Lamer) and at Para. 119-120 (Justice L'Heureux-Dubé). Return to Article

  14. Ibid. at Para. 75 (Chief Justice Lamer) and at Para. 120 (Justice L'Heureux-Dubé). Return to Article

  15. Ibid. at Para. 75-80. Return to Article

  16. Ibid. at Para. 112-115. Return to Article

  17. Ibid. at Para. 115. Return to Article

  18. Ibid. at Para. 121. Return to Article

  19. Ibid. at Para. 123. Return to Article

  20. Ibid. at Para. 124. Return to Article

  21. Ibid. at Para. 100. Return to Article

  22. Ibid. at Para. 98. Return to Article

  23. See for example Fowler v. Fowler [1997] 35 O.R. (3d) 243 (Ont. Gen. Div.); R. v. Prosper [1994] 3 S.C.R. 236; Mireau v. Canada (1991) 96 Sask. R. 197 (Sask. Q.B.); Gochanour v. Solicitor General of Alberta (1990) A.J. No. 378 (Alta. Q.B.)(QL); R. v. Rowbotham (1988) 41 C.C.C. (3d) 10 (Ont. C.A.); and Deutsch v. Law Society of Upper Canada Legal Aid Fund (1985) O.J. No. 1282 (Ont. S.C.)(QL). Cases such as these take specific note of the fact that a right to state-funded counsel was specifically and deliberately excluded from the Charter. Return to Article

  24. In R. v. Rowbotham, ibid., the Ontario Court of Appeal held that, while the Charter does not provide a positive right to paid counsel, the denial of state-funded counsel to an indigent accused charged with a serious and complex criminal offence violated the accused's right to a fair trial as guaranteed by sections 7 and 11(d) of the Charter. Accordingly, the Court granted a conditional stay of the charge pending the appointment of state-funded counsel for the accused in the case. The decision in Rowbotham has provided indigent persons charged with criminal offences with a constitutional avenue for pursuing state-funded counsel. For a thorough discussion of the application of the Rowbotham principle in criminal cases, see M. Benton and M.D. Smith, "The Right to State-Funded Counsel at Trial", (May 1998) 56:3 The Advocate 373. Return to Article

  25. Canadian courts have previously had occasions to consider applications to extend the Rowbotham principle into the realm of civil proceedings. Generally speaking, prior to J.G., these applications were refused. See for example, Sanderson v. Sasknative Rentals Inc. (1999) S.J. No. 178 (Sask Q.B.)(QL); Fowler v. Fowler, supra note 23; Alberta v. Canada (1997) F.C.J. No. 1528 (Fed. Ct. Trial Div.)(QL); Mireau v. Canada, supra note 23; Gochanour v. Solicitor General of Alberta, supra note 23; Deutsch v. Law Society of Upper Canada Legal Aid Fund, supra note 23. J.G. finally does bring the Rowbotham doctrine into the civil law arena and even expands upon the Rowbotham remedy by actually ordering the government to provide state-funded counsel rather than merely staying proceedings pending same: "a significant departure from the Rowbotham conditional stay of proceedings." (M. Benton and M.D. Smith, supra note 24, at 382). Return to Article

  26. A review of the relevant case law and a thorough discussion of this principle can be found in Hogg, supra note 11 at 645-662. Return to Article

  27. J.G. does not provide any assistance in determining exactly how much government involvement in the litigation is required in order to justify reliance on the Charter. In J.G. the government involvement was direct and obvious since the Minister was bringing an application for custody of the Appellant's children. Presumably, government involvement would not always have to be so direct, however the resolution of this issue would depend on previous case law interpreting "government action" under the Charter. See Hogg, ibid. Still, one might reasonably expect the "government action" requirement to be relatively easy to satisfy in family law matters because most of these matters are determined on the basis of some sort of legislation. See for example, Young v. Young [1993] 4 S.C.R.3 wherein the Supreme Court of Canada suggested at least that Charter values must be taken into account when applying and interpreting the Divorce Act. R.S.C. 1985 (2d Supp). c.3. McLauchlin J. went further in her reasoning and assumed, without deciding, that the Charter applied to courts making custody and access orders under the Divorce Act. Return to Article

  28. Again, a thorough discussion of this point can be found in Hogg, ibid. at 832-837. Return to Article

  29. Prior to the Supreme Court of Canada actually issuing its decision in J.G., it was suggested that if the Supreme Court expanded the Rowbotham principle to civil proceedings, the decision would have a serious impact on a variety of non-criminal proceedings such as "proceedings involving committal or non-consensual administration of treatment pursuant to mental health legislation, immigration proceedings where deportation is a potential outcome, disciplinary proceedings within prisons that involve a loss of liberty and, possibly, family matters where one spouse is confined to the home by violence or threats of violence." (M. Benton and M.D. Smith, supra note 24 at 382). Return to Article