Constitutional challenge to inadequate legal aid; Whether a mother is entitled to legal aid for a custody hearing where the state applied to extend its custody of the child; whether the removal of a child from a parent violates her security of the person (Canadian Charter of Rights and Freedoms, s. 7); whether the provision of legal aid is a right or a matter for discretion.
Jeannine Godin lived in poverty and relied on social assistance. The Minister of Health and Social Services had been granted custody of her three children for six months, and was applying to extend this for another six months. She applied to legal aid for a lawyer to represent her at the hearing but was denied because legal aid did not cover temporary custody hearings. She applied to the court for an order that funds be provided for a lawyer and asked for a declaration that the restricted eligibility for legal aid violated her rights to life, liberty and security of the person under s. 7 of the Canadian Charter of Rights and Freedoms.
The Supreme Court of Canada found that Ms. Godin was entitled to legal aid in these circumstances. When government action triggers a hearing in which the interests protected by s. 7 of the Canadian Charter are engaged, it is under an obligation to ensure that the hearing is fair. Any removal of her children from her custody violated her psychological integrity and thus her Charter right to security of the person. The Court did not, however, find that there is a general right to state-funded counsel, but rather, ruled that courts should consider the seriousness of the interests at stake, the parent’s capacity, and the complexity of the case when deciding whether or not the state may be required to provide legal aid. Justice L’Heureux Dubé wrote a separate opinion, supported by Justice McLachlin, emphasizing that women are disproportionately affected by child protection proceedings and denial of access to civil legal aid.
Keywords: New Brunswick (Minister of Health and Community Services) v.G.(J.), [1999] 3 S.C.R. 46, Women, Rights
In all provinces where legal aid was not automatically provided in custody cases, judges began ordering it on a case by case basis. However, the decision did not alter the system-wide inadequacy of civil legal aid in Canada. This issue has been a priority issue for women’s organizations such as LEAF and NAWL. It is the subject of a major constitutional challenge launched by the Canadian Bar Association which attempts to move the Court well beyond the position adopted in G.(J.).
The decision was an important advance from earlier jurisprudence in which the Supreme Court of Canada had found that the Canadian Charter does not guarantee state funded counsel on arrest. (See Prosper). It represents an important recognition of positive obligations under section 7 of the Charter. However, linking the positive duties to state “interference” left it unclear whether this would be applied to poverty in a broader context (See Gosselin)
