2005 BCCA 631 Christie v. British Columbia

Before:	The Honourable Madam Justice Southin
	The Honourable Madam Justice Prowse
	The Honourable Mr. Justice Donald
	The Honourable Madam Justice Newbury
	The Honourable Mr. Justice Thackray

G. H. Copley, Q.C. and J. G. Penner	Counsel for the Appellant
D. W. Roberts, Q.C., R. Bajer and L. Nguyen	Counsel for the Respondent, Dugald E. Christie
D. G. Nygard and E. McDonald	Counsel for the Attorney General of Canada
Place and Dates of Hearing:	Vancouver, British Columbia
19th and 20th October, 2005
Place and Date of Judgment:	Vancouver, British Columbia
20th December, 2005

Dissenting Reasons by:

The Honourable Madam Justice Southin (P. 3, para. 1; Appendix p. 9)

Concurred in by:

The Honourable Mr. Justice Thackray

Written Reasons by:

The Honourable Madam Justice Newbury (P. 28, para. 27)

Concurred in by:

The Honourable Madam Justice Prowse

The Honourable Mr. Justice Donald

Reasons for Judgment of the Honourable Madam Justice Southin:

[1] This is an appeal by the Attorney General of British Columbia and a cross appeal by the petitioner below from this judgment of the Supreme Court of British Columbia:

THIS PETITION coming on for hearing at Vancouver, B.C. on April 19-21, 2004, and on hearing Darrell W. Roberts, Q.C. and Robin D. Bajer, counsel for the Petitioner, and George H. Copley, Q.C., counsel for the Respondent the Attorney General of British Columbia, and Jason Levine, counsel for the Respondents the Attorney General of Canada and Her Majesty the Queen in Right of Canada

AND JUDGMENT being reserved to February 8, 2005:

THIS COURT DECLARES THAT:

1. The Social Service Tax Amendment Act (No. 2), 1993, S.B.C. c. 24 is ultra vires the Province of British Columbia to the extent that it applies to legal services provided for low income persons.

2. The definition of low income for these purposes is the level of income and assets which exist for the Family Duty Counsel Program of the Legal Services Society of British Columbia under the Legal Services Society Act, S.B.C. 2002, c. 30, as set forth in its policy and procedures manual. (Filed by affidavit of Dugald Christie dated April 16, 2004 and attached as Schedule "A" to this Order.)

3. The seizure by the respondent Crown in Right of the Province of British Columbia of the sum of $6,321.75 from the petitioner was invalid to the extent that it represented a tax levied on legal fees payable by persons of low income as defined above. The said sum together with interest should be returned to the petitioner.

AND THIS COURT FURTHER ORDERS that the respondent the Attorney General of British Columbia do pay the petitioner costs of and incidental to this petition forthwith at Scale 5.

[2] The appellant, by the appeal, seeks:

(1) ... an Order setting aside the Order of Madam Justice Koenigsberg and dismissing the Petitioner's application;

(2) In the alternative, ... an Order amending the definition of the persons who are entitled to an exemption from the Tax by including reference to assets as well as income.

[3] For his part, the respondent, by the cross appeal, seeks essentially an order deleting from clause 1 the words "to the extent that it applies to legal services provided for low income persons" and deleting clause 2 in its entirety.

[4] The Attorney General of Canada was at the outset of this proceeding a respondent because the petitioner then sought not only a declaration that the Act in issue was ultra vires but also a declaration that, insofar as it levies taxes on legal services, the Excise Tax Act, R.S.C. 1985, c. E-15, is "unconstitutional".

[5] That claim was not pursued and thus no relief is now claimed against the Attorney General of Canada. The Attorney General of Canada, having a right to be heard pursuant to the Constitutional Question Act, R.S.B.C. 1996, c. 68, is now heard in that capacity only: hence, the style of cause on these reasons for judgment. In effect, the Attorney General of Canada supports the constitutionality of the Act and does so, I infer, because if the British Columbia Act is unconstitutional for the reasons advanced against it, the federal Act, insofar as it levies a tax on legal services, must also be unconstitutional.

[6] To these reasons, I attach as an appendix the statute in question which is now embodied in c. 431 of the present Revised Statutes of British Columbia.

[7] Shortly put, the statute imposes a seven per cent tax on the fees billed by members of the legal profession to their clients for legal services and by notaries public for similar services payable at the time of billing by the member of the Law Society or Society of Notaries Public, as the case may be, in accordance with the statute.

[8] In the most recent fiscal year, the tax has yielded in revenue approximately $115 million. The revenue of the Province for the 2004/05 fiscal year was $33.2 billion. The Ministry of the Attorney General had a budget for the fiscal year 2003-04 of $505,845,000. See R. v. Ho, [2004] 2 W.W.R. 590, 2003 BCCA 663 ¶ 38.

[9] The fees of no other profession are thus taxed.

[10] The Act in issue was essentially the Legislature's riposte to the judgment of Lysyk J. in Canadian Bar Assn. v. British Columbia (Attorney General) (1993), 101 D.L.R. (4th) 410, which struck down legislation in pari materia first enacted as the Social Service Tax Amendment Act, 1992.

[11] It is not necessary for this Court to consider whether that case was correctly decided.

[12] The respondent says that to tax legal services is to impede or prevent access to justice. That may very well be so.

[13] However, the issue for this Court is not whether the tax is a bad tax for that or any other reason.

[14] It was not argued in the court below, nor is it argued here, that the Act is not within the powers conferred on the Legislature by s. 92 of The Constitution Acts, 1867 to 1982:

92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subject next hereinafter enumerated; that is to say,–

* * *

2. Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes.

[15] Nor was it argued below, nor is it argued here, that the Act contravenes any of ss. 2‑23 of the Canadian Charter of Rights and Freedoms.

[16] Nor was any argument advanced that the tax is unconstitutional so far as it applies to proceedings brought under s. 24(1) of the Charter. The respondent's argument is that it is unconstitutional in every respect.

[17] Nothing is to be gained by my setting out in extenso the reasons of the learned judge below nor the reasons of this Court in John Carten Personal Law Corp. v. British Columbia (Attorney General) (1997), 40 B.C.L.R. (3d) 181, which she properly considered she was bound to apply. The thrust of the reasons of this Court in John Carten, both the majority and the minority, as I understand them, was that the legislation in issue undermines the rule of law as that phrase is found in the preamble of the Charter, "Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law: ..."

[18] The reason nothing is to be gained is this: the issue is stark. Has this or any court in Canada the power to hold a statute, which falls within the enacting authority's legislative mandate under the Constitution Acts, s. 91 or s. 92, as the case may be, does not infringe upon any other section of the Constitution Act (e.g. s. 96), and is not in breach of the express terms of the Canadian Charter of Rights and Freedoms, to be of no force and effect?

[19] If there were ever any doubt that the answer to that question is, "no, the courts have no such power", that answer was settled by the judgment of the Supreme Court of Canada in British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, which addressed the constitutionality of a provincial statute which may reasonably be described as an act of attainder not of the person but of property.

[20] It was open to the framers of the Charter to have included the "rule of law" in, for instance, s. 7, which might have read, "Everyone has the right to life, liberty and security of the person and of his property and the right not to be deprived thereof except in accordance with the principles of fundamental justice and the rule of law."

[21] Had the Charter so enacted, then the task of the courts would be to ask what is encompassed in the words "the rule of law", just as the courts have had to ask what is encompassed in the term "fundamental justice".

[22] To put all this another way, the words "rule of law" in the preamble do not create any substantive independent ground upon which a court can find duly enacted legislation to be "inconsistent with the provisions of the Constitution" and therefore of no force and effect.

[23] I ask rhetorically this question: If the preamble creates, because of the words "the rule of law", a constitutional foundation for striking a statute down, do the words "supremacy of God" which precede those words, also create such a foundation and how are we to define and apply it?

[24] By not addressing in detail the reasons of the learned trial judge, nor those of my former colleagues who heard the John Carten case, I mean no disrespect. But this Court is not empowered to declare a statute of no force and effect because it considers both its enacting and its non-repeal to be unwise or even pernicious. In my opinion, the reasoning in John Carten Personal Law Corp. v. British Columbia (Attorney General) is wrong.

[25] I would allow the appeal of the Attorney General of British Columbia and dismiss the petition.

[26] The Attorney General of British Columbia is entitled to costs here and below if he chooses to demand them. Those costs should be on Scale 1.

“The Honourable Madam Justice Southin”

I agree:

“The Honourable Mr. Justice Thackray”

A P P E N D I X

S.B.C. 1993, c. 24
BILL 8 - 1993

SOCIAL SERVICE TAX AMENDMENT ACT (No. 2), 1993

CHAPTER 24

Assented to June 18, 1993

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

PART 1 - RETROACTIVE TAXES

1. The amendments to the Social Service Tax Act, R.S.B.C. 1979, c. 388, made by sections 2, 6, 10 and 12 to 14 of the Social Service Tax Amendment Act, 1992, S.B.C. 1992, c. 22, are repealed and sections 2 to 7 of this Act are substituted for their effect.

2. Section 1 (1) of the Social Service Tax Act is amended

(a) by adding the following definition:

"legal services" means

(a) services that come within the meaning of the practice of law under the Legal Profession Act, and

(b) services described in section 15 of the Notaries Act,

but does not include services provided by a person to that person's employer in the course of employment; ,

(b) by repealing the definition of "purchaser" and substituting the following:

"purchaser" means

(a) a person who acquires tangible personal property at a sale in the Province

(i) for the person's own consumption or use,

(ii) for consumption or use by another person at the expense of the person acquiring the property, or

(iii) on behalf of or as agent for a principal, if the property is for consumption or use by the principal or by another person at the expense of that principal,

(b) a promotional distributor that does not come within paragraph (a), to the extent that the purchase price of the tangible personal property provided by way of promotional distribution exceeds the amount of the payment specifically made for it by the person to whom that property is provided, and

(i) provided to the person for the person's own benefit or use,

(ii) provided to another recipient for that recipient's benefit or use at the person's expense, or

(iii) provided to the person on behalf of or as agent for a principal, if the legal services are for the benefit or use of the principal or another person at the expense of that principal;, and

(c) by repealing the definition of ' "sale price" or "purchase price" ' and substituting the following:

"purchase price" means a price in money, and also the value of services rendered, the actual value of the tangible personal property exchanged, acquired or repossessed, and other consideration accepted by the seller or person from whom the property passes as price or on account of the price of the tangible personal property covered by the sale and, in addition,

(a) the charges for installation of the tangible personal property sold, and for interest, finance, service, customs, excise and transportation in relation to the tangible personal property, whether or not such charges are shown separately on the invoice or in the seller's books,

(b) if the tangible personal property is purchased, manufactured, processed or otherwise acquired outside the Province and subsequently brought or sent into or received in the Province for use or consumption in the Province, the costs and expenses of and to the user for materials, labour and other manufacturing and processing costs and expenses, and for service, customs, excise, transportation and other costs and expenses incurred by the user before the use of the property in the Province, and

(i) the fees and charges, other than those prescribed as excluded, and

(ii) the prescribed disbursements

that are billed or otherwise charged to a purchaser for or in relation to the legal services;

"sale price" means purchase price; .

3. The following sections are added:

Retroactive taxes on the provision of
legal services in British Columbia

2.01 (1) This section applies to legal services provided in British Columbia after May 31, 1992 for which the purchase price is paid by or billed or otherwise charged to the purchaser before February 26, 1993.

(2) If the purchaser or recipient of legal services referred to in subsection (1) resides, ordinarily resides or carries on business in British Columbia, a tax on the provision of the legal services shall be paid to Her Majesty in right of the Province by the purchaser at the rate of 6% of the purchase price.

(3) A purchaser who would otherwise be liable to pay tax under subsection (2) is exempt from that tax if the legal services do not relate to British Columbia.

(4) For the purposes of subsection (3), legal services relate to British Columbia if they involve any of the following:

(a) real property situated in British Columbia;

(b) tangible personal property, within the meaning of paragraph (a) of the definition of tangible personal property, that is ordinarily situated within British Columbia or that is to be delivered in British Columbia, or the contemplation of either of these circumstances;

(c) the ownership, possession or use in British Columbia of property other than that referred to in paragraphs (a) and (b), or the right to use such property in British Columbia, or the contemplation of any of these;

(d) a court or administrative proceeding in British Columbia or a possible such proceeding;

(e) the incorporation or contemplated incorporation of a corporation under the Company Act or the Society Act, or the registration or contemplated registration of a corporation as an extraprovincial company under the Company Act or as an extraprovincial society under the Society Act;

(f) a matter that involves the interpretation or application of an enactment as defined in the Interpretation Act or a former or proposed such enactment;

(g) a matter that involves the interpretation or application of an enactment, or a former or proposed enactment, of a jurisdiction other than British Columbia, if the matter is in relation to

(i) a physical or legal presence in British Columbia or a contemplated such presence,

(ii) an activity in British Columbia or a contemplated such activity, or

(iii) a transaction in British Columbia or a contemplated such transaction;

(h) a matter that involves the analysis or application of any law other than that referred to in paragraphs (f) and (g), if the matter is in relation to

(i) a physical or legal presence in British Columbia or a contemplated such presence,

(ii) an activity in British Columbia or a contemplated such activity, or

(iii) a transaction in British Columbia or a contemplated such transaction;

(i) a contract or covenant, or a contemplated contract or covenant, that is in relation to

(i) a physical or legal presence in British Columbia or a contemplated such presence,

(ii) an activity in British Columbia or a contemplated such activity, or

(iii) a transaction in British Columbia or a contemplated such transaction;

(j) any other matter intended for the benefit or use in British Columbia of the purchaser or recipient.

(5) If

(a) the purchaser or recipient of the legal services referred to in subsection (1) resides, ordinarily resides or carries on business outside British Columbia as well as in British Columbia, and

(b) part of the legal services relates to a jurisdiction other than British Columbia in the same manner as legal services relate to British Columbia within the meaning of subsection (4),

the purchaser is exempt from tax under subsection (2) in relation to that portion of the purchase price which is for legal services that relate to the other jurisdiction.

(6) If neither the purchaser nor the recipient of legal services referred to in subsection (1) resides, ordinarily resides or carries on business in British Columbia, a tax on the provision of the legal services shall be paid to Her Majesty in right of the Province by the purchaser at the rate of 6% of the purchase price if the legal services relate to one or more of the following:

(a) real property situated in British Columbia;

(d) the incorporation of a corporation under the Company Act or the Society Act, or the registration of a corporation as an extraprovincial company under the Company Act or as an extraprovincial society under the Society Act.

(7) The tax under subsection (2) or (6) shall be paid before July 1, 1993.

(8) If there is more than one purchaser of legal services in relation to which subsection (2) or (6) applies, each purchaser is jointly and severally liable for the tax imposed by the applicable subsection.

(9) For the purposes of this section, a person shall be deemed to be carrying on business in British Columbia if an employee or other representative of the person carries on activities in British Columbia on that person's behalf for the purpose of promoting the sale or use of the person's products or services.

(10) If the person providing legal services does so as a partner in a partnership or as an employee of an individual, partnership or corporation, a reference in this Act to that person shall be deemed to be a reference to the individual, partnership or corporation.

(11) For the purposes of applying the other provisions of this Act in relation to a tax imposed by this section,

(a) the receiving of legal services for consideration is deemed to be a purchase, and

(b) the provision of legal services for consideration is deemed to be a sale of tangible personal property at a retail sale,

except that sections 2 and 39 (1.2) do not apply to a purchase or sale of legal services.

(12) The commissioner may, in accordance with the regulations, refund from the consolidated revenue fund to a collector the portion of the amount sent by the collector to the commissioner in respect of taxes payable under this section that the purchaser has failed to pay to the collector.

(13) No tax is payable under this section in relation to legal services provided to an individual to the extent that the purchase price for the services is paid by the Legal Services Society, or by a funded agency within the meaning of the Legal Services Society Act, for the purposes of section 3 of that Act.

Retroactive tax on purchaser of legal services
provided outside British Columbia

2.011 (1) This section applies to legal services provided outside British Columbia after May 31, 1992 for which the purchase price is paid by or billed or otherwise charged to the purchaser before February 26, 1993.

(2) A person who

(a) resides, ordinarily resides or carries on business in British Columbia, and

(b) is the purchaser of legal services referred to in subsection (1) that involve any of the matters referred to in section 2.01 (4) (a) to (j)

shall pay a tax to Her Majesty in right of the Province in respect of the legal services, with the tax calculated as 6% of the purchase price of the legal services.

(3) If

(a) the person referred to in subsection (2) resides, ordinarily resides or carries on business outside British Columbia as well as in British Columbia, and

(b) part of the legal services referred to in subsection (1) relates to a jurisdiction other than British Columbia in the same manner as legal services relate to British Columbia within the meaning of section 2.01 (4),

the person is exempt from tax under subsection (2) in relation to that portion of the purchase price which is for legal services that relate to the other jurisdiction.

(4) The tax under subsection (2) shall be paid before July 1, 1993.

(5) As an exception to subsection (4), if the person providing the legal services does not collect the tax under subsection (2), the purchaser shall pay the tax by delivering it to the commissioner by July 15, 1993.

(6) Section 2.01 (8) to (13) applies in relation to the tax under subsection (2).

4. Section 7 is amended

(a) in subsection (1) by striking out "Subject to sections 2 (3.1)" and substituting "Subject to subsection (3) and sections 2 (3.1)", and

(b) by adding the following subsection:

(3) A collector of tax imposed under section 2.01 or 2.011, whether the purchase price is payable in cash, on terms, by instalments or otherwise, shall use the collector's best efforts to collect the tax, and the tax collected shall be remitted to the commissioner by July 15, 1993 if it is collected before July 1, 1993 and by the 15th day of the month following the month in which the tax was collected if it is collected on or after July 1, 1993.

5. Section 33 (1.1) is amended by striking out "section 2, 2.1, 2.2, 2.4, 3, 5.1, 7, 9, 10, 17, 28 or 29," and substituting "section 2, 2.01, 2.011, 2.1, 2.2, 2.4, 3, 5.1, 7, 9, 10, 17, 28 or 29,".

6. Section 37 (2) is amended

(a) by striking out "may make regulations" and substituting "may make regulations doing one or more of the following:",

(b) in paragraph (c.1) by striking out "sections 2, 2.1 and 2.2," and substituting "sections 2, 2.01, 2.011, 2.1 and 2.2,",

(c) by adding the following paragraph:

(e.1) in relation to legal services,

(i) prescribing specified fees and charges in relation to legal services as excluded from the purchase price of the legal services,

(ii) prescribing specified disbursements in relation to legal services as disbursements to be included in the purchase price of the legal services,

(iii) prescribing exemptions from tax under section 2.01 or 2.011 in relation to specified legal services, subject to such terms and conditions as the Lieutenant Governor in Council specifies, and

(iv) prescribing exemptions from tax under section 2.01 or 2.011 in relation to legal services provided to one or more persons or classes of persons, subject to such terms and conditions as the Lieutenant Governor in Council specifies; , and

(d) by striking out "and" at the end of paragraph (j) and by adding the following paragraphs:

(1) in relation to a record

(i) that is in the possession of a lawyer and that is about to be inspected, audited or examined under this Act or about to be seized under a warrant in relation to an offence under this Act, and

(ii) for which the lawyer at that time makes a claim of solicitor client privilege for a named client of the lawyer in relation to the record,

establishing procedures for allowing the record to be retained or seized and to be held in a secure manner until the claim of solicitor client privilege is waived by the client or until the claim is determined, or the record is otherwise dealt with, on application to the Supreme Court in accordance with the regulations;

(1.1) establishing a right to apply to the Supreme Court to resolve a claim of solicitor client privilege regarding a record retained or seized under paragraph (1) and establishing how the court is to deal with such an application.

Transitional: retroactive regulations

7. A regulation under the Social Service Tax Act in respect of legal services made before June 1, 1994 may be made retroactive to any date after May 31, 1992 and, if made retroactive, shall be deemed to have come into force on the date specified in the regulation.

8. The amendment made by section 11 of the Social Service Tax Amendment Act, 1992, S.B.C. 1992, c. 22, and section 16 of that Act are repealed.

Transitional: retroactive tax

9. (1) Subject to subsection (2), if the purchase price of legal services relates to legal services provided in part on or before May 31, 1992 and in part after that date, sections 2.01 and 2.011 of the Social Service Tax Act, as enacted by section 3 of this Act, apply only to that part of the purchase price which relates to the legal services provided after May 31, 1992.

(2) If a purchase price referred to in subsection (1) is payable under a contingent fee agreement, being an agreement under which the consideration for the providing of legal services is contingent, in whole or in part, on the successful disposition of the matter in respect of which the services are provided, the portion of the purchase price that represents the legal services provided after May 31, 1992 shall be as determined in accordance with the following formula, unless the commissioner is satisfied that the purchase price should be otherwise apportioned:

PP x T1

TP = ----------

where

TP	=	the portion of the purchase price deemed to be related to legal services provided after May 31, 1992;
PP	=	the purchase price of the legal services payable by way of contingent fee;
T1	=	the number of days between May 31, 1992 and the date on which the tax under section 2.01 or 2.011 is imposed;
T2	=	the number of days between the date on which the person providing the legal services began to provide those services and the date on which the tax under section 2.01 or 2.011 is imposed.

(3) A decision of the commissioner under subsection (2) may be appealed in accordance with sections 13 and 14 of the Social Service Tax Act.

(4) A person is exempt from tax that would otherwise be payable under section 2.01 or 2.011 of the Social Service Tax Act in respect of legal services provided under a written contract entered into before March 27, 1992 that set, at the time the contract was entered into, a specific total fee amount for those legal services.

(5) Money that is paid to Her Majesty as taxes under the Social Service Tax Act in respect of legal services for which the purchase price was paid by or billed or otherwise charged to the purchaser before February 26, 1993, with the intention of complying with section 2.01 of that Act as enacted by the Social Service Tax Amendment Act, 1992, shall be deemed to have been paid in respect of tax under section 2.01 or 2.011, as applicable, of the Social Service Tax Act as these sections were enacted by the Social Service Tax Amendment Act (No. 2), 1993.

Validation of regulations

10. (1) B.C. Regs. 221/92, 334/92 and 420/92, which purported to be enacted under section 37 (2) (e.1) of the Social Service Tax Act, as enacted by section 13 of the Social Service Tax Amendment Act, 1992, shall be deemed to be validly enacted regulations under section 37 (2) (e.1) of the Social Service Tax Act, as enacted by section 6 of this Act.

(2) This section is retroactive to the extent necessary to give force and effect to its intent.

Consequential Amendments

11. The amendments made by sections 14, 19 and 20 of the Taxation Statutes Amendment Act, 1992, S.B.C. 1992, c. 68, are repealed and the amendments made by sections 12, 13 and 14 of this Act are substituted for their effect.

12. Section 7 of the Social Service Tax Act, R.S.B.C. 1979, c. 388, is amended

(a) in subsection (1) by striking out "Subject to subsection (3) and sections 2 (3.1)" and substituting "Subject to subsections (1.1) and (3) and sections 2 (3.1)", and

(b) by adding the following subsection:

(1.1) The tax imposed by section 2.02, whether the purchase price is payable in cash, on terms, by instalments or otherwise, shall be collected at the time that the purchase price is paid or payable, whichever is earlier, and shall be remitted to the commissioner at the prescribed times and in the prescribed manner.

13. Section 33 (1.1) is amended by striking out "section 2, 2.01, 2.011, 2.1, 2.2, 2.4, 3, 5.1, 7, 9, 10, 17, 28 or 29" and substituting "section 2, 2.01, 2.011, 2.02, 2.1, 2.2, 2.4, 3, 5.1, 7, 9, 10, 17, 28 or 29".

14. Section 37 (2) (c.1) is amended by striking out "sections 2, 2.01, 2.011, 2.1 and 2.2," and substituting "sections 2, 2.01, 2.011, 2.02, 2.1 and 2.2,".

PART 2 - NEW TAXES

15. Section 1 (1) of the Social Service Tax Act, R.S.B.C. 1979, c. 388, is amended by repealing the definition of "legal services" and substituting the following:

"legal services" means

(a) services that come within the meaning of the practice of law under the Legal Profession Act,

(b) services described in section 15 of the Notaries Act, and

but does not include services provided by a person to that person's employer in the course of employment; .

16. The following sections are added:

Taxes on the provision of legal services
in British Columbia

2.012 (1) This section applies to legal services provided after March 31, 1993.

(2) If the purchaser or recipient of legal services provided in British Columbia resides, ordinarily resides or carries on business in British Columbia, a tax on the provision of the legal services shall be paid to Her Majesty in right of the Province by the purchaser at the rate of 7% of the purchase price.

(3) If neither the purchaser nor the recipient of legal services provided in British Columbia resides, ordinarily resides or carries on business in British Columbia, a tax on the provision of the legal services shall be paid to Her Majesty in right of the Province by the purchaser at the rate of 7% of the purchase price if the legal services are in relation to one or more of the following:

(a) real property situated in British Columbia;

(d) a court or administrative proceeding in British Columbia or a possible such proceeding;

(f) any other matter that relates to British Columbia and is prescribed as being included for the purposes of this section.

(4) The tax under subsection (2) or (3) shall be paid by the date on which the purchase price of the legal services is paid or payable, whichever is earlier.

(5) The purchase price for legal services shall be deemed to be payable when it is billed or otherwise charged to the purchaser.

(6) As an exception to subsection (4), if the person providing the legal services is not obliged to and does not collect the tax under subsection (2) or (3), the purchaser shall pay the tax by delivering it to the commissioner by the 15th day of the month following the month in which the tax is otherwise required to be paid by subsection (4).

(7) If there is more than one purchaser of legal services in relation to which subsection (2) or (3) applies, each purchaser is jointly and severally liable for the tax imposed by the applicable subsection.

(8) For the purposes of this section, a person shall be deemed to be carrying on business in British Columbia if an employee or other representative of the person carries on activities in British Columbia on that person's behalf for the purpose of promoting the sale or use of the person's products or services.

(9) If the person providing legal services does so as a partner in a partnership or as an employee of an individual, partnership or corporation, a reference in this Act to that person shall be deemed to be a reference to the individual, partnership or corporation.

(10) For the purposes of applying the other provisions of this Act in relation to a tax imposed by this section,

(a) the receiving of legal services for consideration is deemed to be a purchase, and

(b) the provision of legal services for consideration is deemed to be a sale of tangible personal property at a retail sale,

except that section 2 does not apply to a purchase of legal services.

(11) No tax is payable under this section in relation to legal services provided to an individual to the extent that the purchase price for the services is paid by the Legal Services Society, or by a funded agency within the meaning of the Legal Services Society Act, for the purposes of section 3 of that Act.

Tax on purchaser of legal services
provided outside British Columbia

2.013 (1) This section applies to legal services provided after March 31, 1993.

(2) A person who

(a) resides, ordinarily resides or carries on business in British Columbia, and

(b) is the purchaser of legal services provided outside British Columbia that relate to British Columbia

shall pay a tax to Her Majesty in right of the Province in respect of the legal services, with the tax calculated as 7% of the purchase price of the legal services.

(3) For the purposes of subsection (2), legal services relate to British Columbia if they relate to any of the following:

(a) a matter referred to in section 2.012 (3) (a) to (f);

(b) a matter that involves the interpretation or application of an enactment as defined in the Interpretation Act or a former or proposed such enactment;

(c) a matter that involves the interpretation or application of an enactment, or a former or proposed enactment, of a jurisdiction other than British Columbia, if the matter is in relation to

(i) a physical or legal presence in British Columbia or a contemplated such presence,

(ii) an activity in British Columbia or a contemplated such activity, or

(iii) a transaction in British Columbia or a contemplated such transaction;

(d) a matter that involves the analysis or application of any law other than that referred to in paragraphs (b) and (c), if the matter is in relation to

(i) a physical or legal presence in British Columbia or a contemplated such presence,

(ii) an activity in British Columbia or a contemplated such activity, or

(iii) a transaction in British Columbia or a contemplated such transaction;

(e) a contract or covenant, or a contemplated contract or covenant, that is in relation to

(i) a physical or legal presence in British Columbia or a contemplated such presence,

(ii) an activity in British Columbia or a contemplated such activity, or

(iii) a transaction in British Columbia or a contemplated such transaction.

(4) If

(a) the person referred to in subsection (2) resides, ordinarily resides or carries on business outside British Columbia as well as in British Columbia, and

(b) part of the legal services referred to in subsection (2) relates to a jurisdiction other than British Columbia in the same manner as legal services relate to British Columbia within the meaning of subsection (3),

the person is exempt from tax under subsection (2) in relation to that portion of the purchase price which is for legal services that relate to the other jurisdiction.

(5) For the purposes of subsection (4), the person shall

(a) make a reasonable estimate, subject to the regulations, of that portion of the purchase price which relates to legal services referred to in subsection (4) (b),

(b) make and retain a record of the estimate and the basis on which it is made, and

(c) if the person who provided the legal services is required by this Act to collect the tax payable, provide a copy of the record to that person.

(6) Section 2.012 (4) to (11) applies in relation to the tax under subsection (2).

17. Section 7 is repealed and the following substituted:

Time when tax is to be collected and remitted

7. (1) Subject to subsections (2) and (3) and sections 2 (3.1) and (4) to (4.014) and 2.3, tax imposed under this Act in relation to a purchase price, whether the purchase price is payable in cash, on terms, by instalments or otherwise, shall be collected at the time of sale on the whole amount of the purchase price.

(2) A collector of tax imposed under section 2.01 or 2.011, whether the purchase price is payable in cash, on terms, by instalments or otherwise, shall use the collector's best efforts to collect the tax, and the tax collected shall be remitted to the commissioner by July 15, 1993 if it is collected before July 1, 1993 and by the 15th day of the month following the month in which the tax was collected if it is collected on or after July 1, 1993.

(3) A tax imposed under section 2.012, 2.013 or 2.02, whether the purchase price is payable in cash, on terms, by instalments or otherwise, shall be collected at the time the purchase price is paid or payable, whichever is earlier.

(4) In the case of legal services referred to in section 2.013 (4) (b), unless the person required by this Act to collect tax under that section has reason to believe that an estimate made under subsection (5) of that section in relation to the legal services is not reasonable, the obligation of that person to collect and remit the tax shall be considered to be met if the person collects and remits the amount of tax payable in accordance with the estimate.

(5) Subject to sections 2.1 (2) and 2.2 (2), tax imposed under this Act in relation to a lease price shall be collected at the time each payment of the lease price is paid.

(6) A levy under section 2.4, whether the purchase price is payable in cash, on terms, by instalments or otherwise, shall be collected at the time of sale.

(7) Amounts to be collected under this Act shall, when collected, be remitted to the commissioner at the prescribed times and in the prescribed manner.

18. Section 23 is amended

(a) by adding "or legal services" after "sell or lease tangible personal property", and

(b) by adding the following paragraph:

19. Section 27 (3) is repealed and the following substituted:

(3) Where it appears that an amount of tax should have been but was not collected, the commissioner shall impose a penalty, which forms part of the lien provided for in section 18, against the person who should have collected the tax, consisting of both

(a) the amount of tax that should have been collected, and

(b) interest at a rate prescribed by the Lieutenant Governor in Council.

20. Section 33 (1.1) is amended by striking out "section 2, 2.01, 2.011," and substituting "section 2, 2.01, 2.011, 2.012, 2.013,".

21. Section 37 (2) is amended

(a) in paragraph (c.1) by striking out "sections 2, 2.01, 2.011," and substituting "sections 2, 2.01, 2.011, 2.012, 2.013,", and

(b) by repealing paragraph (e.1) and substituting the following:

(e.1) in relation to legal services,

(i) prescribing specified fees and charges in relation to legal services as excluded from the purchase price of the legal services,

(ii) prescribing specified disbursements in relation to legal services as disbursements to be included in the purchase price of the legal services,

(iii) prescribing legally related services as legal services,

(iv) prescribing matters that relate to British Columbia as matters in relation to which tax is to be paid under section 2.012 (3),

(v) prescribing restrictions, conditions or requirements in relation to estimates under section 2.013 (5),

(vi) prescribing exemptions from tax under section 2.01, 2.011, 2.012 or 2.013 in relation to specified legal services, subject to such terms and conditions as the Lieutenant Governor in Council specifies, and

(vii) prescribing exemptions from tax under section 2.01, 2.011, 2.012 or 2.013 in relation to legal services provided to one or more persons or classes of persons, subject to such terms and conditions as the Lieutenant Governor in Council specifies; .

22. Section 39 (1.2) is repealed and the following substituted:

(1.2) The commissioner may, in accordance with the regulations, refund from the consolidated revenue fund to a collector the portion of the amount sent by the collector to the commissioner in respect of taxes payable under this Act that the person required to pay under this Act has failed to pay to the collector.

(1.21) Any money received by a collector in respect of a sale or lease in relation to which tax is payable under this Act, up to the full amount of the tax owing, shall be deemed to be payment of the tax owing by the purchaser or lessee under this Act.

Transitional: new tax

23. (1) Subject to subsection (2), if the purchase price of legal services relates to legal services provided in part on or before March 31, 1993 and in part after that date, sections 2.012 and 2.013 of the Social Service Tax Act, as enacted by section 16 of this Act, apply only to that part of the purchase price which relates to the legal services provided after March 31, 1993.

(2) If a purchase price referred to in subsection (1) is payable under a contingent fee agreement, being an agreement under which the consideration for the providing of legal services is contingent, in whole or in part, on the successful disposition of the matter in respect of which the services are provided, the portion of the purchase price that represents the legal services provided after March 31, 1993 shall be as determined in accordance with the following formula, unless the commissioner is satisfied that the purchase price should be otherwise apportioned:

PP x T1

TP = ---------

where

TP	=	the portion of the purchase price deemed to be related to legal services provided after March 31, 1993;
PP	=	the purchase price of the legal services payable by way of contingent fee;
T1	=	the number of days between March 31, 1993 and the date on which the tax under section 2.012 or 2.013 is imposed;
T2	=	the number of days between the date on which the person providing the legal services began to provide those services and the date on which the tax under section 2.012 or 2.013 is imposed.

(3) A decision of the commissioner under subsection (2) may be appealed in accordance with sections 13 and 14 of the Social Service Tax Act.

Commencement

24. (1) Sections 1 to 8 shall be deemed to have come into force on June 1, 1992 and are retroactive to the extent necessary to give them effect on and after that date, and the enactments repealed by section 8 cease to have effect at the beginning of the day on June 1, 1992.

(2) Sections 11 to 14 shall be deemed to have come into force on June 22, 1992 and are retroactive to the extent necessary to give them effect on and after that date.

(3) Sections 15 to 23 shall be deemed to have come into force on April 1, 1993 and are retroactive to the extent necessary to give them effect on and after that date.

Reasons for Judgment of the Honourable Madam Justice Newbury:

[27] I have read the reasons for judgment of Madam Justice Southin in this appeal. With respect, I do not see the question as being as "stark" or as clear as my colleague does. On the one hand, the Supreme Court of Canada has described in ringing tones the importance of the "unwritten postulates" underlying the Canadian Constitution, including the principles of federalism, judicial independence, and the rule of law. (See, e.g., Re Manitoba Language Rights [1985] 1 S.C.R. 721 at 752.) The Court has said that the principle at issue in this case, namely, access to justice, is "under the rule of law one of the foundational pillars protecting the rights and freedoms of our citizens." (See British Columbia Government Employees' Union v. British Columbia (Attorney General) [1988] 2 S.C.R. 214 at 230 ("B.C.G.E.U."), quoting from this court's decision in that case, reported at (1985) 20 D.L.R. (4th) 399 at 406.) The Supreme Court also endorsed the statement of Nemetz C.J.B.C. that "interference [with access to courts] from whatever source" will "rally the court's powers to ensure the citizen of his or her day in court"; and (at 249) the statement of Salmon L.J. in Morris v. Crown Office [1970] 1 All E.R. 1079 at 1089 (C.A.), that "Every member of the public has an inalienable right that our courts shall be left free to administer justice without obstruction or interference from whatever quarter it may come."

[28] On the other hand, this expansive view of the scope and efficacy of the rule of law seems to have abated in recent years, and judicial discussion of access to justice as an element thereof has subsided. In the latest manifestation of the "dialogue" between the Court and legislatures, the rule of law was said to constrain legislative action "only in the sense that [the latter] must comply with legislated requirements as to manner and form." Thus, the Court said, the text of the Constitution and the ballot box, rather than the "amorphous underlying principles of our Constitution", should be looked to for protection from "unjust" legislation. (British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49 at paras. 60 and 66.) It is this interplay between unwritten principles and written provisions, between lofty descriptions of the fundamental nature of the rule of law and the courts' traditional deference to parliamentary supremacy, that makes this appeal, at this stage of the "dialogic" process, an interesting one. (See Iacobucci J. in Bell ExpressVu Limited Partnership v. Rex [2002] 2 S.C.R. 559 at para. 66.)

[29] At the outset, it should be noted that like "justice" itself, the phrase "access to justice" has been used to mean many different things. With one exception, none of the cases to be referred to below attempts a definition or explanation of the term. In a chapter in J. Bass, W.A. Bogart and F.H. Zemans, eds., Access to Justice for a New Century — The Way Forward (2005), Professor R.A. Macdonald suggests that since about 1960, five distinct "waves" in thought about access to justice in Canada can be identified. He describes these as concerned with "access to lawyers and courts" (between 1960 and 1970); "institutional redesign" (1970-80); "demystification of the law" (1980-90); "preventative law" (1990-2000); and "proactive access to justice" (since 2000). He notes that today:

. . . commentators identify a broad inventory of features that would characterize an accessible justice system: (1) just results, (2) fair treatment, (3) reasonable cost, (4) reasonable speed, (5) understandable to users, (6) responsive to needs, (7) certain, and (8) effective, adequately resourced and well-organized. But, as the experiences of the last four decades illustrate, these are not features of an accessible justice system; [these] are merely features of an accessible dispute-resolution system. These experiences point to two main organizing themes of a comprehensive access to justice strategy: the strategy must be multi-dimensional; and it must take a pluralistic approach to the institutions of law and justice. [at 23-24]

[30] I do not intend to take so broad, or so modern, a view of the principle in these Reasons. Rather, I propose as a working definition the meaning which in my opinion represents the most basic, or core, aspects of access to justice as a constitutional principle — i.e., reasonable and effective access to courts of law and the opportunity to obtain legal services from qualified professionals, that are related to the determination and interpretation of legal rights and obligations by courts of law or other independent tribunals. This view of access to justice also seems to be implicit in the Reasons of the Chambers judge below. (See (2005) 39 B.C.L.R. (4th) 17, 2005 BCSC 122 at paras. 81 and 87.)

Factual Background

[31] The facts of this case are easily stated and indeed were the predictable sequel to this court's earlier decision in John Carten Personal Law Corp. v. British Columbia (Attorney General) (1997) 40 B.C.L.R. (3d) 181. It represented the third challenge to the imposition of the 7% Social Services Tax on all legal fees by the Province of British Columbia. (See Social Service Tax Act, R.S.B.C. 1979, c. 388.) After the first challenge (on the issue of vagueness) succeeded (see Canadian Bar Association v. British Columbia (Attorney General) (1993) 101 D.L.R. (4th) 410 (B.C.S.C.)), the Province enacted the Social Service Tax Amendment Act (No. 2), S.B.C. 1993, c. 24 (the "Act"). A second challenge, made on the basis that the tax was indirect and did not constitute taxation within the Province, failed. (See Canadian Bar Association v. British Columbia (Attorney General) (1994) 91 B.C.L.R. (2d) 207 (B.C.S.C.).) Thereafter, Mr. Carten, a lawyer, brought separate proceedings raising several issues which included the following, taken from his factum at the time:

The tax on legal services constitutes an interference with, impedes or otherwise fetters the right of a member of the public to access to the courts and interferes with, impedes or otherwise fetters the right of a member of the public to acquire knowledge of his or her legal rights all of which is inconsistent with the concept of a nation founded on principles that recognize the rule of law.

[32] This ground, together with others based on specific provisions of the Canadian Charter of Rights and Freedoms and the Constitution Act, 1867, came before this court on an appeal by Mr. Carten. In a split decision, this court upheld the dismissal of his petition. But the majority seemed to accept that had Mr. Carten adduced convincing proof that had someone been precluded by the tax from "access to the courts", the tax would have been unconstitutional. (A right wider than "access to the courts" was also suggested.) Lambert J.A. (with Hollinrake J.A. concurring) reasoned as follows:

[8] In this part of these reasons I propose to address Mr. Carten's first seven issues together. They all relate in one way or another to the right of a citizen to have access to the courts and possibly also to other legal services required for the just and orderly functioning of our society.

[9] I consider that everyone in Canada has a right to come to court and seek the help of the court in obtaining a resolution of the legal issues that have given rise to that person's problem. Everyone in Canada has a right to seek the protection of the court from any perceived oppression by the state. Everyone being prosecuted in our courts has the right to counsel and the right to make full answer and defence. And I consider that our social system and our system of government depend not only on our rights relating to dispute resolution, in courts and otherwise, but also on our rights relating to dispute prevention through a legal system which regulates succession to property, family law, and other areas of potential disharmony.

[10] Some of the rights to which I have referred may be guaranteed, though not necessarily created, by the Canadian Charter of Rights and Freedoms. See BCGEU v. B.C. (A.G.) (1983), 48 B.C.L.R. 5 (B.C.S.C.); (1985), 64 B.C.L.R. 113 (B.C.C.A.); (1988), 31 B.C.L.R. (2d) 273 (S.C.C.). Others of those rights may be so fundamental that they may properly be regarded as having constitutional status. In this connection see the preamble to the Constitution Act, 1867 and the discussion in such cases as Saumur v. Quebec (City), [1953] 2 S.C.R. 299 at pp. 331, 353-4 and 373-4, Switzman v. Elbling, [1957] S.C.R. 285 at pp. 327-8, Canada (Attorney General) and Dupond v. Montreal (City), [1978] 2 S.C.R. 770 at p. 796 and OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2 at p. 57. See also the lively and learned debate in the House of Lords on 14 July 1997 when Lord Ackner "rose to ask Her Majesty's Government what action they have taken or propose to take to protect the constitutional right of access of a litigant of modest means from the impact of new and increased court fees." Lord Irving of Lairg, the Lord Chancellor, gave particular emphasis in his speech to whether the right of access to the courts was a constitutional right in the sense of an absolute right.

[11] In the course of argument on this appeal we indicated to counsel that we were so persuaded of the existence of those fundamental rights that we did not need to hear any argument to the effect that they were granted by Magna Carta of 1215, or by some later version of the Great Charter or, assuming that was so, that they derived any additional force in British Columbia from having that provenance.

[12] All that being said, in my opinion Mr. Carten's arguments on those issues cannot be sustained in this Court because of lack of proof that rights of access to the courts, to justice, or to legal services, have been denied because of this 7 per-cent tax on the amount paid or payable for legal services.

* * *

[14] . . . That evidence is, in my opinion, insufficient to provide a basis of constitutional facts adequate to support the constitutional arguments made in Mr. Carten's first seven points. And we are not entitled to speculate, in the absence of any sufficient proof, that surely the very existence of the tax would prevent someone, somewhere, from going to court. If we were tempted to engage in any such speculation we would immediately have to confront the fact that legal aid is widely available to those who are financially challenged and that the tax does not apply to legal aid services. [Emphasis added.]

(Leave to appeal to the Supreme Court of Canada was refused: [1998] 2 S.C.R. viii.)

[33] McEachern C.J.B.C., dissented. He did not find it necessary to consider "whether a 7% tax instead of some lesser or larger amount would tip the constitutional scales of justice against our citizens be they rich or poor." In his view, "the dilution of Charter rights values in innumerable cases with widely varying circumstances is incapable of conventional proof except perhaps by anecdotal evidence." (Para. 53.) He continued:

Partly because of the views expressed by [U.S.] Chief Justice Marshall, it seems to me to be more than anomalous that the people of Canada represented both by Parliament and the requisite majority of the provinces, including British Columbia, would give themselves, as their supreme law, the guaranteed rights and protections of the Charter and for the province to then have power to exercise its taxation powers in a way that must make the exercise of those rights and protections onerous or even prohibitory to some and at least burdensome to others. [para. 55]

[34] McEachern C.J.B.C. traced the historical development of the rule of law in England and "the emergence of consensus about legal process as the primary means of settling disputes", which had become "firmly linked in the public mind with the protection of liberty." (Para. 62.) With respect to the preamble to the Charter, he relied heavily on the judgment of Chief Justice Dickson for the majority in B.C.G.E.U. (a case to which I shall return below) to conclude that:

. . . the state cannot burden effective access to counsel with a tax. Such a tax hinders access to those remedies in the same manner as a physical blockade. Some will get over the barriers separating them from justice. Others will be unable to enjoy the benefits of the supreme law.

In this respect, I repeat what I said a moment ago in a different context. A much larger tax might not impair access to wealthy citizens, corporations or well funded interest groups. A moderate tax might not actually prevent access to our economic middle classes but every burden hinders access and makes it more difficult. To our poor citizens who may be assumed to need the protection of the Charter the most, any tax is calculated by its very nature to impair access to or protection of Charter rights and values.

I conclude, therefore, that this tax does impair constitutional rights, values and protections. [paras. 90-92]

McEachern C.J.B.C. would have ruled the tax ultra vires insofar as it applied to legal fees relating to the assertion of constitutional rights and protections.

[35] In the case at bar, Mr. Roberts on behalf of Mr. Christie made the simple argument that the filing of affidavit evidence both of Mr. Christie and some of his clients to the effect that the tax on legal services had made it impossible for the clients to obtain such services, supplied the deficiency in evidence noted by Lambert J.A. in Carten. The Chambers judge acceded to this argument. In her analysis:

In contrast to the findings of the majority in Carten, there is, in this case, clear uncontradicted proof not only of impediment, hindrance and discouragement by the imposition of this tax to access to justice, but also evidence of a denial of access to justice. The evidence of Mr. Christie's clients demonstrates that each is potentially denied legal services if the tax is applied. Mr. Christie's affidavit evidence demonstrates the limits on lawyers' abilities to earn a living and provide low-cost legal services to those who either don't qualify for legal aid or, if they do qualify, can't get it because it is not available for the kind of case which they wish to bring before the courts. The report of Mr. Teasley provides further support for the generalizability of the evidence of Mr. Christie and his clients. [para. 77; emphasis added.]

Further, she said:

The "but for" test is surely not intended to set the standard of proof bar higher than a balance of probabilities. Mr. Christie deposes and I find as a fact, based on all of the evidence presented, that some of Mr. Christie's clients could not obtain needed legal services if Mr. Christie did not act for them. Further, I find as a fact that if Mr. Christie were to charge them his hourly rate plus the social services tax, they could not pay him. I also find that if Mr. Christie is not paid the minimum amount which he charges, in most of his cases he could not continue to practice law, thus denying those individuals access to justice. [para. 82; emphasis added.]

In the result, the Chambers judge found that the imposition of the tax on the cost of legal services did in fact deny access to justice "in some cases of low income persons." (Para. 83.)

[36] As in Carten, the appellant in this case did not seek to justify the tax under s. 1 of the Charter. Nevertheless, the Chambers judge provided a brief statement of her s. 1 analysis as follows:

I find that the Act cannot be characterized as a minimal impairment since the tax could be imposed on the legal fees of persons whose income level does not qualify as low by the test I set out below. In addition, in applying the Oakes test, in my view, it cannot be said that the Act pursues an objective that is sufficiently important to justify limiting the Charter right delineated. The stated objective of the Act when it was introduced was to raise revenue from the collection of taxes on all lawyers' fees in the province in order to fund legal aid in the province. As noted elsewhere in these reasons, such a purpose has not been fulfilled. If the fees applied exclusively to expanding legal services to low income persons, then s. 1 would likely save the tax. [para. 92]

In the result, the Chambers judge granted a declaration that the Act was ultra vires to the extent that it applied to legal services provided to low-income persons. For these purposes, she adopted the definition of "low income" as the level of income and assets that are considered in determining eligibility for the family duty counsel program of the Legal Services Society.

ON APPEAL

Factual Arguments

[37] The Attorney General of British Columbia appealed and the Attorney General of Canada supported the appeal. (Evidently, a remedy had been sought against Canada in Mr. Christie's original petition, but after that claim was dropped, Canada simply remained as a party without objection from the others.) Both Attorneys General submitted first that the evidence did not support the Chambers judge's finding of fact that the tax precluded some of Mr. Christie's clients from obtaining legal services they required. With respect to Mr. Christie's client Mr. Buzunis, for example, who required two hours of legal services per month and could not afford to pay $90 if the tax were added to his bill, the Attorney General for the Province contended that the lawyer should simply reduce the quantity of legal services by eight minutes and 24 seconds, making the tax affordable. It was difficult, the Province argued, to see how this reduction could prejudice Mr. Buzunis's cause of action for damages for personal injury. The Attorney General also suggested that it was Mr. Christie's "dabbling" in remunerative activities that had made him unable to finance his cash flow through a bank. In more general terms, the Province submitted that it is the overall expense and complexity of the civil justice system, including costly legal fees, which discourage low-income persons and others from pursuing (or defending) claims in the courts. Thus it could not be said that the tax alone is the reason why Mr. Christie's clients are unable to obtain legal services.

[38] For his part, the Attorney General of Canada maintained that the Chambers judge erred in taking judicial notice of "the fact that many self-represented individuals in a wide variety of cases are denied effective access to justice when they cannot afford appropriate legal representation." (Para. 74.) The Chambers judge made this finding after explaining her own direct observation that the number of self-represented persons in the court had increased; that most were self-represented there because they could not pay for legal services; and that many were incapable of presenting their cases in proper form. Canada submitted that the Chambers judge here greatly exceeded the scope of the doctrine of judicial notice, which is limited to matters that are so generally known and accepted that they cannot be questioned, or matters that can be verified "by resort to sources whose accuracy cannot reasonably be questioned." (R. v. Potts (1982) 66 C.C.C. (2d) 219 at 226 (Ont. C.A.).)

[39] With respect, arguments about theories of causation, the scope of judicial notice and anecdotal evidence seem to me to miss the mark in this case. Of course the high cost of litigation is the cumulative effect of many things, including lawyers' fees, filing fees, transcript charges, etc., but as Mr. Roberts observes, we are here concerned with a tax, which is obviously a "function of the state" and therefore amenable to Charter scrutiny. In the law of tort, it is not necessary for a plaintiff to show that his or her injury was caused solely by the defendant's wrong, and the leading Canadian authority on causation in that context leaves the door open to proof of "material contribution" where the so-called "but for" test is unworkable. (See Athey v. Leonati [1996] 3 S.C.R. 458 at para. 15.) In my view, although proof by scientific means may not be possible in the instant case, one may infer by exercising "ordinary common sense" (see Athey at para. 16) and logic that the tax does hinder and in some cases (as illustrated by the affidavit evidence) prevents access to legal services. It is obvious that if such services must be paid for, a tax added to the cost of those services will make it more expensive for all clients and prohibitive for some, depending on the rate of the tax. The tax at present is 7%, but it could be whatever rate the Province decrees.

[40] In any event, since the Chambers judge has not been shown to be clearly wrong (see Housen v. Nikolaisen [2002] 2 S.C.R. 235), we are precluded from interfering with her finding on this point. I propose to proceed, then, on the assumption that as a matter of fact, the tax denies, and in other cases, hinders the access to justice of some persons in British Columbia.

Arguments of Law

[41] The arguments of law advanced on this appeal are more difficult to resolve and indeed counsel for the two Attorneys General framed them differently. The Attorney General of Canada submitted that "the [Chambers] judge erred in finding that the Charter includes the right to effective access to justice, in the form of affordable legal services." In the words of his factum, "a conclusion that a constitutional right to affordable legal services resides in the preamble of the Charter, and that the right is capable of being used to find of no force and effect otherwise valid legislation, is unsupportable." However, Mr. Christie's case as I understand it was not that there is a right to "affordable legal services" that must be supplied by either level of government (on this point, see British Columbia (Ministry of Forests) v. Okanagan Indian Band (2001) 95 B.C.L.R. (3d) 273 (B.C.C.A.)), but whether the tax on legal services levied by the Province by means of the Act violates a constitutional right to access to justice. As the Chambers judge stated at para. 81 of her Reasons, "[t]he issue of the tax is not whether the government must provide and pay for legal counsel in any matter requiring legal services, but whether the state can impose an additional financial burden on those seeking to obtain legal services. . . . [T]hese are two entirely different issues."

[42] Mr. Christie did not argue that the Act lay within federal rather than provincial competence; nor that the Act offends any of the specific rights and freedoms set forth in the written "provisions" of the Charter — i.e., in any of ss. 2 or 6-15. Rather, he relied on the principle of the rule of law stated in the preamble to the Charter ("Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law . . ."). Thus the second ground of appeal stated by the Province in its factum — that the Chambers judge erred in holding that the "right of access to justice, as a component of the rule of law, can provide a basis for striking down duly enacted legislation" — captures in my view the real issue to be determined on this appeal.

[43] As has been seen, the Chambers judge properly accepted that she was bound by Carten. The question before her was whether on this occasion, the petitioner had proven that a person or class of persons had been denied access to justice by virtue of the tax. The Chambers judge regarded the majority in Carten as having accepted the "principle that access to justice is a fundamental constitutionally protected right". (Para. 72.) I agree that on balance this would appear to be what the majority meant at paras. 9-12 of their reasons (quoted supra, at para. 32) in Carten, although Lambert J.A. did not refer in the relevant passage to the Charter or Charter-protected rights. He used the phrase "fundamental rights" and referred to the Magna Carta ((1297) 25 Edw. 1) — a statute which has been largely repealed and which this court has said does not have constitutional force in Canada: see R. v. Jebbett (2003) 106 C.R.R. (2d) 186 (B.C.C.A.), citing Re Immigration Act and Munshi Singh (1914) 6 W.W.R. 1347 at 1371 (B.C.C.A.). (One section of the Magna Carta that has not been repealed is chapter 29, which was originally chapter 40. It provides: "We will see to no man, we will not deny or deter to any man either justice or right." As Mr. Roberts noted, many of the American states have incorporated a similar provision in their constitutions. These provisions have been invoked to invalidate fees or charges for court services that are not reasonably required for the provision of such services: see Crocker v. Finlay, 459 N.E. 2d 1346 (1984), Harrison v. Monroe County, 716 S.W. 2d 263 (1986), and Le Croy v. Hanlon, 713 S.W. 2d 335 (1986).)

[44] Mr. Copley began his argument by stating that the Province accepts the correctness of Carten. In his submission, however, "access to justice" was restricted to physical access to courthouses rather than general access to legal services. Elsewhere in his argument, Mr. Copley said that the "unwritten principles" of the Constitution could be used to interpret legislation or to "fill in gaps" in the express terms of the Constitution, but not to invalidate duly enacted statutes of either level of government. Insofar as Carten suggests otherwise, it seems to me, with respect, that the Province's position ran contrary to Lambert J.A.'s obiter dicta at paras. 9-11 of that case and that the Province cannot be taken as accepting the correctness of those dicta in Carten.

Analysis

[45] I turn to the central question posed by this appeal — whether the rule of law (which incorporates the principle of access to justice), either as an unwritten aspect of the Constitution or as an aspect of one of the two principles mentioned in the preamble to the Charter, may be used in any circumstance as a basis to invalidate legislation. I do not intend to trace the historical development of the rule of law in England, where the central principle of parliamentary supremacy has provided a complete answer to this question in the past. (For a recent judicial discussion, see R. v. Lord Chancellor, ex parte Witham [1997] 2 All E.R. 779 (Q.B.).) There are many texts and learned articles to which one may refer in this regard. Nor do I intend to embark on a long review and analysis of Canadian cases, and the academic commentaries that have followed them. (See, for example, A.C. Hutchinson and P.J. Monahan, "Democracy and the Rule of Law" in Hutchinson and Monahan, eds., The Rule of Law — Ideal or Ideology (1987); Jeffrey Goldsworthy, "The Preamble, Judicial Independence and Judicial Integrity", (2000) 11 Constitutional Forum 60; Mark D. Walters, "The Common Law Constitution in Canada: Return of Lex Non Scripta as Fundamental Law", (2001) 51 U.T.L.J. 91; Jean Le Clair, "Canada's Unfathomable Unwritten Constitutional Principles", (2002) 27 Queens L.J. 389;. Peter W. Hogg and Cara F. Zwibel, "The Rule of Law in the Supreme Court of Canada", (2005) 55 U.T.L.J. 715; and W.J. Newman, "The Principles of the Rule of Law and Parliamentary Sovereignty in Constitutional Theory and Litigation", (2005) 16 N.J.C.L. 175.) Rather, I hope that a rather superficial recounting of what has been said by the Supreme Court of Canada about the rule of law and other unwritten constitutional principles since the introduction of the Charter will refresh memories of the "dialogue" on this question. I do commend to the reader the academic articles I have mentioned for a thorough analysis of the legal (and political science) aspects of this topic.

[46] I begin with the Patriation Reference (Re Resolution to Amend the Constitution [1981] 1 S.C.R. 753), which in fact was decided shortly before the Charter came into effect. The majority there focussed on the distinction between conventions, which are "not enforced by the courts" and "laws of the constitution", which are enforced. (At 880; my emphasis.) It relied on the "federal principle" as the basis for the "rule" that a substantial degree of provincial consent would be required for any constitutional amending formula. Martland and Ritchie JJ., in dissent, reviewed various decisions which in their analysis showed that "judicially developed legal principles and doctrines" have been "accorded full force in the sense of being employed to strike down legislative enactments." (At 845; my emphasis.) These decisions included Amax Potash Ltd. v. Government of Saskatchewan [1977] 2 S.C.R. 576, British Columbia Power Corp. v. British Columbia Electric Co. [1962] S.C.R. 642, Attorney General of Nova Scotia v. Attorney General of Canada [1951] S.C.R. 31, and Reference re Alberta Statutes [1938] S.C.R. 100.

[47] Whether these cases supported the proposition that unwritten constitutional principles had been used to strike down legislation need not be resolved here; but the dissenters' observations were quoted in 1985 with apparent approval in the Manitoba Language Rights Reference, supra, in the Court's consideration of how to preserve the rule of law once it had been found that all the laws enacted by Manitoba since 1890 were invalid, the "constitutionally required manner and form for their enactment" not having been followed. (At 747.) The Court observed:

In the present case, declaring the Acts of the Legislature of Manitoba invalid and of no force or effect would, without more, undermine the principle of the rule of law. The rule of law, a fundamental principle of our Constitution, must mean at least two things. First, that the law is supreme over officials of the government as well as private individuals, and thereby preclusive of the influence of arbitrary power. Indeed, it is because of the supremacy of law over the government, as established in s. 23 of the Manitoba Act, 1870 and s. 52 of the Constitution Act, 1982, that this Court must find the unconstitutional laws of Manitoba to be invalid and of no force and effect.

Second, the rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order. Law and order are indispensable elements of civilized life. [at 748-49; emphasis added.]

The Court also recognized that the rule of law had "constitutional status":

The constitutional status of the rule of law is beyond question. The preamble to the Constitution Act, 1982 states:

Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law. (Emphasis added.)

This is explicit recognition that "the rule of law [is] a fundamental postulate of our constitutional structure" (per Rand J., Roncarelli v. Duplessis, [1959] S.C.R. 121, at p. 142). The rule of law has always been understood as the very basis of the English Constitution characterising the political institutions of England from the time of the Norman Conquest (A.V. Dicey, The Law of the Constitution (10th ed. 1959), at p. 183). It becomes a postulate of our own constitutional order by way of the preamble to the Constitution Act, 1982, and its implicit inclusion in the preamble to the Constitution Act, 1867 by virtue of the words "with a Constitution similar in principle to that of the United Kingdom".

Additional to the inclusion of the rule of law in the preambles of the Constitution Acts of 1867 and 1982, the principle is clearly implicit in the very nature of a Constitution. The Constitution, as the Supreme Law, must be understood as a purposive ordering of social relations providing a basis upon which an actual order of positive laws can be brought into existence. The founders of this nation must have intended, as one of the basic principles of nation building, that Canada be a society of legal order and normative structure: one governed by rule of law. While this is not set out in a specific provision, the principle of the rule of law is clearly a principle of our Constitution.

This Court cannot take a narrow and literal approach to constitutional interpretation. The jurisprudence of the Court evidences a willingness to supplement textual analysis with historical, contextual and purposive interpretation in order to ascertain the intent of the makers of our Constitution.

The Court has in the past inferred constitutional principles from the preambles to the Constitution Acts and the general object and purpose of the Constitution. [at 750-51]

[48] The Court then quoted passages from the Patriation Reference, including that quoted above from the dissenting judgment of Martland and Ritchie JJ., and observed:

In other words, in the process of Constitutional adjudication, the Court may have regard to unwritten postulates which form the very foundation of the Constitution of Canada. In the case of the Patriation Reference, supra, this unwritten postulate was the principle of federalism. In the present case it is the principle of rule of law. [at 752; emphasis added.]

[49] Next, the Court turned to consider whether the "de facto doctrine" or the doctrine of state necessity could be used to preserve order in the province until such time as the laws of Manitoba could be properly translated and adopted. It concluded that "the Court may temporarily treat as valid and effective laws which are constitutionally flawed in order to preserve the rule of law." In the Court's analysis:

The Constitution will not suffer a province without laws. Thus the Constitution requires that temporary validity and force and effect be given to the current Acts of the Manitoba Legislature from the date of this judgment, and that rights, obligations and other effects which have arisen under these laws and the repealed and spent laws of the Province prior to the date of this judgment, which are not saved by the de facto or some other doctrine, are deemed temporarily to have been and continue to be effective and beyond challenge. It is only in this way that legal chaos can be avoided and the rule of law preserved. [at 767]

In the result, those rights, obligations and "any other effects which have arisen under current Acts, and purportedly repealed or spent acts, of the Legislature of Manitoba" that were not saved by the de facto doctrine or other similar doctrines, were deemed "temporarily to have been, and to continue to be, valid, and of force and effect" until the expiry of the period required for re-enactment, translation and publishing. (At 780.)

[50] B.C.G.E.U., supra, concerned the validity of an injunction issued by the Supreme Court of British Columbia to ensure public access to all courthouses in the province during a strike by the government employees' union. (The injunction was granted even though it was not illegal to cross the union's picket line, and even though the union was willing to issue "passes" to persons such as duty counsel and officers of the court.) Thus the case did not involve a challenge to legislation, but to an order founded in the court's inherent jurisdiction. On appeal, the Supreme Court of Canada held that the injunction lay within the inherent powers of criminal contempt exercisable by the Supreme Court of British Columbia. The order was found to have limited the rights of members of the union under s. 2(b) of the Charter, but that limitation was found to be "wholly proportional to the objective of the order, namely, to maintain access to the courts and to ensure that the courts remained in operation in order that the legal and Charter rights of all citizens of the province would be respected." (At 249.)

[51] The comments of Chief Justice Dickson on the rule of law and the principle of access to justice it was found to incorporate, did not appear to be restricted to "judge-made" law. I note in particular the well-known passage at 229-30:

Let us turn then to s. 52(1) of the Constitution Act, 1982 which states that the Constitution of Canada is the supreme law of Canada and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. Earlier sections of the Charter assure, in clear and specific terms, certain fundamental freedoms, democratic rights, mobility rights, legal rights and equality rights of utmost importance to each and every Canadian. And what happens if those rights or freedoms are infringed or denied? Section 24(1) provides the answer — anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. The rights and freedoms are guaranteed by the Charter and the courts are directed to provide a remedy in the event of infringement. To paraphrase the European Court of Human Rights in Golder v. United Kingdom (1975), 1 E.H.R.R. 524, at p. 536, it would be inconceivable that Parliament and the provinces should describe in such detail the rights and freedoms guaranteed by the Charter and should not first protect that which alone makes it in fact possible to benefit from such guarantees, that is, access to a court. As the Court of Human Rights truly stated: "The fair, public and expeditious characteristics of judicial proceedings are of no value at all if there are no judicial proceedings". And so it is in the present case. Of what value are the rights and freedoms guaranteed by the Charter if a person is denied or delayed access to a court of competent jurisdiction in order to vindicate them? How can the courts independently maintain the rule of law and effectively discharge the duties imposed by the Charter if court access is hindered, impeded or denied? The Charter protections would become merely illusory, the entire Charter undermined.

There cannot be a rule of law without access, otherwise the rule of law is replaced by a rule of men and women who decide who shall and who shall not have access to justice. [Emphasis added.]

McIntyre J. concurred with the majority opinion that "the right of such free access [to the courts] is Charter-protected". (At 251.)

[52] In 1993, in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) [1993] 1 S.C.R. 319, the majority of the Court considered the nature of the Canadian constitution, which it noted was "in large part" written. (Para. 113.) In the analysis of McLachlin J. (as she then was) for the majority, however, unwritten principles still had a place in the Constitution, as confirmed by the word "includes" in s. 52(2) of the Charter and the statement in the preamble to the Constitution Act, 1867 that Canada's constitution was intended to be "similar in Principle to that of the United Kingdom". McLachlin J. continued:

It seems indisputable that the inherent privileges of Canada's legislative bodies, those "certain very moderate privileges which were necessary for the maintenance of order and discipline during the performance of their duties" (see R. M. Dawson, The Government of Canada (5th ed. 1970), at p. 338), fall within the group of principles constitutionalized by virtue of this preamble. The principles constitutionalized in this manner were seen to be unwritten and unexpressed; I do not understand the entrenchment of written rights guarantees, or the adoption of specific written instruments, to negate the manifest intention expressed in the preamble of our Constitution that Canada retain the fundamental constitutional tenets upon which British parliamentary democracy rested. This is not a case of importing an unexpressed concept into our constitutional regime, but of recognizing a legal power fundamental to the constitutional regime which Canada has adopted in its Constitution Acts, 1867 to 1982. Nor are we here treating a mere convention to which the courts have not given legal effect; the authorities indicate that the legal status of inherent privileges has never been in doubt.

I accept the spirit of the remarks of Hogg [Constitutional Law of Canada, vol. 1, 3rd ed. (1992)] that additions to the 30 instruments set out in the Schedule to s. 52(2) of the Constitution Act, 1982 might have grave consequences given the supremacy and entrenchment that is provided for the "Constitution of Canada" in ss. 52(1) and 52(3). However, as Hogg himself concedes, s. 52(2) is not clearly meant to be exhaustive. That established, I would be unwilling to restrict the interpretation of that section in such a way as to preclude giving effect to the intention behind the preamble to the Constitution Act, 1867, thereby denying recognition to the minimal, but long recognized and essential, inherent privileges of Canadian legislative bodies. [at 377-78]

In the result, the Court ruled that the legislatures of the provinces possessed "those historically recognized inherent constitutional powers as are necessary to their proper functioning", including the power to exclude "strangers" from their chambers.

[53] In 1997, in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island [1997] 3 S.C.R. 3, the Supreme Court dealt with the validity of three provincial statutes which reduced the salaries of provincial court judges and other public sector employees. The statutes were challenged on the basis of s. 11(d) of the Charter, but the majority of the Court found that s. 11(d), together with ss. 96-100 of the Constitution Act, 1867, did not on their face "comprise an exhaustive and definitive code" of judicial independence for all courts. (Para. 85.) Thus it was necessary to refer to the unwritten constitutional principle of judicial independence which was recognized in the preamble to the Constitution Act, 1867 (not, it should be noted, the preamble to the Charter). In Lamer C.J.C.'s analysis:

In my opinion, the existence of many of the unwritten rules of the Canadian Constitution can be explained by reference to the preamble of the Constitution Act, 1867. The relevant paragraph states in full:

Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom:

Although the preamble has been cited by this Court on many occasions, its legal effect has never been fully explained. On the one hand, although the preamble is clearly part of the Constitution, it is equally clear that it "has no enacting force": Reference re Resolution to Amend the Constitution.... In other words, strictly speaking, it is not a source of positive law, in contrast to the provisions which follow it.

But the preamble does have important legal effects. Under normal circumstances, preambles can be used to identify the purpose of a statute, and also as an aid to construing ambiguous statutory language: Driedger on the Construction of Statutes (3rd ed. 1994), by R. Sullivan, at p. 261. The preamble to the Constitution Act, 1867, certainly operates in this fashion. However, in my view, it goes even further. In the words of Rand J., the preamble articulates "the political theory which the Act embodies": Switzman, [v. Elbling [1957] S.C.R. 285], at p. 306. It recognizes and affirms the basic principles which are the very source of the substantive provisions of the Constitution Act, 1867. As I have said above, those provisions merely elaborate those organizing principles in the institutional apparatus they create or contemplate. As such, the preamble is not only a key to construing the express provisions of the Constitution Act, 1867, but also invites the use of those organizing principles to fill out gaps in the express terms of the constitutional scheme. It is the means by which the underlying logic of the Act can be given the force of law. [paras. 94-95; emphasis added.]

[54] As examples of the Court's inferring "the basic rule of Canadian constitutional law despite the silence of the constitutional text", Lamer C.J.C. cited the doctrine of paramountcy, and the conferral of temporary validity on the laws of Manitoba in the Manitoba Language Rights Reference, supra. He described the rule of law as a notion embraced by the "legal order that envelops and sustains Canadian society", being an "actual order of positive laws". In his words:

The preamble, by its reference to "a Constitution similar in Principle to that of the United Kingdom", points to the nature of the legal order that envelops and sustains Canadian society. That order, as this Court held in Reference re Manitoba Language Rights, . . . at p. 749, is "an actual order of positive laws", an idea that is embraced by the notion of the rule of law. In that case, the Court explicitly relied on the preamble to the Constitution Act, 1867, as one basis for holding that the rule of law was a fundamental principle of the Canadian Constitution. The rule of law led the Court to confer temporary validity on the laws of Manitoba which were unconstitutional because they had been enacted only in English, in contravention of the Manitoba Act, 1870. The Court developed this remedial innovation notwithstanding the express terms of s. 52(1) of the Constitution Act, 1982, that unconstitutional laws are "of no force or effect", a provision that suggests that declarations of invalidity can only be given immediate effect. The Court did so in order to not "deprive Manitoba of its legal order and cause a transgression of the rule of law" (p. 753). Reference re Manitoba Language Rights therefore stands as another example of how the fundamental principles articulated by preamble have been given legal effect by this Court. [para. 99; emphasis added.]

In the result, the Court held that the enactments were invalid both because they undermined judicial independence and because they breached s. 11(d) of the Charter. On the former point, Lamer C.J.C. wrote:

The historical origins of the protection of judicial independence in the United Kingdom, and thus in the Canadian Constitution, can be traced to the Act of Settlement of 1701. As we said in Valente [v. The Queen [1985] 2 S.C.R. 673], at p. 693, that Act was the "historical inspiration" for the judicature provisions of the Constitution Act, 1867. Admittedly, the Act only extends protection to judges of the English superior courts. However, our Constitution has evolved over time. In the same way that our understanding of rights and freedoms has grown, such that they have now been expressly entrenched through the enactment of the Constitution Act, 1982, so too has judicial independence grown into a principle that now extends to all courts, not just the superior courts of this country.

I also support this conclusion on the basis of the presence of s. 11(d) of the Charter, an express provision which protects the independence of provincial court judges only when those courts exercise jurisdiction in relation to offences. As I said earlier, the express provisions of the Constitution should be understood as elaborations of the underlying, unwritten, and organizing principles found in the preamble to the Constitution Act, 1867. Even though s. 11(d) is found in the newer part of our Constitution, the Charter, it can be understood in this way, since the Constitution is to be read as a unified whole: Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148, at p. 1206. An analogy can be drawn between the express reference in the preamble of the Constitution Act, 1982 to the rule of law and the implicit inclusion of that principle in the Constitution Act, 1867: Reference re Manitoba Language Rights, supra, at p. 750. Section 11(d), far from indicating that judicial independence is constitutionally enshrined for provincial courts only when those courts exercise jurisdiction over offences, is proof of the existence of a general principle of judicial independence that applies to all courts no matter what kind of cases they hear. [paras. 106-107]

(See the commentaries by Professor Hogg, supra, and Le Clair, supra, at 432-37.)

[55] In the seminal Reference re Secession of Quebec [1998] 2 S.C.R. 217, the rule of law was said to be "a fundamental postulate of our constitutional structure" incorporating three elements, namely, that "the law is supreme over the acts of both government and private persons. There is, in short, one law for all"; the "creation and maintenance of an actual order of positive laws which preserves and embodies the more general principles of normative order"; and that "the exercise of all public power must find its ultimate source in a legal rule". (Para. 71.) The Court distinguished constitutionalism from the rule of law and noted the transformation to a "significant extent" of the Canadian system of government from one of parliamentary supremacy to one of constitutional supremacy. (Para. 72.) The concept of using constitutional principles to "fill in the gaps" was reiterated and the "normative force" of unwritten constitutional principles was described:

Underlying constitutional principles may in certain circumstances give rise to substantive legal obligations (have "full legal force", as we described it in the Patriation Reference, supra, at p. 845), which constitute substantive limitations upon government action. These principles may give rise to very abstract and general obligations, or they may be more specific and precise in nature. The principles are not merely descriptive, but are also invested with a powerful normative force, and are binding upon both courts and governments. "In other words", as this Court confirmed in the Manitoba Language Rights Reference, supra, at p. 752, "in the process of Constitutional adjudication, the Court may have regard to unwritten postulates which form the very foundation of the Constitution of Canada". [para. 54; emphasis added.]

At the same time, the Court at para. 53 noted there were "compelling reasons to insist upon the primacy of our written constitution."

[56] In 2002, the Provincial Court Judges Reference was applied by the Supreme Court of Canada in Mackin v. New Brunswick (Minister of Justice) [2002] 1 S.C.R. 405. Gonthier J. for the majority wrote that the legal standards governing judicial independence have been given "a fundamental status" by the preamble to the Constitution Act, 1867 and by s. 11(d) of the Charter. (Para. 37.) Further, he said, judicial independence is not only a right "enjoyed by a party subject to the threat of criminal proceedings but it is also a fundamental element underlying the very operations of the administration of justice. In other words, judicial independence functions as a pre-requisite for giving effect to a litigant's rights including the fundamental rights guaranteed in the Charter." (Para. 71.) At para. 72, the Court suggested that an infringement of judicial independence could not be justified by a simple application of s. 1 of the Charter. A "more demanding onus" lay on the government to justify any such infringement. In the absence of an "independent, effective and objective" body for the consideration of changes to the "remuneration conditions" of provincial court judges, the legislation in question was declared invalid. (More recently, see the Provincial Court Judges' Assn. of New Brunswick v. New Brunswick (Minister of Justice) (2005) 255 D.L.R. (4th) 513, 2005 SCC 44.)

[57] In Bacon v. Saskatchewan Crop Insurance Corp. [1999] 11 W.W.R. 51 (Sask. C.A.), the plaintiffs sought to use the rule of law to challenge a statutory provision. The statute in question was the Saskatchewan Farm Income Insurance Legislation Amendment Act, which changed a crop insurance scheme contrary to certain of their contractual rights. They argued that the rule of law was a "legal concept that pre-dates the notion of a formal written Constitution and which provides a basis for the common law control over the state in its interaction with individuals." They relied on Roncarelli v. Duplessis [1959] S.C.R. 121 to illustrate the application of the rule of law to protect individuals from arbitrary state action, and on the Manitoba Language Rights and Quebec Secession references to show increasing respect for the principle. In response, the province took the traditional position that within the limits of s. 91 or s. 92 of the Constitution Act, the authority of Parliament or the provincial legislature was supreme.

[58] The Court, per Wakeling J.A., agreed with the latter submission. He fastened on the Supreme Court's statement at para. 78 of the Quebec Secession Reference that the rule of law and the Constitution are not in conflict. Since the Supreme Court had obviously been aware of legislation which restricted or eliminated contractual and property rights, Wakeling J.A. reasoned, it must have accepted that "that legislation constitutes an important source of the laws which rule us and the sole restriction on that right to legislate is contained in the relevant Constitution." (Para. 28.) He continued:

I am unable to accept that these justices of the Supreme Court, whilst providing an analysis of our federal system, were at the same time engaged in changing that system. That is particularly so when we are not talking of a subtle or marginal change, but one which would reduce the supremacy of Parliament by subjecting it to the scrutiny of superior court judges to be sure it did not offend the rule of law and if it did, to determine whether it was an arbitrary action. If the Supreme Court of Canada meant to embrace such a doctrine, I would expect it would see the need to say so very clearly in a case where that was the issue before them. This is particularly so when they are not only cognizant of the many cases in various jurisdictions acknowledging the supremacy of Parliament, but must also be aware of their own previous judgments which have endorsed that principle such as: PSAC v. Canada, [1987] 1 S.C.R. 424, Reference re Canada Assistance Plan, [1991] 2 S.C.R. 525, Attorney General for British Columbia v. Esquimalt & Nanaimo Railway, [1950] A.C. 87 (P.C.). Furthermore, I am unable to accept that when the justices were laying a foundation for their decisions in the Secession case by reviewing the historical and legal development of federalism in this country, that they were also engaged in changing that foundation. If that were so, it would surely not be done in such a subtle manner as to be questionable whether it had happened at all.

The protection we treasure as a democratic country with the rule of law as 'a fundamental postulate' of our constitution is twofold. Protection is provided by our courts against arbitrary and unlawful actions by officials while protection against arbitrary legislation is provided by the democratic process of calling our legislators into regular periods of accountability through the ballot box. This concept of the rule of law is not in any way restricted by the Supreme Court's statement that nobody including governments is beyond the law. That statement is a reference to the law as it exists from time to time and does not create a restriction on Parliament's right to make laws, but is only a recognition that when they are made they are then applicable to all, including governments. [paras. 29-30; emphasis added.]

[59] Counsel for the Province and for Canada in the case at bar rely heavily on this reasoning and submit that the answer to Mr. Christie's complaint ultimately lies not in courts of law, but at the ballot-box. Again as the Court in Bacon stated:

This approach taken by the trial judge appears to me to lose sight of the fact the public's protection from the arbitrary use of power by officials is provided by the Courts in situations such as was dealt with in Roncarelli v. Duplessis, but the public's protection from the arbitrary use of power by the elected legislators is the ballot box. We place our confidence in the Courts to the extent they will recognize and deal with arbitrary actions of officials not supported by law but we place our confidence in the democratic process of elections to deal with the arbitrary use of legislative powers. These are separate and distinct threats to our freedom and have separate and distinct protections. To say that since the courts do a good job in providing protection in one area against the arbitrary use of power by officials they must also do it in relation to the passage of arbitrary legislation is to misunderstand the democratic process by downgrading the importance of holding a government responsible to the will of the electors. [paras. 36; emphasis added.]

[60] Bacon was adopted and expanded somewhat by the Federal Court of Appeal in Singh v. Canada (Attorney General) [2000] 3 F.C. 185 (sub nom. Westergard-Thorpe v. Canada (Attorney General) (2000) 183 D.L.R. (4th) 458). In that case, the appellants sought a declaration that s. 39 of the Canada Evidence Act, which provides absolute immunity of disclosure for documents containing Cabinet confidences, was unconstitutional. The appellants submitted that the provision was inconsistent with the "fundamental unwritten principles of the Canadian constitution [which] . . . include the independence of the judiciary, the rule of law and the separation of powers" (para. 10); but the Court, per Strayer J.A., did not agree. He did not interpret the Quebec Secession and the Provincial Court Judges references as "having put an end to another constitutional principle, namely the supremacy of Parliament or the supremacy of legislatures when acting in their own domain." (Para. 12.) In connection with the rule of law in particular, he observed:

Advocates tend to read into the principle of the rule of law anything which supports their particular view of what the law should be. A recent pronouncement by the Supreme Court of Canada in the Quebec Secession Reference reiterated with approval its description of the rule of law in Reference re Manitoba Language Rights. In summary the Court there confirmed the elements of the rule of law to be: that the law is supreme over the acts of both government and private persons ("one law for all"); that an actual order of positive laws be created and maintained to preserve "normative order"; and that "the exercise of all public power must find its ultimate source in the legal rule". As they said, put another way, "the relationship between the state and the individual must be regulated by law".

As the learned trial judge has held, this is precisely the situation where section 39 of the Canada Evidence Act is applied to preserve the immunity from disclosure of Cabinet documents. The situation is clearly regulated by law, namely section 39, being an Act of Parliament operating in what has been held to be its field of legislative authority. The rule of law is not the equivalent of a guarantee of the paramountcy of the common law (which itself has mutated on this subject of immunity in recent decades). In fact the "actual order of positive laws" in our system makes valid legislation paramount over the common law. That the government is bound by the law, just as are private citizens, is not in dispute here. This does not mean that the law must produce the same results in respect of every citizen or institution in the country: differently situated persons and public bodies require different treatment and it is part of the art and science of law-making, both by legislatures and courts, to fashion a content of laws appropriate to the different persons and bodies they regulate. All of this must now, of course, be done within the confines of section 15 of the Charter which is not in issue before us. [paras. 33-34; emphasis added.]

In summary, the Court concluded, the rule of law was "not a basis for ignoring the provisions of section 39 of the Canada Evidence Act." (Para. 37.)

[61] In Babcock v. Canada (Attorney General) [2002] 3 S.C.R. 3, another challenge was made to a statutory provision on the basis that it contravened unwritten principles of the Constitution, including the rule of law. The challenge failed because the impugned provision was found not to offend any of the unwritten principles relied upon by the petitioners. However, the Court seemed to contemplate that the rule of law could be the basis for "limiting" legislation. Chief Justice McLachlin for the majority stated that "Although the unwritten constitutional principles are capable of limiting government actions, I find that they do not do so in this case. The unwritten principles must be balanced against the principle of Parliamentary sovereignty." (Paras. 54-55; my emphasis.) Further, she emphasized, it lay within the power of the Legislature to enact laws that some would consider draconian, "as long as it does not fundamentally alter or interfere with the relationship between the courts and the other branches of government." (Para. 57.)

[62] This brings us last in time to British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, which was released a few weeks prior to the hearing of the appeal in the case at bar. In Imperial Tobacco, the appellant cigarette manufacturers challenged the legitimacy of the Tobacco Damages and Health Care Costs Recovery Act, S.B.C. 2000, c. 30. That statute provided the Province of British Columbia with a "direct and distinct action" against the manufacturers for the recovery of the costs of health care benefits caused or contributed to by a "tobacco related wrong". It removed the necessity for the Province to prove the cause of tobacco-related disease in any particular individual or to prove the cost of health care benefits for particular persons. It also provided that the health care records of particular individuals relating to the provision of health care benefits were not compellable "except as provided under a rule of law, practice or procedure that requires the production of documents relied on by an expert witness", and that no person was compellable to answers questions "with respect to health of, or the provision of health care benefits for, particular individual insured persons." As well, the statute revived actions against the cigarette manufacturers which had been previously barred or extinguished by the Limitation Act, and extended the time in which the statutory cause of action could be brought, to any time within two years after the coming into force of the statute. Indeed, s. 10 gave it retroactive effect in order to allow proceedings to be brought for tobacco-related wrongs, whenever they had occurred.

[63] On appeal from this court's order upholding the validity of the legislation, the Supreme Court stated the three constitutional questions before it as whether the statute was ultra vires by reason of extra-territoriality, whether it was constitutionally invalid in whole or in part because it was inconsistent with judicial independence, and whether it was "invalid . . . as offending the rule of law". The Court found that the statute was not invalid on any of these grounds.

[64] With respect to the rule of law, Major J. for the Court noted that this principle is "a fundamental postulate of our constitutional structure", as acknowledged by the preamble to the Charter and "implicitly recognized" by the preamble to the Constitution Act, 1867. He continued:

This Court has described the rule of law as embracing three principles. The first recognizes that "the law is supreme over officials of the government as well as private individuals, and thereby preclusive of the influence of arbitrary power": Reference re Manitoba Language Rights, at p. 748. The second "requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order": Reference re Manitoba Language Rights, at p. 749. The third requires that "the relationship between the state and the individual ... be regulated by law": Reference re Secession of Quebec, at para. 71.

So understood, it is difficult to conceive of how the rule of law could be used as a basis for invalidating legislation such as the Act based on its content. That is because none of the principles that the rule of law embraces speak directly to the terms of legislation. The first principle requires that legislation be applied to all those, including government officials, to whom it, by its terms, applies. The second principle means that legislation must exist. And the third principle, which overlaps somewhat with the first and second, requires that state officials' actions be legally founded. [paras. 58-59; emphasis added.]

He added that the foregoing did not mean the rule of law had no "normative force":

As McLachlin C.J. stated in Babcock, at para. 54, "unwritten constitutional principles", including the rule of law, "are capable of limiting government actions". See also Reference re Secession of Quebec, at para. 54. But the government action constrained by the rule of law as understood in Reference re Manitoba Language Rights and Reference re Secession of Quebec is, by definition, usually that of the executive and judicial branches. Actions of the legislative branch are constrained too, but only in the sense that they must comply with legislated requirements as to manner and form (i.e. the procedures by which legislation is to be enacted, amended and repealed). [para. 60; emphasis added.]

[65] After endorsing Strayer J.A.'s observation in Singh v. Canada, supra, that "[a]dvocates tend to read into the principle of the rule of law anything which supports their particular view of what the law should be", Major J. rejected the manufacturers' submission that the rule of law requires, inter alia, that legislation ensure a fair civil trial (or at least, one might suggest, that legislation not make a trial unfair). In his analysis, the requirement of a fair civil trial does not enjoy constitutional protection in Canada. (A fair criminal trial is of course guaranteed by s. 11(d) of the Charter.) He cited two interrelated reasons:

First, many of the requirements of the rule of law proposed by the appellants are simply broader versions of rights contained in the Charter. For example, the appellants' proposed fair trial requirement is essentially a broader version of s. 11(d) of the Charter, which provides that "[a]ny person charged with an offence has the right ... to ... a fair and public hearing". But the framers of the Charter enshrined that fair trial right only for those "charged with an offence". If the rule of law constitutionally required that all legislation provide for a fair trial, s. 11(d) and its relatively limited scope (not to mention its qualification by s. 1) would be largely irrelevant because everyone would have the unwritten, but constitutional, right to a "fair ... hearing". (Though, as explained in para. 76, infra, the Act provides for a fair trial in any event.) Thus, the appellants' conception of the unwritten constitutional principle of the rule of law would render many of our written constitutional rights redundant and, in doing so, undermine the delimitation of those rights chosen by our constitutional framers. That is specifically what this Court cautioned against in Reference re Secession of Quebec, at para. 53:

Given the existence of these underlying constitutional principles, what use may the Court make of them? In [Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island], at paras. 93 and 104, we cautioned that the recognition of these constitutional principles ... could not be taken as an invitation to dispense with the written text of the Constitution. On the contrary, we confirmed that there are compelling reasons to insist upon the primacy of our written constitution. A written constitution promotes legal certainty and predictability, and it provides a foundation and a touchstone for the exercise of constitutional judicial review. [Emphasis added.]

Second, the appellants' arguments overlook the fact that several constitutional principles other than the rule of law that have been recognized by this Court - most notably democracy and constitutionalism - very strongly favour upholding the validity of legislation that conforms to the express terms of the Constitution (and to the requirements, such as judicial independence, that flow by necessary implication from those terms). Put differently, the appellants' arguments fail to recognize that in a constitutional democracy such as ours, protection from legislation that some might view as unjust or unfair properly lies not in the amorphous underlying principles of our Constitution, but in its text and the ballot box. [paras. 65-66; emphasis added.]

Finally, Major J. concluded:

The rule of law is not an invitation to trivialize or supplant the Constitution's written terms. Nor is it a tool by which to avoid legislative initiatives of which one is not in favour. On the contrary, it requires that courts give effect to the Constitution's text, and apply, by whatever its terms, legislation that conforms to that text.

A review of the cases showing that each of the appellants' proposed requirements of the rule of law has, as a matter of precedent and policy, no constitutional protection is conclusive of the appellants' rule of law arguments. [paras. 67-68; emphasis added.]

[66] This was the extent of the Court's analysis on the rule of law. Since no issue regarding access to justice arose, no mention was made of that principle as a component of the rule of law, or to the Court's reasoning in B.C.G.E.U. This fact leaves open the crucial question posed by Mr. Roberts, counsel for Mr. Christie, in his submissions — whether, if the Province were to enact a statute that expressly permitted picketing of a courthouse or otherwise contemplated interference with public access to courts of law or to legal services, that enactment would prevail (assuming a judicial determination could be made despite the statute) over the unwritten principle of the rule of law. Other examples also come to mind: what would be the result if a province decided by enactment to close provincial courts, or to enact prohibitive filing or other fees in any court — superior or provincial — that effectively blocked all litigation? Would the rule of law be satisfied as long as "manner and form" requirements were complied with?

[67] Taken at face value, Imperial Tobacco would appear to answer that question in the affirmative, since all three aspects of the rule of law described by the Court would be satisfied in such event. The legislation would apply to all; the legislation would "exist", and "the relationship between the state and the individual" would (at least on a superficial level) be "regulated by law". There would seem to be no basis on which to challenge such legislation "based on its content".

[68] With respect, however, the reasons given by the Court do not extend to the problem of access to justice with which we are concerned. The objection that giving effect to the rule of law would in the circumstances of the case render "many of our written constitutional rights redundant" is not sustainable in this case, given that no law, not even the written text of the Constitution, can be given effect to if access to justice is denied. In the case of Charter breaches, s. 24(1) of the Charter guarantees access in these terms:

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

But aside from Charter breaches, the third component of the rule of law, that the relationship between the state and the individual be regulated by law, could not be fulfilled if access to the courts (and, I would add, other independent tribunals exercising quasi-judicial functions) were effectively prohibited. Not only would individuals be unable to have their rights determined vis-à-vis the government or other private persons; governments would also be stymied in the execution of many of their executive and enforcement functions. Viewed in this context, the invocation of access to justice is not a challenge to legislation "based on its content". The principle operates at a more basic — one might even say threshold — level. It is content-neutral, just as courts of law are impartial between litigants. It does not imperil legal certainty and predictability: to the contrary, it seeks to provide a forum, both physical and systemic, in which those and other principles may be pursued.

[69] The second reason given by the Court in Imperial Tobacco for its rejection of the appellants' conception of the rule of law in that case was that unwritten constitutional principles such as democracy and constitutionalism strongly favour upholding the validity of legislation. This acknowledgment of the role of legislatures to make the law and the role of courts to apply the law again assumes that the legislation does conform to the express terms of the Constitution, and that all would-be litigants have a realistic opportunity to test that assumption. But the assumption falls away if access to justice is reserved only for governmental institutions and moneyed private interests.

[70] The Court in Imperial Tobacco stated that judicial independence, an unwritten constitutional principle which (as we have seen) has been extensively considered by the Supreme Court of Canada in recent years and used to strike down otherwise valid legislation, was a "requirement that flows by necessary implication" from the express terms of the Constitution. In my view, access to justice may equally be said to flow by necessary implication from the Constitution. If it is important that "courts give effect to the Constitution's text", it must be at least as important that the person (or other entity) seeking to have the text interpreted or applied has access to the courts and to legal services. As Dickson C.J.C. stated in B.C.G.E.U., ". . . it would be inconceivable that Parliament and the provinces should describe in such detail the rights and freedoms guaranteed by the Charter and should not first protect that which alone makes it in fact possible to benefit from such guarantees, that is, access to a court". (At 230.) In other words, if "the relationship between the state and the individual must be regulated by law" (see Quebec Secession Reference, at para. 71), the state should not impede access to that law — otherwise, the 'regulating' may not take place. Dickson C.J.C. also expressly adopted the statement made by Nemetz C.J.B.C. in B.C.G.E.U. (supra, at 406) that "Any action that interferes with such access by any person or groups of persons will rally the court's powers to ensure the citizen of his or her day in court. . . . As we have already indicated, interference from whatever source falls into the same category." (My emphasis.)

[71] I fully accept, and indeed share, the concern expressed by some academic commentators that courts should "pause to reflect on their role in constitutional adjudication before expanding the substantive and normative content of the principle of the rule of law beyond its traditional place in the Canadian constitutional system to encompass judg[e]ment calls about political decision-making that violates neither the distribution of powers nor the Charter": Newman, supra, at 231-39. As well, I agree with Professors Hutchinson and Monahan, who warn in more dramatic terms that anyone committed to democracy should be "wary of constraints that seek to substitute the cold hand of philosophy for popular judg[e]ment, no matter how presently plausible or attractive they might appear." (Supra, at 123, quoted by Newman at 238.) But giving full effect to access to justice does not affect the substantive content of any law; it seeks to preserve and facilitate the proper operation of all (valid) laws, no matter what their content.

[72] Finally, as I have already mentioned, Imperial Tobacco did not concern access to justice and the Court did not mention B.C.G.E.U. I would be very reluctant to conclude that the Court intended to overrule it, or to disapprove the well-known reasoning of Dickson C.J.C., without clear words to that effect. And, although B.C.G.E.U. relied on the inherent power of the court to protect its process by the power of criminal contempt, I have little doubt that had the Court been dealing with a statutorily-required closure of the courts, the enactment would have been struck down. I say this, of course, subject to any argument that might be advanced by the Province in another case in favour of "reasonable limits" on access to justice under s. 1 of the Charter. Again, no such argument was advanced in this instance.

Scope of Invalidity

[73] Does this mean that the tax is unconstitutional in its entirety? In this court, Mr. Roberts adopted an "all or nothing" position, arguing that it must be upheld or struck down as a whole. Thus he cross-appealed the Chambers judge's ruling that preserved the operation of the Act insofar as it applied to persons other than low-income persons. I agree with Mr. Roberts' position that the tax materially and adversely affects the ability of all persons requiring legal services, although the prohibitive effect of the tax on low-income persons such as Mr. Christie's clients, illustrates most dramatically the violation of the right. Such persons are simply unable to obtain the assistance they need to pursue the most basic rights that are at least in theory available to them. Others are able to afford assistance, but only with great difficulty to them and their families. Still others may be able to afford "routine" legal services but, when faced with a large claim or catastrophic event that requires major expenditure, are impeded or prevented from partaking fully in the justice system. At the end of the day, I am not persuaded we should attempt to draw a line or lines between such persons. The right of access to justice is held by all, and should not be trivialized or minimized as if it were a benefit to which only some are entitled without hindrance from government. Thus I would allow the cross-appeal.

[74] The more difficult question on the appeal is whether the tax can be upheld outside the ambit of Charter litigation (as was suggested in the dissenting judgment in Carten), or outside the ambit of litigation generally, or whether the tax on all legal services must be set aside. (As counsel for the Attorneys General emphasized, such services may include obtaining advice on business and real estate transactions, divorces, tort cases, appearances before tribunals of various kinds, etc.) This brings one back to the meaning of "access to justice" discussed earlier. It is true that B.C.G.E.U. concerned only 'access to courthouses', i.e., what Mr. Copley called "physical access". As has already been seen, however, both the majority's judgment and dissenting judgment in Carten used the phrase to refer to something wider. Most notably, Lambert J.A. suggested that Canadians have the right not only to make full answer and defence to any prosecution, but also "rights relating to dispute prevention through a legal system which regulates succession to property, family law, and other areas of potential disharmony." Thus he saw access to justice as encompassing "legal services required for the just and orderly functioning of our society", as well as "access to courts". (Supra, at para. 32.)

[75] I have already indicated my opinion that the impermissible effects of government action denying or hindering access to justice are not limited to cases concerning breaches of the Charter. Consistent with this, it is my opinion that the taxation of those legal services related to the judicial determination of rights and obligations is an impermissible interference with the rights of all citizens to access to, or the benefit of, justice. (I do not pretend that "justice" is in practice synonymous with the work of the judiciary, but ultimately, justice according to law is its objective.) This conclusion is also consistent with the approach taken by Professor Monahan in an article entitled "Is the Pearson Airport Legislation Unconstitutional?: The Rule of Law as a Limit on Contract Repudiation by Government", (1996) 33 Osgoode Hall L.J. 411. He pointed to a more 'organic' reason supporting the view that the rule of law, at least in the constitutional sense, centres on the determination of rights and obligations by courts of law:

It might also be argued that Dickson C.J.'s comments [in B.C.G.E.U.] only apply in situations where there has been an infringement of a specific Charter right. The former Chief Justice refers at a number of points to the fact that access to the courts is required in order to vindicate Charter rights. Thus, it might be argued, restricting access to the courts on non-Charter or non-constitutional issues does not infringe the rule of law.

While it is true that Dickson C.J. refers frequently in his judgment to the vindication of Charter rights, it would appear to be no less offensive to the rule of law to deny court access for non-Charter matters. In fact, the British Columbia Court of Appeal framed the issue as one involving the jurisdiction of the courts generally:

[T]he real issue before us is whether in a democratic society any person or bodies of persons can restrict the rights of its citizens to enjoy the benefits of the rule of law under the protection of an independent judiciary. [at 404-405]

The Court of Appeal noted that the independence of the judiciary had been guaranteed in England for close to three centuries:

It must be noted at the outset that judicial independence was won in England after centuries of struggle with the executive and legislative branches of government. It was finally achieved in 1701 by the Act of Settlement . . . when tenure for the judges was established.

As Sir William Holdsworth, the distinguished British legal historian has said in A History of English Law:

The judiciary has separate and autonomous powers just as truly as the King or Parliament; and in the exercise of these powers, its members are not more in the position of servants than the King or Parliament in the exercise of their powers. . . . The judges have powers of this nature because, being entrusted with the maintenance of the Supremacy of law, they are and long have been regarded as a separate and independent part of the constitution.

After drawing attention to the preamble of the Constitution Act, 1867, which provides that Canada is to have a Constitution "similar in principle to that of the United Kingdom," the Court of Appeal noted:

In inheriting a constitution similar in principle to that of the United Kingdom we have also inherited the fundamental precept that the courts represent a separate and independent branch of government. [at 402]

What these passages indicate is that right of access to the courts is in no way limited to the vindication of rights set out in the Charter. Rather, the rule of law encompasses the right of citizens to a "separate and independent branch of government" — the judiciary — for the determination of rights and obligations. Therefore, to deprive citizens of access to the courts for the determination of their rights, even if this is accomplished through legislation, must be inconsistent with the rule of law. [at 426-27; emphasis added.]

Since independent tribunals have become important arbiters of legal rights and obligations in our society in substitution for courts of law, I would include them in the category of the "judiciary" for purposes of this case. As the Supreme Court of Canada stated in Paul v. British Columbia (Forest Appeals Commission) [2003] 2 S.C.R. 585:

While there are distinctions between administrative tribunals and courts, both are part of the system of justice. Viewed properly, then, the system of justice encompasses the ordinary courts, federal courts, statutory provincial courts and administrative tribunals. [para. 22]

[76] In the result, I conclude that the appeal should be dismissed and the cross-appeal allowed. I would set aside the order made below and grant Mr. Christie a declaration that to the extent that the Act purports to tax legal services related to the determination of rights and obligations by courts of law or independent administrative tribunals, it is unconstitutional as offending the principle of access to justice, one of the elements of the rule of law.

[77] We are indebted to counsel for their helpful submissions.

“The Honourable Madam Justice Newbury”

I agree:

“The Honourable Madam Justice Prowse”

I agree:

“The Honourable Mr. Justice Donald”