CBA to appeal B.C. Supreme Court decision

The Canadian Bar Association will appeal the recent decision of Brenner, C.J. that dismissed the CBA’s Legal Aid Test Case launched in B.C. in 2005. Following years of advocacy and now litigation, the appeal is the next step in the Association’s longstanding battle to protect legal aid for people who need it.

The court’s September 5th ruling was based on a determination that the CBA lacked public interest standing and had not pleaded a valid claim under existing law. “There’s no question we were disappointed with that outcome,” said National President Parker MacCarthy, QC of Nanaimo, “But it does not deter our continuing commitment to ensuring access to justice.”

The CBA filed the Legal Aid Test Case as a public interest litigant, arguing that it is unreasonable to insist that people with low incomes who are denied legal aid in cases where, for example, they are unjustly evicted or threatened about the custody of their children, be required to start their own individual constitutional challenge.

The CBA also argued that the unwritten constitutional principle of the rule of law requires that every person have equal and meaningful access to justice, and that inadequate civil legal aid not only denies such access but also contravenes sections 7, 15 (1) and 28 of the Charter, s. 36 (1) of the Constitution Act 1982, and various international human rights instruments.

In his written reasons, Chief Justice Brenner considered first whether the CBA could bring forward the case as a public interest litigant; and second, whether the CBA had “failed to plead the material facts of a claim” for a constitutional right to civil legal aid, under R. 19(24)(a).

On the issue of public interest standing, he concluded that of the three tests for such standing, the CBA’s case did not meet the tests that a) there is a serious issue as to the invalidity of legislation; and b) there is no other reasonable and effective manner in which the issue may be brought before the court.

On the issue of the validity of the CBA’s case, Chief Justice Brenner wrote that “unwritten constitutional rights are not free-standing rights that are capable of being breached... accordingly I would strike all portions of the statement of claim referring to such breaches on that basis” [109] and “the statement of claim fails to disclose a reasonable claim pursuant to any of the Charter or constitutional provisions pleaded” [119].

“New law is created by lawyers and parties prepared and willing to take risks,” said CBABC President Frits Verhoeven. “We will continue our fight to restore legal aid funding for those in need.”

The full reasons for the decision in this case can be read at www.courts.gov.bc.ca. [Canadian Bar Association vs. HMTQ et al, 2006BCSC 1342].

This article was published in the October 2006 issue of BarTalk. © 2006 The Canadian Bar Association. All rights reserved.