Section 3 Counsel and the Rebuttable Presumption of Capacity to Instruct

  • March 13, 2019
  • Daniel Paperny

The crucial, yet contradictory, role of section 3 counsel

Section 3 of the Substitute Decisions Act[1] provides invaluable legislative protection for vulnerable individuals whose capacity has been called into question during the course of legal proceedings. The provision, which gives courts the discretion to order that legal counsel be appointed for such vulnerable individuals, is intended to give these parties an autonomous voice in litigation that may affect their interests and reads as follows:

Counsel for person whose capacity is in issue:

3. (1) If the capacity of a person who does not have legal representation is in issue in a proceeding under this Act:

(a) the court may direct that the Public Guardian and Trustee arrange for legal representation to be provided for the person; and

(b) the person shall be deemed to have capacity to retain and instruct counsel.

The role of section 3 counsel is, in part, to provide legal advice and advance the interests of allegedly incapable individuals, and to convey the wishes and interests of those persons to the court. This is a crucial function, as it provides legal rights and autonomy to individuals in proceedings who might otherwise be unable to secure same or unaware of the need for same.

However the concept and role of section 3 counsel is inherently tricky, because counsel is, on one hand, tasked to represent individuals whose capacity is in issue, yet the lawyer is still bound by the Rules of Professional Conduct and Rules of Civil Procedure and duty-bound not to take or act on instruction if the client is found to lack the capacity to instruct[2].