May 26, 2007
Canada rejects general right to counsel
The Canadian Supreme Court has handed down a ruling rejecting the concept of a general right to legal counsel whenever one's rights or obligations are implicated. The Court recognized that the Canadian Charter of Rights and Freedoms does impose the right to counsel when one is arrested or detained--a right guaranteed in this country by the Sixth Amendment and its attendant jurisprudence--but does not impose a general right to counsel whenever one goes to court.
At issue is a tax on legal services imposed to pay for legal aid. A sound enough principle, but in what seems to be a glaring miscalculation, there is no exception for legal aid services themselves. As a result, the respondent in this case--ironically killed in a cycling accident while raising money for legal aid--was unable to continue his legal aid practice because though he frequently was not paid for his services the government required him to remit the taxes on those services. He argued this was a violation of his clients' right to legal counsel. Though the Supreme Court of British Columbia agreed with him, the Supreme Court of Canada rejected the idea.
While seemingly harsh, I think this is best result. The argument advanced by the respondent did not seem to make a distinction between being a plaintiff and being a defendant. While I can see some basis for a right to legal counsel when one is sued, I see no basis for such a right when one wishes to sue someone else. Before you know it you'll have anyone with a grievance demanding state assistance to sue everyone in sight. Besides, people who cannot afford legal services are unlikely to be sued in civil court anyways--they by definition have no money, so suing them seems like a waste of time. I'm sure it happens--especially in landlord/tenant cases--but it's not the norm. On the other hand, people who cannot afford legal services have a huge incentive to sue people with money, especially if they don't have to pay for their own representation.
The court also observed that access to the courts is important to the rule of law but does not seem to be a fundamental right as such. The reason given is that in Canada--and the US as well--the legislature is capable of modifying the criteria under which plaintiffs may bring suit. A prime example in the US would be the amount in controversy requirement--$75,000--for bringing suit in federal court on the basis of diversity jurisdiction. If the legislature is capable of affecting the right in question in this way, it does not seem to be as fundamental a right as, say, the right to vote or the right to freedom from racial discrimination.
