A leaky boat

by Michael C Woodward

It is difficult to imagine a more fundamental right than “access to justice.” If even one citizen is denied access to justice by the actions of his or her own government, then all citizens have less than justice.

On February 8th, in Christie v. AG of B.C., 2005 BCSC 122, Koenigsberg J. declared Bill 8, the Social Service Tax Amendment Act (No. 2), S.B.C. c. 24 to be, in part, unconstitutional, on precisely this ground. She said, “Thus I find the Act infringes the fundamental constitutional right of access to justice of low income persons and that the Act is ultra vires to that extent” (paragraph 88).

Noteworthy is that the government did not even attempt to justify this impairment under section 1 of the Charter. Koenigsberg J. quoted McEachern CJBC in Carten, saying “...it is difficult to imagine how a law that impairs access to constitutional rights and remedies could be justified in a free and democratic society,” and herself went on to make findings that the Act cannot be characterized as a minimal impairment, and that it cannot be said to pursue an objective that is sufficiently important to justify limiting the Charter right delineated.

The Social Services Tax (SST) on legal services was introduced in 1992 by the Glen Clark government through Bill 8. The Campbell government did not enact the tax, but instead inherited it. Geoff Plant Q.C., the very thoughtful and refreshingly forthright Attorney General, is and has remained on record as saying the tax is a bad tax that is both unfair and discriminatory.

And yet the tax remains. Now, as a result of Christie, the tax is not only bad, unfair and discriminatory, but also in part unconstitutional, as an infringement of access to justice by low income persons.

The CBABC is pleased with the removal of this impediment to provision of legal services to our lower-income citizens. I want to specifically commend Darrell Roberts, Q.C. and Robin Bajer who, acting pro bono, successfully represented the Petitioner, noted poverty lawyer Dugald Christie.

Last year the tax collected $100 million from the fee-paying clients of lawyers in this province. The tax is in the very centre of the Branch radar, and commencing two years ago significant budgeting was made for the SST campaign. A task force was established in early 2004, contact is being made with MLA’s and candidates, and a coalition of important client representatives is being assembled at the current time.

In the aftermath of Christie, different government ministries are taking positions on its implementation that are difficult to reconcile (including the position that it is not retroactive, ironically, Bill 8 itself had many retroactive provisions) – these ad hoc and diverse positions make it beyond clear that the tax is a leaky boat. If ever there was a perfect opportunity for a government to use a tax surplus to eliminate a tax that is hugely unpopular, which is by government’s own admission unfair, discriminatory and bad, and now also unconstitutional in part, that time is now.

When I became your president last year, I said the campaign to end the SST on legal services was at the centre of my crosshairs. I am pleased that the campaign is gaining real traction. As members working together, I believe that we will succeed in “showing Bill 8 the gate.”

This article was published in the April 2005 issue of BarTalk. © 2005 The Canadian Bar Association. All rights reserved.