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Transitioning from ‘right to litigate’ to ‘right to legal resources’ | Upama Poudyal

Monday, October 26, 2020 @ 2:53 PM | By Upama Poudyal


Upama Poudyal %>
Upama Poudyal
The legitimacy, effectiveness and justness of the decision-making process in court rely on the accused being able to understand the case against them, and subsequently, be able to provide an adequate defence to the Crown. However, given the increasing costs of retaining legal counsel, many Canadians lack the means to afford the services of a lawyer.

In fact, 65 per cent of individuals who are involved in family court cases in Ontario are not represented by a lawyer. In civil court, more people are representing themselves than parties with counsel. And although there are no available statistics for criminal court, it is widely agreed that there is a smaller, yet increasing number of criminal defendants who are representing themselves in court.

While the government has made an effort to support and contribute to legal assistance programs that aim to educate the public on legal processes and reduce costs for the least privileged, it is not doing enough. The measurement of legal aid eligibility is unreasonable as it assumes those who are considered low-income and those living in poverty can afford legal representation without the help of legal aid. This absence of access results in individuals who are unable to voice their opinions, challenge discrimination or hold others accountable for wrongdoings.

Legal rights under the Canadian Charter of Rights and Freedoms include the right to life, liberty and security of the person (s. 7) and the rights to retain and instruct counsel upon arrest and detention (s. 10). As expressed in B.C.G.E.U. v. British Columbia (Attorney General) [1988] 2 S.C.R. 214, courts have also affirmed a constitutional right for citizens to access courts. However, rights to access courts and lawyers represent a limited, narrow view of access to justice.

There needs to be a shift in the focal point of access to justice principles, from the “right to litigate or defend” to providing legal resources and representation to impoverished individuals who could not otherwise afford legal advice. Although constitutional mandates that allow the right to a lawyer is beneficial, what good do they do if the right cannot be exercised?

This urged the Supreme Court of Canada to develop new ways of understanding and applying access to justice principles in court cases. As a result, the rule of law has been widely utilized by courts as a doctrine to analyze constitutional rhetoric and judicial judgment. It refers to a long-standing principle of governance that was recognized in the preamble of the Constitution Act, 1982. One of the most prominent principles within this rule is access to justice among individuals in a given society.

As Justice Andromache Karakatsanis notes in the Supreme Court case of Hryniak v. Mauldin 1 S.C.R. 87: “Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued and cannot afford to go to trial. Without an effective and accessible means of enforcing rights, the rule of law is threatened. Without public adjudication of civil cases, the development of the common law is stunted.”

If Canadians are not able to access the courts because of financial barriers, the lack of access will create long-term consequences harmful to the function of a democratic society.

As recognized in R. v. Moodie 2016 ONSC 3469, the applicant, a 23-year-old college graduate, was denied legal aid on his gross income of $16,211 in 2015. In appeal court, Justice Ian Nordheimer stayed charges against Tyrell Moodie pending the provision of state-funded counsel. In this judgment, Justice Nordheimer recognized that a five-to-seven-day trial, with a potential consequence of imprisonment that further raises complex Charter arguments, should not be advanced with an unrepresented accused.

Moodie’s inability to retain legal counsel due to financial barriers is a lived reality that many Canadians face. This reality is more prominent when one recognizes that Canadians face unfair case conditions — in all types of legal fields — without having the benefit of counsel to help them navigate legal processes. Attaining the right resources to be able to defend yourself is paramount in the adversarial system that we live in today.

While I can understand the political and economic barriers to increasing legal aid fees, I urge law students, policymakers and lawyers to ponder this access to justice crisis. I ask you, what suggestions do you have to increase Canadians’ right to legal resources?

Upama Poudyal is a 1L student at Ryerson University, faculty of law. She has worked with family and criminal law legal aid and non-legal aid clients. This year, Poudyal created a startup that aims to make the process of finding legal resources easier for future legal clients.

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