CBA Considering Options for Phase II – Litigation Strategy to Improve Civil Legal Aid
The CBA began considering litigation against the government for failing to ensure that people have access to lawyers when important civil legal interests are at stake in 2001. The CBA asked eight prominent constitutional scholars or litigators to consider the scope for expanding constitutional recognition of a right to civil legal aid, and published Making the Case: the Right to Publicly Funded Legal Representation in Canada. In 2002, CBA’s National Council adopted that report and endorsed a litigation strategy.
A litigation committee of two academics, two constitutional litigators, a past President of the CBA and experienced family law lawyer, and a community and race relations advocate considered questions like the kind of case to launch, the legal arguments to make, what kind of litigant or litigants would be best, how to find a litigant able to stay with the case possibly through to the SCC, what part of the country and what court to file in, and, of course, how to fund litigation. A strategy was approved by the CBA Board of Directors in 2004.
After careful deliberation of the questions above, we decided to launch a comprehensive constitutional challenge to systemic problems with legal aid in Canada. We determined that a systemic approach was the most direct route to the desired result - broad constitutional recognition of a right to civil legal aid, and the CBA was the organization best able to advance that challenge. Unfortunately, our novel approach was not well received by the courts, and in 2008, the Supreme Court of Canada denied leave to appeal.
Undaunted, the Board of Directors endorsed a Phase II of legal aid litigation in 2009, guided by the courts’ recommendations that we adopt a more conventional approach. A new litigation advisory committee has developed a strategy, and work is progressing to identify appropriate cases with help from CBA Branches, Sections, Committees and individual CBA members.
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