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Poverty and the right to council
May 26, 2007 5:27 AM   Subscribe

In 2005, the Supreme Court of British Columbia decided that taxing the legal services of the poor "constitutes indirect taxation and is a tax on justice contrary to the Magna Carta and the Rule of Law." Yesterday, the Supreme Court of Canada overturned the decision, rejecting "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." The case was largely the initiative of Dugald Christie, a Vancouver lawyer and political activist who devoted his life to the cause of improving access to the legal system, before dying on a cross-Canada bicycling fundraiser ten months ago. He is well remembered by lawyers and cyclists.
posted by sindark (47 comments total) 3 users marked this as a favorite

 
Counsel for Mr. Christie argued before us that the state cannot constitutionally add a cost to the expense of acquiring counsel to obtain access to justice when that cost serves no purpose in furthering justice. This assumes that there is a direct and inevitable causal link between any increase in the cost of legal services and retaining a lawyer and obtaining access to justice. However, as the Attorney General points out, the economics of legal services may be affected by a complex array of factors, suggesting the need for expert economic evidence to establish that the tax will in fact adversely affect access to justice.
What assholes! Of course making legal services more expensive makes it harder for the poor to defend themselves, and worse, makes it financially impossible to serve them when you (the lawyer) have to pay taxes on unpaid invoices.

What's even more ridiculous is that B.C. has a specific tax on legal services conducted in court, that they defended.
posted by blasdelf at 7:09 AM on May 26, 2007


Just one more example of the undermining of the poor. . .
In the U.S. the privatized prison system lobbies for harsher sentencing to fill prisons so they can make a profit for their shareholders, who just so happen to be. . . U.S. judges who, I would assume, issued the harshest sentences to improve their profits in the supermax prison system.

As far as legal counsel in the U.S. now, if you are innocent you stand a good chance of being found guilty if you cannot afford the services of a good lawyer.

I know it's a diversion from the story above, just had to say . . .
posted by mk1gti at 7:56 AM on May 26, 2007 [1 favorite]


America, Fuck Yeah!
posted by [insert clever name here] at 8:17 AM on May 26, 2007


Apparently there's more than just GST (if that) charged on legal services, but if there is GST charged, sufficiently low-income people get a GST credit anyway. So much for impeding access to counsel.

In the U.S. the privatized prison system lobbies for harsher sentencing to fill prisons so they can make a profit for their shareholders, who just so happen to be. . . U.S. judges who, I would assume, issued the harshest sentences to improve their profits in the supermax prison system.

And your evidence for this assertion would be...
posted by oaf at 8:25 AM on May 26, 2007


sufficiently low-income people get a GST credit anyway

Those GST rebates are about $60 apiece, and I think you get four a year. Given that GST is 7% of purchases, this implies that the people who receive them are spending only $3428 a year on goods and services.

Also, this tax on legal services is independent from GST and therefore does not include such rebates.
posted by sindark at 8:46 AM on May 26, 2007


this implies that the people who receive them are spending only $3428 a year on goods and services

Only if you think they ought to have all their GST credited.

I don't see why people who make less money have the right to pay less tax on goods and services.

And hey, Harper helped those people at the bottom of the income scale by cutting the GST by a whole percentage point. Of course, I actually pay more GST than I used to.
posted by oaf at 9:08 AM on May 26, 2007


I don't see why people who make less money have the right to pay less tax on goods and services.

Yeah! Fuck the poor!
posted by bshort at 9:26 AM on May 26, 2007


Did they cut the GST rebate? I used to get about $87 every three months iirc. Not that that's such a difference, I'm just interested. /OT

A tax specifically on legal services seems to be just plain wrong no matter who it's levied against, and double wrong if it's levied against people who already can't afford representation. What's the purpose of the tax? If every dollar of it went towards providing public defenders I might be able to get behind it, but otherwise... how wrong-headed.
posted by joannemerriam at 9:27 AM on May 26, 2007


I don't see why people who make less money have the right to pay less tax on goods and services.
posted by oaf at 12:08 PM on May 26


It's not a right. It's a common-sense alternative to taxing the poor and then giving them the same amount back again in social services. I recall when the GST rebate was introduced, the argument was that a dollar of cut taxes was much cheaper (administratively) to give than a dollar of social services is. The whole point was to save the government money.
posted by joannemerriam at 9:33 AM on May 26, 2007


What's even more ridiculous is that B.C. has a specific tax on legal services conducted in court, that they defended.

Well someone needs to pay for the Premier's dramatic wage increase ...
posted by squeak at 9:33 AM on May 26, 2007


Yeah! Fuck the poor!

Learn to read.
posted by oaf at 9:39 AM on May 26, 2007


It's not the 6% tax, it's the $400.00/hour that makes legal services unaffordable.

I have a lot of respect for Dugald Christie (and acknowledge he, personally, worked for near-minimum wage), and white-hot hatred for Gordon Campbell, Stephen Harper and their bloated ilk, but it seems the wrong tree was being upbarked here.

wasn't the tax in question the PST, anyway?
posted by Rumple at 9:43 AM on May 26, 2007


Obviously, the US system is incredibly imperfect, but does Canada have something analogous to the various LSC funded legal aid offices in the US? That would seem to mitigate the effect of any tax of legal services.
posted by Bulgaroktonos at 10:00 AM on May 26, 2007



Yeah! Fuck the poor!

Learn to read.


Learn to not be a douche.
posted by bshort at 10:04 AM on May 26, 2007


> I don't see why people who make less money have the right to pay less tax on goods and services.

I don't think that's what's at issue here, specifically. That is, the contention is that the tax is a barrier to access to legal representation, and the strength of the barrier is variable and dependent on the income of different people. Put more simply, mo' money = mo' access to the right of legal representation.

Tax systems that differentiate on any basis are inherently uneven and biased by politics and ideology. A truly fair tax system would evenly tax all expenditure at the same rate, and thereby tie it to the amount a person can spend at all. Though I think that's more fair I would still have a hard time accepting a tax on things like health services and legal representation.
posted by holycola at 10:20 AM on May 26, 2007


Learn to not be a douche.

You first.

Sure, it would be nice if people who couldn't afford certain goods or services were entitled to discounts on them because they are on one of the bottom rungs of the income ladder, but if that were the case, I'd own a house.
posted by oaf at 12:24 PM on May 26, 2007


The US has the Sixth Amendment, which declares a right for criminal defendants to have legal counsel for their defense. That's why the indigent get free legal representation.
posted by Steven C. Den Beste at 12:47 PM on May 26, 2007


Sure, it would be nice if people who couldn't afford certain goods or services were entitled to discounts on them because they are on one of the bottom rungs of the income ladder, but if that were the case, I'd own a house.

You don't have a legal right to home ownership. You do, however, have a right to legal representation, and getting in the way of that is a violation of your rights.
posted by Pope Guilty at 12:48 PM on May 26, 2007


In the U.S. the privatized prison system lobbies for harsher sentencing to fill prisons so they can make a profit for their shareholders, who just so happen to be. . . U.S. judges who, I would assume, issued the harshest sentences to improve their profits in the supermax prison system.

This is a paranoid fantasy. Your comment needs more reality and fewer ellipses.
posted by brain_drain at 2:42 PM on May 26, 2007


You don't have a legal right to home ownership.

Not yet, but we're working on it.
posted by Avenger at 2:52 PM on May 26, 2007


They might as well have a specific tax on emergency room visits.
posted by blasdelf at 3:07 PM on May 26, 2007


here's one place you can find out more info re the prison system as well as quite a few other things.
posted by mk1gti at 4:29 PM on May 26, 2007


and a bit more about prisons in the U.S. and the high incarceration rate. I think it's something like one out of every thirty six persons in the U.S. is in the pokey. Not an enviable record for a supposedly civilized country
posted by mk1gti at 4:34 PM on May 26, 2007


and a bit more still
posted by mk1gti at 4:54 PM on May 26, 2007


I don't see why people who make less money have the right to pay less tax on goods and services.

Because they can't afford to pay it?

But seriously. The tax systems today usually don't take into account poor families. For instance, I'm a single guy living at home with a decent job. I've got more disposable income than ten poor families. The government should be sucking me dry.

How could they do this without hurting the families? Increase taxes by 50% and make rent and mortgage payments tax deductible and let them be paid out of pre-tax dollars.

That being said, I'm one of those weird people who think that paying taxes is his civic duty and would rather see an increase to the quality of civic services rather than a measly $6 a week back in a pissy round of election tax cuts.
posted by Talez at 5:15 PM on May 26, 2007


WTF Canada?
posted by five fresh fish at 5:22 PM on May 26, 2007


Wait. . . are we talking about Canada? All of a sudden, all this U.S. talk flooded the topic to where there's more of it than actual discussion of the issue. There has been ever one sentence America criticisms for a Canadian issue. I mean, bring up the US as a counterpoint and comparison, but don't make it center stage so you have an axe to grind.

Anyway, yes, I could see that this would conflict in America on legal grounds with the Sixth Amendment. Does Canada have something similar that would make this a legal/constitutional issue vs. a legislative issue? I would rather see this changed by Canada's parliment passing a law that would fix it than legal recourse. Asking if something is a right doesn't imply that it shouldn't be altered. . . it's just asking whether there is a judicial basis for changing it. The courts are usually tasked with obeying the law, not reflecting more enlightened social policies (unless the rest of the government gives them something to work with).
posted by Lord Chancellor at 6:48 PM on May 26, 2007


You don't have a legal right to home ownership.

No, but I have a right to shelter, don't I?

Is there a constitutional right to legal representation in B.C.?

I'm a single guy living at home with a decent job. I've got more disposable income than ten poor families. The government should be sucking me dry.

Why should they be sucking you dry? Has communism made a comeback?

oaf is the most eponysterical MeFite ever, I think.

I'm so glad you decided not to contribute to this thread.
posted by oaf at 7:21 PM on May 26, 2007


RTFJ. This is not about criminal proceedings. At all.
posted by dreamsign at 7:35 PM on May 26, 2007


No, but I have a right to shelter, don't I?
posted by oaf at 10:21 PM on May 26


No, you don't, actually. At least not in Canada.

Does Canada have something similar that would make this a legal/constitutional issue vs. a legislative issue?
posted by Lord Chancellor at 9:48 PM on May 26


The Canadian Charter of Rights and Freedoms lists these rights for citizens, amongst others:

Legal: right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice; to be secure against unreasonable search or seizure; not to be arbitrarily detained or imprisoned. On arrest or detention: to be informed promptly of the reasons therefor; to retain and instruct counsel without delay and to be informed of that right; and to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

I'm not a lawyer or legal scholar, but the bolded stuff seems relevant.
posted by joannemerriam at 8:40 PM on May 26, 2007


No, it is not relevant. Read the judgment. For the SCC, it is really, really short and to the point.
posted by dreamsign at 8:58 PM on May 26, 2007


dreamsign, I read the decision. The argument for getting rid of the tax refers to the Charter repeatedly, and I don't see how they could possibly be talking about any other part of it than what I referenced. The SCC disagreed, of course, about the applicability of the Charter here.
posted by joannemerriam at 10:13 PM on May 26, 2007


Why should they be sucking you dry? Has communism made a comeback?

Because I have the greatest ability to pay?

Why can't communist and capitalist ideals get along?
posted by Talez at 12:03 AM on May 27, 2007


The argument for getting rid of the tax refers to the Charter repeatedly, and I don't see how they could possibly be talking about any other part of it than what I referenced. The SCC disagreed, of course, about the applicability of the Charter here.

Of course it "references" it. It does so to explicitly state that it is not involved here.

The text of the Charter negates the postulate of the general constitutional right to legal assistance contended for here. It provides for a right to legal services in one specific situation. Section 10(b) of the Charter provides that everyone has the right to retain and instruct counsel, and to be informed of that right “on arrest or detention”. If the reference to the rule of law implied the right to counsel in relation to all proceedings where rights and obligations are at stake, s. 10(b) would be redundant.

All the talk above about criminal defendants, habeus corpus, and yes, your quote from subsection 10(b) regarding, you put in bold, rights upon arrest or detention are beside the point here. The question is to whether there is a constitutional right of general legal counsel here, and the SCC said no -- that it exists only in criminal cases by way of 10(b).

Had everybody read that, surely there wouldn't have been as much handwringing about the inability of the poor to "defend themselves" because of this.

You want to know what kind of litigation falls through the cracks in B.C.? Divorce proceedings. If it's a criminal matter, you have 10(b) (whether you get a capable public defence is another matter). If it's a civil matter such as landlord/tenant, accident liability, or a host of other things, you can walk into any community clinic and get help. What you can't do is sue your spouse and get the taxpayer to foot the bill. Whether that is proper or not is debatable, I guess.

It's a shame this tax wasn't put to its stated purpose, but that is another issue entirely.
posted by dreamsign at 12:42 AM on May 27, 2007 [1 favorite]


Also not sure I buy the application to corporations, but that can be read as obiter, with "arguably" the giveaway. Were it to come before the court on those merits, they'd find reasons to find otherwise.
posted by dreamsign at 12:50 AM on May 27, 2007


The SCC's judgment is pretty clear on where the Canadian constitution guarantees the right to legal counsel - i.e. when one is charged or arrested per section 10b of the charter. The court is saying there is no general broad right for people to have legal representation in all instances.

I don't really see this as a traditional assertion of 'the mans' power and an attempt to squash legal access. The Court is doing its job in interpreting the charter and striking down a decision based on a claim which argues that there is a right (for legal rep in all instances). The claim is not founded in Canada's paramount legal document, therefore, the claim is invalid.

Finally, just for reference, BC has several legal aid programs for low income families.

In Vancouver, law students volunteer with community centers to help provide legal representation on criminal and small civil matters, draft wills and even help file some divorces. The government and the Law Foundation also help fund legal assistance programs, lawyer referral, and telephone help desks.

While I admire Christie, we need to look beyond the tax, and insted the cost of legal services in the country.
posted by phyrewerx at 2:18 AM on May 27, 2007 [1 favorite]


Dugald Christie, a Vancouver lawyer and political activist who devoted his life to the cause of improving access to the legal system, before dying on a cross

C'mon, think of something that hasn't been done to death.
posted by acetonic at 6:30 AM on May 27, 2007


dreamsign: Fine, I guess I should have said that in answer to Lord Chancellor's question about Canadian rights, here's the passage from the Charter that the SCC is specifically talking about not being relevant. (Which, it seems to me, therefore makes it relevant to this Metafilter discussion, but whatevs. I think you think I'm arguing with the SCC, which I'm not - I was trying to provide some context for the non-Canadian asking about our laws.)
posted by joannemerriam at 6:32 AM on May 27, 2007


No, you don't, actually. At least not in Canada.

And I don't have the right not to pay taxes just because I'm under a certain income level. The right to shelter is far more basic than the right to get a 6.54% discount on legal services.
posted by oaf at 8:15 AM on May 27, 2007


Ok, joannemerriam. I had meant to add that if it was in answer to that question specifically, then I get where you're coming from. Though questions about the Canadian version of the U.S. constitutional guarantees -- dealing as they do again with criminal defence, as Den Beste mentions -- is a derail that could have been avoided had everyone just read the judgment. (the question, had it remained, is itself is answered by the opening casenote paragraph!)

Don't get me wrong. I hate reading law outside of work, and that's why I seldom participate in these threads, but the whole "poor can't buy a criminal defence" concern starting to work its way through this thread was starting to bug me.

oaf, the word right -- I do not think it means what you think it means.
posted by dreamsign at 8:31 AM on May 27, 2007


I do not think it means what you think it means.

Sorry, people here are using it in two different senses. I know you don't have a legal right either to shelter or to tax breaks, but I think it's immoral to let people go without shelter, so, in the other sense, shelter is a basic human right, like food.
posted by oaf at 9:03 AM on May 27, 2007


dreamsign, that all makes sense, and I apologize for contributing to the derail. I should have been clearer about what I was addressing.


And I don't have the right not to pay taxes just because I'm under a certain income level.
posted by oaf at 11:15 AM on May 27


oaf, I never said you did. In fact, specifically about the GST and your comment about the GST rebate not being a right, I said: "It's not a right. It's a common-sense alternative to taxing the poor and then giving them the same amount back again in social services." (Although I am pretty sure this decision refers to a BC provincial tax, not federal GST.)

I don't think the argument against the tax was that the poor had a "right not to pay taxes," but that the poor had a right to legal representation, and taxing legal representation interferes with that right. Since, as dreamsign and the SCC pointed out, the right to legal counsel in Canada is limited to criminal cases, there's no constitutional case for eliminating a tax on non-criminal cases.


I still think the tax itself - or at least, its effect on lawyers like Christie who owe the tax whether or not their low-income clients pay their bills on time - is wrong-headed, but wrong-headed and unconstitutional aren't the same thing, and it's not the responsibility of the SCC to change the status quo. I hope the province will legislate away the tax, or at least change it so the tax is due when the bill is paid rather than when the invoice is sent.
posted by joannemerriam at 12:19 PM on May 27, 2007


Indeed.

Now that I understand this affects civil, not criminal, law, I'm a little less uneasy with it. Nonetheless, it seems to me that it in-avoidably interferes with the ability for our most-susceptible folk to get the representation they occasionally need. I'd rather not see that. We Canucks do so many things very right, that we can do this right, too.
posted by five fresh fish at 1:22 PM on May 27, 2007


why does "in-avoidably" seem so wrong to me? Unavoidably doesn't work. For some reason, I think inavoidably should... but does it?
posted by five fresh fish at 1:23 PM on May 27, 2007


Why doesn't unavoidably work?
posted by joannemerriam at 3:36 PM on May 27, 2007


oaf -- I hear you. I think we should add public drinking water and toilets to that list, and a number of other things. Those conversations are being had, but one wonders if anything will ever come of them.
posted by dreamsign at 8:50 PM on May 27, 2007


er... maybe unavoidably does work? I dunno, it just seemed wrong at the time...
posted by five fresh fish at 10:55 AM on May 28, 2007


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