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A Not so Bright Tax? :CRA SOTW

I don’t think you can blame the Court for the decision they made, or
the collectors for being forced to collect the tax. You can lay this
one at the feet of the politicians who implemented it – the issue
being a British Columbia tax on legal services.

No right to tax-free counsel: Supreme Court
KIRK MAKIN - Globe and Mail Update - May 25, 2007

The Charter of Rights does not provide litigants with a blanket right
to obtain legal counsel, the Supreme Court of Canada ruled Friday
morning.

The Court made the statement while unanimously upholding a BC tax on
legal services that critics had criticized as forming a barrier to
those who cannot afford legal services.

“Access to legal services is fundamentally important in any free and
democratic society,” the judges said, in a ruling that identified no
single author.

“In some cases, it has been found essential to due process and a fair
trial. But a review of the constitutional text, the jurisprudence and
the history of the concept does not support the respondent's
contention that there is a broad general right to legal counsel as an
aspect of, or precondition to, the rule of law.”

Dugald Christie, a Vancouver lawyer who died several months ago when
he was struck by a car as he bicycled across Canada to raise money for
his cause – access to justice for the poor. Mr. Christie was just
outside Sault Ste. Marie when he was killed.

“Notwithstanding our sympathy for Mr. Christie's cause, we are
compelled to the conclusion that the material presented does not
establish the major premise on which the case depends – proof of a
constitutional entitlement to legal services in relation to
proceedings in courts and tribunals dealing with rights and
obligations,” the court said Friday.

Enacted in 1993, the British Columbia's Social Service Tax Amendment
Act imposed a 7-per-cent tax on the price of legal services. While the
province maintained that its purpose was to fund legal aid, the
proceeds were put into general revenue. This made it difficult to
ascertain how much actually ended up enhancing access to justice.

In upholding the tax, the Supreme Court said that its ruling does not
foreclose the possibility that in certain, very specific
circumstances, it may find that a fundamental right to counsel is
guaranteed by the Charter of Rights and Freedoms.

“The right to access the courts is not absolute and a legislature has
the power under s.92(14) of the Constitution Act, 1867, to impose at
least some conditions on how and when people have a right to access
the courts,” it said.

“We conclude that the text of the constitution, the jurisprudence and
the historical understanding of the rule of law do not foreclose the
possibility that a right to counsel may be recognized in specific and
varied situations. But at the same time, they do not support the
conclusion that there is a general constitutional right to counsel in
proceedings before courts and tribunals dealing with rights and
obligations.”

David Stratas, a Toronto constitutional lawyer with Heenan Blaikie
LLP, said that the court has ruled out a “broad right of free access
to justice for all on every occasion.

“In other words, government does not have to set up a 'Judicare'
scheme where people have cost effective access to legal services in
all contexts at all times,” Mr. Stratas said. “While the door is
slammed shut on broad claims of access to justice without obstacles,
it remains ajar for individual claims based on good evidence showing
tough circumstances.”

Mr. Stratas said that the claimant's aim was too sweeping. “The
problem with the claim was that it tried to strike out the tax on all
occasions in all contexts without sufficient evidence in support of
such a sweeping remedy,” he said. “A more surgical approach based on a
few clients' circumstances might have gotten further.”

"Another way of seeing the case is that the litigant gave the court
only half the deck of cards - just the cards showing the hardship of
the tax," Mr. Stratas said. "The court needed the other half of the
deck, which is the fiscal impact of striking down the tax. If you are
seeking sweeping relief, you need sweeping evidence in support."

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