Christie precedent overturned

2007-05-26

in Canada, Daily updates, Economics, Law

Vault and Gardens, Oxford

The Canadian Supreme Court seems to have overturned Christie v. AG of B.C. et al. This 2005 decision held that the poor could not be charged the 7% tax on legal services that existed in British Columbia at the time. In the Reasons for Judgment, the B.C. Supreme Court stated:

[The Act] constitutes indirect taxation and is a tax on justice contrary to the Magna Carta and the Rule of Law…

I am prepared to grant the following declarations: A declaration that the Act is ultra vires in the Province of British Columbia to the extent that it applies to legal services provided for low income persons.

The court held that those earning under $29,000 should no longer need to pay the tax. It also reimbursed, with interest, the $6,200 that had been seized from Christie for non-payment of the sales tax on behalf of poor clients.

Dugald Christie, the man behind the 2005 BC case, was a Vancouver lawyer who had dedicated himself to helping the poor get representation within the legal system. He died about ten months ago while bicycling across Canada to raise money for that cause. Prior to his death, Christie lives in a small room at the Salvation Army’s Dunsmuir House, where he apparently worked twelve hours a day encouraging lawyers to do more pro bono work. He founded the Western Canada Society to Access Justice, which consists of sixty legal clinics across British Columbia, and has since expanded into Saskatchewan and Alberta.

The Supreme Court has now held that:

“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.”

I was surprised to see that a right to council isn’t actually included in section 11 of the Charter of Rights and Freedoms. The idea that a normal person can have a fair trial without legal council doesn’t seem a very plausible one.

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{ 7 comments… read them below or add one }

Milan May 26, 2007 at 1:14 pm

Momentum (a cycling magazine) has a kind of obituary of Dugald Christie

Anon May 27, 2007 at 2:06 am
Rob May 27, 2007 at 2:36 pm

Maybe I’m missing the point here, but isn’t the problem about the poor and adequate representation not a tax on legal fees, but poor people having to pay legal fees at all?

Anon May 27, 2007 at 2:46 pm

Under discussion here

Milan May 27, 2007 at 2:53 pm

Rob,

If you are facing criminal charges, you will at least have access to a public defender without paying legal fees.

The above case relates to civil suits, for instance those involving divorces or disputes with landlords.

Tom May 27, 2007 at 8:05 pm

The idea that a normal person can have a fair trial without legal council doesn’t seem a very plausible one.

True, but asserting a right to legal council in all cases might encourage frivolous lawsuits.

Tristan Laing May 29, 2007 at 4:04 pm

Tom,

Your argument amounts to the same error in judgement Frodo falls prey to when he decides to kill Gollum.

Society is full of externalization forces: Individuals, coorperations, even governments. These infringements are rarely criminal, so the decision that the rule of law does not include the concept of right to council in a civil case removes the possibility of fair recourse in the case of attempting to regain damages as a result of someone else’s negative externalities.

This seems to me just another move away from guarded capitalism towards unguarded capitalism.

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