The ruling soured the legacy of Dugald Christie, a Vancouver
lawyer who died several months ago when he was struck by a car
as he bicycled across Canada to raise money for his cause –
access to justice for the poor. Mr. Christie was just outside
Sault Ste. Marie when he was killed.
“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 in relation to
proceedings in courts and tribunals dealing with rights and
obligations,” the court said Friday.
Enacted in 1993, the British Columbia's Social Service Tax
Amendment Act imposed a 7-per-cent tax on the price of legal
services. While the province maintained that its purpose was to
fund legal aid, the proceeds were put into general revenue. This
made it difficult to ascertain how much actually ended up
enhancing access to justice.
In upholding the tax, the Supreme Court said that its ruling
does not foreclose the possibility that in certain, very
specific circumstances, it may find that a fundamental right to
counsel is guaranteed by the Charter of Rights and Freedoms.
“The right to access the courts is not absolute and a
legislature has the power under s.92(14) of the Constitution
Act, 1867, to impose at least some conditions on how and when
people have a right to access the courts,” it said.
“We conclude that the text of the constitution, the
jurisprudence and the historical understanding of the rule of
law do not foreclose the possibility that a right to counsel may
be recognized in specific and varied situations. But at the same
time, they do not support the conclusion that there is a general
constitutional right to counsel in proceedings before courts and
tribunals dealing with rights and obligations.”
David Stratas, a Toronto constitutional lawyer with Heenan
Blaikie LLP, said that the court has ruled out a “broad right of
free access to justice for all on every occasion.
“In other words, government does not have to set up a 'Judicare'
scheme where people have cost effective access to legal services
in all contexts at all times,” Mr. Stratas said. “While the door
is slammed shut on broad claims of access to justice without
obstacles, it remains ajar for individual claims based on good
evidence showing tough circumstances.”
Mr. Stratas said that the claimant's aim was too sweeping.
“The problem with the claim was that it tried to strike out the
tax on all occasions in all contexts without sufficient evidence
in support of such a sweeping remedy,” he said. “A more surgical
approach based on a few clients' circumstances might have gotten
further.”
"Another way of seeing the case is that the litigant gave the
court only half the deck of cards - just the cards showing the
hardship of the tax," Mr. Stratas said. "The court needed the
other half of the deck, which is the fiscal impact of striking
down the tax. If you are seeking sweeping relief, you need
sweeping evidence in support."