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New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46

 

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,

the Watch Tower Bible and Tract Society of Canada                      Interveners

 

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

 

File No.:  26005.

 

1998:  November 9; 1999:  September 10.

 

Present:  Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Major and Binnie JJ.

 


on appeal from the court of appeal for new brunswick

 

Constitutional law -- Charter of Rights  -- Security of person -- Minister of Health and Community Services applying to extend order granting him custody of three children -- Whether parent’s right to security of person engaged in custody proceedings -- Canadian Charter of Rights and Freedoms , s. 7 .

 

Constitutional law -- Charter of Rights  -- Fundamental justice -- Legal Aid -- Minister of Health and Community Services applying to extend order granting him custody of three children -- Parent intending to challenge application to extend custody order but denied legal aid because custody applications not covered under legal aid guidelines -- Whether failure to provide parent with legal aid in custody proceedings infringing principles of fundamental justice -- If so, whether infringement justified -- Appropriate remedy -- Canadian Charter of Rights and Freedoms , ss. 1 , 7 , 24(1) .

 

Family law -- Children in care -- Ministerial application for extension of custody order -- Legal Aid -- Minister of Health and Community Services applying to extend order granting him custody of three children -- Parent intending to challenge application to extend custody order but denied legal aid because custody applications not covered under legal aid guidelines -- Whether parent has constitutional right to state-funded counsel in circumstances of case -- Procedure to be followed when unrepresented parent in custody application seeks state-funded counsel --  Canadian Charter of Rights and Freedoms , s. 7 .

 

Appeals -- Mootness -- Legal issues raised in case moot -- Whether Supreme Court should exercise its discretion to decide case.

 


Practice -- Constitutional questions -- Reformulation -- Constitutional questions slightly modified to reflect prospective rather than retrospective nature of case -- No prejudice to parties or potential interveners.

 


The New Brunswick Minister of Health and Community Services was granted custody of the appellant’s three children for a six-month period.  He later sought an extension of the custody order for a further period of up to six months.  At the initial appearance of the appellant, duty counsel appointed by the Minister of Justice to act on her behalf advised the court that the appellant intended to challenge the application and required a full hearing of the matter.  The appellant, who was indigent and receiving social assistance at the time, applied for legal aid in order to retain a lawyer to represent her at the custody hearing.  Her application was denied because, at the time, custody applications were not covered under the legal aid guidelines. The appellant then  brought a motion for an order directing the Minister to provide her with sufficient funds to cover reasonable fees and disbursements of counsel for the purposes of preparing for and representing her in the custody proceedings or, in the alternative, that either Legal Aid New Brunswick or the provincial Attorney General provide her with counsel.  She also sought a declaration that the rules and policies governing the distribution of Domestic Legal Aid violated s. 7  of the Canadian Charter of Rights and Freedoms .  The motions judge was unable to decide the issue prior to the date set for the custody application.  The parties agreed that it would be in the best interests of the children to proceed with the application, and duty counsel for the appellant agreed to represent the appellant at the custody hearing pro bono.  At the custody hearing, all the parties were represented by counsel, including the appellant.  During a three-day period, the Minister called testimony and presented affidavit evidence from 15 witnesses, including expert psychological reports.  The Minister was granted an extension of the custody order.  Almost a year later, the appellant’s motion to obtain state-funded counsel was dismissed.  The motions judge concluded that the failure to provide the appellant with legal aid did not violate s. 7  of the Charter .  The majority of the Court of Appeal affirmed the decision. This appeal is to determine  whether indigent parents have a constitutional right to be provided with state-funded counsel when a government seeks a judicial order suspending such parents’ custody of their children.

 

Held:  The appeal should be allowed.  The New Brunswick government was under a constitutional obligation to provide the appellant with state-funded counsel in the particular circumstances of this case.

 

Per Lamer C.J. and Gonthier, Cory, McLachlin, Major and Binnie JJ.: While the legal issues that arise in this appeal are moot, the Court should exercise its discretion to decide the case.  First, there was an appropriate adversarial context and the appeal was vigorously and fully argued on both sides by the parties and the interveners.  Second, the question of whether a parent has a right to state-funded counsel at a custody hearing is of national importance and, although similar cases may arise in the future, they are by nature evasive of review.  Lastly, the Court is not overstepping its institutional role in deciding this appeal.  While the issues are moot, they are not abstract.  This case, however, must be approached  as though a prospective breach of s. 7  of the Charter  was at issue. The analysis must proceed on the assumption that the custody hearing had not yet taken place and that the appellant would not have been represented by counsel at the hearing. Given this approach, the constitutional questions,  which are retrospective rather than prospective in nature, must be slightly modified.  None of the parties are prejudiced by the reformulation of the questions, nor would any potential interveners have made a different decision about exercising their right to intervene.

 


The Minister’s application to extend the original custody order threatened to restrict the appellant’s right to security of the person guaranteed by s. 7  of the Charter .  This right protects both the physical and psychological integrity of the individual and this protection extends beyond the criminal law and can be engaged in child protection proceedings. For a restriction of security of the person to be made out, 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.  State removal of a child from parental custody pursuant to the state’s parens patriae jurisdiction constitutes a serious interference with the psychological integrity of the parent.  Besides the obvious distress arising from the loss of companionship of the child, direct state interference with the parent-child relationship, through a procedure in which the relationship is subject to state inspection and review, is a gross intrusion into a private and intimate sphere.  Further, the parent is often stigmatized as “unfit” when relieved of custody.  As an individual’s status as a parent is often fundamental to personal identity, the stigma and distress resulting from a loss of parental status is a particularly serious consequence of the state’s conduct. A combination of stigmatization, loss of privacy, and disruption of family life are sufficient to constitute a restriction of security of the person.

 



This restriction would not have been in accordance with the principles of fundamental justice were the appellant unrepresented by counsel at the custody hearing.  Section 7  guarantees every parent the right to a fair hearing when the state seeks to obtain custody of their children.  For the hearing to be fair, the parent must have an opportunity to present his or her case effectively.  Effective parental participation at the hearing is essential for determining the best interests of the child in circumstances where the parent seeks to maintain custody of the child.  While a parent need not always be represented by counsel in order to ensure a fair custody hearing, in some circumstances, depending on the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the parent, the government may be required to provide an indigent parent with state-funded counsel.  A consideration of these factors leads to the conclusion that, in the circumstances of this case, the appellant’s right to a fair hearing required that she be represented by counsel.  Without the benefit of counsel, the appellant would not have been able to participate effectively at the hearing, creating an unacceptable risk of error in determining the children’s best interests and thereby threatening to violate both the appellant’s and her children’s s. 7  right to security of the person.  Although all custody hearings engage serious interests, the seriousness varies according to the length of the proposed separation of parent from child and the length of any previous separation. Here, the state was seeking to extend a previous custody order by six months and the appellant had already been separated from her children for over a year.  The custody hearing was sufficiently complex.  Child custody proceedings are adversarial and the parties are responsible for planning and presenting their cases.  While the rules of evidence are somewhat relaxed, difficult evidentiary issues are frequently raised.  The parent must adduce evidence, cross-examine witnesses, make objections and present legal defences in the context of what is to many a foreign environment, and under significant emotional strain.  In this case, all the other parties were represented by counsel.  The hearing was scheduled to last three days, and counsel for the Minister planned to present 15 affidavits, including two expert reports.  Finally,  in proceedings as serious and complex as these, 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. There is no evidence here suggesting that the appellant possessed such capacities.  The potential s. 7  violation in this case would have been the result of the failure of the New Brunswick government to provide the appellant with state-funded counsel under its Domestic Legal Aid program after initiating proceedings under Part IV of the Family Services Act.

 

Assuming without deciding that the policy of not providing state-funded counsel to respondents in custody applications was a limit prescribed by law, that the objective of this policy -- controlling legal aid expenditures -- is pressing and substantial, that the policy is rationally connected to that objective, and that it constitutes a minimal impairment of s. 7 , the deleterious effects of the policy far outweigh the salutary effects of any potential budgetary savings.  The proposed budgetary savings are minimal and the  additional cost of providing state-funded counsel in these circumstances is insufficient to constitute a justification within the meaning of s. 1  of the Charter .  Moreover, the government’s obligation to provide legal aid to a parent who cannot afford a lawyer only arises in circumstances where the representation of the parent is essential to ensure a fair hearing where the parent’s life, liberty, or security is at stake. 

 

In circumstances where the absence of counsel for a parent would result in an unfair custody hearing, the appropriate remedy under s. 24(1)  is an order that the government provide the parent with state-funded counsel. 

 


In the future, when an unrepresented parent in a custody application wants a lawyer but is unable to afford one, the judge should first inquire as to whether the parent applied for legal aid or any other form of state-funded legal assistance.  If the parent has not exhausted all possible avenues for obtaining state-funded legal assistance, the proceedings should be adjourned to give the parent a reasonable time to make the appropriate applications, provided the best interests of the child are not compromised.  The judge should next consider whether the parent can receive a fair hearing if unrepresented by considering the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the parent.  The judge should also bear in mind his or her ability to assist the parent within the limits of the judicial role.  If, after considering these criteria, the judge is not satisfied that the parent can receive a fair hearing and there is no other way to provide the parent with a lawyer, the judge should order the government to provide the parent with state-funded counsel under s. 24(1)  of the Charter .

 

Per L’Heureux-Dubé, Gonthier and McLachlin JJ.:  In addition to s. 7  issues, this case raises issues of gender equality because women, and especially single mothers, are disproportionately and particularly affected by child protection proceedings.  In considering the s. 7  issues, it is thus important to ensure that the analysis takes into account the principles and purposes of the equality guarantee in promoting the equal benefit of the law and ensuring that the law responds to the needs of those disadvantaged individuals and groups whose protection is at the heart of s. 15  of the Charter .  The principles of equality, guaranteed by both ss. 15  and 28 , are a significant influence on interpreting the scope of protection offered by s. 7 .

 

For the reasons given by the Chief Justice, the appellant’s security of the person was implicated when the government instituted proceedings to extend the existing custody order. However, the proceedings also triggered the appellant’s liberty interest.  The result of the proceedings may be that the parent is deprived of the right to make decisions on behalf of children and guide their upbringing.   Parental decision-making and other attributes of custody are protected under the liberty interest in s. 7  of the Charter .

 


The appellant can only be deprived of her security and liberty interests in accordance with the principles of fundamental justice.  These principles  require that a parent be able to participate in the hearing adequately and effectively, and it is the obligation of the trial judge to exercise his or her discretion in determining when a lack of counsel will interfere with the ability of the parent to present his or her case.  In determining whether a parent will be able to participate effectively in the hearing, the trial judge must consider the seriousness of the interests, the complexity of the proceedings, and the characteristics of the parent affected.  Child protection hearings will have varying degrees of seriousness.  While the seriousness of the order requested will play a role in balancing the interests involved, the fact that  the application is temporary or permanent should not have a significant effect on whether the parent will be granted a right to counsel since temporary applications are often part of a process that leads to permanent ones.   In considering the seriousness factor, the trial judge must take into account the overall context and the serious effects of losing the ability to care for and guide the development of one’s children.  With respect to the complexity factor, the more complex the proceedings are, the more difficult it will be for the parent to participate effectively without assistance.  The length of the proceedings, the type of evidence that is presented, the number of witnesses and the complexity and technicality of the proceedings must be important considerations in evaluating this factor. In considering the characteristics of the parent affected,  courts must avoid including considerations in the test for state-funded counsel that may make it more difficult for the parent when presenting his or her case on the merits. The focus must be on the parent’s education level, linguistic abilities, facility in communicating, age, and similar indicators. When the three factors are taken into account, it is likely that the situations in which  state-funded counsel is required will not necessarily be rare.  Here, the trial judge did not exercise her discretion properly.  She was in error in not adequately considering the values of meaningful participation in the hearing affecting the rights of the child or the complexity of this case and the difficulty the appellant would face in presenting her case.

 


Cases Cited

 

By Lamer C.J.

 

Applied:  Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; distinguished:  R. v. Prosper, [1994] 3 S.C.R. 236; referred to:  B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Duke v. The Queen, [1972] S.C.R. 917; R. v. Rowbotham (1988), 41 C.C.C. (3d) 1; Howard v. Stony Mountain Institution, [1984] 2 F.C. 642; Children’s Aid Society of Ottawa-Carleton v. M.T., [1995] O.J. No. 3879 (QL); International Brotherhood of Electrical Workers, Local Union 2085 v. Winnipeg Builders’ Exchange, [1967] S.C.R. 628; Reference re Objection by Quebec to a Resolution to amend the Constitution, [1982] 2 S.C.R. 793; Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441; R. v. Vermette, [1988] 1 S.C.R. 985; R. v. Harrer, [1995] 3 S.C.R. 562; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; R. v. Morgentaler, [1988] 1 S.C.R. 30; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; Mills v. The Queen, [1986] 1 S.C.R. 863; Augustus v. Gosset, [1996] 3 S.C.R. 268; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Hepton v. Maat [1957] S.C.R. 606; R. v. Robinson (1989), 63 D.L.R. (4th) 289; R. v. Rain (1998), 130 C.C.C. (3d) 167; R. v. Oakes, [1986] 1 S.C.R. 103; Egan v. Canada, [1995] 2 S.C.R. 513; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69.

 


By L’Heureux-Dubé J.

 

Referred to:  Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Tran, [1994] 2 S.C.R. 951; Moge v. Moge, [1992] 3 S.C.R. 813; Santosky v. Kramer, 455 U.S. 745 (1982); B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; R. v. Morgentaler, [1988] 1 S.C.R. 30; Godbout v. Longueuil (City), [1997] 3 S.C.R. 844.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms , ss. 1 , 2 , 7 , 10 , 11 (d), 15(1) , 24(1) , 28 .

 

Family Services Act, S.N.B. 1980, c. F-2.2 [am. 1983, c. 16, s. 1 ], ss. 1  “best interests of the child”, 7(b), 53(2), Part IV.

 

Legal Aid Act, R.S.N.B. 1973, c. L-2, ss. 12(1) [am. 1979, c. 41, s. 73(2); am. 1983, c. 46, s. 6; am. 1987, c. 6, s. 51(10)], 12(14) [rep. & sub. 1983, c. 46, s. 6; am. 1987, c. 6, s. 51(10)], 24(1) [ad. 1993, c. 21, s. 20], Part II [ad. 1993, c. 21, s. 20].

 

Authors Cited

 

Callahan, Marilyn.  “Feminist Approaches:  Women Recreate Child Welfare”.  In Brian Wharf, ed., Rethinking Child Welfare in Canada.  Toronto: McClelland & Stewart, 1993, 172.

 

Cossman, Brenda, and Carol Rogerson.  “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.   Toronto:  Ontario Legal Aid Review, 1997, 773.

 

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.

 

Thompson, D. A. Rollie.  “Taking Children and Facts Seriously:  Evidence Law in Child Protection Proceedings – Part I” (1988), 7 Can. J. Fam. L. 11.

 

Thomson, George M.  “Judging Judiciously in Child Protection Cases”.  In Rosalie S. Abella and Claire L’Heureux-Dubé, eds., Family Law:  Dimensions of Justice.  Toronto:  Butterworths, 1983, 213.


APPEAL from a judgment of the New Brunswick Court of Appeal (1997), 187 N.B.R. (2d) 81, 478 A.P.R. 81, 145 D.L.R. (4th) 349, [1997] N.B.J. No. 138 (QL), dismissing the appellant’s appeal from a judgment of Athey J. (1995), 171 N.B.R. (2d) 185, 437 A.P.R. 185, 131 D.L.R. (4th) 273, [1995] N.B.J. No. 560 (QL), dismissing the appellant’s motion asserting a right to a state-funded legal counsel.  Appeal allowed.

 

E. Thomas Christie, for the appellant.

 

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

 

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

 

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

 

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

 

Roderick Wiltshire, for the intervener the Attorney General for Alberta.

 

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

 

Arne Peltz and Martha Jackman, for the intervener the Charter  Committee on Poverty Issues.


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

 

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

 

 

The judgment of Lamer C.J. and Gonthier, Cory, McLachlin, Major and Binnie JJ. was delivered by

 

1          The Chief Justice -- This case raises for the first time the issue of whether indigent parents have a constitutional right to be provided with state-funded counsel when a government seeks a judicial order suspending such parents’ custody of their children.  It comes before the Court as a result of Legal Aid New Brunswick’s decision not to provide legal aid to the appellant after the Minister of Health and Community Services of New Brunswick sought to extend an order granting the Minister custody of the appellant’s three children for an additional six months.  The decision not to provide the appellant with legal aid was made pursuant to a policy in force at the time of her application which stipulated that no legal aid certificates would be issued to respondents in custody applications made by the Minister of Health and Community Services.  

 


2                                   I have concluded that the Government of New Brunswick was under a constitutional obligation to provide the appellant with state-funded counsel in the particular circumstances of this case.  When government action triggers a hearing in which the interests protected by s. 7  of the Canadian Charter of Rights and Freedoms  are engaged, it is under an obligation to do whatever is required to ensure that the hearing be fair.  In some circumstances, depending on the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the parent, the government may be required to provide an indigent parent with state-funded counsel.  Where the government fails to discharge its constitutional obligation, a judge has the power to order the government to provide a parent with state-funded counsel under s. 24(1)  of the Charter  through whatever means the government wishes, be it through the Attorney General’s budget, the consolidated funds of the province, or the budget of the legal aid system, if one is in place.

 

I.  Factual Background

 

3                                   The appellant’s three young children were placed in the care of the Minister of Health and Community Services of New Brunswick on November 12, 1993.  On April 28, 1994 the Minister obtained an order under Part IV of the Family Services Act, S.N.B. 1980, c. F-2.2, granting him custody of the children for a period of up to six months.  The appellant was not represented by counsel at the hearing, although she did have the assistance of a friend who did not have any legal training.

 

4                                   By notice of application served on the appellant on October 24, 1994, the Minister sought an extension of the order for a further period of up to six months.  On October 27, 1994, at the initial appearance of the appellant, duty counsel appointed by the Minister of Justice to act on her behalf advised the court that the appellant intended to challenge the temporary custody application and therefore required a full hearing of the matter.


 

5                                   The appellant, who was indigent and receiving social assistance at the time, applied to Legal Aid New Brunswick for legal aid on November 1, 1994 and was advised the next day that her application was denied on the grounds that the proceeding involved a custody application, as opposed to a guardianship application by the Minister.  At that time, custody applications were not covered under the legal aid guidelines; legal aid certificates were available only for guardianship applications. 

 

6                                On November 2, 1994, the appellant brought a motion for an order directing the Minister to provide her with sufficient funds to cover reasonable fees and disbursements of counsel for the purposes of preparing for and representing her in the custody proceedings or in the alternative, that either Legal Aid New Brunswick or the Attorney General for New Brunswick provide her with counsel.  She also sought a declaration that the rules and policies governing the distribution of Domestic Legal Aid, as they differentiated between applications for guardianship and applications for custody orders (or their extension), were contrary to s. 15(1)  of the Charter .  Subsequently, the motion was amended to include relief for a violation of s. 7  of the Charter .

 

7                                November 3, 1994 was set aside to hear the motion.  At the request of the Attorney General, an adjournment was granted until December 12, 1994.  The motions judge, Athey J., also requested that the parties present their arguments by way of written brief. 

 


8                                   In the week preceding the new hearing date, Athey J. advised counsel that she would be unable to determine the issue of the right to paid counsel prior to the date set for the custody application.  It was agreed by counsel that the best interests of the children would be served by proceeding with the custody hearing on the originally scheduled date.  Mr. Christie, who had been appointed duty counsel for the appellant and relieved of his role on November 8, 1994, agreed to represent the appellant at the custody hearing pro bono, in accordance with the highest standards of the profession.  The parties also agreed that the motion would not be considered moot by virtue of Mr. Christie’s representation of the appellant at the hearing. 

 

9                                   The custody hearing was held December 19, 20 and 21, 1994.  Athey J. granted an extension of the custody order on January 3, 1995. At the hearing, the Minister of Health and Community Services called testimony and presented affidavit evidence from 15 witnesses, including expert psychological reports.  The Minister of Justice provided counsel for the Minister of Health and Community Services and, at the request of the court pursuant to s. 7(b) of the Family Services Act, the Attorney General provided counsel for the appellant’s children.  Mr. Danny Vezina, the father of one of the children, hired counsel to represent him.

 

10                               In June of 1995, the children were returned to the care of the appellant.  On December 15, 1995, over a year after the appellant’s motion was brought, it was dismissed by Athey J.  The appellant was granted leave to appeal.  Her appeal was dismissed by the New Brunswick Court of Appeal on March 14, 1997.

 

II.   The Legislative Scheme

 

11                               The relevant sections of the Family Services Act are as follows:

 

1.  . . .

 

“best interests of the child” means the best interests of the child under the circumstances taking into consideration

 


(a) the mental, emotional and physical health of the child and his need              for appropriate care or treatment, or both;

 

(b) the views and preferences of the child, where such views and preferences can be reasonably ascertained;

 

(c) the effect upon the child of any disruption of the child’s sense of continuity;

 

(d) the love, affection and ties that exist between the child and each person to whom the child’s custody is entrusted, each person to whom access to the child is granted and, where appropriate, each sibling of the child;

 

(e) the merits of any plan proposed by the Minister under which he would be caring for the child, in comparison with the merits of the child returning to or remaining with his parents;

 

(f) the need to provide a secure environment that would permit the child to become a useful and productive member of society through the achievement of his full potential according to his individual capacity; and

 

(g) the child’s cultural and religious heritage;

 

. . .

 

53(2) When disposing of an application under this Part the court shall at     all times place above all other considerations the best interests of the child.                                         

 

12                               The relevant sections of the Legal Aid Act, R.S.N.B. 1973, c. L-2, are as follows:

 

12(1) Subject to the directions of the Provincial Director and policies         established by the Law Society, an area director may issue legal aid                                                                    certificates authorizing legal aid for proceedings and matters preliminary to anticipated proceedings

 

(a) in respect of an offence under an Act of the Parliament of Canada or in respect of the Extradition Act , chapter E-21 of the Revised Statutes of Canada, 1970 or the Fugitive Offenders Act chapter F-32 of the Revised Statutes of Canada, 1970,

 

(b) in respect of an offence under an Act of the Legislature,

 

(c) before an administrative tribunal established by an Act of theLegislature or of the Parliament of Canada,


(d) in bankruptcy,

 

(e) under the Divorce Act , chapter D-8 of the Revised Statutes of Canada, 1970, or the Divorce Act, 1985, chapter 4 of the Statutes of Canada, 1986,

 

(f) other than those covered in paragraphs (a) to (e), in The Court of Queen’s Bench of New Brunswick, the Court of Divorce and Matrimonial Causes, the Provincial Court, The Probate Court of New Brunswick, the Supreme Court of Canada or the Federal Court of Canada, and

 

(g) of an appellate nature in respect of matters and proceedings described in such of paragraphs (a) to (f) as are in force.

 

. . .

 

12(14) Where the Law Society is of the opinion that the Legal Aid Fund    is in danger of being depleted, it may, with the approval of the Minister,                                                         issue directions to the Provincial Director limiting the providing of legal aid     in matters included in paragraphs (1)(c) to (g) and subsection (2).

 

. . .

24(1) Notwithstanding any other provision of this Act or the regulations,     the Minister may establish and administer a program to provide legal aid for                                                        persons for proceedings and matters preliminary to anticipated proceedings

 

(a) under the Divorce Act , (Canada),

 

(b) other than those covered in paragraphs 12(1)(a) to 12(1)(e), in The                       Court of Queen’s Bench of New Brunswick, the Court of Divorce and                                        Matrimonial Causes, the Supreme Court of Canada or the Federal Court          of Canada, and

 

(c) of an appellate nature in respect of matters and proceedings                       described in paragraphs (a) and (b).

 

13                             The relevant sections of the Charter  are as follows:

 

1.  The Canadian Charter of Rights and Freedoms  guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

 

7.  Everyone 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.

 


24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

 

14                               To better understand both the factual context and the issues raised in this appeal, it may prove helpful to briefly review the Domestic Legal Aid program in New Brunswick.  The statutory scheme and development of domestic legal aid in New Brunswick was ably described by both Athey J. in her reasons and by the parties, and I borrow from their accounts in what follows.

 

A. The Statutory Scheme

 

15                               Under the Legal Aid Act, the Law Society is authorized to establish a plan known as Legal Aid New Brunswick, funded by both the government and the Law Foundation of New Brunswick. This plan is administered by the Law Society through the Provincial Director, who is appointed by the Law Society and is subject to its directions in all matters of policy and administration.  The Law Society is responsible for establishing policies and regulations governing the administration of the  plan.  The Provincial Director in turn administers the plan in accordance with the regulations and policies established by the Law Society and directs the Area Directors concerning the performance of their duties.

 


16                               Section 12(1) of the Legal Aid Act sets out the various judicial and administrative proceedings, both civil and criminal, which are eligible to receive legal aid certificates issued under the Act, subject to policies established by the Law Society and the directions of the Provincial Director.  Pursuant to s. 12(14), where the Law Society is of the opinion that the Legal Aid Fund is in danger of being depleted, it may, with the approval of the Minister of Justice, issue directions to the Provincial Director limiting the provision of legal aid in certain matters.  Among the matters in respect of which the Law Society is authorized to limit the provision of services are custody applications.

 

17                               In 1993, the Legal Aid Act was amended to allow the Minister of Justice to establish and administer a program to provide domestic legal aid through the addition of Part II of the Act.  Prior to that time, the Law Society and Legal Aid New Brunswick had exclusive jurisdiction over the provision of domestic legal aid and provided a limited service pursuant to the authority conferred by s. 12.  Under s. 24(1)  the Minister of Justice was granted the authority to establish a legal aid program notwithstanding any other provision of the Act or regulations, although the scope of this program is limited to civil matters.  The result is a situation in which there is concurrent jurisdiction under the Legal Aid Act over the provision of domestic legal aid.  As a matter of practice, however, domestic legal aid is provided almost exclusively by the Minister of Justice.  One notable exception is guardianship applications, which are only covered by Legal Aid New Brunswick.  Unlike Legal Aid New Brunswick, which uses a certificate system, the Minister of Justice operates a “staff model” of delivery whereby the Minister directly employs or enters into contracts with persons for the provision of legal aid. 

 

B. The Development of the Domestic Legal Aid Program

 

18                               In June 1988, the New Brunswick Law Foundation provided a grant to the Law Society to implement a domestic legal aid scheme and offer limited duty counsel service in Family Court.  Certificates were only to be issued to applicants in cases where there were allegations against the applicant’s spouse of spousal abuse, sexual abuse of the applicant’s children, or “snatching” of children from the custodial parent.  No certificates were to be issued to respondents to defend such allegations.

 


19                               In December 1988, the Law Foundation agreed with the Law Society’s request to expand the program to include parents subject to guardianship applications, but not custody applications by the Minister of Health and Community Services.  In April 1989, the program was further expanded when the province of New Brunswick agreed to match the Law Foundation grant and double the budget of the Domestic Legal Aid program to $500,000.

 

20                               Budgetary restraints necessitated a reduction in Domestic Legal Aid services in December 1991.  On December 9, 1991, the Council of the Law Society, after having been made aware of the financial state of the program, decided that as of December 16, 1991 and until further notice certificates would only be issued for family violence and guardianship applications.  In adopting this policy, the Law Society purported to act under the authority of s. 12(14).

 

21                               In April 1993, the Domestic Legal Aid program underwent a major overhaul which significantly reduced the Law Society’s involvement in the provision of domestic legal aid.  With the addition of Part II of the Act, the bulk of domestic legal aid came under the direction of the Minister of Justice, which expanded the Unified Family Court program to provide more comprehensive socio-legal services. 

 


22                               Under the program offered by the Minister of Justice, everyone who needs counsel for the purposes of support orders is provided with the services of the Family  Solicitor, who is paid by the Minister of Justice to provide legal services offered by the program.  If there are allegations of abuse, a party will be able to use the services of the Family Solicitor for all legal matters that may arise between the parties, including custody, support, and divorce proceedings.  The Minister also provides a limited duty counsel service, available to respondents on the day of their first appearance in Family Court proceedings initiated by the Crown.  Mr. Christie was appointed duty counsel for the appellant pursuant to this aspect of the plan.

 

23                               The Minister of Justice’s program does not cover either guardianship or custody applications initiated by the Minister of Health and Community Services.  This decision was made in order to avoid any potential conflicts of interest for Family Solicitors, who would be forced to act against the government while being paid by the Minister of Justice.  In circumstances where the Minister of Health and Community Services applies for a permanent order of guardianship the provision of legal assistance is shifted to Legal Aid New Brunswick, which provides a legal aid certificate covering representation up to a limit of $1,000 to a qualified applicant.  Prior to September 22, 1997 and at the time this case was initially heard, no legal aid was provided by either Legal Aid New Brunswick or the Minister of Justice to respondents in custody applications, except for the advice of duty counsel on the day of the first appearance.  Since that time Legal Aid New Brunswick has adopted a new policy under which a legal aid certificate will be provided for the first custody hearing.  Subsequent hearings for the extension of the original custody order, such as the one which is the subject of the present appeal, are still not eligible for a certificate, nor are they covered by the Minister of Justice’s program.  

 

III.   Judgments Below

 

A.  New Brunswick Court of Queen’s Bench (1995), 171 N.B.R. (2d) 185

 


24                               Although the Minister’s application had been heard and a determination made, counsel had agreed prior to the custody application that the appellant’s motion to obtain state-funded counsel would not be considered moot if Athey J. was unable to decide the issue prior to the date set for the custody application.  She therefore exercised her discretion to decide the motion.

 

25                               Athey J. dismissed the appellant’s s. 15  claim.  Although she found that the legal aid system in New Brunswick did not provide respondents to ministerial applications for custody orders or extensions of those orders the same benefits granted to respondents to applications for guardianship orders, she concluded that the distinction between these two groups of respondents was not based on irrelevant personal characteristics enumerated in s. 15  or on any analogous grounds.

 

26                               Turning to s. 7 , Athey J. found that the appellant’s liberty interest was engaged by the state when it removed her children from her care.  She based her conclusion on La Forest J.’s decision in B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, where, in writing for three other justices, he held at para. 83 that “the right to nurture a child, to care for its development, and to make decisions for it in fundamental matters such as medical care, are part of the liberty interest of a parent”.

 

27                               Athey J. then considered whether the appellant would have been deprived of her right to liberty in accordance with the principles of fundamental justice were she unrepresented at the custody hearing.  She referred again to La Forest J.’s reasons in B. (R.) where he held at para. 88 that

 

[t]he protection of a child’s right to life and to health, when it becomes        necessary to do so, is a basic tenet of our legal system, and legislation to                                                               that end accords with the principles of fundamental justice, so long, of    course, as it also meets the requirements of fair procedure.

 


She also cited Wilson J.’s judgment in Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, for the proposition that fundamental justice includes the notion of procedural fairness articulated by Fauteux C.J. in Duke v. The Queen, [1972] S.C.R. 917.

 

28                               Applying these principles to the facts of this case, Athey J. concluded that there was no general right to paid counsel in a custody hearing because, in her opinion, it could not be said that parents can never adequately state their case in the absence of counsel, that any presumption to that effect should exist, or that the representation of parents by counsel is always essential to a fair trial.  With respect to the appellant’s case in particular, Athey J. held that there had been no suggestion that the appellant lacked the capacity to understand the allegations made by the Minister or to communicate her position to the Court.  She found that provision of counsel to represent the appellant was not essential to a fair trial.  Therefore, she concluded that the appellant’s liberty interest would not be violated by the lack of state-funded legal representation.

 

B.  Court of Appeal (1997), 187 N.B.R. (2d) 81

 

(1)   Hoyt C.J.N.B., Ayles and Turnbull JJ.A. for the majority

 

29                               The majority of the Court of Appeal began by noting that the case was moot because the custody application had been determined.  Nevertheless, following Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, they exercised their discretion to hear the case, given the importance of the issue. 

 


30                               The majority found that there could be no s. 7  violation in this case if the appellant were unrepresented at the custody hearing because parental liberty does not fall within the ambit of s. 7  of the Charter .  In reaching this conclusion, the majority relied on my reasons in B. (R.) where I held at para. 22 that “s. 7  was not designed to protect even fundamental individual freedoms if those freedoms have no connection with the physical dimension of the concept of ‘liberty’”.  Acknowledging the differing views in the Supreme Court in that case over the extent of the liberty interest protected by s. 7 , they noted that only four members of the Court found a parental liberty interest, and that my reasons should be followed, at least until a majority of this Court rules to the contrary.

 

31                               The majority also noted that the Family Services Act does not prohibit parents from retaining and instructing legal counsel.  Parents are entitled to (1) be present at and participate in the hearing, with or without counsel, (2) hear all the evidence and cross-examine witnesses and, (3) present evidence and make other representations to the court.  The majority found that the provisions of the Act, if complied with, ensure reasonable compliance with constitutional standards.

 

32                               Finally, the majority held that the court would be exercising a legislative function if it allowed the appeal because it would be involving the courts in the task of both defining the scope of legal aid and administering it on an ad hoc basis.  They found that the courts have heretofore refused to recognize an entitlement to state-funded counsel, citing in particular this Court’s decision in R. v. Prosper, [1994] 3 S.C.R. 236.

 

33                               The majority concurred with Bastarache J.A.’s (as he then was) reasons for finding that there was no s. 15  violation in this case.

 

(2)   Bastarache J.A. in dissent (Ryan J.A. concurring)

 


34                               Bastarache J.A. rejected the appellant’s s. 15  argument.  He  held that it was clear that the distinction drawn between indigent persons facing custody applications and indigent persons facing guardianship applications was not based on any particular personal characteristics.  Consequently, no discrimination contrary to s. 15  had been established.

 

35                               With respect to s. 7 , Bastarache J.A. noted that there was no clear majority opinion of the Supreme Court as to whether the right to liberty in s. 7  includes parental rights.  Nevertheless, he agreed with La Forest J.’s reasons in B. (R.) that the historical and social context applicable to constitutional interpretation reinforces the recognition of a parental liberty interest.

 

36                               In reviewing the case law on the requirements of fundamental justice, Bastarache J.A. found that the right to funded counsel had not been considered outside the larger question of the right to a fair trial in the criminal law context.  After considering a number of cases, including R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.), he concluded that s. 7  does not guarantee a general right to funded counsel, but requires the provision of paid counsel in order to guarantee a fair trial in serious and complex cases where the accused is impecunious and has been refused assistance by Legal Aid.

 

37                               Outside the area of criminal law, Bastarache J.A. considered Howard v. Stony Mountain Institution, [1984] 2 F.C. 642 (C.A.), a parole board case, which he relied upon for the proposition that the matter of providing counsel is not discretionary, but a matter of right where the circumstances are such that a fair trial cannot be held without legal representation.  He then considered Children’s Aid Society of Ottawa-Carleton v. M.T., [1995] O.J. No. 3879 (QL) (Gen. Div.), a child custody case, in which Desmarais J. applied Howard and concluded that an absence of counsel had rendered the trial ineffectual because a parent had difficulty presenting her case, did not understand the rules of evidence and had offered self-incriminating evidence.

 


38                               In light of his review of the case law, Bastarache J.A. concluded that “the trial judge erred in finding that Ms. G could assume her own defense in the given proceedings without sacrificing her right to a fair trial” (p. 139).  In reaching this conclusion, he noted that the proceedings were adversarial in nature, that the appellant’s conduct was being examined and the findings of the court would create a stigma similar to that of a finding of guilt in some criminal prosecutions.  The appellant was destitute, receiving welfare, and “not seen to be very rational” (p. 139).  All other parties were represented by counsel.  The proceedings were long and complex, and the matter was very emotional.  Moreover, it was important that the appellant’s views and explanations be well understood by the court in order to determine the best interests of the children.

 

39                               Bastarache J.A. held that the failure to provide the appellant with legal aid could not be saved by s. 1 .  He would have allowed the appeal and awarded the appellant her fees and disbursements, determined by the Registrar of the court according to the Legal Aid Tariff, and payable by the Minister of Justice.

 

IV.   Issues

 

40                               On April 9, 1998 the following constitutional questions were stated:

 

Question 1:  In the circumstances of this case, did the failure of the Legal Aid Act,                     R.S.N.B. 1973, c. L-2, or the Government of New Brunswick under its                                                          Domestic Legal Aid Program, to provide legal aid to respondents in                                                                             custody applications by the Minister of Health and Community Services                                                                             under Part IV of the Family Services Act, S.N.B. 1980, c. F-2.2,             constitute an infringement of s. 7  of the Canadian Charter of Rights and                   Freedoms ?

 

Question 2:  If the answer to question 1 is yes, is the infringement demonstrably              justified in a free and democratic society pursuant to s. 1  of the                                                                           Canadian Charter of Rights and Freedoms ?

 


V.   Analysis

 

A.  Mootness

 

41                               As a preliminary matter, I will address the issue of mootness.  A moot case is one in which a decision of the court “will not have the effect of resolving some controversy which affects or may affect the rights of the parties”: see Borowski, supra, at p. 353.  As a general rule, the Court will not decide moot cases.  However, the Court may exercise its discretion to decide a moot case in certain circumstances.  In Borowski, Sopinka J. set out the following test at p. 353:

 

 

The approach in recent cases involves a two-step analysis.  First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic.  Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case.

 

42                               There can be little doubt that the present appeal is moot, and that the response to the first question is affirmative.  At issue is whether the Government of New Brunswick was under an obligation to provide state-funded counsel to the appellant in the circumstances of this case.  The appellant, though, was in fact represented by counsel at the custody hearing, the custody order has expired, and she has since regained custody of her children.  Consequently, there is no “live controversy” in this appeal.  The tangible and concrete dispute has disappeared, and the issue has become academic.

 

43                               Nevertheless, the Court has decided to exercise its discretion to decide this case.  In Borowski, Sopinka J. identified three criteria relevant to the Court’s exercise of discretion: the presence of an adversarial context, the concern for judicial economy, and the need for the Court to be sensitive to its role as the adjudicative branch in our political framework.

 


44                               Applying these criteria to this appeal, I am satisfied that there was an appropriate adversarial context.  The appeal was vigorously and fully argued on both sides by the parties and the interveners.

 

45                               Turning to the second factor, this Court has held on a number of occasions that an expenditure of judicial resources is warranted in cases which raise important issues but are evasive of review: see Borowski, supra, at p. 360; International Brotherhood of Electrical Workers, Local Union 2085 v. Winnipeg Builders’ Exchange, [1967] S.C.R. 628; Reference re Objection by Quebec to a Resolution to amend the Constitution, [1982] 2 S.C.R. 793, at p. 806.

 

46                               The present appeal is a case in point.  The question of whether a parent has a right to state-funded counsel at a custody hearing is undoubtedly of national importance.  Similar cases may arise in the future, and the Court has an opportunity to clarify the law and provide guidance to the courts below.  This is a particularly important factor, as evidenced by the facts of this case.  Although the appellant’s motion to be provided with state-funded counsel was brought well over a month before the custody hearing, Athey J. did not have the opportunity to determine the issue prior to the date set for the application, given the difficult constitutional questions raised and the need to quickly decide the custody hearing concerning the best interests of the children.  A pre-hearing resolution of this issue is essential, for if no determination can be made prior to the hearing, the moving party is no better off than he or she would have been had the motion not been brought to begin with -- he or she will almost invariably have to proceed without the assistance of counsel.

 


47                               While similar cases may arise in the future, they are by nature evasive of review.  This is so for two reasons.  First, the custody order will ordinarily have expired by the time the matter comes to this Court, rendering the controversy moot.  The Court will therefore likely have to decide a moot case if it ever wants to address this issue.  An analogy can be drawn to the situation in Winnipeg Builders’ Exchange, supra, where the issue was the validity of an interlocutory injunction prohibiting certain strike action.  By the time the case reached this Court, the strike had been settled.  Second, it is unlikely that appellants will be able to retain counsel for an appeal if they were unable to retain counsel at the initial hearing.  As a result, few cases will ever be appealed to this Court, since the assistance of counsel is almost invariably required in negotiating the appeal process.

 

48                               Finally, the Court is not overstepping its institutional role in deciding this case.  Unlike Borowski, the appellant is not requesting a legal opinion on the interpretation of the Charter  in the absence of legislation or other governmental action which would otherwise bring the Charter  into play.  While the issue in this case is moot, it is not abstract: see Borowski, supra, at p. 365.

 

49                               In light of my conclusion that the Court should address the legal issues that arise in this case notwithstanding its mootness, I will proceed with my analysis on the assumption that the custody hearing had not yet taken place and that the appellant would not have been represented by counsel at the hearing.  This is the same approach taken by both the motions judge and the Court of Appeal.  I am proceeding in this fashion in order to review the lower court decisions and to determine whether the appellant had a right to state-funded counsel in the circumstances of this case.

 

50                               In her motion, the appellant sought relief for a prospective s. 7  violation.  She argued that the custody hearing would have been unfair were she not represented by counsel, infringing s. 7 .  She therefore requested that the court order the government to provide her with state-funded counsel pursuant to s. 24(1)  of the Charter .         


51                               This Court has held on a number of occasions that remedies can be ordered in anticipation of future Charter  violations, notwithstanding the retrospective language of s. 24(1) : Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441; R. v. Vermette, [1988] 1 S.C.R. 985; R. v. Harrer, [1995] 3 S.C.R. 562.  In Harrer, McLachlin J., concurring in the result, held at para. 42 that “[s]ection 24(1) applies to prospective breaches, although its wording refers to ‘infringe’ and ‘deny’ in the past tense”.  In Operation Dismantle, Dickson J. (as he then was) held at p. 450 that an applicant requesting a remedy for a prospective breach “must at least be able to establish a threat of violation, if not an actual violation, of their rights under the Charter ”.  He also found at p. 458 that courts require proof of “probable future harm” before ordering such a remedy.

 

52                               In disposing of this appeal, the Court must determine whether s. 7  would likely have been infringed had the custody hearing proceeded with the appellant unrepresented and, if so, what the appropriate remedy should have been.  Given the approach I will be taking, the constitutional questions must be slightly modified.  As they are currently stated, the constitutional questions are retrospective rather than prospective in nature.  The first question asks whether, in the circumstances of this case, the failure to provide the appellant with legal aid constituted an infringement of s. 7 .  Assuming the answer to the first question is yes, the second question asks if the infringement can be saved by s. 1 

 

53                               Since the appellant is arguing that s. 7  would have been violated, not that it had been violated, the constitutional questions should be reformulated as follows:

 

Question 1:  In the circumstances of this case, would the failure of the Legal Aid Act,                R.S.N.B. 1973, c. L-2, or the Government of New Brunswick under its                                                          Domestic Legal Aid Program, to provide legal aid to respondents in                                                                             custody applications by the Minister of Health and Community Services                                                                             under Part IV of the Family Services Act, S.N.B. 1980, c. F-2.2, have         constituted an infringement of s. 7  of the Canadian Charter of Rights and                         Freedoms  if the appellant had not been represented by counsel at the                                         custody hearing?


 

Question 2:  If the answer to question 1 is yes, would the infringement have been                        demonstrably justified in a free and democratic society pursuant to s. 1                                                              of the Canadian Charter of Rights and Freedoms ?

 

 

54                               This Court has recently held in Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, at para. 50, that constitutional questions can be restated provided that there is no “substantive prejudice . . . caused to attorneys general or anyone else by the wording of the question, or that they would reasonably have made a different decision about exercising their right to intervene”.  In my opinion, none of the parties are prejudiced by the reformulation of the question, nor would any potential interveners have made a different decision about exercising their right to intervene.   As I have already mentioned, both the motions judge and the Court of Appeal approached this case as though a prospective breach of s. 7  was at issue.  Consequently, the parties’ written and oral arguments in this appeal are equally applicable to the restated constitutional questions as they are to the original questions.

 


55                               Having explained the approach I will be taking in this appeal, I will state my conclusions at the outset.  The Minister’s application to extend the original custody order pursuant to Part IV of the Family Services Act threatened to restrict the appellant’s right to security of the person.  This restriction would not have been in accordance with the principles of fundamental justice were the appellant unrepresented by counsel at the custody hearing.  Section 7  guarantees every parent the right to a fair hearing when the state seeks to obtain custody of their children.  In certain circumstances, which obtain in this case, the parent’s right to a fair hearing requires the government to provide the parent with state-funded counsel.  To avoid a prospective breach of s. 7 , the motions judge, who was under a duty to ensure the fairness of the hearing, should have ordered the government to provide the appellant with state-funded counsel under s. 24(1) .  I will not be addressing s. 15  of the Charter , as it was not argued by either the appellant or the respondents in this Court.

 

B. Security of the Person

 

56                               The appellant argued that the Minister of Health and Community Services’ application to extend the order granting the Minister custody of her three children threatened to deprive her of both her s. 7  rights to liberty and security of the person.  I believe it is possible to dispose of this appeal by focussing on the appellant’s right to security of the person.  Since the appeal can be disposed of on this basis and there have been differing views expressed about the scope of the right to liberty in the Court’s previous judgments,  I will not address the issue of whether the appellant’s right to liberty was also engaged in this case.

 

57                               Were the Minister successful in his application, the appellant would have been separated from her children for up to an additional six months.  There would also be no guarantee that she would regain custody of her children at the expiry of the order.  The separation of parent and child contemplated by the Minister’s application would unquestionably have profound effects on both parent and child.  For the purposes of this appeal, however, what must be determined is whether relieving a parent of custody of his or her child restricts a parent’s right to security of the person.

 


58                               This Court has held on a number of occasions that the right to security of the person protects “both the physical and psychological integrity of the individual”: see R. v. Morgentaler, [1988] 1 S.C.R. 30, at p. 173 (per Wilson J.); Reference re ss. 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123, at p. 1177; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at pp. 587-88.  Although these cases considered the right to security of the person in a criminal law context, I believe that the protection accorded by this right extends beyond the criminal law and can be engaged in child protection proceedings.  Before addressing this issue, I will first make some general comments about the nature of the protection of “psychological integrity” included in the right to security of the person.

 

59                               Delineating the boundaries protecting the individual’s psychological integrity from state interference is an inexact science.  Dickson C.J. in Morgentaler, supra, at p. 56, suggested that security of the person would be restricted through “serious state-imposed psychological stress” (emphasis added).  Dickson C.J. was trying to convey something qualitative about the type of state interference that would rise to the level of an infringement of this right.   It is clear that the right to security of the person does not protect the individual from the ordinary stresses and anxieties that a person of reasonable sensibility would suffer as a result of government action.  If the right were interpreted with such broad sweep, countless government initiatives could be challenged on the ground that they infringe the right to security of the person, massively expanding the scope of judicial review, and, in the process, trivializing what it means for a right to be constitutionally protected.  Nor will every violation of a fundamental freedom guaranteed in s. 2  of the Charter  amount to a restriction of security of the person.  I do not believe it can be seriously argued that a law prohibiting certain kinds of commercial expression in violation of s. 2 (b), for example, will necessarily result in a violation of the psychological integrity of the person.  This is not to say, though, that there will never be cases where a violation of s. 2  will also deprive an individual of security of the person. 

 


60                               For 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. 

 

61                               I have little doubt that state removal of a child from parental custody pursuant to the state’s parens patriae jurisdiction constitutes a serious interference with the psychological integrity of the parent.  The parental interest in raising and caring for a child is, as La Forest J. held in B. (R.), supra, at para. 83, “an individual interest of fundamental importance in our society”.  Besides the obvious distress arising from the loss of companionship of the child, direct state interference with the parent-child relationship, through a procedure in which the relationship is subject to state inspection and review, is a gross intrusion into a private and intimate sphere.  Further, the parent is often stigmatized as “unfit” when relieved of custody.  As an individual’s status as a parent is often fundamental to personal identity, the stigma and distress resulting from a loss of parental status is a particularly serious consequence of the state’s conduct.

 

62                               In Mills v. The Queen, [1986] 1 S.C.R. 863, at pp. 919-20, a case dealing with the s. 11 (b) right to be tried within a reasonable time, I found that the combination of stigmatization, loss of privacy, and disruption of family life were sufficient to constitute a restriction of security of the person:

 

. . . security of the person is not restricted to physical integrity; rather, it encompasses protection against “overlong subjection to the vexations and vicissitudes of a pending criminal accusation”. . .  These include stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, uncertainty as to the outcome and sanction.

 

As I have noted, these are precisely the same consequences arising from the state’s conduct in this case.


63                               Not every state action which interferes with the parent-child relationship will restrict a parent’s right to security of the person.  For example, a parent’s security of the person is not restricted when, without more, his or her child is sentenced to jail or conscripted into the army.  Nor is it restricted when the child is negligently shot and killed by a police officer: see Augustus v. Gosset, [1996] 3 S.C.R. 268.

 

64                               While the parent may suffer significant stress and anxiety as a result of the interference with the relationship occasioned by these actions, the quality of the “injury” to the parent is distinguishable from that in the present case.  In the aforementioned examples, the state is making no pronouncement as to the parent’s fitness or parental status, nor is it usurping the parental role or prying into the intimacies of the relationship.  In short, the state is not directly interfering with the psychological integrity of the parent  qua parent.  The different effect on the psychological integrity of the parent in the above examples leads me to the conclusion that no constitutional rights of the parent are engaged.          

 

65                               I now turn to the question of whether the right to security of the person extends beyond the criminal law context.  In both Reference re ss. 193 and 195.1(1)(c) of the Criminal Code, supra, and B. (R.), supra, I held that the restrictions on liberty and security of the person that s. 7  is concerned with are those that occur as a result of an individual’s interaction with the justice system and its administration.  In other words, the subject matter of s. 7  is the state’s conduct in the course of enforcing and securing compliance with the law, where the state’s conduct deprives an individual of his or her right to life, liberty, or security of the person.  I hastened to add, however, that s. 7  is not limited solely to purely criminal or penal matters.  There are other ways in which the government, in the course of the administration of justice, can deprive a person of their s. 7  rights to liberty and security of the person, i.e., civil committal to a mental institution: see B. (R.), supra, at para. 22.

 


66                               A child custody application is an example of state action which directly engages the justice system and its administration.  The Family Services Act provides that  a judicial hearing must be held in order to determine whether a parent should be relieved of custody of his or her child.

 

67                               I therefore conclude that the Minister of Health and Community Services’ application to extend the original custody order threatened to restrict the appellant’s right to security of the person.  I note that this conclusion is not inconsistent with the position I adopted in B. (R.), where I limited my comments to the issue of the scope of the right to liberty under s. 7  and in particular, whether the right to liberty includes the right of parents to choose medical treatment for their child.

    

C. Principles of Fundamental Justice

 

68                               I now turn to consider whether the potential restriction of the appellant’s right to security of the person would have been in accordance with the principles of fundamental justice were she not represented by counsel at the custody hearing.

 

69                               While relieving a parent of custody of his or her child restricts the parent’s right to security of the person, this restriction may nevertheless be in accordance with the principles of fundamental justice.  The principles of fundamental justice “are to be found in the basic tenets of our legal system”: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 503.  It is a time-honoured principle that the state may relieve a parent of custody when necessary to protect a child’s health and safety.  Rand J.’s judgment in Hepton v. Maat, [1957] S.C.R. 606, is the classic statement of this principle in Canadian law.  At pp. 607-8, he wrote:

 


It is, I think, of the utmost importance that questions involving the custody of infants be approached with a clear view of the governing considerations.  That view cannot be less than this: prima facie the natural parents are entitled to custody unless by reason of some act, condition or circumstance affecting them it is evident that the welfare of the child requires that that fundamental natural relation be severed. . . .

                                                                       

 

The view of the child’s welfare conceives it to lie, first, within the warmth and security of the home provided by his parents; when through a failure, with or without parental fault, to furnish that protection, that welfare is threatened, the community, represented by the Sovereign, is, on the broadest social and national grounds, justified in displacing the parents and assuming their duties.

 

This, in substance, is the rule of law established for centuries and in the light of which the common law Courts and the Court of Chancery, following their differing rules, dealt with custody.

 

70                               More recently, La Forest J., writing for three others in B. (R.) held at para. 88 that

 

the common law has long recognized the power of the state to intervene to protect children whose lives are in jeopardy and to promote their well-being, basing such intervention on its parens patriae jurisdiction; see, for example, Hepton v. Maat, supra; E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388.  The protection of a child’s right to life and to health, when it becomes necessary to do so, is a basic tenet of our legal system, and legislation to that end accords with the principles of fundamental justice, so long, of course, as it also meets the requirements of fair procedure.

 

 

Thus, the principles of fundamental justice in child protection proceedings are both substantive and procedural.   The state may only relieve a parent of custody when it is necessary to protect the best interests of the child, provided that there is a fair procedure for making this determination.

 

71                               The appellant did not contest the legitimacy of the principle that the state may relieve a parent of custody to protect the child’s health and safety.  Rather, she took issue with the fairness of the procedure in this case.

                                                                   


72                               A fair procedure for determining whether a custody order should be extended requires a fair hearing before a neutral and impartial arbiter.  The paramount consideration at the hearing should be the child’s best interests.  This is recognized in s. 53(2) of the Family Services Act, which provides:

 

When disposing of an application under this Part the court shall at all times place above all other considerations the best interests of the child.

 

73                               For the hearing to be fair, the parent must have an opportunity to present his or her case effectively.  Effective parental participation at the hearing is essential for determining the best interests of the child in circumstances where the parent seeks to maintain custody of the child.  The best interests of the child are presumed to lie within the parental home.  However, when the state makes an application for custody, it does so because there are grounds to believe that is not the case.  A judge must then determine whether the parent should retain custody.  In order to make this determination, the judge must be presented with evidence of the child’s home life and the quality of parenting it has been receiving and is expected to receive.  The parent is in a unique position to provide this information to the court.  If denied the opportunity to participate effectively at the hearing, the judge may be unable to make an accurate determination of the child’s best interests.  There is a risk that the parent will lose custody of the child when in actual fact it might have been in the child’s best interests to remain in his or her care.

 


74                               The Family Services Act allows parents to be present at and participate in the hearing, with or without counsel, hear all the evidence and cross-examine witnesses, and present evidence and make other representations to the court.  However, it does not provide for the payment of legal fees incurred by parents with respect to an application by the Minister.  Indigent parents must resort to the legal aid scheme, if there is one, as is the case in New Brunswick.  If no legal aid is available, as in this case, the parent is forced to participate in the proceedings without the benefit of counsel.  The majority of the Court of Appeal nevertheless held that the procedural rights provided by the Family Services Act, if complied with, would have been sufficient to “ensure reasonable compliance with constitutional standards” (p. 98).

 

75                               I respectfully disagree.  In the circumstances of this case, the appellant’s right to a fair hearing required that she be represented by counsel.  I have reached this conclusion through a consideration of the following factors: the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the appellant.  I will consider each in turn.

 

76                               The interests at stake in the custody hearing are unquestionably of the highest order.  Few state actions can have a more profound effect on the lives of both parent and child.  Not only is the parent’s right to security of the person at stake, the child’s is as well.  Since the best interests of the child are presumed to lie with the parent, the child’s psychological integrity and well-being may be seriously affected by the interference with the parent-child relationship. 

 

77                               Of particular importance is the fact that the state was seeking to extend a previous custody order by six months.  A six-month separation of a parent from three young children is a significant period of time.  It is even more significant when considered in light of the fact that the appellant had already been separated from her children for over a year and that generally speaking, the longer the separation of parent from child, the less likely it is that the parent will ever regain custody.

 


78                               There is some debate between the parties as to whether child custody proceedings under the Family Services Act are more properly classified as adversarial or administrative in nature.  In my view, a formalistic classification of the nature of the proceedings is not helpful in resolving the issue at hand.  Child protection proceedings do not admit of easy classification.  As Professor Thompson argues, the “unique amalgam of elements -- criminal, civil, family, administrative -- makes child protection proceedings so hard to characterize”: D. A. Rollie Thompson, “Taking Children and Facts Seriously: Evidence Law in Child Protection Proceedings -- Part I” (1988), 7 Can. J. Fam. L. 11, at p. 12.

 

79                                      At issue in this appeal is whether the custody hearing would have been sufficiently complex, in light of the other two factors, that the assistance of a lawyer would have been necessary to ensure the appellant her right to a fair hearing.  I believe that it would have been.  Although perhaps more administrative in nature than criminal proceedings, child custody proceedings are effectively adversarial proceedings which occur in a court of law.  The parties are responsible for planning and presenting their cases.  While the rules of evidence are somewhat relaxed, difficult evidentiary issues are frequently raised.  The parent must adduce evidence, cross-examine witnesses, make objections and present legal defences in the context of what is to many a foreign environment, and under significant emotional strain.  In this case, all other parties were represented by counsel.  The hearing was scheduled to last three days, and counsel for the Minister planned to present 15 affidavits, including two expert reports.

 

80                               In proceedings as serious and complex as these, 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.  There is no evidence in Athey J.’s decision or the record to suggest that the appellant possessed such capacities.

 


81                               In light of these factors, I find that the appellant needed to be represented by counsel for there to have been a fair determination of the children’s best interests.  Without the benefit of counsel, the appellant would not have been able to participate effectively at the hearing, creating an unacceptable risk of error in determining the children’s best interests and thereby threatening to violate both the appellant’s and her children’s s. 7  right to security of the person.   I say this despite the motions judge’s finding to the contrary.

 

82                               Athey J., in concluding that representation of the appellant by counsel was not essential to a fair hearing, said at p. 205:

 

There has been no suggestion that J.G. lacks the capacity to understand the allegations made by the Minister or that she is unable to communicate her position to the court.  In these circumstances I am not convinced that she is not able to adequately state her case or that provision of counsel to represent her is essential to a fair trial.

 

When a trial judge decides that an indigent parent does not need legal representation for there to be a fair custody hearing, the judge’s finding should ordinarily be accorded deference by a reviewing court if the reviewing court becomes seized of the matter prior to the commencement of the hearing pursuant to an interlocutory appeal.  This is because whether counsel for the parent is necessary to ensure the fairness of the hearing depends on a consideration of the factors I outlined above, and a trial judge is generally better positioned than a reviewing court to make this determination.   He or she is better situated to make an accurate assessment of the complexity of the proceedings and, in particular, the parent’s capacities.  Moreover, the trial judge is under a duty to ensure a fair hearing, and has the ability to assist the parent in the proceedings, within the limits of his or her judicial role.  Even if the parent is in need of some assistance, the judge may feel that he or she can intervene sufficiently to ensure the fairness of the hearing.  Therefore, an appellate court should be wary of overturning a trial judge’s decision, assuming that the appropriate factors are considered.


 

83                               In the unusual circumstances of this case, however, I find that little deference should be accorded to the motions judge’s conclusion that the appellant was capable of adequately representing herself.  First, Athey J., who did not have the benefit of these reasons, referred to the appellant’s “capacity to understand the allegations” and ability to “communicate her position to the court” (p. 205).  This creates the impression that Athey J. may have assessed whether counsel was necessary for a fair hearing according to the same standard used to determine competence to stand trial on criminal charges.  Competence is a necessary but not sufficient condition for determining whether an unrepresented parent will receive a fair custody hearing.  Although competent, the parent must be able to participate meaningfully at the hearing, which goes beyond mere ability to understand the case and communicate.

 

84                               Second, even assuming that Athey J. applied the correct test and considered the appropriate factors, she decided the motion on the appellant’s right to counsel nearly a full year after the custody hearing.  More importantly, the appellant was in fact represented by counsel at the hearing.  Ordinarily a judge would determine whether representation by counsel is essential for a fair hearing prior to the commencement of the hearing.  The fact that the motions judge made her determination after a hearing in which the appellant’s case was presented through the assistance of counsel may have had an unduly influential effect on her conclusion.  For example, the smoothness with which the proceeding was conducted may well have caused the motions judge to discount its complexity, as well as any limitations in the appellant’s ability to communicate effectively in a court of law.

   


85                               Therefore, attempting to put myself in the position of the motions judge prior to the hearing, when considering the seriousness and complexity of the proceedings and the capacities of the appellant, I disagree with her finding that the appellant could communicate effectively enough without the assistance of counsel to ensure a fair hearing.  I believe this Court may justifiably overturn her decision.

 

86                               I would like to make it clear that the right to a fair hearing will not always require an individual to be represented by counsel when a decision is made affecting that individual’s right to life, liberty, or security of the person.  In particular, a parent need not always be represented by counsel in order to ensure a fair custody hearing.  The seriousness and complexity of a hearing and the capacities of the parent will vary from case to case.  Whether it is necessary for the parent to be represented by counsel is directly proportional to the seriousness and complexity of the proceedings, and inversely proportional to the capacities of the parent.

 

87                               Although all custody hearings engage serious interests, the seriousness of the interests at stake varies according to the length of the proposed separation of parent from child.  For instance, permanent guardianship applications are more serious than temporary custody applications.  Therefore, counsel will more likely be necessary in guardianship applications than custody applications.  The difference in seriousness between these two types of applications is currently recognized by Legal Aid New Brunswick, which provides legal aid certificates to financially eligible applicants in all guardianship applications but not in all custody applications.  There is also a difference in the seriousness of the interests at stake in custody hearings depending on the length of any previous separation.

 


88                               The complexity of the hearing can vary dramatically from case to case.  Some hearings may be very short, involve relatively simple questions of fact and credibility, and have no expert reports.  Others might take days and involve complicated evidentiary questions, troublesome points of law, and multiple experts.  In the former cases, the assistance of counsel will make little difference to the parent’s ability to present his or her view of the child’s best interests, whereas in the latter cases, the representation of counsel may be essential to ensure a fair hearing.

 

89                               The parent’s capacities are also variable.  Some parents may be well educated, familiar with the legal system, and  possess above-average communication skills and the composure to advocate effectively in an emotional setting.  At the other extreme, some parents may have little education and difficulty communicating, particularly in a court of law.  It is unfortunately the case that this is true of a disproportionate number of parents involved in child custody proceedings, who often are members of the least advantaged groups in society.  The more serious and complex the proceedings, the more likely it will be that the parent will need to possess exceptional capacities for there to be a fair hearing if the parent is unrepresented.  

 

90                               Without commenting on their correctness, I note that there are a number of appellate court cases in Canada which have found that legal representation of an accused may be necessary to ensure a fair trial, pursuant to ss. 7  and 11 (d) of the Charter .  These cases are noteworthy because the criteria employed by the courts to determine whether counsel was warranted included the seriousness of the interests at stake and the complexity of the proceedings: see Rowbotham, supra; R. v. Robinson (1989), 63 D.L.R. (4th) 289 (Alta. C.A.); R. v. Rain (1998), 130 C.C.C. (3d) 167 (Alta. C.A.).

 


91                               I therefore conclude that the potential restriction of the appellant’s right to security of the person would not have been in accordance with the principles of fundamental justice had the custody hearing proceeded with the appellant unrepresented by counsel.  The potential s. 7  violation in this case would have been the result of the failure of the Government of New Brunswick to provide the appellant with state-funded counsel under its Domestic Legal Aid program after initiating proceedings under Part IV of the Family Services Act.

 

92                               In attributing the failure to provide state-funded counsel to the government’s administration of the Domestic Legal Aid program, I do not mean to suggest that the Domestic Legal Aid program as it stands is the only way the government could have fulfilled its constitutional obligation in this case.  The government has wide latitude in discharging its constitutional duty to provide state-funded counsel in proceedings where that duty arises.  It could have done so in any number of ways -- under the Legal Aid Act, the Family Services Act, or a myriad of other legislation or programs.  This Court need not and should not tell the Government of New Brunswick what specific delivery system should have been employed.

 

93                               Nevertheless, notwithstanding the variety of potential delivery options, the government chose to enact a general legal aid scheme with a scope of application encompassing the proceeding at issue in this appeal.  It also adopted a specific policy of not providing legal aid to respondents in custody applications.  Most importantly, the Attorney General and Ministers of Justice and Health and Community Services’ s. 1  arguments seeking to justify the infringement (if one were to be found) of the appellant’s s. 7  rights attribute it to the administration of the legal aid scheme.  Therefore, it is not unreasonable to find the Domestic Legal Aid program to be the locus of the constitutional violation in this case. 

 

D. Section 1 

 

94                               Although this case involves a prospective violation of s. 7 , it is still necessary to engage in a s. 1  analysis.  For if the prospective s. 7  violation would otherwise have been saved by s. 1 , then there would be no need to order a remedy. 


 

95                               Section 1  of the Charter  provides:

 

1.  The Canadian Charter of Rights and Freedoms  guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

 

In R. v. Oakes, [1986] 1 S.C.R. 103, this Court set out the analytical framework for determining whether a law constitutes a reasonable limit on a Charter  right.  Iacobucci J. summarized this framework in Egan v. Canada, [1995] 2 S.C.R. 513, at para. 182:

 

A limitation to a constitutional guarantee will be sustained once two conditions are met.  First, the objective of the legislation must be pressing and substantial.  Second, the means chosen to attain this legislative end must be reasonable and demonstrably justifiable in a free and democratic society.  In order to satisfy the second requirement, three criteria must be satisfied: (1) the rights violation must be rationally connected to the aim of the legislation; (2) the impugned provision must minimally impair the Charter  guarantee; and (3) there must be proportionality between the effect of the measure and its objective so that the attainment of the legislative goal is not outweighed by the abridgement of the right.

 

96                               The appellant quite rightly is not directly challenging the Legal Aid Act, but rather administrative decisions made pursuant to it.  The Legal Aid Act does not expressly or by necessary implication deny state-funded counsel to respondents in custody applications.  On the contrary, both Legal Aid New Brunswick, pursuant to s. 12 of the Legal Aid Act, and the Minister of Justice, pursuant to s. 24 may provide state-funded counsel in these circumstances.

 


97                               Despite the fact that state-funded legal assistance could have been provided in cases of custody applications pursuant to ss. 12 and 24, it was not.  The Minister of Justice’s program did not cover either guardianship or custody applications initiated by the Minister of Health and Community Services.  This decision was made in order to avoid any potential conflicts of interest for Family Solicitors, who would be forced to act against the government while being paid by the Minister of Justice.  As a result, Legal Aid New Brunswick agreed to continue providing legal aid certificates in cases of guardianship applications, but expressly refused to do so for custody applications.  This had been Legal Aid New Brunswick’s policy prior to 1993, when the Minister of Justice’s program was first introduced.  In December of 1991, the Council of the Law Society adopted a policy of limiting the provision of legal aid certificates to victims of family violence involved in private family litigation and to respondents to guardianship applications by the Minister of Health and Community Services.  This policy was adopted pursuant to s. 12(14) of the Act, which provides that the Law Society may limit the provision of legal aid in certain matters when the Legal Aid Fund is in danger of being depleted.  Consequently, the Charter  infringement in this case is not caused “by the legislation itself, but by the actions of a delegated decision-maker in applying it”: see Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, at para. 20.  See also Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at p. 1078.

 

98                               Assuming without deciding that the policy of not providing state-funded counsel to respondents in custody applications was a limit prescribed by law, that the objective of this policy -- controlling legal aid expenditures -- is pressing and substantial, that the policy is rationally connected to that objective, and that it constitutes a minimal impairment of s. 7 , I find that the deleterious effects of the policy far outweigh the salutary effects of any potential budgetary savings.

 

99                               Section 7  violations are not easily saved by s. 1 .  In Re B.C. Motor Vehicle Act, supra, at p. 518, I said:

 

Section 1  may, for reasons of administrative expediency, successfully come to the rescue of an otherwise violation of s. 7 , but only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics, and the like.


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.

 

100                           In the circumstances of this case, the Government of New Brunswick argues that the objective of limiting legal aid expenditures is of sufficient importance to deny the appellant a fair hearing.  The proposed budgetary savings, however, are minimal.  In their factum, Legal Aid New Brunswick and the Law Society of New Brunswick report that the projected annual cost of their new policy, effective September 22, 1997, of issuing legal aid certificates to respondents in custody applications for their first hearing would be under $100,000.  Although the present appeal concerns the right to state-funded counsel at a hearing to extend an original custody order, the additional cost of providing state-funded counsel in these circumstances is insufficient to constitute a justification within the meaning of s. 1 .  Moreover, the government is not under an obligation to provide legal aid to every parent who cannot afford a lawyer.  Rather, the obligation only arises in circumstances where the representation of the parent is essential to ensure a fair hearing where the parent’s life, liberty, or security is at stake.  In my view, 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.

 

E. Remedy  

 


101                           There are only two possible remedies a judge can order under s. 24(1)  to avoid a prospective s. 7  breach in circumstances where the absence of counsel for one of the parties would result in an unfair hearing: an order that the government provide the unrepresented party with state-funded counsel, or a stay of proceedings.  A stay of proceedings is clearly inappropriate in this case, as it would result in the return of the children to the appellant’s custody.  Children should not be returned to their parent’s care when there is reason to suspect that they are in need of protection.  Indeed, this would run contrary to the purposes of Part IV of the Family Services Act.  The government must, therefore, provide the appellant with state-funded counsel.

 

102                           It is unnecessary, however, to direct the Government of New Brunswick to rectify the policy’s constitutional infirmities through the adoption of a new policy.  Directing the government to design a new policy would run contrary to Sopinka J.’s admonition in Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69, at p. 104, to “refrain from intruding into the legislative sphere beyond what is necessary” in fashioning remedies for Charter  violations.  It is not clear how often the operation of the policy will lead to an unconstitutional hearing.  It may be only in rare cases.  Accordingly, the least intrusive remedy would be to leave the policy intact, subject to a discretion vested in the trial judge to order state-funded counsel on a case-by-case basis when necessary to ensure the fairness of the custody hearing.  That having been said, there is nothing preventing the government from amending the policy -- for example reading in a discretion -- or providing respondents to custody applications with state-funded counsel through means other than the Domestic Legal Aid program.

 


103                           As similar cases may arise in the future, I will briefly outline the procedure that should be followed when an unrepresented parent in a custody application seeks state-funded counsel.  The judge at the hearing should first inquire as to whether the parent applied for legal aid or any other form of state-funded legal assistance offered by the province.  If the parent has not exhausted all possible avenues for obtaining state-funded legal assistance, the proceedings should be adjourned to give the parent a reasonable time to make the appropriate applications, provided the best interests of the children are not compromised.  It goes without saying that if the parent, whether or not he or she is able to pay for a lawyer, chooses not to have one that there will be no entitlement to state-funded legal assistance: see Rowbotham, supra, at p. 64.  This is because the parent voluntarily assumes the risk of ineffective representation, for which the government cannot be held responsible.

 

104                           If the parent wants a lawyer but is unable to afford one, the judge should next consider whether the parent can receive a fair hearing through a consideration of the following criteria: the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the parent.  The judge should also bear in mind his or her ability to assist the parent within the limits of the judicial role.  If, after considering these criteria, the judge is not satisfied that the parent can receive a fair hearing and there is no other way to provide the parent with a lawyer (i.e., pursuant to a statutory power to appoint counsel), the judge should order the government to provide the parent with state-funded counsel under s. 24(1)  of the Charter .  I hasten to add that I am limiting my comments here to child protection proceedings, and need not and should not comment as to other kinds of proceedings.

 

105                           Having now decided that the government was under a constitutional obligation to provide state-funded counsel to the appellant to ensure the fairness of the custody hearing in this case, I turn to consider a passage from my judgment in Prosper, supra, which may appear to be in tension with this conclusion.

 

106                           At issue in Prosper was whether s. 10 (b) of the Charter  imposed a substantive constitutional obligation on governments to ensure that duty counsel is available upon arrest or detention to provide free and immediate preliminary legal advice upon request.  The Court was unanimous in concluding that it did not.  In my reasons, I held at pp. 266-67 that:

 


[T]here is evidence which shows that the framers of the Charter  consciously chose not to constitutionalize a right to state-funded counsel under s. 10  of the Charter : Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada (January 27, 1981).  Specifically, a proposed amendment, which would have added the following clause to what is now s. 10  of the Charter  was considered and rejected (p. 46:127):

 

(d) if without sufficient means to pay for counsel and if the interests of justice so require, to be provided with counsel;

                  

                              . . .

 

In my opinion, it would be imprudent for this Court not to attribute any significance to the fact that this clause was not adopted.  In light of the language of s. 10  of the Charter , which on its face does not guarantee any substantive right to legal advice, and the legislative history of s. 10 , which reveals that the framers of the Charter  decided not to incorporate into s. 10  even a relatively limited substantive right to legal assistance (i.e., for those “without sufficient means” and “if the interests of justice so require”), it would be a very big step for this Court to interpret the Charter  in a manner which imposes a positive constitutional obligation on governments.  The fact that such an obligation would almost certainly interfere with governments’ allocation of limited resources by requiring them to expend public funds on the provision of a service is, I might add, a further consideration which weighs against this interpretation. [Emphasis in original.]

 

107                           The omission of a positive right to state-funded counsel in s. 10 , which, as I said in Prosper, should be accorded some significance, does not preclude an interpretation of s. 7  that imposes a positive constitutional obligation on governments to provide counsel in those cases when it is necessary to ensure a fair hearing.  To hold otherwise would be to suggest that the principles of fundamental justice do not guarantee the right to a fair hearing or, alternatively, that under no circumstances would the requirements of a fair hearing obligate governments to pay for an individual to be represented by counsel.  Both of these positions are untenable.  In my view, the significance of the omission of a positive right to state-funded counsel under s. 10  is that s. 7  should not be interpreted as providing an absolute right to state-funded counsel at all hearings where an individual’s life, liberty, and security is at stake and the individual cannot afford a lawyer.  Accordingly, while a blanket right to state-funded counsel does not exist under s. 10 , a limited right to state-funded counsel arises under s. 7  to ensure a fair hearing in the circumstances I have outlined above.

 


108                           With respect to the concern in Prosper that a positive constitutional obligation to provide state-funded counsel would interfere with governments’ allocation of limited resources, I note that these fiscal concerns have been addressed under s. 1 .

 

VI. Disposition

 

109                           The appeal is allowed.  The Government of New Brunswick shall pay the appellant her solicitor-client costs, both in this Court and in the courts below, to be determined by the Registrar according to the Legal Aid Tariff in New Brunswick or the tariff applicable to non-governmental lawyers hired by the Government of New Brunswick to handle certain matters in the manner of these proceedings. 

 

110                           I would answer the restated constitutional questions as follows:

 

Question 1:  In the circumstances of this case, would the failure of the Legal Aid Act,                R.S.N.B. 1973, c. L-2, or the Government of New Brunswick under its                                                          Domestic Legal Aid Program, to provide legal aid to respondents in                                                                             custody applications by the Minister of Health and Community Services                                                                             under Part IV of the Family Services Act, S.N.B. 1980, c. F-2.2, have         constituted an infringement of s. 7  of the Canadian Charter of Rights and                         Freedoms  if the appellant had not been represented by counsel at the                                         custody hearing?

 

Answer:              Yes, in the circumstances of this case.

 

Question 2: If the answer to question 1 is yes, would the infringement have been                        demonstrably justified in a free and democratic society pursuant to s. 1  of                                                         the Canadian Charter of Rights and Freedoms ?

 

Answer:              No.

 


The reasons of  L’Heureux-Dubé, Gonthier and McLachlin JJ. were delivered by

 

111                           L’Heureux-Dubé J. --  The appellant is the mother of three children.  At the time of the hearing that is the subject of this appeal, the Minister of Health and Community Services had been granted custody of the children for six months, and was seeking to extend the custody order for a further six months.  The legal aid programmes in place in the province of New Brunswick at the time did not provide funding for temporary custody applications or extensions of existing orders, but only for permanent guardianship applications. Ms. G. was therefore not able to receive funded counsel at the hearing where the Minister sought the extension of the custody order, and was unable to afford to hire her own counsel.  The hearing took place over three days, and the Minister, along with all other interested parties, was represented by counsel.  Fifteen witnesses were called, including expert witnesses, and several expert reports were presented.  Although Ms. G. received the voluntary assistance of counsel, this appeal requires the Court to decide whether the appellant’s rights under s. 7  of the Canadian Charter of Rights and Freedoms  were engaged, and, if so, whether the procedures adopted would have complied with the principles of fundamental justice had she not received counsel.  I have read the reasons of the Chief Justice and I agree with him that this child protection hearing implicated the appellant’s right to security of the person, and that in this case the procedure that threatened to deprive her of that right would not have been in accordance with the principles of fundamental justice because of the lack of funded counsel.  However, I wish to set out my own views on the constitutional rights implicated and the appropriate test for determining when the failure to accord counsel to a parent would result in a procedure that is not in accordance with fundamental justice.

 

I. The Charter  Rights Implicated


 

A. Equality

 

112                           Before turning to the analysis of the s. 7  rights implicated and the principles of fundamental justice, I would emphasize that this case also implicates issues of equality, guaranteed by s. 15  of the Charter .  These equality interests should be considered in interpreting the scope and content of the interpretation of the rights guaranteed by s. 7 .  This Court has recognized the important influence of the equality guarantee on the other rights in the Charter .  As McIntyre J. wrote in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at p. 185:

 

The section 15(1)  guarantee is the broadest of all guarantees.  It applies to and supports all other rights guaranteed by the Charter .

 

 

All Charter  rights strengthen and support each other (see, for example, R. v. Lyons, [1987] 2 S.C.R. 309, at p. 326; R. v. Tran, [1994] 2 S.C.R. 951, at p. 976) and s. 15  plays a particularly important role in that process.  The interpretive lens of the equality guarantee should therefore influence the interpretation of other constitutional rights where applicable, and in my opinion, principles of equality, guaranteed by both s. 15  and s. 28 , are a significant influence on interpreting the scope of protection offered by s. 7 .

 


113                           This case raises issues of gender equality because women, and especially single mothers, are disproportionately and particularly affected by child protection proceedings: see, for example, M. Callahan, “Feminist Approaches: Women Recreate Child Welfare”, in B. Wharf, ed., Rethinking Child Welfare in Canada (1993), 172.  The fact that this appeal relates to legal representation in the family context for those whose economic circumstances are such that they are unable to afford such representation is significant.  As I wrote in Moge v. Moge, [1992] 3 S.C.R. 813, at p. 853, “In Canada, the feminization of poverty is an entrenched social phenomenon.”  The patterns of relationships within marriage disproportionately lead to women taking responsibility for child care, foregoing economic opportunities in the workforce, and suffering economic deprivation as a result: Moge, supra, at p. 861.  Issues involving parents who are poor necessarily disproportionately affect women and therefore raise equality concerns and the need to consider women’s perspectives.

 

114                           As well as affecting women in particular, issues of fairness in child protection hearings also have particular importance for the interests of women and men who are members of other disadvantaged and vulnerable groups, particularly visible minorities, Aboriginal people, and the disabled.  As noted by the United States Supreme Court in Santosky v. Kramer, 455 U.S. 745 (1982), at p. 763:

 

Because parents subject to termination proceedings are often poor, uneducated, or members of minority groups. . .  such proceedings are often vulnerable to judgments based on cultural or class bias.

 

 

Similarly, Professors Cossman and Rogerson note that “The parents in child protection cases are typically the most disadvantaged and vulnerable within the family law system  . . . .”:  “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), 773, at p. 787.

 

115                           Thus, in considering the s. 7  rights at issue, and the principles of fundamental justice that apply in this situation, it is important to ensure that the analysis takes into account the principles and purposes of the equality guarantee in promoting the equal benefit of the law and ensuring that the law responds to the needs of those disadvantaged individuals and groups whose protection is at the heart of s. 15 .  The rights in s. 7  must be interpreted through the lens of ss. 15  and 28 , to recognize the importance of ensuring that our interpretation of the Constitution responds to the realities and needs of all members of society.


 

B. Security of the Person

 

116                           Turning to the s. 7  rights engaged, I agree with the Chief Justice, for the reasons that he states, that the appellant’s security of the person was implicated when the government instituted proceedings to extend the existing custody order.  As he discusses, the importance of one’s identity as a parent, and the serious stigma and psychological stress that will occur if the child is removed from the home because of the removal of the parent’s power to care for him or her mean that the parent’s security of the person will be violated if the child is removed from the home.

 

C. Liberty

 

117                           I also agree with Bastarache J.A. (as he then was), who dissented in the Court of Appeal, that the right to liberty within s. 7  is triggered.  In B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, La Forest J., writing on behalf of four members of the Court, held that the liberty interest must be interpreted broadly, in accordance with the principles and values of the Charter  as a whole.  He wrote, at para. 80:

 

On the one hand, liberty does not mean unconstrained freedom. . . .  Freedom of the individual to do what he or she wishes must, in any organized society, be subjected to numerous constraints for the common good.  The state undoubtedly has the right to impose many types of restraints on individual behaviour, and not all limitations will attract Charter  scrutiny.  On the other hand, liberty does not mean mere freedom from physical restraint.  In a free and democratic society, the individual must be left room for personal autonomy to live his or her own life and to make decisions that are of fundamental personal importance. [Emphasis added.]

 

 


Similar principles were articulated in R. v. Morgentaler, [1988] 1 S.C.R. 30, at p. 166, per Wilson J.; and Godbout v. Longueuil (City), [1997] 3 S.C.R. 844, at para. 66, per La Forest J.  I continue to agree with these statements, and I note that they were not rejected by a majority of the Court in either of the above cases.

 

118                           Applying these principles to the context of the family in B. (R.), La Forest J. held that parental decision-making and other attributes of custody are protected under the liberty interest.  He wrote, at paras. 83 and 85:

 

. . . I would have thought it plain that the right to nurture a child, to care for its development, and to make decisions for it in fundamental matters such as medical care, are part of the liberty interest of a parent.

 

 . . .

 

[The parental] role translates into a protected sphere of parental decision-making which is rooted in the presumption that parents should make important decisions affecting their children both because parents are more likely to appreciate the best interests of their children and because the state is ill-equipped to make such decisions itself.  Moreover, individuals have a deep personal interest as parents in fostering  the growth of their own children.  This is not to say that the state cannot intervene when it considers it necessary to safeguard the child’s autonomy or health.  But such intervention must be justified.  In other words, parental decision-making must receive the protection of the Charter  in order for state interference to be properly monitored by the courts, and be permitted only when it conforms to the values underlying the Charter . [Emphasis added.]

 

 

Wardship proceedings, in my view, implicate these fundamental liberty interests of parents.  The result of the proceeding may be that the parent is deprived of the right to make decisions on behalf of children and guide their upbringing, which is protected by s. 7 .  Though the state may intervene when necessary, liberty interests are engaged of which the parent can only be deprived in accordance with the principles of fundamental justice.  Interpreting the interests here as protected under s. 7  also reflects the equality values set out above.

 

II. The Principles of Fundamental Justice

 


119                           I agree with the Chief Justice, for the reasons he sets out, that the principles of fundamental justice require that a parent be able to participate in the hearing adequately and effectively, and that it is the obligation of the trial judge to exercise his or her discretion in determining when a lack of counsel will interfere with the ability of the parent to present his or her case.  I also agree with him that this discretion was not properly exercised here.  The trial judge was in error in not adequately considering the values of meaningful participation in the hearing affecting the rights of the child or the complexity of this case and the difficulty the appellant would face in presenting her case.

 

120                           As to the criteria for determining when the provision of counsel will be necessary to ensure a fair hearing if the parent cannot otherwise afford a lawyer, first, I agree with the Chief Justice that a trial judge, in determining whether a parent will be able to participate effectively in the hearing, must consider the seriousness of the interests, the complexity of the proceedings, and the characteristics of the parent affected.  I would view these interests broadly, and would therefore find that the right to funded counsel in child protection hearings, when a parent cannot afford a lawyer and the parent is not covered by the legal aid scheme, will not infrequently be invoked.

 


121                           On the issue of the seriousness of the interests at stake, I agree with my colleague that child protection hearings will have varying degrees of seriousness.  Under the legislation of different provinces, varying types of orders may be made, including orders that the child be placed with the parent subject to supervision, or temporary or permanent orders depriving the parent of custody.  The seriousness  of the order requested will play a role in the balancing of interests that takes place when determining whether counsel is necessary to ensure effective participation in the proceedings.  However, in my view, whether the application is temporary or permanent should not have a significant effect on whether the parent will be granted a right to counsel.  When considering this factor, trial judges should be attentive to  the fact that temporary applications are often part of a process that leads to permanent ones, and it is necessary to consider the seriousness of the proceeding in relation to both the short-term and long-term interests of the parents affected.  As noted by George Thomson (then a judge of the Ontario Provincial Court (Family Division)):

 

Yet [the judge] must deal with the realization that a temporary order is often the first step in a fairly inexorable march to permanent wardship, and that there is a fairly unequal relationship between the protection agency and those parents with whom it works. [Emphasis added.]

 

(G. M. Thomson, “Judging Judiciously in Child Protection Cases”, in R. S. Abella and C. L’Heureux-Dubé, eds., Family Law: Dimensions of Justice (1983), 213, at p. 233.)

 

 

Judges must be cognizant of this reality when evaluating this factor in the circumstances of each particular case.  Determining the seriousness of the matter must take into account the overall context and the serious effects of losing the ability to care for and guide the development of one’s children.

                                                                      

122                           Second, as my colleague points out, the complexity of the proceedings is also an important factor in evaluating whether a hearing without counsel proceeded in accordance with the principles of fundamental justice.  The more complex the proceedings are, the more difficult it will be for the parent to participate effectively  without assistance.  As eloquently noted by Bastarache J.A., the complexity of the proceedings in the present case placed the appellant at a significant disadvantage:

 

All other parties are represented.  Ms. G. must be able to adduce evidence and cross-examine witnesses.  There were 15 witnesses.  Proceedings consumed three days.  The interpretation of the legislation and of the powers of the Minister were in issue.  The rules of evidence were at play. 

 

((1997), 187 N.B.R. (2d) 81, at p. 139)

 

 


The length of the proceedings, the type of evidence that is presented, the number of witnesses and the complexity and technicality of the proceedings must be important considerations in evaluating this factor.

 

123                           As regards the third factor discussed by the Chief Justice, in articulating and interpreting this criterion, courts must be particularly careful to avoid including factors in the test for funded counsel that may make it more difficult for the parent when presenting her case on the merits: see P. Hughes, “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, at p. 250.  The parent should not be placed in the Catch-22 situation of having to present himself or herself, in order to be granted the right to funded counsel, in a manner that makes it more likely that decisions will be made against him or her at the hearing itself.  Nor should the parent face the disadvantage of the trial judge having already made findings of fact, at the right to counsel stage, that will be adverse to her or his interests at the stage of determining the best interests of the child.  I agree with the Chief Justice that: “In proceedings as serious and complex as these, 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” (para. 80).

 

124                           In considering this factor, the focus should be on the parent’s education level, linguistic abilities, facility in communicating, age, and similar indicators.  These characteristics will vary among those whose liberty and security interests are affected by child protection proceedings, but none of them will have considerable effects on the determination of the ultimate result of the Minister’s application.

 


125                           Taking into account all these factors, it is likely that the situations in which counsel will be required will not necessarily be rare.  Proceedings will in many cases be complex, and the consequences, when the child may be removed from the home, are generally serious.  Funded counsel must be ordered whenever a fair hearing will not take place without representation.  The determination of this question must take into account the important value of meaningful participation in the hearing, taking into account the rights affected, and the powerlessness that a reasonable person in the position of the claimant may legitimately feel when faced with the formal procedures and practices of the justice system.  The trial judge’s duty to ensure a fair trial may therefore, when necessary, involve an order that the parent be provided with legal counsel, and trial judges should not, in my view, consider the issue from the starting point that counsel will be necessary to ensure a fair hearing only in rare cases.

 

126                           In the result, I would dispose of the appeal as proposed by the Chief Justice.

 

Appeal allowed.

 

Solicitors for the appellant:  Christie & Associates, Fredericton.

 

Solicitor for the respondents the Minister of Health and Community Services,  the Attorney General for New Brunswick and the Minister of Justice:  The Department of Justice, Fredericton.  

 

Solicitors for the respondents the Law Society of New Brunswick and Legal Aid New Brunswick:  Cox, Hanson, O’Reilly, Matheson, Fredericton.

 


Solicitor for the intervener the Attorney General of Manitoba:  The Department of Justice, Winnipeg.

 

Solicitor for the intervener the Attorney General of British Columbia:  The Ministry of the Attorney General, Victoria.

 

Solicitor for the intervener the Attorney General for Alberta:  Alberta Justice, Edmonton.

 

Solicitors for the intervener the Canadian Bar Association: Monk, Goodwin, Winnipeg.

 

Solicitor for the intervener the Charter  Committee on Poverty Issues:  The Public Interest Centre, Winnipeg.

 

Solicitors for the interveners the Women’s Legal Education and Action Fund, the National Association of Women and the Law, and the Disabled Women’s Network Canada:  Carole Curtis, Toronto; Fowler & Fowler, Moncton.

 

Solicitors for the intervener the Watch Tower Bible and Tract Society of Canada:  W. Glen How & Associates, Georgetown, Ontario.

 

 

 

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