The implications for democracy and government legitimacy
As lawyers, we often speak of the rule of law. However, in our modern twenty-first century, we rarely discuss seventeenth- and eighteenth-century political theory and specifically, the social contract and its relevance to democracy in Canada today.
In this article, I explore whether the social contract requires the state to provide an independent, accessible, effective, sustainable and credible legal aid system.1 And if so, what is the consequence to government, both provincial and federal, if this state duty is not met.
For those of us who enjoy political theory, the social contract is the basis upon which a democracy finds its legitimacy. John Locke’s Second Treatise of Government suggests that civil government is based upon the bond of trust between the people and their authority. The people give up their freedom, and in turn, they expect the authority to act with the public good always in mind. Any breach of this bond of trust can legitimize the people’s dissolution of the government.
The Supreme Court has agreed that access to legal services is fundamentally important in any free and democratic society but has not agreed that there is a broad general right to legal counsel as an aspect of, or precondition to, the rule of law under the Charter.2 Despite this ruling, the view espoused in the Doust Report3 and supported by many is that in a just society, legal aid is an essential service along with education, health care and social assistance.4 Recently, Lawyers’ Right Watch Canada’s, “The Right to Legal Aid: How British Columbia’s Legal Aid System Fails to Meet International Human Rights Obligations” criticizes our government’s failure to recognize its international obligations to provide an accessible, effective, sustainable and credible legal aid system.
Over the past decades, we have seen BC’s government incrementally dismantle and starve the legal aid system through statutory and funding changes.
From 1979 to 2002, in BC, the Legal Service Society Act, RSBC 1979, c 227 (“Act”) required that legal services be available in specific circumstances: (i) criminal proceedings that could lead to imprisonment; (ii) civil proceedings that could lead to confinement or imprisonment; (iii) domestic disputes that affected the individual’s physical or mental safety or health, or that of the individual’s children; (iv) legal problems that threatened (1) the individual’s family’s physical or mental health or safety; (2) the individual’s ability to feed, clothe, or provide shelter for himself or herself and the individual’s dependents; or (3) the individual’s livelihood.
Neither the eligibility rules nor an appeal process from decisions on legal aid applications are set out in the current Act.1 Today, coverage is determined by a memorandum of agreement between the government and Legal Services Society (“LSS”).6 Moreover, the Law Foundation of BC, which operates from the interest earned on lawyers’ trust accounts, began funding poverty law because LSS ceased to do so. In addition, LSS must obtain government approval of its budget and may not run a deficit.
There is not an arm’s-length relationship between government and LSS. There is no independent body supervising LSS and reviewing decisions on legal aid.
I observe that the government’s tax on legal services surpassed its expenditures (both federal and provincial) on legal aid in 2017.
This begs the question – at what point is the social contract breached and state legitimacy called into question? The BC government’s failure to uphold its part of the social contract has significant implications that, understandably, we are hesitant to name – the loss of democracy. We have seen the erosion of democratic institutions south of our border. We should not assume that our own democratic state and institutions are immune from erosion and decay.
1 and 5 Lawyers’ Right Watch Canada, “The Right to Legal Aid: How British Columbia’s Legal Aid System Fails to Meet International Human Rights Obligations”. | ↩
2 British Columbia (Attorney General) v Christie,  1 SCR 873, 2007 SCC 21. | ↩
3 Commissioner Leonard T. Doust, “Foundation for Change: Report of the Public Commission on Legal Aid in British Columbia” (“Doust Report”) (March 2011). | ↩
4 Ibid; CBABC, “Shaping the Future of Legal Aid and the Justice System in BC” (March 2012). | ↩
6 CBA, “Toward National Standards for Publicly-Funded Legal Services: Envisioning Equal Justice” (April 2013). | ↩
Margaret A. Mereigh