Right to fairness: legal aid.

• Author: Davison, Charles

Most of the 1990s have been years of budgetary restraint and cutbacks across the country. In the legal area as in so many others, those who have felt the hardest pinch of government "down-sizing" and financial limitations were often those on the lowest rungs of society's ladder. During years of financial health and (small `l') liberal generosity in the 1970s and 1980s, governments established various forms of legal aid in order to ensure that, to some extent, persons without their own means to retain competent legal counsel to assist them in courtroom situations, would have some way of obtaining proper representation and assistance in at least some criminal and civil -- including family -- legal disputes.

By the 1990s, governments across Canada had begun to march to a different tune, and "financial restraint" became a high priority. As social services and welfare budgets were slashed across the country, government funding for legal aid systems also suffered cutbacks and various forms of restriction and limitation. In a number of situations, this led legal aid agencies to start their own rounds of cuts, as they were forced to decide what services to maintain and what simply had to go, due to lower budgets and less cash being provided.

However, in the space of five days in September 1999, the Supreme Court of Canada struck two blows for those involved in litigation who, due to a lack of money and other resources, might otherwise be at an unfair advantage in legal proceedings.

In the first September decision, the Supreme Court was faced with a situation in which an indigent mother in New Brunswick could not afford legal counsel to assist her in child protection proceedings, and was refused assistance by the province's legal aid plan. To a large extent, by the time this case reached the Supreme Court, many of the issues were moot (i.e., no longer existed) since the mother now had her children back in her care (the proceedings had begun in 1994), and the legal aid guidelines which had led to the refusal to provide assistance had been changed in order to permit coverage to be granted to poor and unrepresented persons in similar situations. Nonetheless, the Court used the case to set out a number of important principles which will apply in the future to assist and protect the poor involved in such proceedings.

The majority of the Supreme Court judges who ruled on the matter said that the mother's rights under Section 7 of the Canadian Charter of...