Expanding the Constitutional Right to State-Funded Legal Counsel to Address the British Columbia Housing Crisis

• Author: Megan Parisotto
• Position: Currently a third-year JD candidate at the University of Victoria
• Pages: 76-97

APPEAL VOLUME 24

n

79

ARTICLE

EXPANDING THE CONSTITUTIONAL RIGHT

TO STATE-FUNDED LEGAL COUNSEL

TO ADDRESS THE BRITISH COLUMBIA

HOUSING CRISIS

Megan Parisotto *

CITED: (2019) 24 Appeal 79

ABSTRACT

During the 2017 British Columbia provincial election ca mpaign, the housing aordabilit y

crisis emerged as one of the top issue s for voters. e housing crisis represents a much larger

issue of aordabilit y in British Columbia. e civil justice s ystem is another realm in wh ich

the gap is widening be tween the “haves” and the “have nots” in t he provi nce. is paper

focuses on the inadequ ate provision of civil legal aid, which is a spec ic component of the

access to justice i ssue. e Supreme Court of Canada has re cognized a constitutional r ight

to state-funded civil leg al counsel in certai n circumstances based on t he right to security of

the person, as enshrined in s ection 7 of the Canadian Chart er of Rights and Freedoms. is

paper argues th at the courts could extend the const itutional right to state-funded couns el

to a tenant who is being evicte d from their public housing unit by the British Columbia

Housing Management Comm ission. Due to the lack of aordable housing options, ev iction

could jeopardize t he tenant’s sect ion 7 right to security of the person. Consequently, the

tenant could require lega l representation in order to ensure a fair hearing. Furthermore,

the tenant’s eviction proceeding wou ld likely be triggered by the state.

* Megan Parisotto is current ly a third-year JD candidate at the Univer sity of Victoria. She

completed her BA in Political Sc ience at the University of North ern British Columbia. She thanks

Professor Donna Greschne r (Faculty of Law, University of Victor ia) for her assistance with the

initial version of this paper, and the A ppeal Editorial Board for their assis tance with the editing of

this paper.

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APPEAL VOLUME 24

TABLE OF CONTENTS

ABSTRACT ........................................................79

INTRODUCTION..................................................81

I. THE ACCESS TO JUSTICE ISSUE..................................82

A. Dening Access to Justice.........................................82

B. Indicators of the Access to Justice Issue ..............................82

C. Barriers to Accessing Justice .......................................83

D. Impacts of the Access to Justice Issue ................................84

II. LEGAL AID: FROM THE 1920s TO THE PRESENT ...................85

A. e Development of Legal Aid in the West ...........................85

B. Legal Aid in Canada.............................................86

C. Legal Aid in British Columbia .....................................87

III. THE DEVELOPMENT OF THE CONSTITUTIONAL RIGHT

TO STATEFUNDED LEGAL COUNSEL ...............................88

A. e Criminal Context ...........................................88

B. e Civil Context ..............................................89

i. Expansion of the Constitutional Right to State-Funded Legal Counsel

to the Civil Arena............................................89

ii. e Constitutional Right to State-Funded Civil Legal Counsel After

NB v G(J) .................................................90

IV. PROVIDING TENANTS IN PUBLIC HOUSING WITH A

CONSTITUTIONAL RIGHT TO STATEFUNDED LEGAL COUNSEL .....91

A. British Columbia’s Housing Crisis ..................................92

B. Subsidized and Public Housing in British Columbia ....................92

C. Step One: Section 7 Rights in Jeopardy ..............................94

i. e Right to Security of the Person ..............................94

ii. Homelessness and the Right to Security of the Person ................94

iii. Eect of the Tenant’s Eviction on the Right to Security of the Person.....96

D. Step Two: Whether the Hearing Requires Legal Representation to be Fair ....97

i. Procedural Fairness as a Principle of Fundamental Justice..............97

ii. Procedural Fairness in a Tenant’s Eviction Hearing...................98

E. Step ree: Whether Government Action “Triggered” the Hearing .........98

i. Section 7 Requirement of State Involvement .......................98

ii. State Involvement in a Tenant’s Eviction Hearing....................99

CONCLUSION: OPPORTUNITIES FOR FURTHER RESEARCH .........100