Juridics: Canada: Supreme Court affirms economic-class basis for access to Canadian legal system

Bloomberg.com carries a major news story from Toronto by
Joe Schneider "Canadians Don't Have Entitlement to Legal Services, Court Says" (May25,2k7):

Canadians don't have a constitutional entitlement to legal services, the country's highest court ruled, overturning two lower court decisions that declared a British Columbia tax on legal fees unconstitutional.

Yes, the narrow issue was a taxation issue. But it's quite obvious that recent pronouncements that the Equality section of Canada's Charter of R+ts and Freedom's has done its job in getting equal pay for equal work and other issues of equality related to the situation of women in Canada. But then it was stretched beyond the meaning of the Charter-writers in order to be used for other purposes in lower courts and the Supreme Court of Canada. The Equality sections were activistically stretched beyond reason to demote the unique status of 1woman1man intimate unions and to alter the traditional meaning of the word "marriage" in law, so that the term itself becomes a mere generic for any kind of intimate union without difference in the Canadian legal system. Now the Court has mothballed the Equality section for any foreseeable future.

After this addle-brained decision, you can't use a legal concept of equality to render fairness for members of all Canada's classes and income-levels before the law, equality of the poor to have the same access to the legal system as the middle and upper classes. Unequal, if you can't afford to pay to hire a competent lawyer.

Dugald Christie, a British Columbia lawyer killed last year on a cross-country bicycling trip, had sued the provincial government saying a 7 percent tax on the purchase of legal services made it impossible for some people with low incomes to pursue claims. A trial judge agreed, saying the tax breached a constitutional right to access to justice. A provincial court of appeal upheld the decision.

``The impugned provincial legislation is constitutional,'' Canada's Supreme Court said today in a 9-0 decision. ``The right to access the courts is not absolute.''

Well, nothing is absolute; only God the Almitey Creator is absolute. The Constitution acknowledges God. So the Court's statement on absolutes is no comfort to the poor who can't afford legal representation in various jurisdictions. It's the poor who are unequally served by how the Canadian Supremes deploy thru the legal system their own tragic Equality history and very self-contradictory conceptualization of Equality. The recent decision is nonsensical.

Juridics > Canada

British Columbia is the only province in Canada to tax legal fees. The tax was imposed in 1993, ostensibly to add funding to the provincial legal aid program, which provides lawyers to people with low incomes at no charge. The money collected is included in general revenue and the high court said it's difficult to ascertain how much of the tax goes to legal aid.

This manoeuvre by the BC govt is a typical tax shell-game that is typically used by govts' to rip off specially-designated revenue streams which are such in name only. The court should demand transparency of the BC govt in regard to legal aid revenues.

Christie, 65 at the time of his death on July 31, was struck by a van on the Trans-Canada Highway east of Sault Ste. Marie, Ontario, as he was cycling across the country to raise awareness about access to legal services.

He was the founder of the Western Canada Society to Access Justice. The Supreme Court said his net income between 1991 and 1999 didn't exceed C$30,000 ($27,787) annually because his clients often couldn't pay their bills.

Under the provincial law, he still had to pay the tax on fees that had been levied, even if he didn't get the money [from his impecunious clients].

``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,'' the Supreme Court said.

So much for legal equality in regard to class and income-level in Canada.

The case is Attorney General of British Columbia v. Christie, Supreme Court of Canada (Ottawa), Case No.: 31324

I think in this decision the Court has been found out in the contradictions of its own juridical hypocrisy, in the emptiness and self-contradictoriness of its collective conceptualization, and in the unanimous philosophy entrenched in the personnel of the Court, to the exclusion of any genuine jurisprudential viewpoint-pluralism.

Juridics: Canada: Ontario beefs up legal aid for the poor, or does it?

In an Apr2,2k7 editorial for Law Times, editor and associate publisher Gail J. Cohen discusses "Small steps to fixing legal aid" (c) Law Times Inc. 2007. Reprinted with permission. Here's Cohen's text:

Attorney General Michael Bryant has been acting quite coy about it for months, but last week, he finally got to let the cat out of the bag, spread the good news, and offer up $51 million for legal aid over the next three years. He promised the profession he’d do something about legal aid and the follow-through was there. A good day for a politician.

For Legal Aid Ontario, the news of the impending cash infusion is also quite positive. It gives LAO some wiggle room and also allows it to pay lawyers a bit more for the work they agree to do.

There’s still a battle to be fought to bring back the many criminal lawyers who’ve stopped taking legal aid certificates, though. And as our page 1 story notes, there’s still some division on exactly what percentage increase is being applied to the tariff, five or 2.5 per cent. But at the end of the day, it’s more than it was but still not that much: $94.50 an hour for a senior counsel is still in the basement of what most lawyers in any practice area charge for their services.

The $15 million LAO will get for the 2007-8 fiscal year really might not even make that much of a difference. If you consider that halfway through the last fiscal year, LAO announced it had already spent $10 million more than it had budgeted, due to megatrials and other lengthy criminal prosecutions, the new money looks like all it will do is prevent LAO from drowning. It sure isn’t going to give it wings to fly.

The amount also falls short of the minimum $20-million increase suggested by the Ontario Bar Association during pre-budget consultations.
But there’s breathing room and, most importantly, recognition from government that the system needs a fix.

LAO and the Ministry of the Attorney General are still working together to try to sort out what to do about funding for multi-accused and big criminal trials. In the last few weeks, LAO announced it was indefinitely delaying the imposition of funding caps for those trials while discussions were ongoing with the ministry, which is a good sign.

The reality remains that the legal aid system is not working that well.
Many people can’t afford representation but aren’t poor enough to get legal aid. They slip through the cracks, don’t get justice, or end up representing themselves in court, which leads to a whole coterie of other problems and costs. Many lawyers aren’t prepared take legal aid work anymore, so those who get certificates have trouble finding quality representation.

Something has to be done. The budget’s funding boost shows the province understands there is a problem and is working toward some solutions. Now the federal government needs to get on board and show its support for creating a justice system that serves all Canadians, not just wealthy Canadians.
— Gail J. Cohen

I'm surprised that the funding of community legal aid clinics, where no legal aid certificate is required, but the kind of cases of the poor which the clinics may take-on, are restricted to the government's particularizing mandate. Noting the differences between the two systems, and noting how the pay-for lawyers have backed away from the poor (see Cohen above), and noting what a University Avenue lawyer charged me for meagre work on a bureaucratic snafu in a govt agency (I didn't want money from the agency) that was injurious to me; I think we need to see the whole system.

Not just the pl+t of the pay-for attorneys who are suffering so badly from financial constraints, they whine continuously against the rate of remuneration resulting from taking on legal aid certificates. I think all lawyers and medical doctors should have to continue a certain amount of their workweek (averaged out seasonally, say) in service to the poor and working poor (one day a week, say). But why I think so--in my milieu of Toronto, Ontario, Canada--would require much more lengthy a discussion.

Of course, there are lawyers who work on cases brawt by people of "moderate income" by affiliation to a community legal clinic which pays their salaries, neibourhood legal clinics also being funded by Ontario Legal Aid here. And, of course, before such arrangements existed, a number (probably small) of middleclass and upwards by an income measurementm genuinely offered pro bono legal services to lower-middle and low income people. But a lot of misdirection can lurk under what lawyers call "pro bono (for good, for free instead of pay-for). Taking on a case for free is not what I'm focussing on, insofar as it's only a form of advertizing to the client who is on the way to becoming a lucrative source of income for the lawyer and his/her law firm.

With the increasing income gap, lawyers and medical doctors must be brawt out of their isolated worlds to work across the culture gap that the income gap produces. Justice should be more available to the poor thru the relatively-small portion of time all lawyers (and medical doctors) should be required to devote. There would be some technical problems to making such arrangements, of course. Law has differentiated into numerous specializations, some of which can be quite lucrative and contribute to the growing income gap. But an accounting lawyer could go over to the legal clinic or community center once a week to help homeless, welfare recipients, and disabled get their income documentation and finances in order. This would be part of every lawyer's job, a factor the fulfilling of which would be a required for continued qualification to practice law in the jurisdication.

Please understand that I am not advocating socialism, as outside the stipulated proportionate free service at a legal clinic or community centre, lawyers would still be able to devote the lion's share of their time to becoming the multimillionaires for which many of them dream. A different structure of the obligatory facet of their profession may just give them authentically richer dreams for the good of all, for good, pro bono.