by Jenna Marie Pilon
[footnotes omitted; available on request]
A Canadian lawyer must respect the requirements of human rights laws and not deny services to persons by discriminating on the ground of sex. However, lawyers may refuse services to clients who cannot pay. This lawful principle, when combined with the cost of civil litigation and the demographic reality that it is predominantly women who experience poverty and sexual assault, results in adverse discrimination that prevents this group from accessing civil justice.
What is the Access to Justice Problem?
Currently, there are approximately 90,000 lawyers in Canada. Despite this growing number, the Canadian legal community is concerned that legal services are becoming less accessible.
While the Supreme Court of Canada acknowledges the crucial role lawyers play in assisting individuals in accessing justice, it does not read a general constitutional entitlement to legal assistance into the Charter of Rights and Freedoms. Further, many Canadians cannot afford to hire a lawyer. In 2007, the cost of a routine three-day civil trial in Ontario was approximately $60,000, which was more than the median Canadian family income of the same year. Legal aid provides services exclusively for low-income persons, leaving Canadians with “some income and few assets” ineligible. Consequently, many persons are forced to choose between exhausting their limited means to fund litigation or not engaging the civil legal system at all.
These challenges are exacerbated by the principle that lawyers may decline persons if they cannot pay. While provincial law societies are subject to human rights legislation, Section 1 of the Ontario Human Rights Code does not list “class” as a potential site for discrimination when accessing services, goods and facilities. This is problematic as the majority of persons in Canada who are poor are women.
Applying the Access to Justice Problem: Sexual Assault and the Civil Justice System
The context of sexual assault provides a place to examine how selective representation results in adverse discrimination against women desiring to access civil justice. In criminal proceedings for sexual assault, the survivor sits on the periphery of the process. Her interests are considered less important than the accused’s constitutionally protected right to make full answer and defence.
Consequently, the criminal process is usually alienating, harmful and destructive for assault survivors, leading many to seek legal relief using the civil justice system. In light of this, Professor De Rosiers and her colleagues assert that because the majority of sexual assault survivors are women, “it is unfair and discriminatory that [the civil justice system] respond badly, and sometimes not at all to their needs.” Survivors are entitled to seek redress against their aggressors in the civil context, which offers four distinctive benefits.
First, an underlying principle of the civil system is that the plaintiff and defendant are equal. This is critically different from the criminal system, where survivors are relatively less powerful than perpetrators.
Second, with regards to burden of proof, the civil system uses a lower threshold. In this context, survivors’ accounts of sexual assault need only be more credible than defendants’. Further, if survivors are believed, they can be compensated, whereas in criminal proceedings, defendants may be acquitted over a reasonable doubt even if triers of fact believe that sexual assault has taken place.
Third, survivors of sexual assault are given greater control over the justice process in the civil context. For example, survivors may elect to proceed anonymously or publicly, choose which facts are made known and how experts are used. Most importantly, survivors are given space to explain the injurious effects of sexual assault from their personal points of view.
Fourth, survivors are given the opportunity to confront their aggressors in a safe context. This is empowering as survivors’ ability to control the interaction allows for the recovery of strength and self-confidence.
While the civil system can provide survivors with an avenue of justice not available in criminal proceedings, the costs of the process remain a primary barrier for those who would otherwise engage their aggressors in this way. Civil litigation is an expensive and risky undertaking. Potential awards may not be sufficient to fund the costs of litigation and it is possible that defendants may be insolvent or ineligible to claim liability insurance due to their intentional misconduct. Because of this uncertainty, Professor Feldthusen is skeptical that survivors are both willing and able to finance civil litigation for the full length of time it requires, despite the benefits that could be derived from the process.
The Law Society of Upper Canada’s Rules of Professional Conduct outline that where “[a]n action or policy [or the application of a seemingly ‘neutral rule’] that is not intended to be discriminatory [results] in an adverse effect that is discriminatory…on a group protected by rule 5.04, there is a duty to accommodate.” Further, Professor Rosemary Cairns Way suggests that the Supreme Court’s exhortation that courts administer the law in conformity with the constitutional principle of equality “is required in every legal context,” including what is understood as professionally responsible conduct.
While the scope of this paper is limited to highlighting an insidious form of adverse discrimination, it is helpful to briefly mention the example of a profession-wide solution offered by Professor Richard Devlin: the adoption of a mandatory pro bono policy. In partnership with government funders, this strategy requires lawyers to offer a certain number of hours to assisting the marginalized with their legal challenges. While this would not address the root causes of discrimination against women, it carries the potential to simultaneously entrench equality into the rules of professional responsibility as well as alleviate adverse discrimination by increasing women’s access to civil justice.
Critical feminist interrogation of the Canadian Bar Association’s Code of Professional Conduct and the Law Society of Upper Canada’s Rules of Professional Conduct reveals that lawyers’ general right to refuse providing services to clients who cannot pay results in adverse discrimination against a group protected by Ontario’s Human Rights Code. Currently, despite the illegality of denying legal services to persons on the grounds of sex, the lawful rule of selective representation prevents women, specifically survivors of sexual assault, from accessing and experiencing the full benefits of civil justice.
[Jenna Marie Pilon wrote this paper for a course in Professional Responsibility taught by Professor Adam Dodek at Ottawa University Faculty of Law]