Why are legal fees not unconstitutional where equal protection clauses exist?

Question

I live in Canada, where the equal protection clause looks like this:

Equality Rights
Equality before and under law and equal protection and benefit of law

15 (1)

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

But, there are fees to a lawsuit, including things like delivering a Statement of Claim.

While, yes there are programs in place to help you with those fees, it won't help you if you above a certain income (over $34,320 a year in province), or even in certain type of lawsuits (for example, you will not receive any legal aid trying to sue someone for defamation) regardless of income.

Because of that, when someone injures them or have been negligent towards them, and they could potentially sue for damages, it might be harder for those people to actually go through with the procedures, and even more so for categories like defamation.

Also, it is my impression that someone might bring a civil case against people that barely have an average income. In those cases, they seem more likely to, for example, accept to remove the source for a defamation claim, despite everything in the written or recorded statement being true, when compared to wealthier people.

And if the situation was reversed, there is a decent chance that they might not even sue. I'm not sure how true it is, but it seems common amongst the people around me that having more money tends to give you a better chance in court, because your lawyer tends to have more experience, a better team around them from being in a bigger law firm, etc.

With those factors in mind, it appears to me that money is an obstacle that prevents some people from benefitting from the law as much as other people, going against the article above as it creates an unequal benefit of the law, based on the money you make.

But, clearly I haven't seen many people in Canada, or any country that I am aware of with an equal protection clause, that legal fees are unconstitutional, and thus should be removed, which leads me to believe that they are probably constitutional.

So, why aren't legal fees being a barrier of entry unconstitutional? How does it not go against the equal protection clause?

Answer 1

How does it not go against the equal protection clause?

People had argued poverty is an analogous ground but it is not recognized. You may find the arguments outlined in William Head Institution v. Canada (Commissioner of Corrections) useful to respond to your question, but you certainly do not have to agree with those arguments.

The main arguments there include

1. The Charter is not a document designed to protect economic rights and freedoms, in so far that "the worth and dignity of the human person" is not threatened.
2. Poor people form a disparate and heterogenous group without a central personal characteristic. The Charter protects "discrete and insular minorities".
3. Poverty is not immutable and changing it does not come with unacceptable personal cost; in fact, most people would be happy to become not poor.

It is also necessary to understand section 15 or the constitution is not designed to create a "perfect" society. They must be read in conjunction of social and political "progress" or understandings of the society and interpreted so that it is "practical" and "pragmatic" under such understandings.

Directing government policies in minute details are not the role of the constitution or the judiciary. Taking to the extreme, the equal protection requirement could require the government to assess all its policies at an individual level to ensure literally everyone does not benefit more than any other person under any law. But most people do not believe that should be done and it will paralyze essentially all governing activities.

As another answer has showed, court fees can be unconstitutional for other reasons. But in general, court fees serve an important purpose to fund the judicial system and encourage non-judicial resolutions of disputes so reasonably compensated judges can have a reasonable caseload; in some sense, the courts are self-serving (but also serve the interests of the society in general so everyone is not suing everyone for every small things).

With those factors in mind, it appears to me that money is an obstacle that prevents some people from benefitting from the law as much as other people, going against the article above as it creates an unequal benefit of the law, based on the money you make.

The above is by no means a justification of barriers of access in the justice system. But it is mostly a political problem that the judiciary should (and does) steer clear of other than for exceptional situations.

Answer 2

People have argued that such legal fees are unconstitutional. Court fees that are a "obstacle that prevents some people from benefitting from the law as much as other people" have been found unconstitutional by the Supreme Court of Canada in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General). Instead of the equal protection clause, section 96 of the Constitution Act is the basis on which these court fees are disallowed:

The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick.

This clause (along with 92(14), which grants provincial governments jurisdiction over "the Administration of Justice in the Province") has been interpreted as prohibiting provincial or federal governments from enacting laws that that remove jurisdiction from the superiour courts. It "confers a special and inalienable status on what have come to be called the ‘section 96 courts’".

Paragraph 22 answers your question:

It was argued that all hearing fees are unconstitutional; as courts are a “first charge on government”, charging fees for time in court is as offensive to democracy as charging fees for voting. However, this argument is flawed because it focuses on the type of the fee, rather than the real problem ― using fees to deny certain people access to the courts. Moreover, the argument raises policy issues relating to how governments should generate revenue and allocate their funds. Hearing fees paid by litigants who can afford them may be a justifiable way of making resources available for the justice system and increasing access to justice overall.

And (para. 35-36):

Here, the legislation at issue bars access to the superior courts in yet another way ― by imposing hearing fees that prevent some individuals from having their private and public law disputes resolved by the courts of superior jurisdiction ― the hallmark of what superior courts exist to do. As in MacMillan Bloedel, a segment of society is effectively denied the ability to bring their matter before the superior court.

It follows that the province’s power to impose hearing fees cannot deny people the right to have their disputes resolved in the superior courts. To do so would be to impermissibly impinge on s. 96 of the Constitution Act, 1867. Rather, the province’s powers under s. 92(14) must be exercised in a manner that is consistent with the right of individuals to bring their cases to the superior courts and have them resolved there.

The reasons go into more detail as to what specifically made hearing fees in question deny access to the superior courts.

The reasons don't mention the equal protection clause, but it doesn't seem like the equal protection clause would also make some court fees unconstitutional. By your interpretation of the equal protection clause, all administrative fees would be unconstitutional. The Canadian constitution also grants fairly broad powers to the federal and provincial governments to raise taxes. The federal government can take part in "the raising of Money by any Mode or System of Taxation", and provinces can "Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes". Court fees are a form of raising money for the government, so it doesn't seem that the equal protection clause would be applicable here. (But it's kinda moot since the use of court fees to make the courts unavailable for people with less money is already unconstitutional).

In practice, this means that if you can't afford the relevant court fees, you can get them waived.

Answer 3

Equal does not mean free

Courts are not allowed to discriminate: the fees charges are the same for everyone. Rich people don’t pay more or less than poor people to access the courts. They may be able to more easily afford those fees, but the same is true of things like caviar and champagne.That doesn’t make them unequal in a legal sense, only in a social justice sense.

Similarly, there is no requirement to engage a lawyer to go to court, just like you don’t have to engage a mechanic to fix your car. You are allowed to do these things yourself. Sure, in both situations, you may get better outcomes if you engage a trained professional but, if you know enough yourself (and laws and court procedures and judgements are publicly available), you may not need the professional. The law only promises you equality of access, not equality of outcome.

In any event, if you are charged with a crime and generally cannot afford a lawyer, the state will provide one for you. Sure, public defenders tend to be less experienced than private lawyers but beggars can’t be choosers.

For administrative law issues governments usually provide lower cost forums for resolution like administrative review and tribunals where the use of lawyers is restricted or even banned.

For civil matters between private parties, the courts are a state provided public forum for the resolution of private disputes. Whether to sue or settle are essentially commercial rather than legal decisions and the cost of litigation is one of the factors in the risk-reward calculation.