Legal representation Essential for Meaningful Access to Justice

Legal representation is essential for meaningful access to justice in many human rights cases. Canadian human rights regimes were originally conceived with an integrated guarantee of legal advice and representation. Today, however, more and more complainants are responsible for ensuring their own representation in so-called “user friendly processes”. At least one human rights tribunal has recognized that unrepresented complainants are much less likely to succeed (Scowby v. Glendinning (1986), 8 C.H.R.R. D/3677 at para. 29132, per La Forest J., dissenting in the result). At the same time, Canadian human rights jurisprudence recognizes that human rights cases are not strictly private and cannot be equated with a lis between the parties in a court because "the ultimate goal is the promotion of human rights for the benefit of the community as a whole" (Senyk v. WFG Agency Network (B.C.) Inc. (No. 2) (2008), 64 C.H.R.R. D/245 at para. 129). There is a clear public interest in providing accessible fora for the resolution of human rights complaints.

A recent decision by the Northwest Territories Human Rights Adjudication Panel sets an important precedent for increased access to justice in the human rights context. In Portman v. Northwest Territories (Justice) (CHRR Doc. 16-3074), the Panel recognized that a blanket policy of refusing legal aid funding for human rights complaints resulted in systemic discrimination of persons with certain disabilities.  Importantly, the Panel framed the issue as one of equal and genuine access to a public service, that is, the human rights complaint process.  In doing so, the Panel rejected the narrower right to counsel approach developed in the criminal law context at common law and imported into s. 7 Charter jurisprudence.  The one drawback of the decision is that it links inability to self-represent with the existence of certain disabilities.  Yet, it would not be hard to find a range of complainants with complex human rights issues who are unable to meaningfully navigate tribunal proceedings on their own, particularly when faced with respondents who have the benefit of legal representation.

Portman has the potential to advance equal access to justice not only in the human rights context but also in a broader range of non-criminal cases.  Progress on this front has been stymied since the Supreme Court of Canada's groundbreaking 1999 decision in New Brunswick v. G. (J.), [1999] 3 S.C.R. 46, extending the right to state-funded counsel to child protection matters.  Attempts to extend this precedent have foundered for a variety of reasons including unrepresented claimants who are unable to satisfactorily marshal the factual basis and legal arguments, governments settling with claimants in order to avoid a precedent, claimants abandoning a claim due to the amount of time and energy required to pursue a right to counsel claim in addition to the underlying claim for which they seek assistance. Ms. Portman is a tenacious complainant and she was very ably assisted by Professor Laverne Jacobs and a team of students from the University of Windsor law school.

International human rights instruments emphasize the central important of equal access to fora for the determination of rights and remedies.  Equal access to the human rights adjudication process remains a live issue in Canada today. The Government of the Northwest Territories has appealed the Panel's decision and sought and was granted a stay.  Ms. Portman was unrepresented at the hearing of the stay application.

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