Category Archives: Access to Justice

A New Concord Between Bar and Academy? The Governor General’s Speech to the Canadian Bar Association

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It is hardly an everyday occurrence for a viceroy to call publicly for a meeting with law deans to talk about legal education. But that is exactly what happened last week in Halifax. In his speech to the annual conference of the Canadian Bar Association, Governor General David Johnston spoke extremely candidly about what he saw as the challenges facing the legal profession today. He did not mince words; the picture he painted of the reality of legal practice in Canada was not soothing. And he laid a stark challenge before all of us who claim to believe that lawyers are the key to the survival of the rule of law. Continue reading →

Unauthorized practice and access to justice

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Case considered: Lameman v Alberta, 2011 ABQB 396

The Beaver Lake Cree Nation have commenced an action against the federal and provincial Crowns claiming that their treaty rights have been infringed by the Crown “taking up so much of their traditional territory that [they] have no meaningful right to hunt, trap or fish” (Lameman v Alberta, 2011 ABQB 396, para 12). The Crown brought applications to strike the Nation’s actions, the hearings in respect of which were adjourned on the basis of the Nation’s impecuniosity.

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No Advance Costs Awarded on Charter Application

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Case considered: D.W.H. v D.J.R., 2011 ABQB 119

Mr. H. and Mr. R. lived together as partners and planned to have a baby through a surrogate mother. The baby lived with the two male partners and visited the surrogate mother once or twice a week. The couple separated and Mr. H. applied for access. Madame Justice K.M. Eidsvik in D.W.H. v D.J.R., 2009 ABQB 438 found that the child had a mother (who was the surrogate), but no father who would be recognized in law (see Melissa Luhtanen, Gay Fathers Not Seen as Parental Unit Under Family Law Act). Mr. H. was given access to the child and later, Mr. R. successfully applied to become the child’s guardian. Mr. H. also applied for guardianship but his application was opposed. Mr. H. proceeded to make a section 15 Charter challenge to the validity of relevant sections of the Family Law Act, SA 2003, c. F-4.5 (“FLA“) and Vital Statistics Act, RSA 2000, c. V-4 (“VSA“). In that application, Mr. H. is arguing that these sections discriminate against him on the grounds of gender and sexual orientation. The present application is for advance or interim costs in order for Mr. H to retain counsel for the constitutional argument.

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French Language Rights in Alberta Get a Boost

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Case considered: R v Pooran; R v Vaillant, 2011 ABPC 77

Significant consequences can arise from what might otherwise have appeared to be just another mundane case; in this instance, charges under Alberta’s Traffic Safety Act, R.S.A. 2000, c. T-6. The facts and charges that led to Sonia Pooran and Guy Vaillant standing trial before a provincial court judge on April 14 are not important. What is important is that the entire proceedings will be in French, after a provincial court judge in Calgary decided they have that right.

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Access to Justice and Human Rights Cases

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Case Considered: McClary v Geophysical Services Inc., 2011 ABQB 112

Not being able to afford legal representation occurs quite frequently in civil and criminal legal cases. Some individuals choose to self-represent-either because they cannot afford legal counsel, or because they want to present their own cases. Inability to afford legal counsel has become a critical problem that leads to an acute lack of access to justice in Canada. In Alberta, recent cuts to the Legal Aid program will likely have serious effects on people with both civil and criminal issues. Even in tribunal matters, or matters where one is not required to be legally represented, such as the human rights process in Alberta, not having legal representation can have important consequences, both for the courts and for the litigants. While in some matters at the Commission (and later on appeal to the courts), the Act permits counsel to be assigned to represent and advise complainants, McClary was not such a matter. Also, it is important to note that in all matters before the Commission, respondents must hire their own legal representation should they desire it. The limited availability of legal counsel for parties in human rights cases exists partly because the human rights process is supposed to be user-friendly and low-cost to complainants and respondents.

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