On justice and the criminalization of advocacy: An update on Vaughn Barnett’s case

On February 27, 2020, Vaughn 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. The prosecution of Barnett surprised many. It contradicts the Government of Canada’s guidelines on access to justice as well as the priorities for an effective justice system articulated by the Supreme Court of Canada. As a community advocate, Barnett offered unpaid information and assistance thereby seeking to resolve the cases that might otherwise be embroiled in the underfunded and overtaxed system, decried by the Supreme Court in an important legal decision, R. v. Jordan, 2016 SCC 27.

The month of July 2021 marks the fifth anniversary of the Jordan decision. (For a summary see: https://www.communitylegal.mb.ca/wp-content/uploads/R.-v.-Jordan.pdf) The Supreme Court of Canada addressed section 11(b) of the Charter, which guarantees accused persons the right “to be tried within a reasonable time.” Describing the criminal justice system as characterized by a “culture of delay and complacency”, the majority of judges established maximum time limits between the laying of the charge to the conclusion of a trial. Beyond these limits, the delay is considered unreasonable and in violation of an accused’s s. 11(b) Charter right. This means that a case is granted a stay or a halt to the proceeding.

These time limitations were developed with key principles in mind, including the importance of maintaining public confidence in the administration of justice (Jordan, paras 20–25). In their decision, the Supreme Court advised all criminal justice system actors to dedicate themselves to conducting timely trials. In addition, it was argued that there was a “need for urgent and bold reforms” to reduce these delays.

The consequences of the Supreme Court decision were felt immediately. In June of 2019, Andrew Russell with Global News reported that nearly eight hundred criminal cases — ranging from manslaughter to drug trafficking and even murder — had been stayed because a timely trial did not occur. More recently, the number of cases delayed due to COVID-19 is threatening to further burden an overworked system.

In response to this decision, several organizations called for change. The Canadian Bar Association (CBA) encouraged collaboration between the federal, provincial, and territorial governments and stakeholders to realize meaningful and effective change. Shortly after the Jordan decision, the CBA released a briefing document, Top 10 Ways to Reduce Court Delays. The Association identified better resourcing the system as a main concern. They also recommended enhancing legal aid services and addressing Indigenous overrepresentation as important strategies for a well- functioning system.  A further recommendation was prioritizing the early resolution of cases. Canadian senators also issued an interim report on court delays from the Senate’s Legal and Constitutional Affairs Committee, Delaying Justice Is Denying Justice: An Urgent Need to Address Lengthy Court Delays in Canada. In it, they argued for innovative solutions for a struggling system, including more attention on restorative justice.

Given the pressing issues confronting Canada’s legal system, it is surprising to read the headline from February 2020 “Fredericton man gets 100 days in jail for practising law without licence: Vaughn Barnett found in contempt of court Thursday for not adhering to a court order.”

The article discussed the prosecution of a legally trained, volunteer advocate, Vaughn Barnett. Barnett aided low-income New Brunswickers facing problems with state agencies like the criminal justice system for over two decades at a high cost to himself.

As was outlined in a commentary from the Editorial Board of the New Brunswick Media Co-op, “Vaughn Barnett sentence a travesty of justice”, Barnett spent three weeks in jail in 2020 after a judge ruled he was doing the work of a lawyer without being licensed to practice law. Vaughn Barnett’s recent attempt to appeal his conviction was denied, as reported in Barnett v Law Society of New Brunswick, 2021 CanLII 25990 (NB CA). The Court of Appeal stated that it would not allow Barnett to “make a mockery of the decisions of the courts that bind him”. In contrast, Barnett has consistently characterized his actions as motivated by social and legal justice considerations given that he provides input on cases where persons cannot afford lawyers and where they do not meet the stringent criteria for publicly funded counsel.

While Barnett graduated from the Law School of Western Ontario, he is not licensed with any law society. In 2000, Justice Riordon of the New Brunswick Court of Queen’s Bench issued a permanent injunction against Barnett, prohibiting him from practicing law. In 2002, Barnett’s appeal was dismissed.  In 2007, Justice Bell ruled that Barnett was in contempt of Justice Riordon’s court order and sentenced him to ten days of imprisonment. Barnett was taken to the provincial jail in Saint John where he served his sentence. From that time to the year 2020, Barnett encountered no further difficulties even while he continued to provide volunteer advocacy. According to materials Vaughn Barnett filed with the Court of Appeal in regard to the latest prosecution, since 2007, he has engaged in activism as well as providing free alternative dispute resolution (ADR) services, and similar support, for a small group of friends, plus a few select self- referrals.

At all times, Barnett informed the court that he acted in accordance with this honest understanding of the court’s demands. His actions that resulted in the most recent prosecution were largely related to two cases where volunteer support was provided (paras. 16-19). Barnett assisted a woman in proceedings before the Employment Standards Branch, and subsequently the Labour and Employment Board, receiving their prior written consent at appropriate times, as required by the 2007 contempt order. He also spearheaded a campaign challenging the Branch’s complaint process and its failure to investigate a practice of not paying wages to trainees.

He also provided non-lawyer alternative dispute resolution services to a second woman who was an elected official with a Fredericton agency. The woman was helped in pursuing reconciliatory discussions about her “suspension” which she felt had occurred in violation of applicable bylaws. Barnett provided non-lawyer ADR services to the second woman who originally wanted to voluntarily meet with the Fredericton Police Service regarding the accusations of work-related fraud. When she was subsequently threatened with arrest, Barnett provided the woman and the police with information questioning the legality of her potential warrantless arrest. The information on the arrest provided by Barnett in his advocacy role was confirmed by a lawyer who acted for the woman. The warrantless arrest did not happen. The criminal charges were dropped against the woman on July 7, 2020 meaning that the case did not proceed to trial.

In his documents filed with the Court of Appeal for the recent hearing, Barnett expressed concern that he was criminalized through a contempt application when his actions were of aid to society and broader justice concerns. His arguments seem particularly valid in the post- Jordan period where resourcing the justice system is paramount. He exposed an oversight agency’s failure to meet its statutory obligation to investigate a company for withholding minimum wages, aided a person defending their livelihood when it was threatened by bylaw infractions, and may have warded off law enforcement when what was characterized as an illegal, warrantless arrest was threatened.  He thereby aided the Fredericton Police Service in its duty to serve the public.

In relation to the second woman who obtained volunteer advocacy services, Barnett stated in an interview that there was the potential for “an illegal arrest in this case and even a wrongful conviction”, given that the woman faced a demand that she undergo questioning.  Providing self- incriminating statements under pressure to appease authority figures is a leading factor in wrongful convictions.

According to Barnett, “When I tried to preempt civil and criminal litigation with Alternative Dispute Resolution (ADR) or restorative justice, and raised a concern about the threatened arrest, this advocacy was criminalized”. In a time when the criminal justice system is floundering and unable to timely process cases, as the number of stays granted after the Supreme Court’s Jordan decision demonstrates, it appears that the services of individuals like Barnett might be encouraged rather than thwarted. This is especially so given that his actions align with the recommendations to promote early resolution of cases, to vigorously thwart wrongful convictions, and to proceed through restorative justice, particularly in cases involving Indigenous peoples.  One of the persons Barnett advocated for was Indigenous.

One of the disconcerting aspects of the appeal case is that even the use of the word “advocacy” was criminalized.  Because Barnett was ordered not to use that word in a professional title, one of the reasons the appeal judge upheld his recent conviction was the use of “advocacy collective” in his email address (para. 17).  The judge reasoned that a reasonable person would associate the term with work by lawyers. According to a Fact Sheet prepared for new immigrants prepared by the Justice Education Society of British Columbia with funding provided by the Government of Canada and the Province of British Columbia, an advocate is “someone who can help you speak up so that your needs are heard, your rights are understood and your problems are resolved.” According to their brochure “Advocates may be employed with a community organization, volunteer with an agency, or community members who want to provide assistance.”

It is of note that a leading public education office, the Justice Education Society, defines an advocate as a person from the grassroots in its Fact Sheet. When Barnett  argued this point before the higher court, this reasoning was rejected (para 17).

Martha Minow, a professor at Harvard Law School since 1981, penned the article “Lawyering for Human Dignity” in 2002. It was a tribute to her former student and colleague, Peter M. Cicchino, a well- regarded University Washington College of Law professor, scholar, and public interest lawyer who died in 2000 at the age of thirty- nine. Peter’s work on behalf of the marginalized was impressive. In 1994, Peter founded what became known as the Peter Cicchino Youth Project, which served the legal needs of homeless and impoverished gay and lesbian teens regarding matters such as welfare benefits, foster care issues, criminal matters.

In her 2002 tribute, Minow stated that, at times, the “best way to honor the dignity of disempowered persons” was not to “expect them to advocate for themselves”. She thought it best to “ensure their representation by the toughest, most high-powered lawyer available” of the type available to wealthy corporate clients.  While some may laud this goal, few if any would find it achievable in the contemporary climate where even obtaining a legal aid lawyer is a challenge.

Erin Durant, a proponent of pro bono legal services in Ontario, stressed that lawyers have a duty to take on unpaid cases, stating “there’s no one else to help these people” unless legal work is  provided at no cost. Her comments affirm the centrality of advocates like Barnett to bolster the under-resourced system. In the face of the inadequate access to justice, this civic minded resident granted some individuals conversation, advice, and advocacy, to his detriment.

Following his release, Barnett continues to serve as an advocate, in a general way, through the organization, Legal Administration Watchdogs, or LAW. In the future, those who need his services on individual matters, sometimes desperately so, will have to look to other – or even their own – scarce resources.

In conclusion, it may be helpful to return to the words of the other lauded social justice advocate cited in this article, Peter Cicchino. He once told law students:

Take your arrogance and afflict the comfortable. Take your contentiousness and articulate genuine political alternatives. Take your sense of entitlement to act in the world—to run things—and do so: govern, lead.

Supporters of Barnett, including the Canadian Civil Liberties Association (CCLA), have called upon the New Brunswick Government and the Law Society of New Brunswick to follow this advice and to lead by amending the Law Society Act “to end the criminalization of advocates motivated by a desire for justice and for human dignity”.  As a community volunteer, Barnett continues to “afflict” and challenge “the comfortable” to underscore human dignity while doing his utmost to avoid further prosecutions.

Meanwhile, accused persons sitting on remand and victims/ survivors waiting for their day in court or a trial may wonder why court and justice resources were spent on a volunteer offering the access to justice that the Supreme Court seemed to recommend in Jordan to expedite case resolution.  

Josephine L. Savarese is an Associate Professor with the Department of Criminology and Criminal Justice at St. Thomas University and a social justice advocate.