CO-WRITTEN BY MADISON PEARLMAN
On June 23, 2022, the Supreme Court of Canada (the “SCC”) released its decision in British Columbia (Attorney General) v Council of Canadians with Disabilities unanimously upholding the right of public interest organizations to mount legal challenges on behalf of members of marginalized communities.
The Council of Canadians with Disabilities (“CCD”) had sought public interest standing to challenge British Columbia’s mental health legislation after two individual plaintiffs withdrew from the litigation. The CCD argued that the issues were important and would not otherwise be likely to reach the court. The Attorney General argued that CCD did not meet the legal test for public interest standing and succeeded in persuading the Supreme Court of BC to dismiss the case. CCD appealed and won at the BC Court of Appeal. The Province fought on, appealing to the top court to limit the application of the public interest standing test.
Writing for a unanimous court, Chief Justice Richard Wagner rejected the government’s approach and confirmed that courts have broad discretion to grant public interest standing. They should do so in a flexible, generous, and purposeful way. While no one factor should be determinative, the SCC recognized (at para 31) that the principles of “legality and access to justice have played a pivotal role in the development of public interest standing.” These continue to be its animating values.
The Court went on to clarify, contrary to what the Attorney General had argued, that it is not a requirement of the public standing test to identify a directly affected plaintiff to establish a sufficiently concrete factual matrix. Applying the test to the facts of the case at bar, the SCC easily recognized CCD’s standing to bring the case to trial. The Court went further than usual in the remedial order and awarded special costs to the CCD, in recognition of the value of the case and the burden imposed by the government’s decision to contest standing in the first place. This is likely intended to serve as a deterrent to state actors who seek to obstruct access to justice.
The Centre for Free Expression (“CFE”) intervened at the SCC in support of CCD, along with more than a dozen other interveners. CFE was granted leave on the basis that it would make a unique and valuable contribution. In a 10-page written submission, CFE argued that public interest standing protects and promotes freedom of expression by facilitating the public’s right to know, to hear, and to participate in the practice of democracy.
We argued that public interest litigation is not just a critical means, but it is often the only means, practically speaking, for members of marginalized communities to access courts for the purpose of challenging laws and policies that affect their fundamental rights. The failure to maintain broad and inclusive public interest standing risks effectively denying access to justice to entire segments of the population.
We are pleased that the Court reaffirmed the importance of having practical and effective ways to hold the state accountable. The fact that the Government of British Columbia appealed reflects poorly on the government. How could a government with a constitutional responsibility to maintain a functioning justice system decide to fight a public interest organization, not on the merits, but on their right to bring the case in the first place?
The unusual special costs order could be interpreted as a reminder from the Supreme Court to governments that a free and democratic state must allow itself to be robustly and independently accountable. What is especially notable in terms of CFE’s intervention is that the Court appears to have accepted the connection between democratic accountability and expressive freedom, a point which CFE had uniquely emphasized in both its written and oral argument.
The Attorney General’s attempt to characterize CCD as a nuisance or busybody backfired as the Court lauded CCD for performing an admirable public service by bringing the case. The Court affirmed that the quality of democratic institutions, especially courts, is measured to a large degree by their accessibility. Similarly, the quality of rights is measured by their enforceability.
For this reason, we were somewhat disappointed that the Court did not expressly recognize the weak existing mechanisms for internal government review of legislation for constitutional compliance, nor did it emphasize the ways in which public interest litigation facilitates and enriches the democratic dialogue between government and the public. These characterizations are obvious when we consider public interest standing from a Charter values perspective.
Additionally, despite the opportunity to do so, the Court did not liberalize the public interest standing test or broaden any one of the three factors. The judgment is measured and restrained in the sense that merely affirms the precedent it had previously set, while adding some additional commentary to bolster our understanding of the reasoning behind the precedent. No less important, this judgment is not ground-breaking. The Court could have undertaken a full Charter analysis to say more about the application of section 2(b) and other rights and freedoms to this case.
CFE’s written submission argued that the existing test engages the Charter values of equality and expressive freedom. While not an express issue on appeal, CFE wished to make the case to the Court that access to justice, as a fundamental consideration in determining public interest standing, promotes free expression among other Charter interests. It does so because access to courts is, among other things, access to a forum in which one may exercise the right to speak, to see and to be heard, and the right to know. The Court essentially endorsed this view.
While the SCC did not deliver everything to everyone, the judgment has been well-received for solidifying the place for public interest standing in the administration of justice. It serves as an affirmation that public interest organizations that are interested in using litigation as a lever will not be arbitrarily blocked. This ensures litigation can be used to promote constitutional accountability in a context in which the burden for bringing public interest cases to court rests with members of the public.
Indeed, the Court observed the obvious need for litigation at times to be carried by capable and willing third parties, especially in recognition of the complex and interconnected social, economic, and psychological barriers faced by individual litigants from justice-seeking communities who wish to pursue their legal rights. Ultimately, the Court’s decision serves as an important safeguard for access to justice and vehicle for expressive freedom. It is also, on the whole, a victory for people with disabilities, members of other marginalized communities, and all members of the public.
Faisal Bhabha is an Associate Professor at Osgoode Hall Law School, York University and is counsel to Pooranlaw. He represented CFE in AGBC v CCD and made oral submissions at the SCC.
Madison Pearlman is an Associate Lawyer at Pooranlaw and is an Adjunct Professor at Osgoode Hall Law School, York University. She represented AGBC v CCD and appeared at the SCC.