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ten and unwritten constitutional rules such as the rule of law as a basis for
overruling legislation (which found its high water mark in Trial Lawyers).
As Johnson puts it: “The textualist project of Imperial Tobacco essentially
collapses in Trial Lawyers.”16
Trial Lawyers is seminal in that it found legislation to be unconstitutional
on the basis that it denied access to justice in violation of the unwritten constitutional
principle of the rule of law. Most notably, at least for the purposes
of the argument that the Act is unconstitutional because it intrudes
on the core jurisdiction of a s. 96 court, it anchors the finding of a breach of
the rule of law in the inviolability of the core jurisdiction of s. 96 courts.
In Trial Lawyers, the rules of court in British Columbia at the time
required that a party pay hearing fees for trials lasting longer than three
days in order to obtain a trial date. The applicant, a self-represented litigant
in a family law proceeding, was involved in a lengthy trial, and at the outset
of the hearing she asked the trial judge to relieve her from having to pay the
hearing fees, as she could not afford to pay them. The rules exempted persons
from having to pay the hearing fees only if they were impoverished,
but the litigant was not impoverished, though she was of limited means.
The trial judge reserved judgment and invited the Trial Lawyers Association
of British Columbia, the Attorney General of British Columbia and the
Canadian Bar Association (B.C. Branch) to make submissions as interveners.
The trial took over ten days, and the hearing fees of $3,600 amounted
to a sum almost equal to the applicant’s net family monthly income. In the
result, the trial judge held that the provincial legislature did not have the
constitutional authority to materially hinder access to justice and that the
obligation to pay hearing fees was therefore of no force and effect. The B.C.
Court of Appeal upheld this decision, but rather than strike down the hearing
fee requirement, it declared that the existing exemption should be read
as being available to persons who were impoverished “or in need”. On further
appeal, the Supreme Court of Canada found that the hearing fee
scheme was unconstitutional. Chief Justice McLachlin, writing for the
39 The s. 96 judicial function and the rule of law are inextricably intertwined.
As Lamer C.J. stated in MacMillan Bloedel, “in the constitutional
arrangements passed on to us by the British and recognized by the preamble
to the Constitution Act, 1867, the provincial superior courts are the
foundation of the rule of law itself” (para. 37). The very rationale for the
provision is said to be “the maintenance of the rule of law through the
protection of the judicial role”: Provincial Judges Reference, at para. 88. As
access to justice is fundamental to the rule of law, and the rule of law is
fostered by the continued existence of the s. 96 courts, it is only natural
that s. 96 provide some degree of constitutional protection for access to