New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., (1999) 216 N.B.R.(2d) 25 (SCC)

• Judge: Lamer, C.J.C., L'Heureux-Dubé, Gonthier, Cory, McLachlin, Major and Binnie, JJ.
• Court: Supreme Court (Canada)
• Case Date: September 10, 1999
• Jurisdiction: Canada (Federal)
• Citations: (1999), 216 N.B.R.(2d) 25 (SCC);66 CRR (2d) 267;[1999] 3 SCR 134;177 DLR (4th) 124;EYB 1999-14250;[1999] 3 SCR 46;1999 CanLII 653 (SCC);[1999] ACS no 47;AZ-50067319;176 DLR (4th) 276;67 BCLR (3d) 1;[1999] ACS no 38;[1999] SCJ No 38 (QL);50 RFL (4th) 63;JE 99-1756;244 NR 276;90 ACWS (3d) 698;[1999] SCJ No 47 (QL);216 NBR (2d) 25;26 CR (5th) 203;552

N.B. v. J.G. (1999), 216 N.B.R.(2d) 25 (SCC);

    216 R.N.-B.(2e) 25; 552 A.P.R. 25

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [1999] N.B.R.(2d) TBEd. SE.017

J.G. (appellant) v. The Minister of Health and Community Services, the Law Society of New Brunswick, Legal Aid New Brunswick, the Attorney General for New Brunswick and the Minister of Justice (respondents) and the Attorney General of Manitoba, the Attorney General of British Columbia, the Attorney General for Alberta, the Canadian Bar Association, the Charter Committee on Poverty Issues, the Women's Legal Education and Action Fund, the National Association of Women and the Law, the Disabled Women's Network Canada, and the Watch Tower Bible and Tract Society of Canada (interveners)

(26005)

Indexed As: New Brunswick (Minister of Health and Community Services) v. J.G. and D.V.

Supreme Court of Canada

Lamer, C.J.C., L'Heureux-Dubé, Gonthier, Cory, McLachlin, Major and Binnie, JJ.

September 10, 1999.

Summary:

Custody of J.G.'s children was transferred to the Minister of Health and Community Services for a period of up to six months. The Minister applied to extend the custody order. J.G., who was indigent and receiving social assistance, applied for a legal aid certificate to respond to the Minister's appli­cation. J.G.'s application was refused be­cause legal aid only covered guardianship applications. J.G. applied for an order direct­ing the Minister to provide her with suf­ficient funds to cover reasonable fees and disbursements of counsel to represent her in the matter. In the alternative, she requested an order directing either Legal Aid New Brunswick or the Attorney General of New Brunswick to provide her with counsel. She also sought a declaration that the legal aid rules and policies containing the distinction between custody applications and guardian­ship applications were contrary to s. 15(1) of the Charter. Subsequently, a request for relief based upon a violation of s. 7 of the Charter was also included.

The New Brunswick Court of Queen's Bench, Family Division, in a decision re­ported 171 N.B.R.(2d) 185; 437 A.P.R. 185, dismissed the motion. J.G. appealed.

The New Brunswick Court of Appeal, in a decision reported 187 N.B.R.(2d) 81; 478 A.P.R. 81, dismissed the appeal. J.G. ap­pealed.

The Supreme Court of Canada allowed the appeal.

Note: an earlier decision in this case is reported at 157 N.B.R.(2d) 169; 404 A.P.R. 169.

Civil Rights - Topic 725.1

Liberty - Charter of Rights and Freedoms -Parental liberty - Custody of J.G.'s chil­dren was transferred to the Minister of Health and Community Services for up to six months - The Minister applied for an extension - J.G. (who was indigent and receiving social assistance) applied for legal aid - However, Legal Aid New Brunswick would assist only in guardian­ship situations - J.G. applied for an order directing the province to provide her with either reasonable funding or legal counsel -She submitted that the s. 7 Charter right to security of the person included the right to bring up one's children - A deprivation of that right in the absence of legal repre­sentation would be contrary to the prin­ciples of fundamental justice as well as s. 7 - The Supreme Court of Canada ruled that J.G.'s s. 7 Charter right to security of the person would be breached unless she was granted state funded legal representa­tion - See paragraph 101.

Civil Rights - Topic 1205

Security of the person - General - Security of the person defined - [See second Civil Rights - Topic 8304 ].

Civil Rights - Topic 1206.4

Security of the person - General - Parents' right to custody of children - [See Civil Rights - Topic 725.1 ].

Civil Rights - Topic 3180

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Fair hearing - What constitutes - [See Civil Rights - Topic 725.1 ].

Civil Rights - Topic 4633.1

Right to counsel - Appointment of counsel by the court or the state - Where party unable to represent self - [See second Government Programs - Topic 1450 ].

Civil Rights - Topic 4652.3

Right to counsel - Entitlement - Custody cases - Parent's interests and rights - [See second Government Programs - Topic 1450 ].

Civil Rights - Topic 5660.5

Equality and protection of the law - Par­ticular cases - Legal aid - Custody of an indigent mother's children was transferred to the Minister for up to six months - The Minister applied for an extension - The mother's application for legal aid was denied - The mother applied for an order directing the province to provide her with either reasonable funding or legal counsel -She submitted that the denial of counsel contravened her s. 7 Charter right to se­curity of the person - The Supreme Court of Canada ruled that the denial of counsel breached the mother's s. 7 Charter right to security of the person - L'Heureux-Dubé, J., observed that because the matter raised issues of gender equality in that the denial would disproportionately impact indigent single mothers and minorities, "[t]he rights in s. 7 must be interpreted through the lens of ss. 15 and 28, ..." - See paragraphs 112 to 115.

Civil Rights - Topic 8304

Canadian Charter of Rights and Freedoms - General - Application of - General (incl. retrospectivity) - Prospective violations - The Minister applied to extend a custody order - The mother was denied legal aid - The mother submitted that the denial breached her s. 7 Charter right to liberty and security of the person and requested an order directing the province to provide her with either counsel or sufficient funds to retain counsel - However, the application could not be heard prior to the custody hearing - The parties agreed that the matter could be heard later and not be considered moot - The trial court held that the mother had no right to state funded legal aid - The Supreme Court of Canada agreed to hear the mother's appeal even though the cus­tody matter was concluded and the chil­dren returned to her care - The court held that it could order remedies in antici­pation of future Charter violations, not­withstand­ing the retrospective language of s. 24(1) - See paragraphs 50 to 53.

Civil Rights - Topic 8304

Canadian Charter of Rights and Freedoms - General - Application of - General (incl. retrospectivity) - The Minister applied to extend a custody order - The mother op­posed the application but was denied legal aid - The mother submitted that the denial contravened her s. 7 Charter right to secur­ity of the person - She applied for an order directing the province to provide her with either counsel or sufficient funds to retain counsel - The trial court held that she had no right to state funded legal aid - In allowing the mother's appeal, the Supreme Court of Canada held that the right to security of the person extended beyond the criminal law context and included a psy­chological component as well as a physical one - See paragraphs 56 to 58.

Civil Rights - Topic 8304

Canadian Charter of Rights and Freedoms - General - Application of - General (incl. retrospectivity) - The Minister applied to extend a custody order - The mother was denied legal aid - The mother submitted that the denial contravened her s. 7 Charter right to security of the person - The trial court dismissed the mother's application - In allowing the mother's appeal, the Supreme Court of Canada stated that "[f]or a restriction of security of the person to be made out, then, the impugned state action must have a serious and profound effect on a person's psychological integrity. The effects of the state interference must be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility. This need not rise to the level of nervous shock or psychiatric illness, but must be greater than ordinary stress or anxiety" - The removal of a child from parental custody consti­tuted a serious interference with the psy­chological integrity of the parent - See paragraph 60.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - The Minister applied to extend a custody order - The mother was denied legal aid - It was available only in guardianship situ­ations - The mother applied for an order directing the province to provide legal assistance on the ground that the denial contravened her s. 7 Charter right to se­curity of the person - The trial court dis­missed the application - The Supreme Court of Canada held that the mother's s. 7 rights had been contravened - The court also ruled that the denial was not saved by s. 1 because "a parent's right to a fair hearing when the state seeks to suspend such parent's custody of his or her child outweighs the relatively modest sums, when considered in light of the govern­ment's entire budget, at issue in this ap­peal" - See paragraph 100.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - The Minister applied to extend a custody order - The mother was denied legal aid - The mother submitted that the denial con­travened her s. 7 Charter right to security of the person - The Supreme Court of Canada held that the mother's s. 7 rights had been contravened - In determining that the violation was not saved by s. 1, the court stated that "[s]ection 7 violations are not easily saved by s. 1. ... This is so for two reasons. First, the rights protected by s. 7 - life, liberty and security of the per­son - are very significant and cannot ordi­narily be overridden by competing social interests. Second, rarely will a violation of the principles of fundamental justice, spe­cifically the right to a fair hearing, be upheld as a reasonable limit demonstrably justified in a free and democratic society" -See paragraph 99.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - The Minister applied to extend a custody order - The mother (who was indigent and receiving social assis­tance) applied for legal aid - The appli­cation was denied - The mother submitted that the denial of counsel contravened her s. 7 Charter right to security of the person - The Supreme Court of Canada ruled that the mother's rights under s. 7 would be breached unless she was granted either state funded legal representation or a stay of proceedings - However, because the children had been returned to the mother, the court ruled that a stay in this situation would not be appropriate - See paragraph 101.

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Life, liberty and security of the person - [See second Civil Rights - Topic 8304 ].

Courts - Topic 1765

Powers - Appointment of counsel - To represent parent in protection proceedings - [See second Government Programs - Topic 1450 ].

Government Programs - Topic 1450

Legal aid - Entitlement - Child protection cases - [See Civil Rights - Topic 725.1 ].

Government Programs - Topic 1450

Legal aid - Entitlement - Child protection cases - The Supreme Court of Canada ruled that a parent may have a right to state funded counsel in situations where the Minister has applied for custody of the children - In determining whether the state should be ordered to provide the parent with counsel, the court should first ascer­tain whether the parent has applied for legal assistance - If the parent has not exhausted all avenues, the proceedings should be adjourned for a reasonable time provided the best interests of the children are not compromised - If the indigent parent cannot obtain state funding, the court should first determine whether the parent can obtain a fair hearing without counsel (considerations would include the seriousness of the interests at stake, the complexity of the proceedings and the capacity of the parent) - The judge should also consider his ability to assist the parent within the limits of the judicial role - See paragraphs 103 and 104.

Practice - Topic 8858

Appeals - Bar or loss of right of appeal - Moot issues - The Minister applied to extend a custody order - The mother op­posed the application but was denied legal aid - The mother applied for an order directing the province to provide her with either counsel or sufficient funds to retain counsel - However, the application could not be heard prior to the custody hearing - The parties agreed that the matter could be heard later and not be considered moot - The trial court held that the mother had no right to state funded legal aid - The Supreme Court of Canada agreed to hear the mother's appeal even though the cus­tody matter was concluded and the chil­dren returned to her care - The court held that while the issue of entitlement to legal aid in this situation was moot, it was not abstract and was undoubtedly of national importance - See paragraphs 42 to 49.

Cases Noticed:

Sheena B., Re, [1995] 1 S.C.R. 315; 176 N.R. 161; 78 O.A.C. 1; 9 R.F.L.(4th) 157; 122 D.L.R.(4th) 1, refd to [para. 26].

R.B. v. Children's Aid Society of Metro­politan Toronto - see Sheena B., Re.

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1; 17 D.L.R.(4th) 422, refd to. [para. 27].

R. v. Duke, [1972] S.C.R. 917, refd to. [para. 27].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82; 38 C.R.R. 232; 57 D.L.R.(4th) 231; 47 C.C.C.(3d) 1; 33 C.P.C.(2d) 105; [1989] 3 W.W.R. 97, refd to. [para. 29].

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321; 92 C.C.C.(3d) 353, appld. [para. 32].

R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1 (Ont. C.A.), refd to. [para. 36].

Howard v. Stony Mountain Institution Inmate Disciplinary Court (Presiding Officer), [1984] 2 F.C. 642; 57 N.R. 280 (F.C.A.), refd to. [para. 36].

Children's Aid Society of Ottawa-Carleton v. M.T., [1995] O.J. No. 3879 (Gen. Div.), refd to. [para. 37].

International Brotherhood of Electrical Workers, Local Union 2085 v. Winnipeg Builders' Exchange, [1967] S.C.R. 628, consd. [para. 45].

Quebec Constitutional Amendment Refer­ence (No. 2), [1982] 2 S.C.R. 793; 45 N.R. 317, refd to. [para. 45].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1; 18 D.L.R.(4th) 481; 13 C.R.R. 287; 12 Admin. L.R. 16, consd. [para. 51].

R. v. Vermette, [1988] 1 S.C.R. 985; 84 N.R. 296; 14 Q.A.C. 161; 41 C.C.C.(3d) 523, refd to. [para. 51].

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161; 101 C.C.C.(3d) 193; 128 D.L.R.(4th) 98, consd. [para. 51].

Corbiere et al. v. Canada (Minister of Indian and Northern Affairs) et al. (1999), 239 N.R. 1 (S.C.C.), folld. [para. 54].

R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1; 44 D.L.R.(4th) 385, consd. [para. 58].

Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; 109 N.R. 81; 68 Man.R.(2d) 1; 56 C.C.C.(3d) 65; 77 C.R.(3d) 1; [1990] 4 W.W.R. 481, refd to. [para. 58].

Prostitution Reference - see Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code.

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1; 24 C.R.(4th) 281, refd to. [para. 58].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81; 52 C.R.(3d) 1; 29 D.L.R.(4th) 161; 26 C.C.C.(3d) 481, consd. [para. 62].

Augustus v. Gosset, [1996] 3 S.C.R. 268; 202 N.R. 241, refd to. [para. 63].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266; [1986] 1 W.W.R. 481; 23 C.C.C.(3d) 289; 48 C.R.(3d) 289; 24 D.L.R.(4th) 536; 36 M.V.R. 240; 69 B.C.L.R.(2d) 145; 18 C.R.R. 30, consd. [para. 69].

Hepton v. Maat, [1957] S.C.R. 606, consd. [para. 69].

R. v. Robinson; R. v. Dolejs (1989), 100 A.R. 26; 70 Alta. L.R.(2d) 31; 51 C.C.C.(3d) 45 (C.A.), refd to. [para. 90].

R. v. Rain (M.M.) (1998), 223 A.R. 359; 183 W.A.C. 359; 130 C.C.C.(3d) 167 (C.A.), refd to. [para. 90].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321; 19 C.R.R. 308, refd to. [para. 95].

Egan and Nesbit v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161; 12 R.F.L.(4th) 201; 124 D.L.R.(4th) 609, consd. [para. 95].

Eldridge et al. v. British Columbia (At­torney General), [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81; 38 B.C.L.R.(3d) 1, refd to. [para. 97].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183; 59 D.L.R.(4th) 416; 26 C.C.E.L. 85; 89 C.L.L.C. 14,031; 40 C.R.R. 100, refd to. [para. 97].

Osborne, Millar and Barnhart et al. v. Canada (Treasury Board) et al., [1991] 2 S.C.R. 69; 125 N.R. 241; 82 D.L.R.(4th) 321, refd to. [para. 102].

Andrews v. Law Society of British Colum­bia, [1989] 1 S.C.R. 143; 91 N.R. 255; 56 D.L.R.(4th) 1, refd to. [para. 112].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271; 37 C.C.C.(3d) 1; 61 C.R.(3d) 1; 44 D.L.R.(4th) 193, refd to. [para. 112].

R. v. Tran (Q.D.), [1994] 2 S.C.R. 951; 170 N.R. 81; 133 N.S.R.(2d) 81; 380 A.P.R. 81; 92 C.C.C.(3d) 218; 32 C.R.(4th) 34, refd to. [para. 112].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, consd. [para. 113].

Santosky v. Kramer (1982), 455 U.S. 745 (S.C.), consd. [para. 114].

Godbout v. Longueuil (Ville), [1997] 3 S.C.R. 844; 219 N.R. 1, refd to. [para. 117].

Statutes Noticed:

Canadian Charter of Rights and Freedoms (1982), sect. 1 [para. 13]; sect. 2(b) [para. 59]; sect. 7 [para. 13]; sect. 15(1) [para. 6]; sect. 24(1) [para. 13].

Family Services Act, S.N.B. 1980, c. F-2.2, sect. 1 [para. 11]; sect. 7(b) [para. 9]; sect. 53(2) [para. 11].

Legal Aid Act, R.S.N.B. 1973, c. L-2, sect. 12(1), sect. 12(14), sect. 24(1) [para. 12].

Authors and Works Noticed:

Abella, Rosalie S., and L'Heureux-Dubé, Claire, Family Law: Dimensions of Jus­tice (1983), p. 233 [para. 121].

Callahan, Marilyn, Feminist Approaches: Women Recreate Child Welfare, in Wharf, Brian, Rethinking Child Welfare in Canada (1992), p. 172 [para. 113].

Cossman, Brenda, and Rogerson, Carol, Case Study in the Provision of Legal Aid: Family Law, in Report of the On­tario Legal Aid Review: A Blueprint of Publicly Funded Legal Services (1997), p. 773 [para. 114].

Hughes, Patricia, New Brunswick's Do­mestic Legal Aid System: New Bruns­wick (Minister of Health and Community Services) v. J.G. (1998), 16 Windsor Y.B. Access Just. 240, p. 250 [para. 123].

Ontario, Legal Aid Review Report: A Blueprint of Publicly Funded Legal Services (1997), p. 773 [para. 14].

Thompson, D.A. Rollie, Taking Children and Facts Seriously: Evidence Law in Child Protection Proceedings - Part I (1988), 7 Can. J. Fam. L. 11, p. 12 [para. 78].

Thomson, George M., Judging Judiciously in Child Protection Cases, in Abella, Rosalie S., and L'Heureux-Dubé, Claire, Family Law: Dimensions of Justice (1983), p. 233 [para. 121].

Wharf, Brian, Rethinking Child Welfare in Canada (1992), p. 172 [para. 113].

Counsel:

E. Thomas Christie, for the appellant;

Bruce Judah, Q.C., for the Minister of Health and Community Services, the Minister of Justice and the Attorney General for New Brunswick (respon­dents);

Gary A. Miller, for the Law Society of New Brunswick and Legal Aid New Brunswick (respondents);

Heather Leonoff, Q.C., for the Attorney Gen­eral of Manitoba (intervener);

George H. Copley, Q.C., for the Attorney General of British Columbia (intervener);

Roderick Wiltshire, for the Attorney Gen­eral for Alberta (intervener);

Barry L. Gorlick, Q.C., and Greg Delbigio, for the Canadian Bar Association (inter­vener);

Arne Peltz and Martha Jackman, for the Charter Committee on Poverty Issues (intervener);

Carole Curtis and Anne Dugas-Horsman, for the Women's Legal Education and Action Fund, the National Association of Women and the Law, and the Disabled Women's Network Canada (interveners);

W. Glenn How, Q.C., and André Carbon­neau, for the Watch Tower Bible and Tract Society of Canada (intervener).

Solicitors of Record:

Christie & Associates, Fredericton, N.B., for the appellant;

Department of Justice, Fredericton, N.B., for the Minister of Health and Com­muni­ty Services, the Minister of Justice and the Attorney General for New Bruns­wick (respondents);

Cox, Hanson, O'Reilly, Matheson, Freder­icton, N.B., for the Law Society of New Brunswick and Legal Aid New Bruns­wick (respondents);

Department of Justice, Winnipeg, Mani­toba, for the Attorney General of Mani­toba (intervener);

Ministry of the Attorney General, Victoria, British Columbia, for the Attorney Gen­eral of British Columbia (intervener);

Alberta Justice, Edmonton, Alberta, for the Attorney General for Alberta (inter­vener);

Monk, Goodwin, Winnipeg, Manitoba, for the Canadian Bar Association (inter­ven­er);

Public Interest Centre, Winnipeg, Mani­toba, for the Charter Committee on Pov­erty Issues (intervener);

Carole Curtis, Toronto, Ontario; Fowler & Fowler, Moncton, New Brunswick, for the Women's Legal Education and Ac­tion Fund, the National Association of Women and the Law, and the Disabled Women's Network Canada (interveners);

W. Glenn How & Associates, Georgetown, Ontario, for the Watch Tower Bible and Tract Society of Canada (intervener).

This appeal was heard on November 9, 1998, in Ottawa, Ontario, by Lamer, C.J.C., L'Heureux-Dubé, Gonthier, Cory, McLach­lin, Major and Binnie, JJ., of the Supreme Court of Canada.

The decision of the court was delivered in both official languages on September 10, 1999, and the following opinions were filed:

Lamer, C.J.C. (Gonthier, Cory, McLach­lin, Major and Binnie, JJ., concurring) - see paragraphs 1 to 110;

L'Heureux-Dubé, J. (Gonthier and Mc­Lachlin, JJ., concurring) - see para­graphs 111 to 126.