In 2007, the last time Vaughn Barnett was sentenced to jail, they took him away in leg shackles for the same reason they did again last week. He tried to do what the justice system appears to make impossible in New Brunswick: to both follow the law and also help poor people who cannot afford a lawyer, do not qualify for legal aid and have nowhere else to turn.
On Feb. 27, Barnett, a Fredericton anti-poverty activist, was sentenced by New Brunswick Court of Queen’s Bench Chief Justice Tracey DeWare to 100 days in jail for contempt, for practicing law without a licence. It was a decision that pitted the Law Society of New Brunswick (LSNB) against Barnett.
Barnett obtained a law degree from the University of Western Ontario in 1994 but never became licenced.
All Barnett did, in his own description, was try to use the law in his activism to help a couple of people close to him who could not afford lawyers to challenge the government for unfair treatment. Barnett charged no money and is on social assistance himself.
Chief Justice DeWare noted that Barnett did not cause any physical harm to anyone, but considered his actions still harmful, saying his, “ability to do harm through the unlicensed practice of law is real, and, regretfully, unrelenting.”
“Unrelenting” refers to Barnett’s history. Since 2000, he has been under court orders to not to give legal advice, prepare legal documents or negotiate legal settlements, among other restrictions. Barnett has continued to restrict his activities to follow the court orders but did not want to abandon the urgent cause of trying to offer what help he was permitted. (Information about Barnett’s other restrictions and more background details are in a previous NB Media Co-op article about the case.)
The Law Society Act of New Brunswick prohibits unlicensed individuals or organizations from providing legal services, even if the assistance is free. The Act ensures that in New Brunswick, low income people will have difficulty obtaining any form of legal assistance where legal aid and pro bono assistance is not available.
In 2007, the now-defunct New Brunswick Access to Justice Coalition was formed in the wake of Barnett’s last contempt trial. The Coalition contacted the Canadian Civil Liberties Association (CCLA) in 2011 to raise an alarm about the terrible situation for access to justice in New Brunswick.
In response to Barnett’s ongoing plight and the access to justice issues that his story raised, the CCLA wrote to the Law Society of New Brunswick and then Minister of Justice and Community Affairs. They wrote:
… a large group of individuals in society are prohibited from providing help to others in matters relating to legal obligations and/or rights. For instance, in contrast to laws in many other Canadian provinces, the Act (Law Society Act of New Brunswick) appears to exclude people – including family, friends and neighbours – and community organizations from providing any legal support or advocacy assistance even without expectation or requirement of fee or reward.
The CCLA therefore strongly urges the New Brunswick Government and the Law Society of New Brunswick to amend the Law Society Act …
The government did not make the requested changes, and Vaughn now sits in jail, pending a possible appeal.
Regardless of what the Law Society Act says, Chief Justice DeWare’s decision begs the question of what the rule of law means for low income people in New Brunswick.
The rule of law requires that the legal system is accessible to all because the law applies to all. That is how it is supposed to be, which has very deep historical roots, clause 40 of the 800-year-old Magna Carta, a foundational document of our entire legal system, which states, “to no one will we sell, to no one will we refuse or delay, right or justice.”
Former Chief Justice of the Supreme Court of Canada (SCC), Beverly McLachlin, once told a University of Toronto Law conference audience that access to justice, “is a fundamental right, not an accessory.” In 1988, her predecessor, Chief Justice Brian Dickson said, that access to justice is, “one of the most pressing and significant issues confronting the legal system today.” The refrain keeps going back through history. It’s an 800-year-old echo, but it cannot be heard in a New Brunswick courtroom.
The length of the sentence is another issue that should concern those who care about access to justice. A 100-day sentence is the kind of jail time given for assault causing bodily harm, breaking and entering a person’s home or other serious offences that cause physical harm and fear. Yet, as Chief Justice DeWare noted, there is no proof that Vaughn actually did any harm to anyone. To the contrary, Vaughn helped one individual avoid an unlawful arrest and helped another by raising the issue of unpaid trainees in New Brunswick.
We are told that the reason for the severe penalty on Vaughn is that society needs to be protected from Barnett. In contrast, we believe that the judgement and sentence is about protecting the legal profession from the prospect of a non-lawyer filling in gaps left by Law Society of NB members, because justice costs money.