Ottawa Citizen
Saturday, January 11, 2003

Poor need access to justice: lawyers

Search on for winnable test cases against governments

Janice Tibbetts
The Ottawa Citizen

Canada's lawyers are busily sifting through legal aid "horror stories" across the country in their search for winnable test cases they can use to sue governments for massive cuts to the program.

"Access to justice for the poor is what we want," said Daphne Dumont, a legal aid expert with the Canadian Bar Association.

The landmark challenge will be fought in family law because governments' refusal to provide legal aid in cases such as child custody disputes is one of the most egregious infringements of the right to justice, says Ms. Dumont, a Prince Edward Island lawyer who heads the bar association's legal aid committee.

The 37,000-member association, fed up with unsuccessful lobbying, announced last summer it will haul governments before the courts in hopes of establishing a constitutional requirement to properly fund legal aid.

All provinces have complained of federal funding reductions that have cut as much as 30 per cent from the strained system over the past decade and produced a patchwork of services across the country.

A committee of constitutional experts is vetting cases countrywide to find the worst cases of people who have been denied legal help.

"You don't want to pick ones that you're going to lose," said Ms. Dumont.

By sponsoring the fight for people who cannot afford to launch their own challenges, the bar association will argue that denying legal aid violates the constitutional right to life, liberty and security of the person and the right to fundamental justice.

The only foothold for mandatory legal aid that has been established in the courts is a 1999 Supreme Court of Canada decision that a New Brunswick mother had the right to public funding to defend herself against the state seizing her children.

The bar association, which has posted a "legal aid watch" on its Web site, already has documented several "horror stories" of people who have been turned down for funding. They include:

- Richard, a divorced B.C. father, who makes $13,000 a year working in a garage, earns too much to qualify for legal aid. As a result, he cannot afford to go to court to fight for access to his son because the B.C.'s legal aid plan only covers his wife.

- Clara, a senior citizen who moved to Yukon to escape a "lifelong nightmare" of an abusive husband, was unable to obtain a divorce because the territory's legal aid plan doesn't cover divorces and matrimonial property disputes.

Federal Justice Minister Martin Cauchon has acknowledged that the legal aid program is in crisis. He has hinted at a funding announcement in the federal budget, expected next month.

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