A MATTER OF INTEGRITY: RULE OF LAW, THE REMUNERATION REFERENCE, AND ACCESS TO JUSTICE.

• Author: Morey, Christian
• Position: Canada

1. INTRODUCTION

   Does the principle of the rule of law require some degree of access to justice ? From a theoretical perspective, this question lends itself to wide variety of answers. To begin with, the rule of law is an "essentially contested" concept that lends itself to any number of possible interpretations. (1) These range in content from "thin", formal theories that insist only on the minimal properties that law must have in order to guide behaviour, to "thick" theories that interpret the rule of law as incorporating substantive principles such as democracy and the protection of human rights. (2) Similarly, "access to justice" might be thought to mean anything from a simple right of physical access to the courts to a more expansive definition that would incorporate the alleviation of psychological and social barriers to accessing legal services. (3)

   In recent years, the often prohibitive cost of accessing legal services has been the subject of much concern. Given the complexity of many legal disputes, litigants who do not have access to legal representation generally find themselves at a disadvantage. In a speech delivered in 2007, Chief Justice Beverley McLachlin characterized this problem as follows:

   The most advanced justice system in the world is a failure if it does not provide justice to the people it is meant to serve. Access to justice is quite simply critical. Unfortunately, many Canadian men and women find themselves unable, mainly for financial reasons, to access the Canadian justice system. Some of them become their own lawyers or try to. Our courtrooms today are, if not filled, amply represented with litigants who are not represented by [counsel] who are trying to navigate the sometimes complex demands of law and procedure. Other people just give up. Recently the Chief Justice of Ontario stated that access to justice is the most important issue facing the legal system. (4) Although the express terms of the Canadian Charter of Rights and Freedoms' have been interpreted to guarantee access to legal aid in specific circumstances, the Charter does not include a general right of access to justice. Nevertheless, the Supreme Court of Canada has indicated that at least some degree of access to the courts is protected by the unwritten constitutional principle of the rule of law. (6) The principle of the rule of law has been recognized as having legal effect in Canada since at least 1959, (7) and is incorporated into the text of the preamble to the Charter. However, there is some debate as to what legal weight ought to be assigned to the rule of law and other unwritten constitutional principles.

   The recent case of Trial Lawyers Association of British Columbia v British Columbia (AG) (8) represents a significant development in the Courts jurisprudence on the subject of the rule of law, particularly as it relates to access to justice. Specifically, this case represents the first time that the Court has applied the principle of the rule of law to support striking down an otherwise valid piece of legislation. However, while Trial Lawyers supports the claim that governments are not entitled to legislate in a manner that hinders access to the courts themselves, the case also maintains a strong distinction between a right of access to the courts and access to legal services.

   The aim of this paper is to provide a critique of the Supreme Court's jurisprudence regarding the principle of the rule of law, with specific application to the question of whether and to what extent the rule of law should be understood as guaranteeing some degree of access to justice. In particular, I will contrast the reasoning applied in the Court's access to justice cases with the Court's statements regarding the importance of the unwritten principle of judicial independence. My claim is that the Court's approach to where and when unwritten principles may be used to invalidate ordinary legislation has been internally inconsistent in cases prior to Trial Lawyers, in that greater weight has been assigned to the principle of judicial independence than to the principle of the rule of law. I also claim that, while Trial Lawyers helps to remedy this inconsistency, the principles underlying this decision support a stronger claim--namely, that the legislative branch is subject to a negative duty to avoid imposing barriers that could prevent access to legal services, and that the courts have a legitimate mandate to enforce this duty where the imposition of such barriers is not justified.

   This paper consists of six parts, including this introduction and a brief conclusion. In Part II, I will review the Court s jurisprudence on the subjects of the rule of law, judicial independence, and access to justice. In Part III, I will show that the Court's approach to cases involving judicial independence has been inconsistent with its approach to the interpretation of the principle of the rule of law. In Part IV, I will argue that the Court's protection of judges' financial security is to be explained as a substantive decision about the importance of judicial independence relative to other competing principles; in particular, I will consider and reject the possibility that the Court's decisions may be justified in formal, value-neutral terms. Finally, in Part V, I will argue that funding decisions relating to access to justice, including both access to the courts and access to legal services, affect the integrity of the justice system in a manner analogous to decisions relating to the remuneration of judges, and should be subject to a similar degree of judicial oversight.

2. THE JURISPRUDENCE OF THE SUPREME COURT

   1. ACCESS TO JUSTICE AND THE CHARTER

      As noted above, the term "access to justice" may be understood in a variety of ways, not all of which are necessarily related to the operation of the law. (9) However, in cases where advocates have sought to identify and protect rights relating to access to justice under the Charter, the issues at stake have most often centred around the ability of low-income Canadians to receive a fair hearing in court. In particular, access to justice in this sense is threatened where prospective litigants are at risk of being denied their legal rights for financial reasons. These financial barriers include the high cost of access to legal services, as well as the imposition of mandatory hearing fees for those who wish to bring a case before the courts. Although there exist provincial laws and programs designed to mitigate the effect of these barriers, these programs have been subject to criticism on the grounds that they do not adequately ensure that all prospective litigants have a genuine opportunity to obtain a fair hearing. (10)

      A full review of the many problems relating to delivery of legal aid is beyond the scope of this paper. However, the primary concern relating to these programs is that they are unable to provide coverage to all those who require it. To begin with, the maximum level of income that an individual in a single-person household may have in order to qualify for legal aid is quite low. In British Columbia, for example, the cutoff to qualify for a legal aid certificate is $1,500 per month (net income), or $18,000 per year; (11) in Ontario, the maximum is $14,045 per year (gross income), with contribution agreements required for those making more than $12,135 per year. (12) In addition, since the 1990s, funding for legal aid programs has been capped at a level insufficient to meet the demand for everyone who would otherwise qualify. (13) The result is that many prospective litigants are unable to access legal services, particularly in the areas of civil and administrative law. (14) Even in the realm of criminal law, many accused are required to proceed without the benefit of counsel. (15)

      Due to the perceived inadequacy of these programs, various court challenges have been launched with the aim of securing a constitutional right of minimal access to legal services. The success of these actions has depended in large part on the type of legal proceeding underlying the challenge. First, in the area of criminal law, the courts have recognized that access to counsel may be constitutionally required, particularly where liberty and security of the person are at stake. Second, in matters of constitutional litigation, the courts have adopted a fairly narrow test for deciding when to require funding for challenges that would otherwise not be able to proceed. Finally, barring a few exceptions, challenges asserting a right to counsel in the areas of civil and administrative law have generally met with failure.

      1. NEGATIVE LIBERTY

         The Charter contains a number of express provisions that have implications for what might be called "negative liberty", that is, defences against the state's exercise of power over ordinary citizens. (16) Subsection 10(b) provides that "[e]veryone has the right on arrest or detention... to retain and instruct counsel without delay and to be informed of that right". (17) Subsection 11(d) provides that persons charged with an offence have a right "to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal". (18) Finally, section 7 provides that "[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." (19) The cases in which these sections have been read as requiring access to legal services are primarily concentrated in the area of criminal law, with a few notable exceptions.

         The claim that existing legal aid provisions may in some cases be constitutionally inadequate was most strongly supported in the pivotal case of R v Rowbotham. (20) In that case, the Ontario Court of Appeal was charged with hearing an appeal from a case with a number of co-accused. One of the defendants had been denied...