Pro bono constitutional challenge reveals gaps in access to justice, say legal experts

In a legal battle of David and Goliath proportions, the Alberta Court of Appeal will hear a constitutional challenge that pits a young single mother against the provincial government.

At the heart of the challenge is a provincial government decision to end financial assistance to young adults transitioning out of the child intervention system.

Despite growing costs, the 21-year-old woman's Edmonton lawyer is continuing his pro bono fight at the highest court in the province. 

"That's why a lot of people like myself become lawyers," said Avnish Nanda, who last week filed a response to the government's appeal of an injunction won by Nanda and his client in March.

"It's to advance the interests of folks who wouldn't be able to, in the normal system. They don't have the means. 

"Our justice system only works if the interests and rights of everyone are protected and not just those who are able to pay for it."

The case, scheduled to be heard on June 18, is being closely watched by legal experts who say it reveals gaps in access to the justice system for marginalized Albertans.

Cuts prompt court challenge

Last November, the UCP government announced changes to the Support and Financial Assistance Agreements (SFAA) program, that would cut off participants at 22 years of age rather than 24.

Children's Services said the move, which was to go into effect on April 1, would better meet the goal of establishing natural supports for the participants that would last beyond their involvement in government care. 

But in March, the woman launched a constitutional challenge, arguing that the abrupt end to services and support from her SFAA social worker — an individual who was akin to a parent — amounted to cruel and unusual punishment.  

The woman, identified as A.C. in court documents, turns 22 in August. She said the change would cause her to abandon her six-year educational plan to become employable and return to sex work, which could result in the apprehension of her daughter.

A.C. and Nanda won an interim injunction. The March decision by the Court of Queen's Bench Justice Tamara Friesen prevented hundreds of participants from losing their benefits.

The decision was challenged by the government in a mid-April filing that raised more than 20 grounds for appeal. On May 15, Nanda replied with his response to the Alberta Court of Appeal.

• Province appeals injunction suspending cuts to program for young adults leaving care
• Injunction stops hundreds of young adults from losing benefits as they transition from care

Legal heavy lifting 

It's the type of case rarely seen, say legal experts, due to the amount of resources of funding required.

"It's very complicated and difficult to bring forward a systemic constitutional litigation in most cases, and so sadly what that means is that most constitutional wrongs are never addressed," said Grace Pastine, litigation director of the B.C. Civil Liberties Association (BCCLA).

Such cases may require years of advocacy before the court, expert reports, court transcripts, filing fees and evidence from other jurisdictions, she said.

Pastine has spearheaded and supervised a number of the major constitutional challenges in Canada over the past decade, including litigation that ultimately resulted in the legalization of physician-assisted dying.

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She said there are only a few Canadian groups, including the BCCLA, capable of bringing forward this type of costly litigation.

 "I think it is remarkable and so admirable that there are some lawyers in private practice — such as Avnish — who are willing to bring forward really important constitutional litigation to protect the rights of vulnerable people," Pastine said.  

The cost of justice

Programs meant to assist applicants without financial means also have limitations.

Anna Lund, a University of Alberta law professor who specializes in access to justice issues, said there is a range of disputes that fall outside the scope of Legal Aid.

Applying to have costs awarded by the court in advance or the Court Challenges program is time- and resource-intensive. Losing just adds to the financial burden.

What is a legal right if there's no remedy for it?- Anna Lund, law professor

"The concern is when there are meritorious claims that … can't get any sort of resolution, because there isn't the money there," Lund said.

A case like this, where a change in government support affects a large group, has more systemic-level concerns and potentially raises human rights or charter issues, she said.

"What is a legal right if there's no remedy for it?" she said. 

"If the only way that you have of vindicating your right is going to court, and you can't go to court because the money isn't there? Then we have a system of rules that on its face protects everybody but in practice only protects those who can afford to vindicate their rights."

Crowdfunding litigation

Nanda estimates he has already put in $30,000 worth of pro bono work on A.C.'s case.

An online crowdfunding campaign he launched last month has raised nearly $9,000. He is also representing clients without the means to pay in another public interest case against Habitat For Humanity.

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Even if he wins, Nanda figures he might only recover a small fraction of his costs retroactively, at the discretion of the court. After the current legal skirmish is resolved, the main charter challenge still needs to be heard, which will require even more resources, he said.

"Other provinces have legal aid clinics that will take on these cases … or nonprofit funding," Nanda said. "But in Alberta, particularly for these groups, there is no one willing to put in the money to back these lawsuits. It's all on the individual impacted, their community and private bar lawyers."

The battle over the injunction could bring renewed scrutiny to another recently decided constitutional challenge.

Last September, the Court of Appeal of Alberta overturned an interim injunction granted to the Alberta Union of Provincial Employees. The 2-1 ruling reversed a decision that had suspended legislation delaying wage arbitration talks.

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The appeal court's ruling also narrowed the test around when injunctions can be granted for government legislation alleged to infringe the Charter.

That new framework was successfully applied by Nanda when he won the interim injunction in March. 

Friesen's ruling said A.C. had articulated the basis for proving a charter breach and the serious negative effect it could have on her and others.

But in its appeal, the government said Friesen misunderstood and misapplied the new test.

The government lawyers — there are three assigned to the case — also argue the ruling cannot apply to all program participants without individual evidence. As well, they add, under legislation, the government ceased to be A.C.'s legal guardian when she turned 18. 

Improved supports

In emails this week, Lauren Armstrong, press secretary to Children's Services Minister Rebecca Schulz, said reports from the Office of the Child and Youth Advocate suggest that raising the age of eligibility in 2013 has not resulted in smoother transitions.

"That's why, for the first time, Children's Services is standardizing Support and Financial Assistance Agreements to better meet that goal of establishing natural supports for young people that last well beyond their involvement with child intervention," Armstrong wrote.

Already, said Armstrong, 18- to 24-year-olds connected to the intervention system have access to up to four more years of post-secondary funding through the Advancing Futures, the only program of its kind in Canada.

Work is also underway with other ministries to reduce barriers and ease the transition into other programs for those requiring life-long support, she said.

"We are going to launch strengthened policies and transition approaches later this year," Armstrong said. 

She said pandemic-related changes to ensure youth up to 24 had supports will wind down in June and the youth will be transitioned to individual plans that could include financial support or counselling.