Fredericton anti-poverty activist Vaughn Barnett is being taken to the Court of Queen’s Bench in Fredericton on January 27 by the Law Society of New Brunswick for contempt. They are seeking 90–180 days of jail time.
The Law Society is saying that Barnett has been practicing law without a licence, which they say is a violation of the Law Society Act of New Brunswick. The Act prohibits unlicenced individuals or organizations from providing legal services, even if the assistance is free and for low-income people.
Barnett has provided free services to people who could not afford a lawyer, but denies any wrongdoing. He is not a lawyer, but received a law degree from the University of Western Ontario in 1994. Since the late 1990s, he has assisted low-income people facing legal challenges, aiming to fill in gaps not covered by lawyers.
Previous court orders, since 2000, have prevented Barnett from providing assistance, even beyond the restrictions of the Act. He is prohibited from preparing affidavits, letters or any document for any legal proceeding, including administrative tribunals, unless he receives prior written consent from a judge or the Chairperson of the tribunal. He is also not allowed to advertise that he does “legal research” or “advocacy” and cannot advertise that he has a law degree (LLB), except with a large disclaimer.
“I was doing fine because I was trying to respect the court order. And just recently a couple of situations came up where I felt that I could help some seriously mistreated women without breaching the orders,” he explained.
The two matters were between 2017 and 2019. One case was of an unpaid trainee at the Employment Standards Branch and Labour and Employment Board. He obtained prior written consent from the tribunal, permitting him to assist.
“Following those unsuccessful proceedings, I called on the provincial government to investigate the employer in question for its apparent practice of not paying its trainees,” explains Barnett, “and this activism, more political than legal, appears to have been the trigger for the contempt application.”
The other case was a matter in which, “there was a concern about the lawfulness of a threatened warrantless arrest, which I thought I should raise as a citizen concerned about another person’s civil liberties,” he explained.
There is a long history between the Law Society of New Brunswick and Barnett. On November 23, 2000, on application by the Law Society, Barnett was ordered not to provide his services by Justice Thomas Riordon of the NB Court of Queen’s Bench.
In response, Barnett restricted the assistance he provided, rather than stopping entirely.
“I saw this all as part of the ongoing dynamic of fighting for access to justice and civil liberties,” he said.
In 2007, he was again taken to court by the Law Society of New Brunswick. Justice Richard Bell ordered further restrictions on Barnett and also ordered a 10-day jail term. Barnett was taken away from the court in handcuffs and leg shackles.
According to Barnett, his case raises the issue of access to justice in New Brunswick. He says there should be, “more legal aid, pro bono regulation, and changes to allow more non-lawyer assistance.”
New Brunswick’s regulations are particularly restrictive in denying the assistance of non-lawyers. Ontario, British Columbia, Saskatchewan, Nova Scotia, Newfoundland and Prince Edward Island allow community organizations, family and friends to provide some legal services for poor people for free.
New Brunswick ranks at or near the bottom of the country for the availability of legal aid and access to justice among provinces.
Barnett’s personal struggle and the issues of access to justice he has raised were the background to the creation of the New Brunswick Access to Justice Coalition. The Coalition formed in 2011 under the leadership of Fredericton social justice advocates Gail Wylie and Norman Laverty. The Coalition is supported through the Access to Justice working group of the Maritime Conference of the United Church of Canada.
The Canadian Civil Liberties Association wrote to the Attorney General of New Brunswick and the Law Society in 2011 upon receiving letters from the Access to Justice Coalition about Barnett’s situation. They stated, “The ban on free legal services provided by community members or organizations effectively results in less help for those in need.”
No changes were made in response to the Canadian Civil Liberties Association letter.
Regarding Barnett’s present case and the poor funding of legal aid in New Brunswick, Wylie says, “In light of this inadequate funding, many types of legal matters are not covered by New Brunswick’s Legal Aid Commission. This leaves individuals who do not have the financial means to hire a lawyer, with two choices: drop the matter, i.e., do not access the justice system, or self-represent without knowledge or experience of the complexities of the justice system.”
According to Barnett, his case is “a question of whether my court orders should be interpreted so as to restrict my community activism when part of that activism involves raising legal issues.”
Asaf Rashid is a lawyer, long-time community organizer, and former board member of the NB Media Co-op.