Access to Justice? The SCC to Hear British Columbia v Christie

As of late, “access to justice” seems to be on the tip of everyone’s tongue. The Ontario Legislature has drafted an Access to Justice Act, 2006, SO 2006, c 21, and Prime Minister Harper’s cancellation of the Court Challenges Program in late 2006 raised some serious concerns about the ability of equality-seeking groups to challenge discriminatory legislation. Further, commentators here at The Court have noted concerns with the impact of the Supreme Court of Canada’s (“SCC”) decisions on access to justice issues in Little Sisters Book and Art Emporium v Canada (Commissioner of Customs and Revenue), 2007 SCC 2, and Tranchemontagne v Ontario (Director, Disability Support Program), 2006 SCC 14.

This week, Canada’s highest court will hear the appeal in British Columbia (Attorney General) v Christie. This case comes on the heels of Mr. Christie’s death this summer while cycling across Canada to raise awareness about the dismal access to legal services for poor and low income persons. Following his death an article in the Vancouver Sun explained how, after an epiphany in 1982, Mr. Christie had dedicated his life to assisting low income and poor clients. He was described as “every lawyer’s conscience of their professional obligations” and he worked hard to motivate senior members of the bar to represent and assist needy clients.

In addition to his tireless efforts in advancing legal services for the poor, Mr. Christie also took his battle to the courts. Specifically, Christie challenged the provisions of the Social Service Tax Act, RSBC 1996, c 431, which imposed a 7% tax on all legal fees in British Columbia. Mr. Christie alleged that the tax was unconstitutional because it impeded access to justice, therefore infringing the constitutional principle of the rule of law.

In an earlier court challenge (John Carten Personal Law Corp v British Columbia (Attorney General) (1997), 153 DLR (4th) 460), the majority of the British Columbia Court of Appeal (“BCCA”) appeared to indicate that if Mr. Carten had produced adequate evidence that the tax actually impeded access to justice the provision might have been found unconstitutional. In response, in this case, Christie produced affidavit evidence from himself and several of his clients attesting to the fact that the tax made it impossible for them to obtain legal services. This evidence proved crucial; the trial judge found

clear uncontradicted proof not only of impediment, hindrance and discouragement by the imposition of this tax to access to justice, but also evidence of a denial of access to justice. The evidence of Mr. Christie’s clients demonstrates that each is potentially denied legal services if the tax is applied.

At the BCCA, the Attorney General of BC argued that it was impossible to isolate the tax alone as an impediment to legal services, given that so many others exist (see 2005 BCCA 631). The Attorney General of Canada argued that the trial judge exceeded the scope of judicial notice by noting that numbers of self-represented litigants has increased, that persons were self-represented because they could not afford legal services, and that many of these litigants were unable to present their case in proper form.

Despite these arguments, the majority of the Court of Appeal relied on tort principles in upholding the decision, noting that it is not necessary for a plaintiff to show that the defendant’s wrong is the sole cause of an injury but need only prove a material contribution. Identifying this as a case where one should exercise “ordinary common sense,” the majority deferred to the trial judges’ finding of fact and proceeded on the presumption that the tax denies and in some cases hinders access to justice in the province of British Columbia.

The BCCA did not take as broad an approach to the principle of access to justice as had been taken at the trial level. Instead, access to justice was interpreted to mean “reasonable and effective access to courts of law and the opportunity to obtain legal services from qualified professionals, that are related to the determination and interpretation of legal rights and obligations by courts of law or other independent tribunals.” Since the principle is clearly engaged by the implementation of the tax, the only issue remaining before the BCCA was whether the right to access to justice, as a component of the principle of the rule of law, could itself provide the basis for invalidating the legislation.

This required lengthy analysis of the jurisprudence interpreting the role and function of the Constitution’s unwritten principles generally and the rule of law in particular. The BCCA pointed to numerous cases where the constitutional principles have been interpreted as possessing the independent power to invalidate legislation and the rule of law as requiring the creation and maintenance of positive laws. The majority quoted from Justice Dickson in BCGEU v British Columbia (Attorney General), [1988] 2 SCR 214: “There cannot be a rule of law without access, otherwise the rule of law is replaced by a rule of men and women who decide who shall and who shall not have access to justice.”

While the trial judge had granted a declaration that the Act was ultra vires to the extent that it applied to legal services provided to low income persons, the Court of Appeal varied the declaration considerably. The BCCA granted Mr. Christie a declaration, that to the extent that:

“the Act purports to tax legal services related to the detriment of rights and obligations by courts of law or independent administrative tribunals, it is unconstitutional as offending the principle of access to justice.”

While the initial judgment provided an easy means to apply the ruling (using the definition of low income that already exists in legal aid services), the Court of Appeal judgment may have proven more difficult to implement without repealing the tax altogether. It will be interesting to see how the SCC engages the access to justice issues in this case. It may prove to be an important precedent for those who hope to use constitutional principles to challenge the dismal state of legal aid. Depending on how the SCC frames the issue, its holding could also erect significant barriers to this line of argument.