848 THE ADVOCATE
VOL. 78 PART 6 NOVEMBER 2020
lated ss. 7 and 15 of the Charter, but they also alleged that it violated s. 96
of the Constitution Act, 1867. The defendants applied to have the pleadings
struck as disclosing no reasonable claim. Chief Justice Hinkson allowed the
claim to proceed.
On the s. 7 Charter argument, the plaintiffs claimed that the legal aid
scheme denied female litigants of limited or moderate means engaged in
family law proceedings access to the legal services they needed to effectively
participate in the proceedings and obtain the remedies they needed
to protect themselves and their children from family violence or abuse. On
this point, Chief Justice Hinkson held:
112 While I agree that s. 7 does not currently impose positive obligations
on the state to ensure that each person enjoys life, liberty or security
of the person, given the comment of Chief Justice McLachlin
in Gosselin that “one day s. 7 may be interpreted to include positive obligations”,
and the holdings in Adams, Bedford, and PHS, I am unable to say
that the plaintiffs’ claim under s. 7 of the Charter, erring on the side of
permitting a novel but arguable case to proceed to trial as the test
requires, has no prospect of success.
The plaintiffs advanced a s. 15 Charter argument alleging that the legal
aid scheme widened the gap between the claimants and the rest of society
because their pre-existing disadvantages were perpetuated by a lack of
access to lawyers in family law proceedings. The Chief Justice again held
that it was not clear this claim had no reasonable prospect of success.
The Chief Justice summarized the plaintiffs’ argument on the s. 96 claim
147 The plaintiffs contend that it is not plain and obvious that the Single
Mothers’ Alliance of BC Society’s claim under s. 96 will fail. The
impugned legal scheme, they say, creates unlawful barriers for women
litigants of limited or moderate means to access the superior courts in
family law proceedings. Access to justice is essential to the rule of law,
and because the impugned legal scheme limits access to the superior
courts, the plaintiffs contend that it prevents the courts from complying
with their basic judicial function of resolving disputes between individuals,
and infringes s. 96 of the Constitution Act, 1867. The scope of that protection
has yet to be determined in the context of ensuring meaningful
access to a court process that is mandated by legislation.
The defendants, for their part, argued that although s. 96 conferred a
right of access to the superior courts, this access did not require the government
to provide state-funded legal counsel.
Hinkson C.J.S.C. held that in view of the guidance that he should err on
the side of permitting a novel but arguable claim to proceed to trial, he
could not conclude that the plaintiff’s claims under s. 96 had no reasonable
prospect of success.