Reclaiming a contextualized approach to the right to state-funded counsel in child protection cases.

• Author: Kehoe, Kate
• Position: Canada - University of New Brunswick Law Journal Forum: Access to Justice

Introduction I. State-funded Counsel in Child Protection Cases A. Origins: G.(J.) B. Subsequent Claims and Concerns C. The T.L. Approach II. In Defence of a Contextual Approach A. Against Assimilation to the Restrictive Criminal Context Test i. State-funded Counsel in Criminal Cases: Competing Strains ii. The Legal Context of Child Protection Proceedings B. Legal Aid and State-funded Counsel C. Self-representation, Social Context, Fair Hearings and Judicial Responsibility III. A Contextual Approach to State-funded Counsel in Child Protection Cases Conclusion INTRODUCTION

In Canadian courtrooms where child protection applications are heard, it is still common to find parents trying to respond to those applications without the assistance of legal counsel, which they believe they cannot afford. This despite the fact that a right to state-funded counsel in child protection cases, when necessary to ensure a fair trial, was recognized under the Charter by the Supreme Court in 1999 in the ground-breaking case of New Brunswick v. G. (J.). (1) That decision prompted reviews of legal aid plans across the country, many of which had totally excluded child protection matters, and so produced something of a systemic improvement to the plight of unrepresented parents. However, income-eligibility cut-offs for legal aid in child protection matters have remained relatively low, especially given the constant unmatched increases in cost-of-living. Moreover, in many provinces, there have been significant general cuts to legal aid funding since G.(J). Consequently, there remain parents involved in child protection matters who are not eligible for legal aid counsel but who cannot, at least in their own assessment, afford to pay for counsel themselves. The G.(J.) right to state-funded counsel therefore continues to be relevant and to be claimed. Our review of reported cases reveals that these claims are often unsuccessful and the purpose of this article is to critically analyze the approach of courts to these claims. Ultimately, we identify and defend a contextualized, less restrictive approach to state-funded counsel claims.

The analysis which follows addresses a variety of issues that need further attention in developing a contextualized approach. Our analysis focuses on the most significant element of the test for obtaining state-funded counsel, namely, establishing indigence or, in other words, an inability to afford to pay for counsel. One of the most significant issues relating to indigency is the potential assimilation of the test for eligibility for state-funded counsel in child protection cases to the test used for state-funded counsel claims in criminal cases. When establishing the right to state-funded counsel in child protection cases in G.(J.), the Supreme Court of Canada trod a path parallel to the Ontario Court of Appeal in R. v. Rowbotham, (2) which had earlier established a right to state-funded counsel in a criminal context. In subsequent decisions in both contexts, judges have struggled with how 'strict' to be in assessing eligibility, especially in relation to assessing 'indigency'. Until recently, the approach taken in child protection cases has been restrictive both in terms of the definition of indigency and in terms of procedural strictness. This approach echoes and in some cases even adopts the restrictive approach taken in a number of criminal cases. In 2009, the restrictive approach was questioned and resisted at the trial level of a child protection matter, British Columbia (Director of Child, Family and Community Service) v. T.L., (3) and the approach taken was upheld on appeal. Moreover, last year, the Ontario Court of Appeal itself questioned the strictness that had come to characterize many applications of the Rowbotham test. In different ways, these two recent decisions raise questions about the use of the restrictive approach in child protection cases.

In our view, any move towards more restrictiveness in child protection matters is misguided. Instead, the fresh approach offered by T.L. ought to be followed and, indeed, enhanced. In the final section of this paper, we offer an outline of a contextualized and consequently less restrictive approach to claims for state-funded counsel in child protection matters. Our opposition to the more restrictive approach is based on an assessment of the legal, social and judicial context of child protection matters. We advance our argument in two main parts. In the first part, we review the G.(J.) decision establishing the right to state-funded counsel in child protection cases and then provide an overview of issues of concern arising from subsequent cases. We then review the T.L. decision and approach. This provides a framework of issues for consideration in the second part of the paper, which begins with a critical assessment of the tendency to a restrictive approach. Our critical assessment discusses divergent approaches in the criminal context, revealing the recent rejection of the more restrictive approach, and also compares and contrasts the degree of legal protection offered to parents in child protection proceedings as compared to accused in criminal proceedings. We then address the social context of child protection, the relevance of legal aid eligibility criteria as benchmarks for ability to pay for counsel, and the broader issue of the responsibility of judges to ensure fair hearings. Based on this, we articulate a contextualized approach to state-funded counsel, informed by T.L.

1. State-funded Counsel in Child Protection Cases

   (A) Origins: G.(J.)

   The right to state-funded counsel in child protection proceedings established in G. (J.) is grounded in s. 7 of the Charter, which provides that no person may be deprived of their rights to life, liberty or security of the person except in accordance with the principles of fundamental justice. The Court held that a claim to state-funding of counsel can only succeed if the applicant--in the context of child protection, typically a parent--can show all of the following:

1. The proceedings may have a detrimental impact on the parent's life, liberty or security of the person;

2. A lack of counsel for the parent in the proceedings would violate the principles of fundamental justice due to (a) the seriousness of the interests at stake, (b) the complexity of the proceedings and, (c) the capacities of the parent; and

3. The parent is indigent--that is, cannot afford to pay for counsel themselves. (4)

   In establishing and applying this test, the Court held that a parent's security of the person is jeopardized by child protection proceedings because the parent's relationship with his or her child may be restricted or denied by the proceedings. Given this holding, in moving on to the second factor, the Court did not hesitate in finding that the interests at stake were "of the highest order." (5) This was especially so once the potential impact on the child was taken into account. The Court made a number of findings relating to the particular context of child protection proceedings and the parents involved in these proceedings. The Court held that child protection proceedings are essentially adversarial court proceedings that place significant responsibility on parties for planning and presenting their own cases in accordance with specialized rules of evidence and procedure. These rules constitute a "foreign environment" (6) for many people. This inherent complexity is then exacerbated by the "significant emotional strain" any parent is likely to be under, as well as the fact that the child protection authority will be represented by counsel. In addition, noted the Court, the instant hearing was to last a number of days and involved significant amounts of evidence, including expert witnesses. As for the capacities of the parent (or other applicants), the Court held that this goes beyond merely possessing the equivalent of competence to stand trial on criminal charges. Rather, "the parent must be able to participate meaningfully at the hearing, which goes beyond mere ability to understand the case and communicate." (7) Given the seriousness and complexity of the proceedings, "an unrepresented parent will ordinarily need to possess superior intelligence or education, communication skills, composure, and familiarity with the legal system in order to effectively present his or her case." (8) Ultimately, according to the Court, the question is whether the child protection hearing will be fair to the parent, if self-represented and, as importantly, to the child(ren), given that the fundamental principle of child protection proceedings is the best interests of the child. (9) At the same time, the Court also mentioned that consideration needs to be given to the extent to which a judge can mitigate any unfairness by assisting a self-represented parent, within the limits of the judicial role.

   In G.(J.) the applicant was in receipt of social assistance and so her indigency was uncontested and this aspect of the test was not elaborated. However, the Court did say that judges facing applications for state-funded counsel should first inquire as to whether the applicant has applied for legal aid or any other form of state-funded legal assistance. If all possible avenues of state-funding have not been exhausted, the proceedings should be adjourned to allow the parent a reasonable amount of time to pursue them, but subject to the best interests of the child in a timely resolution of the case.

   Although the Court was unanimous in its judgment, both Chief Justice Lamer and Justice L'Heureux-Dube wrote judgments. Justice L'Heureux-Dube sought to give prominence to a variety of contextual issues that could inform subsequent application of the test for state-funded counsel. To begin with, she emphasized that the case implicated issues of gender equality and the s. 15 equality guarantee. An alternative claim based

   on s.15 had been...