BarTalk December 2004
Volume 16, Number 6

CBA launches a test case to help resolve legal aid crisis in Canada
The CBA is living up to its commitment to access to justice by launching a test case to expand the constitutional right of all Canadians to adequate legal representation.

The test case litigation was approved for funding by the CBA’s Council while meeting in Winnipeg last August, and is based on governments’ failure to provide equal access to justice in Canada.

“This is a matter of principle that we have been defending for years,” Simon Potter of Montreal told Council. Daphne Dumont, national chair of the Legal Aid Liaison Committee, agrees. “It reflects the absolute importance to our members of continuing what is in effect the only initiative in Canada to do something practical about the shortfall in legal aid funding,” she said.

According to the Council’s resolution, the CBA National will fund nearly two-thirds of the cost of the Legal Aid Test Case, with the balance of funding being provided by the CBA provincial branches. All 13 branches have given their approval.

A Constitutional Right
The CBA’s Legal Aid Liaison and Test Case Advisory Committees are actively seeking proposals from counsel interested in pursuing the case, and to date have received several expressions of interest. Under the guidance of the committees, legal teams are being formed in order to flesh out proposals on the case. Once the proposals are finalized, the committees will report to the Executive who will announce the venue and successful counsel. This is expected to occur early in the new year.

The litigation is expected to span at least three years as it makes its way to the Supreme Court of Canada. It is expected to attract interventions from some provinces, and possibly from the federal government, which partially funds civil legal aid through transfer payments for social spending.

The CBA wants to ensure that the Constitution is interpreted in such a way that Canadians in need can access publicly funded legal services when critical legal interests are at stake.

“Policymakers do not currently have a clear constitutional obligation to ensure that Canadians have access to our system of justice to enforce their legal rights,” says Daphne Dumont. “We’ve built a strong case that the Charter of Rights and Freedoms can be made to expand the right of all Canadians to the legal representation they need.”

A Longstanding Initiative
While legal aid has long been a priority of the CBA, the test case represents the culmination of lobbying efforts begun in 1993, when the CBA enshrined the principles of sufficient legal aid funding for both civil and criminal legal aid in its Charter for the Provision of Legal Services. Criminal legal aid cost-sharing has been re-negotiated by the governments, but civil legal aid funding has been largely ignored. The test case will speak to the importance of funding for civil legal aid.

This article was published in the December 2004 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2004, all rights reserved.