Reclaiming a Contextualized Approach to the Right to State-Funded Counsel in Child Protection Cases

(2012) 63 University of New Brunswick Law Journal 163

52 Pages Posted: 26 Jun 2012 Last revised: 28 Jun 2013

See all articles by Kate Kehoe

Kate Kehoe

National Judicial Institute

David Wiseman

University of Ottawa - Common Law Section

Date Written: June 26, 2012

Abstract

A right to state-funded counsel for parents in child protection cases, when necessary to ensure a fair trial, was recognized under the Charter by the Supreme Court of Canada in 1999 in the ground-breaking case of New Brunswick v. G.(J.). The decision prompted reviews of legal aid plans across the country, many of which had totally excluded child protection matters, and so produced something of a systemic improvement to the plight of unrepresented parents. However, due to restrictive legal aid eligibility and subsequent cut-backs, there remain parents involved in child protection matters who are not eligible for legal aid counsel and who cannot afford to pay for counsel themselves. The G.(J.) right to state-funded counsel therefore continues to be relevant and to be claimed but our review of reported cases reveals that these claims are often unsuccessful, in part due to a creeping assimilation of the test for eligibility for state-funded counsel in child protection cases to the more restrictive version of the test used for state-funded counsel claims in criminal cases. In 2009, however, the restrictive approach was questioned and resisted at the trial level of a child protection matter, British Columbia (Director of Child, Family and Community Service) v. T.L., and the approach taken was upheld on appeal. In our view, the fresh approach offered by T.L. ought to be followed and, indeed, enhanced. Our opposition to the more restrictive approach is based on an assessment of the legal, social and judicial context of child protection matters, as well as a consideration of recent judicial questioning of the restrictive approach in the criminal context. Ultimately, we identify and defend a contextualized, less restrictive approach to state-funded counsel claims in child protection cases – a position which, in our view, reclaims the approach taken in G.(J.) itself.

Keywords: child protection, right to counsel, access to justice, Charter

Suggested Citation

Kehoe, Kate and Wiseman, David, Reclaiming a Contextualized Approach to the Right to State-Funded Counsel in Child Protection Cases (June 26, 2012). (2012) 63 University of New Brunswick Law Journal 163, Available at SSRN: https://ssrn.com/abstract=2093492

Kate Kehoe

National Judicial Institute ( email )

Toronto
Canada

David Wiseman (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

HOME PAGE: http://www.commonlaw.uottawa.ca/index.php

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