Hawkes and the Ever-Present Debate over Legal Aid

Recent events have made plain the politically charged nature of the debate in Canada over the provision of legal aid. In Ontario, the McGuinty government’s proposed Bill 107, which called for the elimination of the Ontario Human Rights Commission, was characterized by many as a backhanded attempt at dismantling civil legal aid, (by eliminating the Ontario Human Rights Commission, the body responsible for carrying complaints to the Human Rights Tribunal). Equally contentious was the Supreme Court of Canada’s (“SCC”) decision in British Columbia (Attorney General) v Christie, [2007] 1 SCR 873, which garnered no small amount of criticism from contributors to The Court, (see posts by Richard Haigh and Julian Ho), and elsewhere.

Indeed, the debate over the paramaters of legal aid has become so intense that even inaction by the SCC is likely to attract attention. Therefore, even as the SCC prepared to deny leave yesterday to Hawkes v H.Rts.Commission (PEI) & Ano., 2007 PESCAD 1 [Hawkes] – a case concerning the nature of the requirements placed on provincial legal aid regimes by s. 7 of the Charter – it was nevertheless poised to weigh in on the ever contentious debate.

Appearing on her own behalf, the appellant, Deborah J. Hawkes sought an order that she be provided with provincially-funded legal counsel to assist with an application for judicial review of a decision by the Prince Edward Island Human Rights Commission. However, the trial judge held that Ms. Hawkes was not eligible for state-funded counsel, a decision she promptly referred to the Appeals Division of the P.E.I. Supreme Court. Ms. Hawkes alleged that her s. 7 rights to life, liberty and security of the person would be threatened were she denied funding.

In a short judgement, G.E. Mitchell C.J. (P.E.I.) writing for the majority, dismissed Ms. Hawkes appeal, upholding the decision of the trial judge. Drawing on the Supreme Court’s ruling in New Brunswick (Minister of Health and Community Services) v G(J), [1999] 3 SCR 46 [G(J)], Mitchell C.J. admitted that “there are certain circumstances where an indigent person whose s. 7 Charter right to security of the person is threatened has a constitutional right to be provided with state funded-counsel” (para 4).

However, in consideration of both Ms. Hawkes’ mental capacities – she is a “well-educated” and “articulate” women – and the length and complexity of the proceeding in which she was involved, Mitchell C.J. concluded that s. 7 was not implicated by P.E.I. Human Rights Comission’s refusal to furnish Ms. Hawkes with counsel. The Appeal Court’s decision in that regard seems to be based on an application of the test for whether a denial of legal representation is consistent with the principles of fundamental justice under s. 7 of the Charter, articulated in G(J).

In that case, Lamer C.J. concluded that the appellant’s right to a fair hearing in a family law matter required that she be represented by counsel (para 73). Lamer C.J. reached this conclusion by considering three factors: (i) the seriousness of the issue at stake, (ii) the complexity of the proceeding in question, and (iii) the capacities of the appellant. In referring to Ms. Hawkes’ mental capacities, and the complexity of the proceeding in which she was involved, Mitchell C.J. seemed to have had (ii) and (iii) above in mind.

Effectively then, Ms. Hawkes’ case presented the SCC with the option of increasing the number of opportunities where legal representation is constitutionally required, and, by extension, substantially increasing the reach of s. 7. That the SCC chose not to grant leave to Hawkes is most likely a function of the relatively favourable treatment that G(J) has received. However, the politically charged nature of the debate over legal aid is such that that pundits on both sides will most likely read much more into the decision.