New Brunswick v. G.(J.), [1999] 3 S.C.R. 46 is a leading Supreme Court of Canada

Supreme Court of Canada

The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...

 decision on right to legal aid

Legal aid

Legal aid is the provision of assistance to people otherwise unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial.A number of...

 services. The Court held that the denial

Denial of request

Denial of request is the refusal of one party to grant the request of another. Some acts that can be considered denial may include the refusal of a person or a group of people representing a company, organization, or government agency to provide what a client or one seeking to be a client has...

 of legal aid to parents whose custody of their child was challenged by the government is a violation of section 7

Section Seven of the Canadian Charter of Rights and Freedoms

Section Seven of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section, namely the right to life, liberty, and...

 of the Canadian Charter of Rights and Freedoms

Canadian Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...

.

Background

The New Brunswick Minister of Health and Community Services gained custody of three children of J.G. for a period of six months. At the end of the six months the minister applied to extend it another six months. J.G. sought to argue against it and applied for legal aid under the provincial Domestic Legal Aid program. She was refused. She challenged the legal aid policy as a violation of section 7 of the Charter.

The motions judge found that there was no violation. This decision was upheld at the Court of Appeal.

The issue before the Supreme Court was whether "indigent parents have a constitutional right to be provided with state-funded counsel when a government seeks a judicial order suspending such parents’ custody of their children."

Mootness

Lamer C.J., writing for the majority, rejected arguments that the court should refrain from ruling on this issue because the matter was moot as J.G. had already regained custody of her children. He rejected such arguments by applying the test from Borowski about when a court should decide a moot case. In this situation, the court decided that this was an important matter that was unlikely to return to the court and whenever it did return to the court it would be with a moot issue because of the length of time such cases take to reach the Supreme Court of Canada and because of the difficulty for indigent parents who cannot afford legal counsel to pursue such cases in the appellate courts.

Security of the Person

Chief Justice Lamer, for the majority, held that in these particular circumstances the government has an obligation to provide legal aid. He did not discount, however, the possibility that cost-reduction could be an objective sufficiently important to deny a fair hearing. In the circumstances, Lamer found that the savings from the denial to be minimal and so could not be grounds to deny J.G. her rights under section 7.

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