Communication No. 130/1982; U.N. Doc. CCPR/C/18/D/130/1982
Eighteenth Session
21 March – 8 April 1983
DECISIONS OR VIEWS
BEFORE: CHAIRMAN: Mr. Andreas Mavrommatis (Cyprus)
VICE-CHAIRMEN: Mr. Nejib Bouziri (Tunisia), Mr. Bernhard Graefrath (German Democratic Republic), Mr. Julio Prado Vallejo (Ecuador)
RAPPORTEUR: Mr. Walter Tarnopolsky (Canada)
MEMBERS: Mr. Andres Aguilar (Venezuela), Mr. Mohammed Al Douri (Iraq), Mr. Nejib Bouziri (Tunisia), Mr. Joseph A.L.Cooray (Sri Lanka), Mr. Vojin Dimitrijevic (Yugoslavia), Mr. Felix Ermacora (Austria), Mr. Rojer Errera (France), Sir Vincent Evans (United Kingdom), Mr. Bernhard Graefrath (German Democratic Republic), Mr. Vladimir Hanga (Romania), Mr. Leonte Herdocia Ortega (Nicaragua), Mr. Andreas Mavrommatis (Cyprus), Mr. Anatoly Petrovich Movchan (Soviet Union), Mr. Birame Ndiaye (Senegal), Mr. Torkel Opsahl (Norway), Mr. Julio Prado Vallejo (Ecuador), Mr. Walter Tarnopolsky (Canada), Mr. Christian Tomuschat (Federal Republic of Germany)
All other members, except Mr. Movchan, attended the eighteenth session of the Committee.
PermaLink: http://www.worldcourts.com/hrc/eng/decisions/1983.04.06_JS_v_Canada.htm
Citation: J. S. v. Can., Comm. 130/1982, U.N. Doc. A/38/40, at 243 (HRC 1983)
Publications: Report of the Human Rights Committee, U.N. GAOR, 38th Sess., Supp. No. 40, U.N. Doc. A/38/40, Annex XXVIII, at 243 (Sep.15, 83); Office of the U.N. High Comm'r for Human Rights, Selected Decisions of the Human Rights Committee under the Optional Protocol, Vol. II, at 42, U.N. Doc. CCPR/C/OP/2, U.N. Sales No. E.89.XIV.1 (1990)
DECISION ON ADMISSIBILITY
1. The communication, dated 14 December 1982, is submitted by J. S., a resident of Canada, through her le jai representative, C. R. It is alleged that J. S. has bg en denied the right to have legal assistance without payment, in violation of article 14 (3) (d) of the International Covenant on Civil and Political Rights.
2. On 17 June 1980, J. S. was sentenced to life imprisonment for second degree murder in British Columbia. Pending her appeal to the British Columbia Court of Appeal, Ms. S. was incarcerated in Vancouver, British Columbia. Her appeal was dismissed in August 1981 and she was transferred to the Prison for Women in Kingston, Ontario. She had not lived in Ontario before. Ms. S. retained C. R. of Toronto, Ontario, to act as her counsel before the Supreme Court of Canada. The appeal was heard in the Supreme Court of Canada in November 1982, with Mr. R. acting as counsel for Ms. S.
3. The claim concerning the alleged breach of article 14 (3) (d) of the Covenant relates to J. S.'s efforts to obtain legal aid for the purpose of her appeal to the Supreme Court of Canada. In August 1981, she applied fc r a legal aid certificate from the legal aid authority in Ontario (Ontario Legal Aid Plan). The application was rejected, as Ms. S. was not considered to be "a person ordinarily resident" in Ontario and also because the legal aid authority in British Columbia (Legal Services Society of British Columbia) had already offered to pay Mr. C. R., as legal counsel for Ms. S. before the Supreme Court of Canada. Mr. R. maintains that, notwithstanding the offer of the legal aid authority in British Columbia, it would, in his opinion, both be illegal for the Legal Services Society of British Columbia to offer him payment and for him to accept, as he is not entitled to practice law in British Columbia.
4. J. S. then applied to the Supreme Court of Ontario for judicial review of the decision of the Ontario Legal Aid Plan to refuse to issue a certificated for legal aid to her. The application was heard in September 1982 and was successful. The Supreme Court of Ontario set aside the decision of the Ontario Legal Aid Plan and ordered that Ms. S.'s application for a legal aid certificate be reconsidered. However, the author of the communication indicates that the present status of this matter is that the Ontario Legal Aid Plan "is applying for leave to appeal to the Court of Appeal".
5. Before considering any claim contained in a communication, the Human Rights Committee shall, in accordance with rule 87 of its provisional rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant.
6. As to the question whether legal aid should have been granted by the Ontario Legal Aid Plan, the Human Rights Committee notes that the matter is still, according to the information before it, sub judice. Domestic remedies have therefore not yet been exhausted as required by article 5 (2) (b) of the Optional Protocol. The Human Rights Committee further notes that Ms. S. was in fact represented by legal counsel of her own choosing in the proceedings before the Supreme Court of Canada and that the legal aid authority in British Columbia had offered to pay the counsel chosen by her. Consequently, the Committee is unable, in any event, to find that there are grounds substantiating the allegation of violation of article 14 (3) (d) of the Covenant.
7. The Human Rights Committee therefore decides: That the communication is inadmissible.
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