Reopening Law's Gate: Public Interest Standing and Access to Justice

Jane Bailey, "Reopening Law's Gate: Public Interest Standing and Access to Justice", 44 University of British Columbia Law Review 255, 2011

27 Pages Posted: 15 Jun 2013

See all articles by Jane Bailey

Jane Bailey

University of Ottawa - Common Law Section

Date Written: 2011

Abstract

The age-old concern about the inaccessibility of justice is increasingly being framed as a problem for middle-class Canadians. Outside of the courtroom, many Canadian judges have been admirably outspoken about the urgent need to respond to this crisis, championing everything from rule reforms aimed at reducing the costs of litigation and enhancing the capacity of the legal system to efficiently deal with mass claims, to pro bono initiatives. Despite genuine concern made evident in the veritable industry of justice reform task forces, commissions, and initiatives that have sprung up across the country for decades, access to justice concerns continue.

In the version of the access to justice story that seemingly informs this storm of dialogue and proposed reform, procedural rules and self-interested lawyers represent Kafka's gatekeepers. Often in this dialogue, the person seeking entry is a member of the middle class who, but for the costs of litigation prompted by unnecessarily lengthy procedure and exorbitant lawyers' fees, could gain access to justice. This account of Kafka's metaphoric gatekeepers provides an important, but incomplete, version of the access to justice story, leaving too little said about the role played by judicial decision-making inside the courtroom.

To the extent that the version of the metaphor animating current dialogue is allowed to dominate the landscape, it risks obfuscating the gatekeeping role that judges play inside the courtroom, often with profound effects on access to justice for the socially and economically vulnerable. In an era characterized by legislative attacks on the vulnerable through legal aid cutbacks, the defunding of public interest advocacy, and the imposition of taxes on legal services, understanding the important role judges play inside the courtroom in the access to justice story is perhaps more significant than ever. Judicial interpretation and application of the law inside the courtroom can promote access to justice for the socially vulnerable, but can also undermine it. For example, some judges have directly rebuffed public interest litigation strategies resourcefully designed to challenge regressive legislative measures that undermined access to justice for members of some of Canada's most vulnerable communities.

Judicial exercise of the discretion to grant public interest standing clearly illustrates the impact of the judicial gatekeeping role on access to justice. Law's gate swung open in a series of decisions recognizing judicial capacity to grant public interest standing -- subject to, among other things, there being no other reasonable and effective alternative for bringing the legal challenge before the law. Shortly thereafter, however, the Supreme Court of Canada appeared to have slammed the gate shut through a privileged and decontextualized analysis of alternatives to public interest litigation. This analysis hits members of socially vulnerable groups particularly hard by imposing an inflexible preference for individual litigation of the constitutionality of the nation's laws, instead of public interest litigation of these matters by representative groups. More recently, the decisions of the SCC in Chaoulli,the New Brunswick Court of Appeal in Morgentaler, and the British Columbia Court of Appeal in SWUAV suggest a reopening of law's gate through contextualized analyses of alternatives to public interest litigation. The latter two decisions insist on realistic assessments of the social, economic, and emotional vulnerability of the individuals said to be in a position to privately litigate, and of the reasonableness of presuming that individual members of already vulnerable social groups should bear the burden of privately litigating broad-based systemic challenges that raise serious questions of constitutionality.

Part II explores the opening of law's gate with the SCC's recognition of public interest standing, the problematic access to justice impacts flowing from the Court's later interpretation and application of that test in Canadian Council of Churches, and the SCC's more recent invitation to reopen law's gate in Chaoulli. Part III analyzes subsequent responses to the Chaoulli invitation, focusing on its rejection in CBA,the NBCA's acceptance of a contextualized approach in Morgentaler, and the BCCA's explicit adoption of the Chaoulli approach in SWUAV. The Conclusion argues in favor of accounts of the access to justice story that emphasize the role of judicial decision-making inside the courtroom. Developments in the public interest standing test demonstrate the crucial role that judicial interpretation and application of the law can play in deciding whether all citizens have substantively equal access to the justice that apparently lies on the other side of law's gate.

Keywords: access to justice, public interest standing, Supreme Court of Canada, Chaoulli, Morgentaler, judicial decision making, judicial interpretation

Suggested Citation

Bailey, Jane, Reopening Law's Gate: Public Interest Standing and Access to Justice (2011). Jane Bailey, "Reopening Law's Gate: Public Interest Standing and Access to Justice", 44 University of British Columbia Law Review 255, 2011. Available at SSRN: https://ssrn.com/abstract=2279632

Jane Bailey (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada
613-562-5800 ext. 2364 (Phone)
613-562-5124 (Fax)

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