Reclaiming a Contextualized Approach to the Right to State-Funded Counsel in Child Protection Cases
Kehoe, Kate, Wiseman, David, University of New Brunswick Law Journal
Introduction I. State-funded Counsel in Child Protection Cases A. Origins: G.(J.) B. Subsequent Claims and Concerns C. The T.L. Approach II. In Defence of a Contextual Approach A. Against Assimilation to the Restrictive Criminal Context Test i. State-funded Counsel in Criminal Cases: Competing Strains ii. The Legal Context of Child Protection Proceedings B. Legal Aid and State-funded Counsel C. Self-representation, Social Context, Fair Hearings and Judicial Responsibility III. A Contextual Approach to State-funded Counsel in Child Protection Cases Conclusion
In Canadian courtrooms where child protection applications are heard, it is still common to find parents trying to respond to those applications without the assistance of legal counsel, which they believe they cannot afford. This despite the fact that a right to state-funded counsel in child protection cases, when necessary to ensure a fair trial, was recognized under the Charter by the Supreme Court in 1999 in the ground-breaking case of New Brunswick v. G. (J.). (1) That decision prompted reviews of legal aid plans across the country, many of which had totally excluded child protection matters, and so produced something of a systemic improvement to the plight of unrepresented parents. However, income-eligibility cut-offs for legal aid in child protection matters have remained relatively low, especially given the constant unmatched increases in cost-of-living. Moreover, in many provinces, there have been significant general cuts to legal aid funding since G.(J). Consequently, there remain parents involved in child protection matters who are not eligible for legal aid counsel but who cannot, at least in their own assessment, afford to pay for counsel themselves. The G.(J.) right to state-funded counsel therefore continues to be relevant and to be claimed. Our review of reported cases reveals that these claims are often unsuccessful and the purpose of this article is to critically analyze the approach of courts to these claims. Ultimately, we identify and defend a contextualized, less restrictive approach to state-funded counsel claims.
The analysis which follows addresses a variety of issues that need further attention in developing a contextualized approach. Our analysis focuses on the most significant element of the test for obtaining state-funded counsel, namely, establishing indigence or, in other words, an inability to afford to pay for counsel. One of the most significant issues relating to indigency is the potential assimilation of the test for eligibility for state-funded counsel in child protection cases to the test used for state-funded counsel claims in criminal cases. When establishing the right to state-funded counsel in child protection cases in G.(J.), the Supreme Court of Canada trod a path parallel to the Ontario Court of Appeal in R. v. Rowbotham, (2) which had earlier established a right to state-funded counsel in a criminal context. In subsequent decisions in both contexts, judges have struggled with how 'strict' to be in assessing eligibility, especially in relation to assessing 'indigency'. Until recently, the approach taken in child protection cases has been restrictive both in terms of the definition of indigency and in terms of procedural strictness. This approach echoes and in some cases even adopts the restrictive approach taken in a number of criminal cases. In 2009, the restrictive approach was questioned and resisted at the trial level of a child protection matter, British Columbia (Director of Child, Family and Community Service) v. T.L., (3) and the approach taken was upheld on appeal. Moreover, last year, the Ontario Court of Appeal itself questioned the strictness that had come to characterize many applications of the Rowbotham test. …