Canada: International Obligations to Provide Legal Aid by Gail Davidson, Catherine Morris, Heather Neun
To: BC Public Commission on Legal Aid
From: Lawyers Rights Watch Canada
The purpose of this submission is to lay out the basic international human rights law concerning the responsibility of states to ensure access to justice for everyone without discrimination as to economic, social, ethnic, racial, sexual, religious or other status. Internationally, the state responsibility to provide legal aid is affirmed by UN and regional instruments, jurisprudence and rulings. Lawyers’ Rights Watch Canada (LRWC) recommends that the following principles be the foundation of policy for provision of legal aid in British Columbia. The Public Commission on Legal Aid has asked for responses to four questions.
• In what circumstances should legal aid be provided in BC? As a minimum standard, BC has a legal obligation to provide legal aid in all circumstances in which citizens cannot afford to access the legal system for the protection of human rights protected by treaties ratified by Canada.
• For what legal issues should legal aid be provided in BC? Legal aid must be provided in all circumstances in which people in BC cannot afford to access the legal system for the protection of their rights protected by treaties ratified by Canada. Legal aid should be provided for all criminal, family, administrative law and other civil matters in which people, including women, children, elderly people, minorities or indigenous peoples cannot afford to access courts and other bodies to seek protection of the rights to which they are legally entitled.
• How should legal aid in BC be funded? LRWC recommends that BC pass legislation to bring the provision of legal aid to the standards prescribed in international human rights conventions, principles and jurisprudence as indicated in this submission. Legislation should also ensure leadership from an independent legal profession in determining methods of delivery. LRWC also recommends that BC fund efforts of other organs of society to provide human rights advocacy, including NGOs and particularly in cooperation with an independent legal profession. While civil society groups have been active in trying to provide legal assistance and advocacy to those in need, the primary responsibility for these activities falls to the Province in all areas of its provincial jurisdiction.
• What should be the priorities of the legal aid system in BC? A legal aid system in BC that fulfils Canada’s international human rights obligations must assure that that all people, no matter what their economic status, are in a position to access the courts for protection not only of the limited civil and political rights protected in Canada’s Charter of Rights and Freedoms, but also of their internationally protected economic, social and cultural rights, including the rights to housing, subsistence and other necessaries for all people in Canada including men, women, children, minorities, indigenous individuals, and indigenous peoples.
The priority for legal aid is currently on certain civil and political rights for those charged with serious criminal offences as well as some other categories of civil and political rights. The emphasis on civil and political rights in the Canadian Charter of Rights has made it difficult to for people to access legal aid seek enforcement of economic, social and cultural rights. BC is responsible for ensuring that all people, no matter what their economic status, are in a position to access the courts for protection of their economic, social and cultural rights, including their rights to housing, food and other necessaries.
INTERNATIONAL HUMAN RIGHTS OBLIGATIONS: THE FOUNDATION AND FRAMEWORK FOR PROVISION OF LEGAL AID
In general, discussions of legal aid in British Columbia are framed by domestic considerations rather than by international human rights law. The discourse of British Columbia policy makers seems generally bound by the idea that Canadian and British Columbia laws provide the framework for understanding citizens’ rights and government responsibilities. The legal obligation to provide legal aid in Canada seems, in general, to be framed narrowly in terms of what Canada’s Charter of Rights and Freedoms or other domestic laws require. Since domestic legislation is limited, the policy considerations tend to be framed in terms of charitable “pro bono” services, social justice or efficiency.
This submission demonstrates that Canada, including British Columbia, is bound by international law to provide whatever funding for legal aid is necessary to ensure the equal enjoyment of protected rights by all people including those without the money and other resources needed to determine or enforce rights or seek remedies for violations… more (pdf)