Including the excluded : a minority conception of standing
University of British Columbia
Master of Laws - LLM
In 1986, the Supreme Court of Canada cogently summarized various judicial concerns relating to the expansion of public interest standing. In doing so, the Supreme Court invited judges to engage in a purposive and functional enquiry in exercising their discretion to grant access to public interest litigants. That enquiry should take account of the broad social, political and legal factors that provide the backdrop to the constitutional claim. However, both judges and commentators alike have failed to meet this challenge. Instead, they have applied the principles of standing in an increasingly categorical and abstract manner. To this end, they have employed the abstractly defined, directly affected individual without considering who he or she is in the particular circumstances, or what benefits he or she would bring to the litigation process. This is of particular concern when our context is inequality. The increasing abstraction of public interest standing jars discordantly with the purposive interpretation of section 15(1) of the Charter, so that while equality is determined in a contextual fashion, equal access is still conceived of in an abstract fashion. In abstracting the directly affected individual out of relations of radical inequality, there has been a presumption that we all, as individuals, have an equal opportunity (and equal resources) to raise our constitutional concerns in the courts. This presumption cannot be accepted. We need to inject some context into standing. To do so, we must appreciate that inequality is a product of the distribution of power in society, and that equality is to be furthered through multi-dimensionality and respect for diversity. Armed with these insights, we must revisit the judicial concerns that underpin the development of the public interest standing doctrine, and unpack their meaning in a purposive fashion. When we do so, we will begin to appreciate that the traditional resolution of these concerns actually serves to exclude disadvantaged persons from enforcing their Charter rights and obscures the diffuse causality characteristics of disadvantage. From the contextual perspective of social-inequality-as-power, the concerns underpinning public interest standing actually promote judicial access for the public interest organization that represents disadvantaged persons.
Canada. Canadian Charter of Rights and Freedoms.; Public interest law -- Canada.; Locus standi -- Canada.
Law, Peter A. Allard School of