Canada Supreme Court: A full bench comprising, Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer, and Jamal JJ unanimously upheld the framework laid down in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 and stated that in cases wherein constitutionality of the law is challenged by Public Interest Organization on behalf of community members or marginalized groups who lack money, status, and privileged access to justice, the Court should adopt a flexible and discretionary approach to public interest standing. Therefore, it was held that the Council of Canadians with Disabilities (hereinafter The Council) meets the test for public interest standing and can continue the lawsuit.
Facts and Contentions of the case
In 2016, The Council and two individuals challenged the constitutionality of British Columbia’s mental health legislation. The law allows doctors to administer psychiatric treatment to patients with mental disabilities without their consent or the consent of someone else on their behalf. It was submitted before the Court that such treatment without their consent violates sections 7 and 15(1) of the Canadian Charter of Rights and Freedoms. Section 7 guarantees everyone the right to life, liberty, and security of the person and Section 15(1) guarantees everyone has the right to be treated equally without discrimination, including based on mental or physical disability.
In 2017, the two individuals withdrew their case, leaving the Council as the only plaintiff. Therefore, the Council pleaded that it should be granted the status of public interest standing and allowed to continue the lawsuit. The trial court held that the Council cannot be granted the status of public interest standing.
Observations made by the Court
The bench made the following observation while writing the unanimous judgment:
- The decision to grant or deny public interest standing is discretionary. The Downtown Eastside framework mandates that in exercising its discretion, a court must assess and weigh three factors: (i) whether the case raises a serious justiciable issue; (ii) whether the party bringing the action has a genuine interest in the matter; and (iii) whether the proposed suit is a reasonable and effective means of bringing the case to court.
- Courts must consider the purpose that justifies grantingstanding in their analyses and is giving effect to the principle of legality, therefore, ensuring access to justice. The goal in every case is to strike a meaningful balance between the purposes that favour granting standing and those that favour limiting it.
- There cannot be a rule of law without access, otherwise, the rule of law is replaced by a rule of men and women who decide who shall and who shall not have access to justice. Access to justice is symbiotically linked to public interest standing: it provides an avenue to litigate the legality of government action despite of social, economic, or psychological barriers which may preclude individuals from pursuing their legal rights.
- Courts may consider the plaintiff’s capacity to bring the claim forward, whether the case is of public interest, whether there are alternative means to bring the claim forward, and the potential impact of the proceedings on others. To evaluate capacity, courts should examine the plaintiff’s resources, expertise, and whether the issue will be presented in a sufficiently concrete and well‑developed factual setting. Though courts cannot decide constitutional issues in a factual vacuum, public interest litigation may proceed without a directly affected plaintiff.
- A strict requirement for a directly affected plaintiff would pose obstacles to access to justice and would undermine the principle of legality. It would also raise procedural hurdles that would deplete judicial resources. The participation of directly affected litigants is accordingly not a separate legal and evidentiary hurdle in the discretionary balancing.
Based upon the aforementioned observations, the Bench unanimously held that the Council meets the three-part test for public interest standing. Firstly, it raises an important issue: the Charter rights of people with mental disabilities. Secondly, the Council has a genuine interest in the challenges faced by people with mental disabilities. Thirdly, its claim is a reasonable and effective way to bring the matter before the courts. In the light of this conclusion, Chief Justice Richard Wagner said that
“The granting of public interest standing in this case “will promote access to justice for a disadvantaged group who has historically faced serious barriers to bringing such litigation before the courts”
[British Columbia (Attorney General) v. Council of Canadians with Disabilities, 2022 SCC OnLine Can SC 2, decided on-23-06-2022]
