Legal Representation of Children in Canada
1. Executive Summary
Almost twenty-five years have passed since Canada ratified the U.N. Convention on the Rights of the Child (the “Convention”).Footnote 1 Article 12 of the Convention reads:
- States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
- For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.Footnote 2 [Emphasis added.]
Keeping in mind Canada’s commitment to the principles in the Convention and in particular Article 12, the objective of this paper is to provide an overview of the extent to which children in Canada are provided with independent legal representation in judicial proceedings.
The timing of this paper is particularly significant in light of the release, on December 15, 2015, of the Final Report of the Truth and Reconciliation Commission of Canada (the “Final Report”).Footnote 3 The Final Report is a testament to the deep and lasting impact of our laws on the lived experiences of children, families, communities and our society.
The focus of this paper is on the legal representation of children (i.e. the situations and circumstances in which a lawyer acts on behalf of a child and not where the child is heard directly by the court or through an intermediary who is not a lawyer). It is one piece of a much larger discussion as to how our society defines, upholds, advances and protects the rights of children. This paper seeks to answer the following questions:
- When is legal representation available for children?
- What legislation have provinces and territories enacted regarding the legal representation of children?
- What is the role of the lawyer when representing children (amicus curiae, guardian ad litem, or advocate)?
- In what circumstances is the lawyer independent or a government lawyer?
- Have guidelines been created for lawyers who represent children?
The first question requires some preliminary discussion as to when children are party to a proceeding. For example, in civil proceedings across Canada, children are generally required to act through litigation guardians.Footnote 4 The child is a party to the proceeding but it is the litigation guardian who instructs the lawyer. Litigation guardians in civil proceedings cannot proceed without retaining counselFootnote 5; so, assuming a child has someone to act as their litigation guardian, it might be argued that the child is receiving “indirect” legal representation.
This paper does not closely examine those situations where the child’s interests are advanced through a litigation guardian who instructs counsel. For one, it may be argued that the requirement for children to act through litigation guardians is more of a barrier to the child accessing the justice system than anything else; children who have no one to act as their litigation guardian are pre-empted from even commencing proceedings.Footnote 6 Moreover, it is the litigation guardian who instructs the lawyer, not the child, and while both the litigation guardian and the child are required to act in what they believe to be is the child’s best interests, neither is required to put forward the child’s own position.
In other situations, the child may not need a litigation guardian to be party to the proceedings (as in the youth criminal justice system). In these situations, it is clear that the child can retain and instruct counsel of their choice. Depending on the area of law in question, legal aid may be available to the child. These children would theoretically have the choice between being self-represented or retaining counsel.Footnote 7 However, outside of the youth criminal justice system, situations where children may be party to legal proceedings without a litigation guardian are extremely rare.Footnote 8
In yet other contexts, such as child protection and custody and accessFootnote 9, court appointed legal representation may be available for children who, while not party to the proceedings, are directly affected by them. The bulk of this paper will focus on these contexts, as it is here that the most significant developments in statutory and jurisprudential evolution have taken place. This paper will also look at the appointment of legal representation in the areas of mental health and secure treatment, in light of the state’s ability to confine the child.
Child protection and custody and access are the areas that have sparked the greatest level of academic and theoretical debate regarding the proper role of the child’s lawyer. This debate relates to whether the child’s lawyer should: (1) simply advocate for the child’s own views and preferences; (2) assume an amicus curiae-like role (not advocate for a position but rather ensure that the court has all relevant information before it), or (3) take a guardian ad litem approach, advancing the position that the lawyer believes is in the child’s best interests (even where the lawyer’s position differs from the child’s expressed views).
No paper on the legal representation of children would be complete without a discussion of the superior courts’ parens patriae jurisdiction to appoint legal counsel for a child who is affected by a legal proceeding where legislation does not otherwise provide for it. Indeed, it many provinces, the parens patriae jurisdiction is the only way that counsel may be appointed to advocate on a child’s behalf.
In terms of methodology, the authors reviewed and compared Canadian statutes and regulations that provide for the appointment of legal counsel for children in select areas of law, as well as academic literature and reports on the legal representation of children in Canada over the past decade. A search for guidelines that aim to assist lawyers in representing children was also undertaken, revealing that no Canadian law societies or bar associations currently have any such guidelines in place.
This paper does not specifically address the legal representation of Aboriginal children and youth. The statutory provisions examined in this paper, however, would apply to Aboriginal children and youth.Footnote 10 The importance of the findings of this paper should be noted in light of the overrepresentation of Aboriginal women and girls among crime victimsFootnote 11, the overrepresentation of Aboriginal girls and Aboriginal boys of youth admitted to custodyFootnote 12, and the disproportionate rates of child apprehension among Aboriginal peopleFootnote 13.
This paper concludes that, despite Canada’s ratification of the Convention in 1991, there is little consistency between provinces in terms of how and when legal counsel is appointed for a child. The inconsistency was noted by the Committee on the Rights of the Child in 2012:
While welcoming numerous legislative actions related to the implementation of the Convention, the Committee remains concerned at the absence of legislation that comprehensively covers the full scope of the Convention in national law. In this context, the Committee further notes that given the State party’s federal system and dualist legal system, the absence of such overall national legislation has resulted in fragmentation and inconsistencies in the implementation of child rights across the State party, with children in similar situations being subject to disparities in the fulfilment of their rights depending on the province or territory in which they reside.Footnote 14
While the legal representation of children is well established in the federal youth criminal justice system, in provincial domains (i.e. family law and child protection law) the variances between provinces are concerning. The limited availability for the appointment of legal counsel in the area of mental health raises similar concerns. While the Convention espouses values that are supposed to be universal (i.e. equally applicable to all Canadian children), what is clear is that children receive very different treatment depending on the province in which they live. Perhaps more concerning is that, apart from the above-noted areas of law, the independent legal representation of children is virtually non-existent.
However, things are changing (albeit slowly). As Birnbaum and Bala note, “the judiciary and legislatures are […] increasingly recognizing the value of having the views and perspectives of the child before the court when making decisions about the child’s best interests.” The authors point to a “growing acceptance of the legal principle that children have the right to be heard when post-separation parenting arrangements are being made”.Footnote 15This paper will provide a snapshot of the current situation in Canada, regarding the legal representation of children. It is hoped that it will lend further support to this positive trend of change to our laws and the lived experience of our children.
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