By Sarah Tomlinson
Ryerson’s Centre for Free Expression (CFE) will be intervening in a public interest standing case between the Council of Canadians with Disabilities (CCD) and the Attorney General of British Columbia.
The CFE will be represented by Faisal Bhabha of PooranLaw, a group of lawyers who aim to support people with disabilities and other marginalized groups.
The case initially involved three parties: two individual plaintiffs, who have mental disabilities and had experienced psychiatric treatment as involuntary patients and the CCD, a national, not-for-profit association that aims to advance the interests of people with disabilities.
On Sept. 12, 2016, the co-plaintiffs brought a claim to challenge the constitutional validity of B.C.’s mental health legislation related to the provision of non-consensual psychiatric health-care treatment. Through the Mental Health Act, B.C.’s legislation allows capable adults to be forcibly administered psychiatric treatment and deprives them of the right to have treatment decisions made by a substitute decision-maker.
In their claim, the CCD and the plaintiffs alleged that those provisions infringe on sections seven and 15 of the Charter of Rights and Freedoms because they limit the right to life, liberty and security and the right to equal treatment by and under the law.
However, on Oct. 25, 2017, the two co-plaintiffs discontinued their personal claims, which meant the CDD was challenging the court by itself. In response to the CCD’s claim, on Oct. 12, 2018, Chief Justice Hinkson dismissed the action on the basis that the CCD lacked public interest standing to pursue the challenge on its own.
Public interest standing permits public-spirited litigants to bring justiciable issues of general interest before the courts for determination in appropriate cases.
“Not anybody can just show up in court with an issue they think is important. You have to show a connection between you and the legal issue”
Courts consider three factors created in 1981 following the Borowski case, when granting or refusing public interest standing: whether there is a serious justiciable issue raised by the claim; whether the plaintiff is directly affected by the proposed action or has a genuine interest in its outcome; and whether the action is a reasonable and effective means to bring the claim to court.
James Turk, the director of the CFE, said the organization is getting involved in the case as part of its mandate to engage and participate in issues that pertain to the public’s right to be engaged. This includes access to information legislation, protection of journalists and publication bans.
“Public interest standing is a really important issue,” he said. “Courts don’t initiate cases, so if there’s a violation of the Charter, nothing’s done about it unless those who are affected by it bring it forward to court.”
Bhabha, the lawyer representing the CFE and a law professor at the Osgoode Hall Law School at York University, said one of his earlier research pieces examined public interest standing.
“Standing is the legal concept for having the right to bring a particular case before a particular court, to have the right to exist to make that case,” said Bhabha. “Not anybody can just show up in court with an issue that they think is important. You have to show a connection between you and the legal issue.”
However, Turk said individuals don’t always have the resources to do so. Therefore, the courts established public interest standing, which allows third party organizations on behalf of a group of affected people, to bring something forward.
Nevertheless, Turk said until fairly recently, courts have been very restrictive with how much they allow public interest standing. In 2012, with the ongoing increase of Charter challenges, the Supreme Court of Canada broadened public interest standing for the first time in a case involving the Downtown Eastside Sex Workers United Against Violence Society.
According to Turk, public interest standing was broadened through the third Borowski factor in that plaintiffs could argue that there was no other reasonable and effective way to bring the matter before the court.
“In this instance, the CCD is wanting to bring forward a case affecting people with disabilities, even though the council itself isn’t directly affected,” said Turk. “The Attorney General’s claim was that they didn’t have a right to do it, that only people who are directly affected by the problem can bring it forward.”
When evaluating the three factors, Hinkson found that the CCD’s claim passed the second factor. However, he refused to grant them the first and third factors.
“A broad and liberal understanding of the right of public interest standing is really important in a democratic society”
“The fundamental difficulty with the CCD’s role in this litigation: the lack of a particular factual context of an individual’s case. This issue was fatal to the claim,” wrote Hinkson in regards to the first factor.
Hinkson added that when evaluating the third factor, he wasn’t convinced there would be “a sufficiently concrete and well-developed factual setting” for the CCD to fairly represent the interests of all who may be affected by the issues raised.
The CCD appealed Hinkson’s decision, arguing that he erred by applying a “legally incorrect and unduly narrow” approach to public interest standing that “unjustifiably privileges individual claims over group claims in constitutional litigation.”
The appeal was officially granted for fresh consideration by Justice S. David Frankel on Aug. 26, 2020.
According to Frankel, Hinkson wrongly judged the first factor when he decided that without an individual plaintiff, the CCD’s claim lacked factual context to ground a serious justiciable issue.
“The CCD’s claim is a comprehensive and systemic constitutional challenge to specific legislation that directly affects all members of a defined and identifiable group in a serious, specific and broadly-based manner,” said Frankel. “As such, it manifestly raises a serious justiciable issue.”
The case was initially to be heard in November 2021. However, on Sept. 13, the court announced that it was postponed to winter 2022.
Madison Pearlman, who will be representing the CFE as co-counsel with Bhabha, said the CFE’s involvement in the case speaks directly to their long-standing work protecting and promoting free expression.
“It’s really just an opportunity to provide the court with a fresh and nuanced perspective on the issues that are being raised on appeal,” she said.
Turk said as interveners, it does not take a position in support of one of the parties. Its goal is to provide a perspective on the importance of public interest standing established in the Downtown Eastside Sex Workers case.
“We’re hoping that we can help the court understand, for the purpose of equity and social justice and freedom of expression, that a broad and liberal understanding of the right of public interest standing is really important in a democratic society,” he said.
Likewise, Bhabha said that by enabling public interest standing, the CFE maintains that there’s a connection between the Charter of Rights and Freedoms and access to justice.
“Access to justice is one way where you really see the need for equality. You see the diminishment of rights when people don’t enjoy equal access to engage in different types of expression, including through litigation,” he said.
“The public needs mechanisms to bring cases to court so that unconstitutional legislation can be challenged.”