For so many constitutional issues, particularly those involving constitutional rights exercisable by an individual person, the path to justice is blocked by the complexities of the legal process, time-consuming procedures and, of course, the cost of legal representation. Especially when the individuals concerned are from low or middle-income sectors of society, the obstacles are often an effective bar to entry to the courts.
The Charter of Rights is drafted with individual persons in mind. Its rights and freedoms are conferred on “everyone” (s. 2 fundamental freedoms, s. 7 (life, liberty and security of the person), s. 8 (privacy and right against unreasonable search and seizure), s. 9 (right against arbitrary detention), s. 10 (rights on arrest or detention) and s. 12 (right against cruel and unusual treatment or punishment)), “every citizen” (s. 3 (right to vote), 6 (mobility), s. 23 (linguistic rights)), or “every individual” (s. 15 (equality)). As most of these rights are intended to be enjoyed by real, living human beings, the inclination is to insist that actions seeking enforcement of Charter rights be brought by the persons possessing such rights. The problem, of course, is that not every person with an alleged Charter violation can advance a constitutional challenge.
Enter the non-profit public interest society….
In the summer of 2022, the Supreme Court of Canada ruled in British Columbia (Attorney General) v. Council of Canadians with Disabilities[1] that an eye must be had to access to justice in determining whether such public interest societies could bring constitutional challenges in their own name while raising the rights and freedoms of the individuals that they claim to represent. The opening paragraphs of the Court’s decision (written by Chief Justice Wagner) explained the role of access to justice as a constitutional principle and the place of public interest standing in promoting that principle:
[1] Access to justice depends on the efficient and responsible use of court resources. Frivolous lawsuits, endless procedural delays, and unnecessary appeals increase the time and expense of litigation and waste these resources. To preserve meaningful access, courts must ensure that their resources remain available to the litigants who need them most — namely, those who advance meritorious and justiciable claims that warrant judicial attention.
[2] Public interest standing — an aspect of the law of standing — offers one route by which courts can promote access to justice and simultaneously ensure that judicial resources are put to good use (see, e.g., Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524, at para. 23). Public interest standing allows individuals or organizations to bring cases of public interest before the courts even though they are not directly involved in the matter and even though their own rights are not infringed. It can therefore play a pivotal role in litigation concerning the Canadian Charter of Rights and Freedoms, where issues may have a broad effect on society as a whole as opposed to a narrow impact on a single individual.
In Council of Canadians with Disabilities, the case was initiated with two individuals with disabilities and the Council as plaintiffs, all contesting the constitutionality of provisions of British Columbia’s mental health legislation. Later the two individuals discontinued their claims but the Council continued. The Attorney General applied to dismiss the Council’s claim on the basis that there was no individual plaintiff. The Supreme Court of British Columbia granted the Attorney General’s application. On appeal, the Court of Appeal allowed the appeal and the Attorney General appealed to the Supreme Court of Canada.
Chief Justice Wagner clarified that the decision to grant or deny public standing is discretionary and that, in exercising its discretion, the court should consider three factors “purposively and with regard to the circumstances”: (1) whether the case raises a serious justiciable issue; (2) whether the party bringing the action has a “genuine interest in the matter”; and (3) whether the proposed action is “a reasonable and effective means of bringing the case to court” [para. 28].
In relation to the first factor, “serious justiciable issue”, the Chief Justice noted that Canada (Attorney General) v. Downtown Eastside Sex Workers Against Violence Society[2] remained the governing authority [para. 31]:
Courts should strive to balance all of the purposes in light of the circumstances and in the “wise application of judicial discretion” (para. 21). It follows that they should not, as a general rule, attach “particular weight” to any one purpose, including legality and access to justice. Legality and access to justice are important — indeed, they played a pivotal role in the development of public interest standing — but they are two of many concerns that inform the Downtown Eastside analysis.
The second factor, “genuine interest”, reflects the court’s concern for conserving scarce judicial resources and for weeding out “busybodies”.
The third factor, “reasonable and effective means to bring the case to court”, the Chief Justice enumerated a non-exhaustive lists of considerations to bear in mind when determining whether the case at bar was the right way to raise the issue in question:
- The plaintiff’s capacity to bring the claim forward: What resources and expertise can the plaintiff provide? Will the issue be presented in a sufficiently concrete and well-developed factual setting?
- Whether the case is of public interest: Does the case transcend the interests of those most directly affected by the challenged law or action? Courts should take into account that one of the ideas animating public interest litigation is that it may provide access to justice for disadvantaged persons whose legal rights are affected.
- Whether there are alternative means: Are there realistic alternative means which would favour a more efficient and effective use of judicial resources and would present a context more suitable for adversarial determination? If there are other proceedings relating to the matter, what will be gained in practice by having parallel proceedings? Will the other proceedings resolve the issues in an equally or more effective and reasonable manner? Will the plaintiff bring a particularly useful or distinctive perspective to the resolution of those issues?
- The potential impact of the proceedings on others: What impact, if any, will the proceedings have on the rights of others who are equally or more directly affected? Could “the failure of a diffuse challenge” prejudice subsequent challenges by parties with specific and factually established complaints? (para. 51, citing Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086, at p. 1093).
This decision serves as a reminder that cases involving alleged violations of Charter rights and other such constitutional cases should not be the sole preserve of the wealthy and the powerful. There is a role for other agencies, usually but not always non-profit societies, to take up the cause of those who cannot otherwise find the resources to pursue the elusive goal of justice. Canada is a richer society as a result of their work.
I remain
Constitutionally yours,
Arthur Grant
Constitutionally Canadian 