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Including the excluded : a minority conception of standing Binch, Russell John 2001

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INCLUDING THE EXCLUDED A MINORITY CONCEPTION OF STANDING by RUSSELL JOHN BINCH B.A. (Hons.), Emmanuel College, University of Cambridge, 2000 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES (Faculty of Law) We acceptytfils^ thesis as conforming to/me-reo/aired standaSi THE UNIVERSITY OF BRITISH COLUMBIA December 2001 * © Russell John Binch, 2001 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department of ^ - ^ O The University of British Columbia Vancouver, Canada DE-6 (2/88) ABSTRACT 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 ii 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. iii TABLE OF CONTENTS Abstract ii Acknowledgements vi INTRODUCTION The Functional Inequality of Public Interest Standing 1 Defining the Decision to Decide 1 Functionality and Finlay 8 Contextual Constraints 13 Outline of this Work 17 CHAPTER ONE Self-Conceptualization and Modes of Reasoning 20 Introduction 20 A Thematic Overview 22 The Supreme Court of Canada 26 The Borowski Test Defined 49 Serious Issue 50 Genuine Interest 52 Reasonable and Alternative Means of Access 54 Burden of Proof 66 Conclusion 67 CHAPTER TWO The Social Inequality of the Abstract Individual 70 Introduction 70 Identical Treatment and Social-Power-as-Inequality 72 Conclusion 87 CHAPTER THREE The Allocation of Scarce Judicial Resources 90 Introduction 90 The Threat of Numbers 91 The Threat of Strategies 106 Conclusion 112 iv CHAPTER FOUR The Need to Screen Out the Mere Busybody 114 Introduction 114 The Orthodox Formulation 116 The Autonomy Formulation 117 Definitions of Autonomy 121 The Relationship Between Autonomy and the Capacity for it 128 Questions of Representativeness 139 Conclusion 149 CHAPTER FIVE The Benefit of the Contending Points of View of Those Most Directly Affected and the Determination of Issues 151 Introduction 151 Those Most Directly Affected 152 The Issue to be Determined 161 Conclusion 170 CONCLUSIONS Contextual Functions and Judicial Conceptions 172 Contextual Functions 172 Judicial (Re-)Conceptualization 178 Select Bibliography 182 ACKNOWLEDGEMENTS I would like to thank the following people without whose support, encouragement and critical insight, this thesis would have been a prolonged ordeal: Robin Elliot and Phil Bryden for reading through earlier drafts and for providing constructive criticism and commentary throughout; Lindsay Lyster for her encouragement, writing tips and optimism; Susan Boyd and Claire Young for helping me through my crises of feminist faith; Matthew Kramer for helping me find relevant material, even though we are on different sides of the globe; Joel Bakan for kick-starting this thesis into life; Norma Oshynko for providing the inspiration for the title; The Canadian Commonwealth Scholarship Program for their financial support; And all the members of the LLMOO seminar group for making me laugh and for dragging me away from my computer. vi Introduction The Functional Inequality of Public Interest Standing Without an avenue to seek judicial redress for violation of their rights, the disadvantaged have only paper rights, without remedy, a situation fundamentally at odds with our sense of justice.1 Defining the Decision to Decide Legal commentary on public law has drawn a distinction between two types of adjudicative decisions.2 Judges interpret the rights and interests that are affected by state action and elaborate upon the defences and justifications the state can offer to legitimize such action. These decisions are typically known as the 'merits of the case' or issues of 'substantive' public law. However, judges must also decide whether to decide. These decisions to decide are typically known as 'threshold' issues or the 'procedural' issues of public law. Professor Bickel once termed these latter decisions "passive virtues".3 These virtues act as restraint mechanisms, self-imposed judicial inventions that keep decision-making powers "within what is perceived to be their proper constitutional sphere of activity".4 One of these passively virtuous decisions to decide is known as the doctrine of standing. 1 Canadian Disability Rights Council & Women's Legal Education and Action, Canadian Council of Churches v. Minister of Employment and Immigration (1991), [1992] 1 S.C.R. 236 (Interveners' Factum at para. 82) [hereinafter L.E.A.F. Factum; when referring to the organizations in the following text, I will simply refer to Women's Legal Education and Action, hereinafter L.E.A.F.]. 2 Probably the most eloquent description of this distinction can be found in A.M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics, 2d ed. (New Haven: Yale University Press, 1986) at c. 4 [hereinafter The Least Dangerous Branch]. 3 Ibid. 4 P. Cane, "The Function of Standing Rules in Administrative Law" [1980] Public Law 303 at 327 [hereinafter "The Function of Standing Rules"]. The passive virtues are usually understood to serve a defensive function. "The value or principle perhaps most frequently offered to justify not deciding cases is the institutional role of the courts and the need to legitimize judicial review"; R.J. Sharpe, "Mootness, Abstract Questions and Alternative Grounds: Deciding Whether to Decide" in R.J. Sharpe, ed., Charter 1 In public law, standing is usually conceived of as an issue divorced from the merits of the applicant's claim. An individual's "standing" denotes a legal capacity to institute proceedings and is used interchangeably with terms such as "locus standi" and "title to sue." The purpose of the law of standing is to govern and guide who can raise questions for adjudication by the courts; it is not designed to control what questions may be decided by the courts, or how far the courts should substitute their judgment for that of legislators or administrators. The question of standing, however, precedes the determination of a case on its merits, and in the result a finding of no locus standi can prevent any judicial investigation into the substantive issue presented for determination.5 [Sjtanding [is a] question of what human beings or entities may initiate a case or may raise a particular issue within a case. Much of this law is the elaboration of certain intuitive ideas about which matters properly concern which people.6 In introducing what is probably the most thorough review and critique of standing in Canadian law, Professor Cromwell defines standing in public law as the "entitlement to seek judicial relief apart from questions of the substantive merits and the legal capacity of the plaintiff'.7 Likewise, Professor Hogg defines standing as a question "about whether the person has a sufficient stake in the outcome to invoke the judicial „ 8 process . Litigation (Toronto: Butterworths, 1987) 327 at 329. However, they can also perform an affirmative role. A s Professor Bickel observed, in protecting the integrity and credit of the court, the passive virtues maximize the court's role as a political actor. " "The most important thing we do," said Brandeis, "is not doing". He had in mind all the techniques, of which he was a past master, for staying the Court's hand. They are the important thing, because they make possible performance of the Court's grand function as proclaimer and protector of the goals"; The Least Dangerous Branch, ibid, at 71. 5 Law Reform Commission of British Columbia, Report on Civil Litigation in the Public Interest (Victoria: Queen's Printer for British Columbia, 1980) at 31. Hereafter, I shall mainly use the term "standing". 6 P.S. Kay, "Jus Tertii Standing and Constitutional Review in Canada" (1997) 7 N.J.C.L. 129 at 131 [hereinafter "Jus Tertii Standing"]. 7 T.A. Cromwell, Locus Standi: A Commentary on the Law of Standing in Canada (Toronto: Carswell, 1986) at 7 [hereinafter Commentary on the Law of Standing]. This definition was followed in Ontario Law Reform Commission, Report on the Law of Standing (Toronto: Publication Services, 1989) [hereinafter Report on Standing]. Also, Professor Craig defines standing as the determination of "whether this particular plaintiff is entitled to invoke the jurisdiction of the court"; P.P. Craig, Administrative Law, 3d ed. (London: Sweet and Maxwell, 1994) at 479. 8 P.W. Hogg, Constitutional Law of Canada, looseleaf, vol. 2 (Toronto: Carswell, 1997) at 56-3. 2 These definitions emphasize two aspects of the orthodox understanding of standing. The first is that it acts as a threshold issue, an access barrier that the applicant must overcome before the merits of the case can be determined. However, this statement should not be taken as a hard and fast rule. In McNeil v. Nova Scotia Board of Censors, Laskin CJ.C commented that where there is an arguable case for granting standing, "it is preferable to have all the issues in the case, whether going to procedural regularity or propriety or to the merits, decided at the same time. A thoroughgoing examination of the challenged statute could have a bearing in clarifying any disputed question of standing".9 The second aspect to note is that standing is distinct from other decisions to decide, in that it focuses on the particular characteristics and qualities of the applicant in bringing the litigation. The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before the court and not on the issues he wishes to have adjudicated ... In other words, when standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue is itself justiciable.10 Standing is thus a personality-oriented passive virtue. This makes it distinct from other self-restraint mechanisms that are ksw-oriented passive virtues in that they relate, broadly, to the issue presented. An example of an issue-oriented decision to decide is the doctrine of justiciability. This doctrine attempts to sort out those decisions that are institutionally appropriate for the courts to decide. Issues that involve "moral and 9 McNeil v. Nova Scotia Board of Censors, [1976] 2 S.C.R. 265 at 267, 12 N.S.R. (2d) 85. Likewise, in the House of Lords, Lord Wilberforce commented: "There may be simple cases in which it can be seen at the earliest stage that the person applying for judicial review has no interest at all, or no sufficient interest to support the application: then it would be quite correct at the threshold to refuse him leave to apply ... But in other cases this will not be so. In these it will be necessary to consider the powers or the duties in law of those against whom the relief is asked, the position of the applicant in relation to those powers or duties, and to the breach of those said to have been committed. In other words, the question of sufficient interest can not, in such cases, be considered in the abstract, or as an isolated point: it must be taken together with the legal and factual context"; Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses, [1982] A.C.617 at 630 (H.L.). 10 Flast v. Cohen, 392 U.S. 83 at 99-100, 88 S. Ct. 1942 (1968). 3 political considerations [are usually] not within the province of the courts to assess". Professor Cane draws the following distinction between standing and justiciability. "[Standing goes to whether this applicant should be entitled to apply to the court for 12 relief while justiciability goes to whether any applicant should be so entitled". Professor Cromwell's definition raises the issue of judicial relief as a factor of consideration in standing. The law of remedies has historically influenced the doctrine of standing. This means that we must be aware of the ways in which remedies have been compartmentalized if we are to understand the manner in which the question of access to public adjudication has been addressed. As my main area of focus will be the Canadian Charter of Rights and Freedoms,13 I will use its remedial provisions to highlight the interaction of remedies in the development of standing. There are two provisions in the Constitution Act, 198214 which endow courts and certain tribunals with remedial powers should a right or freedom guaranteed under the Charter be infringed by state action. The first provision is specific to (but not exclusive of) Charter litigation. Section 24(1) of the Charter provides: Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. It therefore provides that should a person's rights be infringed by state action (or should such infringement be imminently threatened),15 that person will automatically 11 Operation Dismantle v. R., [1985] 1 S.C.R. 441 at 465,18 D.L.R. (4th) 481. 1 2 "The Function of Standing Rules", supra n. 4 at 310 (emphasis in original). As we shall see, the distinction between personality-oriented decisions to decide and issue-oriented decisions to decide has been blurred somewhat when the decision to decide is public interest standing; see text accompanying notes 46-48. 13 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter the Charter]. 14 Ibid. 1 5 D. Gibson, The Law of the Charter: General Principles (Calgary: Carswell Legal (Western), 1986) at 195-98; Quebec Association of Protestant School Boards v. Attorney General of Quebec (1982), 140 D.L.R. (3d) 33, 3 C.R.R. 114 (Qc. Sup. Ct.). 4 be given access to the courts to apply for relief. In other words, section 24(1) accords standing to those entities whose rights under the Charter have been directly affected by state action. This understanding of section 24(1) has an important consequence. The conceptually distinct questions of who may seek relief and who is capable of possessing different rights under the Charter are conflated by section 24(1), becoming one and the same question. As Professor Cromwell observes: "only those whose rights have been infringed or denied may apply under s. 24, and accordingly the definition of "anyone" [within s. 24(1)] will be limited to the way in which the particular right in issue is defined".16 We therefore need to determine which entities have the potential to be right-holders within the context of each particular right. For example, section 15(1) of the Charter provides: Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, religion, sex, age or mental or physical disability [emphasis added]. In Federated Anti-Poverty Groups of British Columbia v. Attorney General of British Columbia, Parrett J. observed that the rights defined in section 15(1) could only be possessed by individuals and not by corporate entities. The rights defined in s. 15 of the Charter are stated to be applicable to "every individual". The rights enumerated in this section signify rights according human dignity and as such are incapable of being enjoyed or 18 felt by an artificial being. 16 Commentary on the Law of Standing, supra n. 7 at 98. 1 7 (1991) 70 B.C.L.R. (2d) 325 (S.C.). 18 Ibid, at para. 68. This observation confirms authority in other jurisdictions that s. 15(1) does not apply to corporations. For example, see Attorney General of Canada v. National Anti-Poverty Organization, [1989] 3 F.C. 684, 60 D.L.R. (4"1) 712 (C.A.). 5 Thus, while a corporate entity may have an interest in its individual members, or in individuals it deems to represent, as a corporation it is incapable of applying for relief under section 24(1) for it has no personal rights under section 15(1) that it can allege have been infringed by state action. A corollary of this conflation is that, when seeking relief under section 24(1), an entity cannot argue that state actions infringe the rights of others.19 The second provision is of general applicability to the Constitution.20 Section 52(1) provides: The Constitution of Canada is the supreme law of Canada, and any law inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. The provision therefore mandates courts and tribunals to strike down any law that is inconsistent with the rights guaranteed under the Charter. One can discern an emphasis in section 52(1) that differs from the C/zarter-specific remedial provision. The object of s. 24(1) is to compensate this particular applicant and not simply to uphold a broader public interest in having constitutional laws. The function of s. 24(1) is analogous to plaintiff centred dispute resolution in the civil context whereas s. 52 operates as an enforcement 22 mechanism of public values. 1 9 In R. v. Rahey, [1987] 1 S.C.R. 588 at 619, 78 N.S.R. (2d) 183, Wilson J. stressed this characteristic of s. 24(1): "An application for relief under s. 24(1) can only be made by a person whose right under s. 11(b) has been infringed. This is clear from the opening words of s. 24(1)". In Christian Labour Association of Canada v. British Columbia Transportation Financing Authority (2000), 187 D.L.R. (4lh) 565 (B.C. S.C.), the plaintiff unions argued under s. 24(1) that the s. 2(d) right to association had been infringed. Only natural persons can possess this right; Reference Re Public Service Employee Relations Act, [1987] 1 S.C.R. 313, 78 A.R. 1. The unions submitted that the same principles of agency that entitled them to be the bargaining agents for the persons whose rights to association had been affected, entitled them to rely on s. 24(1) in vindicating those rights. Hutchinson J. countered that according to the clear wording of s. 24(1), "the union does not have standing to bring the claim of its members. As I have already indicated, this lack of standing cannot be overcome by a reliance on the union's role as bargaining agent for its members"; at para. 21. 2 0 The Constitution includes the Charter by virtue of s. 52(2)(a) of the Constitution Act, 1982. 2 1 Although this obligation extends only to the extent of the inconsistency. This gives courts a certain flexibility in fashioning remedial relief under s. 52(1); see Schachter v. Canada, [1992] 2 S.C.R. 679, 93 D.L.R. (4lh) 1. 2 2 K. Roach, "Section 24(1): Strategy and Structure" (1987) Crim. L.Q. 222 at 236 (emphasis in original). 6 The relief envisaged by this section is a declaration. In all Canadian jurisdictions, a superior court may make "binding declarations of right whether or not consequential relief is or could be claimed".23 Declaratory relief does not depend upon a demonstration that my rights have been infringed, for the relief does not reflect restitution for personal harm suffered. An entity may thus be granted standing under section 52(1) to challenge state action on the ground that it violates the Charter rights of a third party. If I seek relief under section 24(1) for the infringement of Charter rights, then my rights must be at stake. If I argue that a law is invalid by reason of inconsistency with the Charter, recourse to section 24(1) is unnecessary. When an entity wishes to make a Charter challenge to enforce the rights of another person, or to enforce the ideal of constitutionalism,24 its ability to do so is regulated by a distinct set ' 25 of principles known collectively as the doctrine of public interest standing. It is the evolution and the application of these principles that will form the focus of my critical analysis in this paper. To summarize, the public interest standing doctrine is applicable when the applicant seeks to rely on section 52(1) in bringing a challenge against state action that is alleged to violate the rights of third parties. The primary question the doctrine seeks to resolve is whether the applicant bringing the issue before the court has the required 23 Supreme Court Rules, B.C. Reg. 221/90, r. 5(22). 2 4 Professor Hogg defines constitutionalism as an idea "which dictates that remedies ought to be available when governments fail to abide by the law of the constitution"; Constitutional Law of Canada, supra n. 8 at 56-3. '•.! 2 5 It is important to stress that public interest standing regulates the entitlement to judicial relief when a third party is making an application for constitutional review. An entity may seek to raise a defence to proceedings brought by government that alleges that the particular state act is of no application, in that it is unconstitutional for violating another person's rights guaranteed under the Charter. By virtue of s. 52, "any accused, whether corporate or individual, may defend a criminal charge by arguing that the law under which the charge is brought is constitutionally invalid"; R. v. Big M Drug Mart, [1985] 1 S.C.R. 295 at 313-14, 60 A.R. 161. "Any constitutional defect may be raised in the defence of a criminal charge. This is only just. A person should not be convicted under an invalid law"; R. v. Hess, [1990] 2 S.C.R. 906 at 945, [1990] 6 W.W.R. 289. Thus, in defending criminal proceedings, the accused is entitled to rely on the infringement of other people's Charter rights. I believe that the entitlement to rely upon third party rights collaterally and the entitlement to rely upon third party rights when applying for judicial review are two distinct issues, and that the term 'public interest standing' best describes the latter. For the most recent pronouncement on the entitlement to enforce other people's rights when defending a civil suit, see Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157, 166 D.L.R. (4th) 1. 7 litigious competency to do so (although, as we shall see, this is not the sole concern of the public interest standing doctrine). Litigation concerning issues relating to the public interest has the potential to bind many different people in many different ways. The doctrine of standing wants to know what it is about your circumstances that makes you the better plaintiff to raise concerns that affect others. 'If the decision will also bind X, Y and Z, why you? Why should we listen to you instead of X, Y and Z?' As Professor Cane observed, "the more important question is why we allow this or that applicant but not the other to bring proceedings for judicial review".26 Functionality and Finlay In 1986, the issue of public interest standing came before the Supreme Court of 27 • Canada in Finlay v. Minister of Finance of Canada. What makes Finlay so important and so refreshing is that the reasoning was not a simple recitation and application of the constituent elements of the public interest standing doctrine. Rather, the Supreme Court stressed that those elements had been "extracted from various judicial responses to concerns arising out of any proposed extension of the scope of public interest standing".28 The judiciary believe that there are certain risks inherent in allowing people to initiate litigation on the basis of the infringement of third party rights. The role of the public interest standing doctrine is to provide a safeguard against these risks. The implication that can be drawn from the judgment in Finlay is that "standing decisions, particularly where standing is a matter of judicial discretion, [should] be "The Function of Standing Rules", supra n. 4 at 303. 27 Finlay v. Minister of Finance of Canada, [1986] 2 S.C.R. 607, 33 D.L.R. (4lh) 321 [hereinafter Finlay cited to S.C.R.]. 28 Corporation of the Canadian Civil Liberties Association v. Attorney General of Canada (1998), 40 O.R. (3d) 489 at 497, 161 D.L.R. (4lh) 225 (C.A.). Although Finlay was concerned with public interest standing in administrative law, the judicial concerns listed in that case were accepted as applying to public interest standing under the Charter; Canadian Council of Churches v. Minister of Employment and Immigration, [1992] 1 S.C.R. 236 at 251, 88 D.L.R. (4th) 193 [hereinafter Council of Churches]. 8 made in light of the purposes for standing rules". This implication was embraced by L'Heureux-Dube J. in Hy and Zel's v. Attorney General of Ontario, when she observed that, "in resolving the question of standing ... the Court should take a purposive and functional rather than categorical approach to standing and resort should be made to the 30 concerns underlying restrictions on standing". I will adopt this functional approach as my analytical framework. I should thus briefly elaborate upon what I understand a functional analysis to be. A functional approach looks to the function or purpose of the legal rules governing an issue and seeks to ascertain whether and to what extent the rules correspond with these functions or purposes. Thus a functional approach places great emphasis upon the ends or prescribed goals that we find attractive, and asks whether those prescribed ends are actually being met by the application of doctrine. The key difference between a functional and doctrinal enterprise is that the doctrinal scholar is interested primarily in understanding the coherence (or lack of it) of the doctrine, whereas the functional scholar is interested primarily in accurately describing the purposes that the law does, or should, serve and determining the extent to which the current state of law does or does not serve those ends.31 The facts and the specific ruling in Finlay are of little importance here. What I do wish to focus upon is the explicit exposition of the functions underlying public interest standing. The traditional judicial concerns about the expansion of public interest standing may be summarized as follows: the concern about the allocation of scarce judicial resources and the need to screen out the mere busybody; the concern that in the determination of issues the courts should have the benefit of the contending points of view of those 2 9 T.A. Cromwell, "From Trilogy to Quartet: Minister of Finance of Canada v. Finlay" Case Comment (1987) 7 Windsor Y.B. Access Just. 103 at 112. 30 Hy and Zel's v. Attorney General of Ontario, [1993] 3 S.C.R. 675 at 711, 107 D.L.R. (4th) 634 [hereinafter Hy and Zel's cited to S.C.R.]. 3 11 am indebted to Professor Bryden for his helpful comments in clarifying this distinction. 9 most directly affected by them; and the concern about the proper role of the courts and their constitutional relationship to the other branches of government. These concerns are addressed by the criteria for the exercise of the judicial discretion to recognize public interest standing to bring an action for a declaration.32 The first function of public interest standing relates to the judicial economy. In granting public interest standing, judges should ask whether public money and judicial time are being spent appropriately in listening to this particular applicant. The courts need to assure themselves that in allowing this action to proceed to the merits, they will not be wasting such valuable resources. Further, the courts should be wary of granting public interest standing in situations where it may provoke all kinds of people to sue, generating a multiplicity of actions challenging one single state act. Obviously, it would be a waste of judicial resources to listen to the same issues again and again. Le Dain J. held that these economically-driven ends could be met by the determination of whether the issue is serious and whether the applicant has a genuine interest in its resolution.33 The second function of public interest standing addresses a related concern. "As between "busybodies" and individuals with "real" disputes, scarce judicial resources ought to be allocated to the latter".34 "In other words, the courts ought to refuse to deal with some suits so as to ensure that they have time to deal with those in which their adjudication will be of some practical worth". The courts should guard against squandering judicial resources on those who do not have the appropriate motive or interest in resolving the constitutional issue through adjudication. This end can also be Finlay, supra n. 27 at 631. Ibid, at 633. Commentary on the Law of Standing, supra n. 7 at 10. Ibid, at 168. 10 met by determining whether the issue is serious and whether the applicant has a genuine interest in it. 3 6 The third function of public interest standing relates to the workings of the adversarial system. "The courts exist and are structured to deal with disputes presented by adversaries".37 Disputes are best resolved when contending points of view are diligently prepared and skilfully presented. Indeed, "the common law has evolved by courts applying legal principles to the disputes brought before them in this way". Orthodoxy suggests that "the possession of a traditional legal interest ensures the requisite degree of zeal and competence",39 or that some degree of "[s]elf-interest motivates [litigants] to place their case in its best light and to uncover the weaknesses in their opponent's case".40 Thus, the court should only grant public interest standing to those applicants who are likely to do justice to the case by presenting full and thoughtful evidence and argument. This end can be met by determining whether there exists any other reasonable and effective manner in which the issue may be brought before a court.41 The fourth function of public interest standing is concerned with the role of the courts in the total system of government. This function relates to the suitability of a dispute being resolved by the courts, an issue that is governed by the doctrine of justiciability. "Justiciability involves the subject-matter of the question, the manner of its presentation and the appropriateness of judicial adjudication in light of these factors".42 Justiciability is an issue-oriented decision to decide, whereas we have classified standing as being a personality-oriented decision to decide. This has led 36 Finlay, supra n. 27 at 633. 37 Commentary on the Law of Standing, supra n. 7 at 172. 38 Ibid. 39 Report on Standing, supra n. 7 at 56. 40 Commentary on the Law of Standing, supra n. 7 at 172. 41 Finlay, supra n. 27 at 633-34. 42 Commentary on the Law of Standing, supra n. 7 at 192. 11 many commentators to contend that standing and justiciability are two distinct concepts and that the more distinctly they are treated, the better.43 However, Professor Cromwell has observed that "in view of the close relationship between [standing and justiciability], it is wise to devote attention to justiciability, whether it is considered as part of, or separate from, the concept of standing" 4 4 While I am unsure as to whether justiciability conceptually should be included in a discussion about standing, in light of the fact that courts are concerned about the legitimacy of their role under the new constitutional order, and that this concern motivates their reasoning in granting or denying public interest standing, I will assume that justiciability and standing are somehow interconnected. In proposing reforms to public interest standing, commentators have been concerned primarily with this question of the institutional legitimacy of judicial review and the role of the judiciary in the total government system. The critical question is: On balance, will it be good for the constitutional and legal system if we decide this constitutional issue in this case? The extent to which it is thought proper for the court to decide this kind of question is some indication of how a legal system views the role of the courts in effecting constitutional limits. This debate is extremely vital and illuminating. The conception of the judicial role held by members of the judiciary themselves in our constitutional democracy, and the descriptive accuracy of these conceptions, is a fascinating question. However, the question about the proper role of the courts and its constitutional relationship to the other branches of government is not the primary focus of this paper (although I will touch upon it at various intervals). This is because I have found that the conclusions 4 3 See G.R. Nichol, "Rethinking Standing" (1984) 72 Cal. L. Rev. 68; "The Function of Standing Rules", supra n. 4 at 327: "Standing rules should not be used as a mechanism for restricting the activities of the courts to adjudication and for preserving to the administration and the legislature the role of weighing competing interests in society". 44 Commentary on the Law of Standing, supra n. 7 at 193. 4 5 "Jus Tertii Standing", supra n. 6 at 162. 12 drawn from analyses about institutional insecurity tend to assume that the rules of standing apply to everyone in an identical fashion, regardless of their position in the "entire social, political and legal fabric of our society".46 Too busy analyzing the judicial conception of themselves, these commentators have lost sight of the judicial conception of ourselves - of people, and the way in which power is distributed in social relations. They apply their reform strategies without stopping to think how such strategies may preclude from constitutional relief "groups who are socially abject and systematically excluded from the usual political process".47 In this work, I will explore whether the doctrine of public interest standing, as presently formulated, represents a disproportionately high access barrier that tends to obscure the expression of oppression and inequality. When we analyze standing from an equality perspective (a perspective that respects and promotes the expression of diversity and multi-dimensionality), we must ask whether recent commentary has tackled the obstacles to access that members of disadvantaged groups face. After all, it is only when we can hear their voices, that we can begin to construct a truly egalitarian society. Contextual Constraints The functional analysis of Finlay will form the basic analytical framework for this paper. I will argue that the discretion to grant public interest standing should be exercised in a contextual fashion, one that urges courts to "look beneath the rules governing standing and consider the rationale as it applies to the facts of a particular case".48 The discretion to grant public interest standing should be structured in a way 46 Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 152, 56 D.L.R. (4,h) 1. 4 7 C A . MacKinnon, Toward a Feminist Theory of the State (Cambridge, Mass.: Harvard University Press, 1989) at 166. 48 Hy and Zel's, supra n. 30 at 706. 13 that takes into account the broader social context that forms the backdrop against which the specific dispute is to be resolved. The broader social context I wish to focus on is inequality. I will examine whether the doctrine of public interest standing constitutes a serious access barrier to the courts for disadvantaged persons. Access to the courts is essential for disadvantaged persons to fully realize their rights and interests, particularly in light of the fact that access to the democratic system for such groups often exists in name only. Judicial access also has crucial implications for the development of the substance of the law. Courts decide the cases that are brought to them; the courts' caseload, as determined by litigants, determines what areas of law will be developed ... A caseload that arises from the interests of the advantaged is very likely to create a body of law that privileges the interests of the advantaged, at the expense by omission or partiality of the disadvantaged.49 I will be concentrating almost exclusively on public interest standing under the Charter. This is because the Charter probably constitutes the legal document that has the greatest potential for promoting equality for those groups that suffer the disadvantaging effects of oppression. Also, in determining whether the public interest standing doctrine encompasses the disadvantaged, the Supreme Court of Canada's sensitivity to the nature of inequality, and its purposive interpretation of section 15(1) of the Charter, will act as important jurisprudential tools. In focusing exclusively on public interest standing under the Charter, I do not intend to give the impression that the doctrine is immune from criticism as it applies in administrative law (and possibly under the division of powers). Indeed, I believe that the general tenor of my analysis can be transposed from one form of public litigation to another. However, there may well be certain characteristic differences that distinguish administrative litigation from Charter litigation, and that may alter the weight we attach to the functions that underpin 49 L.E.A.F. Factum, supra n. 1 at para. 24. 14 the development of the public interest standing doctrine as we move from one to the other. For example, we may agree that administrative law has a more 'personal' feel to it than constitutional law (in the sense that administrative litigation often involves specific, individualized circumstances and complaints). It may be that this characteristic of administrative law (if true) demands that the analysis be modified, particularly when we come to consider the critique of autonomy in chapter four. I am seeking to inject some context into the functions of public interest standing so that the doctrine does not constitute a disproportionately high access barrier for disadvantaged groups. I will conclude that there is nothing in the functions themselves, as listed in Finlay, that prevents access being granted to those organizations that represent disadvantaged groups. In so concluding, I am not asserting that the principles underlying the discretion to grant public interest standing across the entire spectrum of public law are redundant. The advantage of a contextual analysis is that it sensitizes law to the realities of social interactions and, in particular, to the oppressive potentials that such interactions may harbour. But this sensitivity comes at a price. We are prevented from drawing universal truths from a set of particular assumptions. Legal analyses have traditionally attempted to paint a certain picture of human association across the entire legal and social canvas. In doing so, they have obscured differences and diversity, clothing us all in an abstract definition of personhood.50 That abstraction has come under attack from many critical quarters, and I do not believe that the abstraction found in standing jurisprudence and commentary is in any way immune from such criticism. In disputing the universal attractiveness of abstraction, I cannot then go on to lift high my contextual fragment and contend that it is a universal template for a new public interest standing doctrine. I am not sure I know what the public interest standing 5 H See E. Comack, "Theoretical Excursions" in E. Comack, ed., Locating Law: Race / Class / Gender Connections (Halifax: Fernwood, 1999). 15 doctrine should look like when our context is corporate search and seizure. It may still have some vitality; it may not. Indeed, my analysis could be taken further to mandate a reconsideration of private interest standing under section 24(1) (and under the 'exceptional prejudice' rule)51 if they disproportionately, and illegitimately, further access for advantaged members of our society. I am merely seeking to restructure the discretion to grant public interest standing in light of a new contextual understanding of the Finlay functions when our context is that of inequality. I do not think that one can, or should, infer that this work represents a step towards the abandonment of standing as a screen to litigation. The proper inference to draw is that standing should be structured in a manner that corresponds to the social context of the dispute. Sometimes that will be tantamount to making standing a redundant exercise. Sometimes it will not. Context, 52 not abstraction, decides." The critic stands up. Public interest standing may be troublesome for the disadvantaged, but it has a nuisance value similar to a pebble stuck in your shoe: it slows you down, but it does not stop you from walking. The disadvantaged and the organizations that deem to represent them have certain alternative means of access available to them. Public interest organizations can sponsor nominal plaintiffs to bring issues before the courts, and they can intervene in cases brought by individuals. These 5 1 See Smith v. Attorney General of Ontario, [1924] S.C.R. 331, [1924] 3 D.L.R. 189; c. 1 and note 103. 5 2 Context may also have more to say than I am willing to consider in this work. If my analysis leads me to conclude that the organization representing the disadvantaged is the true equal of the directly affected, advantaged litigant (in that litigation initiated by.the organization represents a means of access that is truly comparable to the means at the disposal of advantaged individuals), then why am I not advocating an alteration of the principles that relate to private interest standing? Why am I solely concerned with structuring the exercise of the discretion to grant public interest standing? Indeed, the Canadian Disability Rights Council and L.E.A.F proposed reforms to private interest standing when they intervened in Council of Churches; L.E.A.F. Factum, supra n. 1. Focusing solely on public interest standing fails to question the standing hierarchy of private interests as of right, public (or group) concerns as of discretion, even if that discretion is exercised in a contextual manner. It may be that this limitation reflects a lack of ambition. But ambition can be incremental. Private interest standing depends on an understanding of what entities can possess what rights. This understanding may be difficult to modify, and there may be risks attached to such modification. It would be a less onerous task to add context to the public interest standing doctrine so that we may begin to address the difficulties felt disproportionately by disadvantaged persons in bringing Charter actions. 16 are important means of access for disadvantaged groups. But they represent ways in which the symptoms of a litigation process biased against disadvantaged groups can be alleviated, rather than cured. I will be criticizing litigation processes constructed upon the (abstract) individual. To point to a litigation process that merely emulates the criticized process (i.e. using nominal plaintiffs) in order to resolve such concerns seems illogical. Using the disadvantaged nominal plaintiff to get around restrictive standing principles is like asserting that women who adopt male standards have achieved sex equality. The problem (if there is one) is still there and is further entrenched by our uncritical adoption of it. Also, there are certain practical problems in using the nominal plaintiff, and certain advantages (particularly in the presentation of issues relating to inequality) in expanding access to .encompass those organizations that represent disadvantaged persons. Likewise with intervention. It is a very useful means of making the court aware of the perspective of the disadvantaged and "the diffuse causality characteristic of discrimination".53 However, as important as it undoubtedly is, intervention is, and will remain, the younger brother of standing to initiate litigation. The parameters of the role of the intervener are often ambiguous, in that the intervener's capacity to address issues is parasitic upon, and confined by, the arguments raised by the immediate parties. If the barrier to constitutional access is too high, intervention can give you a leg-up over the wall, but it does not reduce the height of the wall itself. Outline of this Work I will analyze each of the judicial concerns that were listed in Finlay in turn (although I do recognize that there is a degree of overlap between the judicial concerns 53 L.E.A.F. Factum, supra n. 1 at para. 57. 17 which renders such a systematic analysis slightly artificial. For instance, the allocation of judicial resources arguably determines the potency of both the busybody rationale and the concern that we should hear from those directly affected). In doing so, I will summarize criticisms made by scholars who have addressed the issue of public interest standing to date, before proceeding to elaborate upon standing's potentially oppressive implications for socially disadvantaged groups. This will serve to reinforce the contextual focus of my work and the limitations of earlier, more abstract, scholarship. The third chapter will explore the concern about the 'allocation of scarce judicial resources'. The concern over a stable judicial economy has important implications for the coherent construction of a public interest standing doctrine. However, in keeping the judicial economy out of recession, we must be careful not to impact negatively on access for disadvantaged members of Canadian society. I will also briefly review some recent commentary that examines the role of the 'strategic' public interest advocate who would stand to gain from relaxations made to the public interest standing doctrine. I will ask whether we can coherently dichotomize the benevolent idea of 'access' and the malevolent idea of 'strategy' when our context is that of inequality. In the fourth chapter, I will explore the need to screen out the mere 'busybody'. Although traditional formulations of the busybody rationale have met with almost universal disapproval, recent influential commentary has reinvented the rationale, contending it is vitally connected to the ideal of personal autonomy. This insight is important, but the model of personal autonomy it relies upon is fundamentally lacking, in that it infringes upon access for disadvantaged persons. We need to reconceive autonomy in an interdependent fashion. This ideological reconception allows us to appreciate the practical necessities of supportive, communal ties when initiating 18 litigation, and how such communal support actually operates to further a disadvantaged individual's self-determination. The fifth chapter explores the concern that in the determination of issues, the courts should have the benefit of the contending points of view of those most directly affected. When our context is that of inequality, are we right to entrust the directly affected individual with the task of presenting the effects of inequality in the most illuminating fashion? I shall argue that organizations that represent disadvantaged persons are actually more likely to put forward the skilful arguments and the comprehensive factual matrix that will further the courts' comprehension of the effects of inequality. In my concluding remarks I will offer some thoughts about the final function listed in Finlay, and ask whether my analysis alters our conception of the judicial role in our total system of government. But first, I will review the development and the present formulation of the public interest standing doctrine. This review will enable us to place the critique within its appropriate doctrinal context and will enable us to see what the judiciary perceive their constitutional role to be. Most importantly, this review of the jurisprudence will reveal the increasingly abstract tendencies which shape the development of the public interest standing doctrine and which have provided the inspiration for this work. In reviewing the reasoning of judges in applying the public interest standing doctrine, we come face-to-face with who they think we are. In chapter two, I look behind the mask of the abstract individual to see whether this judicial definition of our personhood is an accurate reflection of who we in fact are. 19 Chapter One Self-Conceptualization and Modes of Reasoning Introduction The judicial handling of standing has rarely received good press. While reviewing the American jurisprudence on public interest standing, Professor Tribe commented: "the law of standing has for some time been one of the most criticized aspects of constitutional law. Certainly, "[sjtanding to litigate turns on imprecise definitions and requires difficult line drawing"."1 It is a refrain frequently heard in many common law jurisdictions. Consistency in the articulation of precedent in this area has been attained nowhere. The final appellate tribunals in England, Canada and the United States have each failed to articulate a single rational standard or test in standing cases. Lord Denning M.R. once believed that in English public law, "the question of locus standi is the most vexed question of all".3 In Canada, Professor Kushner has described the standing doctrine "as among the most amorphous in the entire domain of public law",4 while Professor Bowal despairs that "[jjudicial analyses provide little guidance to parties and courts alike".5 Perhaps the most damning indictment comes from ' L.H. Tribe, American Constitutional Law, vol. 1, 3d ed. (New York: Foundation Press, 2000) at 390, quoting from Campbell v. Louisiana, 523 U.S. 392; 118 S. Ct. 1419 at 1422 (1998). 2 S. Chester, "Holy Joe and the Most Vexed Question - Standing to Sue and the Supreme Court of Canada" Case Comment on Borowski v. Minister of Justice (1983) 5 Supreme Court L.R. 289 at 305 [hereinafter "The Most Vexed Question"]. 3 Lord A.T. Denning, The Discipline of Law (London: Butterworths, 1979) at 144. 4 H. Kushner, "Constitutional Law - Standing - Canadian Bill of Rights - Minister of Justice et al. v. Borowski" Case Comment (1983) 17 U.B.C. L. Rev. 143 at 148. 5 P. Bowal, "Speaking up for Others: Locus Standi and Representative Bodies" (1994) 35 C. de D. 905 at 935 [hereinafter "Speaking up for Others"]. 20 Professor Cromwell, a scholar who has offered "both a road-map through the morass of cases and, further, a developed view of what standing is or ought to be".6 It may be doing the topic an unwarranted kindness to even speak of a law of standing. The Canadian law on the subject consists of a number of rules developing in a number of different doctrinal and remedial contexts, frequently with very little attempt to reconcile outcomes with those obtained in parallel situations ... The result of all of this is a large body of case law that is difficult to rationalize into a unified whole.7 While I sympathize with these complaints and concerns, I do not wish to address them by engaging in a highly technical doctrinal analysis. Rather, in reviewing the jurisprudence that has shaped the development of this doctrine, I will seek to uncover observable trends that underlie the case-law - trends that may give potential clues to the future development of public interest standing and that may help bridge the divide between doctrinal description, and contextual critique. To this end, I am heartened by an observation made, once again, by Professor Cromwell. [T]he real importance of the cases is in their approach rather than in their narrow individual or cumulative holdings. To miss this in an attempt to generate a precise statement of their net result is to concentrate on the words and to ignore the music.8 In elaborating upon these underlying trends, this review will progress from the general to the specific. Firstly, I will formulate two thematic spectra upon which I shall attempt to plot relevant authorities. These spectra analyze the modes of reasoning judges appear to employ when applying the principles of the public interest standing doctrine9 and the motivation of the judiciary - or, more precisely, how the judiciary conceive their role - in applying these principles in the first place. I will then apply those spectra to decisions handed down by the Supreme Court of Canada. In reviewing 6 W.A. Bogart, "The Lessons of Liberalized Standing?", Book Review of Locus Standi: A Commentary on the Law of Standing in Canada by T.A. Cromwell (1989) 27 Osgoode Hall L.J. 195 at 199. 7 T.A. Cromwell, Locus Standi: A Commentary on the Law of Standing in Canada (Toronto: Carswell, 1986) at 90 [hereinafter Commentary on the Law of Standing]. 8 Ibid. 9 From herein, I will use the terms 'standing' and 'public interest standing' interchangeably. 21 these authorities, I must stress that, at this stage, I do not want to engage in any discussion regarding the legitimacy, or otherwise, of any observable trends that the judiciary have adopted in their reasoning. For now, the thematic tools are merely tools of observation. Unfortunately, judicial reasoning in this area of law tends to be riddled with brevity and opaqueness. A consequence of this is that sometimes our observational tools will posit the existence of two distinct (perhaps irreconcilable) emergent trends in the case law. I will not attempt to reconcile such thematic anomalies should they occur. The act of observation is enough. Having engaged in such general observation, I will then turn to the individual elements of the public interest standing test as presently formulated. In this section, the analysis will become more technical as I begin to concentrate on specific examples of the doctrine's application in the lower courts. The purpose of this section is partly to put some meat on the analytical bones of the jurisprudence of the Supreme Court of Canada, but also because I feel that the reasoning of the lower courts has mirrored and (importantly) extended those trends observable in the reasoning of the highest court. A Thematic Overview As I have just stated, my focus in this chapter is not so much technical, but rather thematic. By thematic, I mean to construct certain analytical tools that will help assess whether the specific developments in public interest standing can be said to reflect the influence of broader trends in judicial reasoning and judicial self-conceptualization. In constructing this analysis I am not interested in pointing out the folly or weakness of any emergent trend or pattern. Nor do I wish to explain (through socio-political theory, for instance) any sudden variations in these trends. The thematic tools I will adopt are merely tools of observation and potential prediction. The analysis 22 will proceed along two thematic axes or spectra. Along the first spectrum I wish to tease out the shades of judicial analysis, the types of questions judges ask when developing and applying the standing doctrine. The second spectrum will deal with issues relating to adjudication-ideology and what we can discern about the judicial role in our society from the guises our evolving doctrine takes. The first spectrum spans modes of judicial reasoning at one extreme of which we find fact-specific enquiries, and at the other, abstract enquiries. Let us assume that an area of law is regulated by a test composed of a series of rules, but that those rules are of broad application such that they invite a fluid, discretionary enquiry. One method of engaging in that enquiry would be to sensitize ourselves to the competing facts and pressures of the individual dispute. Utilizing this mode of enquiry, the judge will be constantly reasoning within the factual context of the case. He will explicitly marry the development of the doctrine to the specific situations before him, so that a thorough understanding and elucidation of the factual matrix will be necessary to comprehend the point of judicial entry and the end result. This is the mode of fact-specific reasoning. However, the judge may engage in a different mode of enquiry. He may recite the facts and then step away from them to deliberate upon the legal principles at play. In this mode, the recitation of facts is but a preliminary exercise. Once done, the judge can divorce himself from the facts to consider general principles and policies he believes to be of universal application. There may be more than one such universal principle applicable and they may pull in competing directions, but in the end he must come to favour one such principle or an assortment of principles ranked in a hierarchical fashion. He proclaims this his paradigmatic theory. He then returns to the facts, dropping his theory from the height of principle, and (like a cookie-cutter cutting dough) he carves out those facts that fall within the theory, deeming them to be relevant, and those that fall outside he discards. This is the mode of abstraction. 23 Of course, most instances of judicial enquiry will not be found at the extremes of fact-specificity or abstraction, but will fall somewhere along the spectrum that spans the two, combining different elements of these modes of enquiry in differing proportions. However, (and I find this point particularly illustrative in the decisions of the lower courts) it is my contention that the mode of analyzing and developing the standing doctrine has shifted away from contextualised, fact-specific enquiries, towards the abstraction of the universally applicable directly affected individual, with the consequence that courts are less concerned as to whether the characteristics of that abstract individual require redefinition in the specific circumstances of the case. The second spectrum spans the different conceptions of the judicial role held by members of the judiciary themselves. A useful starting point in this discussion is Professor Thio's insight that the problem of standing "is very much intertwined with the concept of the role of the judiciary in the process of government".10 Is the judicial function primarily aimed at preserving legal order by confining the legislature and executive organs of government within their powers in the interests of the public (juridiction de droit objectif), or is it mainly directed towards the protection of private individuals by preventing legal encroachment on their individual rights (juridiction de droit subjectify! The first contention rests on the theory that the courts are the final arbiters of what is legal and illegal. Since the dominant objective is to ensure the observance of the law, this can best be achieved by permitting any person to put the judicial machinery in motion ... On the other hand, where the prime aim of the judicial process is to protect individual rights, its concern with the regularity of law and administration is limited to the extent that individual rights are infringed, and in the absence of the latter, it does not come into play.11 Thus, at one end of the judicial role spectrum we find Professor Thio's juridiction de droit objectif, otherwise known as the 'public' ideal of constitutionalism, or the "right S.M. Thio, Locus Standi and Judicial Review (Singapore: Singapore University Press, 1971) at 2. 11 Ibid, at 2-3. 2 4 of the citizenry to constitutional behaviour".12 At the other extreme lies the notion of 'private' dispute resolution in which the court sees itself "as an adjunct to private ordering, whose primary function [is] the resolution of disputes about the fair implications of individual transactions".13 At this extreme, there is no such thing as public interest standing. . . . '". It is more accurate to conceptualize the judicial role along an objectif-subjectif spectrum than as a dichotomy. A judge may often expound upon the ideal of constitutionalism in order to further the rights of the particular individual claiming relief. And another judge, in granting relief to an individual, will be all too aware of how her ruling will affect 'the right of the citizenry to constitutional behaviour'. That said, it will become apparent that judges are concerned about where along the spectrum their judgments can be said to lie. Judges are concerned to project the appropriate self-image. It is illustrative to look at judicial dialogue about the role judges should play in society - a dialogue that is particularly illuminating when seeking to interpret decisions of the Supreme Court of Canada. It is my contention that judges, anxious that their constitutional role is being perceived as too 'objective', have re-emphasized the importance of private dispute resolution. There has thus been a shift towards conceptualizing the judicial role as one that is increasingly characterized by elements of juridiction de droit subjectif. Although these thematic spectra are individually fascinating and could be commented upon at great length, for me they are more interesting when looked at together rather than apart. Unwittingly (perhaps), the courts have married the trends being played out on these two spectra. This union becomes apparent when we discover what instrument the courts have used to realize their thematic shifts. In privatizing the 12 Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138 at 163, (1974) 43 D.L.R. (3d) 1 [hereinafter Thorson cited to S.C.R.]. 1 3 A. Chayes, "The Role of Judges in Public Law Litigation" (1976) 89 Harv. L. Rev. 1281 at 1285. 25 judicial role under the Canadian constitution, the courts have fastened upon the directly affected individual in his abstract formulation. The Supreme Court of Canada In order to understand public interest standing under the Canadian Charter of Rights and Freedoms,14 we must begin our story 80 years ago with the judgment in Smith v. Attorney General of Ontario.15 Mr. Smith, a resident of Ontario, gave an order to a firm in Montreal to send him a specified quantity of intoxicating liquor. The firm refused to fill the order on the ground that to do so would violate the terms of the Canada Temperance Act,16 brought into force in Ontario by an Order of the Governor in Council. Smith brought an action against the Attorney General of Ontario for a declaration that the Order was ineffective to bring into force the prohibition provided for in the Canada Temperance Act. The Supreme Court of Canada dismissed Smith's action on the basis of two lines of reasoning. The first characterized the issue as merely speculative, "an attempt to elicit an opinion from the courts which, under the facts, they have no right to give either one way or the other".17 The second line of reasoning focused upon standing. Smith's counsel had argued that the Order in Council prevented persons exercising their rights in pursuit of lawful business. Those who chose to persevere would have to conduct their business under the threat of criminal sanction. Citizens would be "naturally reluctant to expose themselves to the embarrassing incidents of criminal Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter the Charter]. 1 5 [1924] S.C.R. 331, [1924] 3 D.L.R. 189 [hereinafter Smith cited to S.C.R.]. 1 6 10 Geo. V, c. 8. 17 Smith, supra n. 15 at 333. 26 proceedings" merely to test the validity of the Order. Therefore, though Smith had not been charged, it was submitted that he should be granted standing to bring the matter before the courts. Duff J. sympathized with Smith's position, but found that he could not accede to his contention, as it "would involve the consequence that virtually every resident of Ontario could maintain a similar action". 1 9 "An individual ... has no status to maintain an action restraining a wrongful violation of a public right unless he is exceptionally prejudiced by the wrongful act". 2 0 Mignault J. supported this line of reasoning. "[T]he inconvenience of allowing actions of this nature to be taken by one who pretends, without shewing any special interest, that certain legislation is ultra vires or inoperative is too obvious for discussion". 2 1 The result of Smith was that a private individual could only test the constitutionality of state action with the consent of the appropriate Attorney General (usually in the form of a relator action)2 2 or upon showing some special or peculiar damage that went over and above the ordinary inconvenience suffered by the public at large.2 3 The threat of criminal proceedings was not sufficient to prove that the individual was exceptionally prejudiced.24 The second line of reasoning advanced in Smith applied the standing rules in public nuisance to the constitutional realm, without any real consideration given to the Ibid, at 337. 19 Ibid. 20 Ibid. 21 Ibid, at 347. Interestingly, having found that the refusal to grant standing was 'too obvious for discussion', Duff and Mignault JJ. went on to conclude that his action also failed on the merits. Duff J.'s comment, at 338, that he was "loath to give a judgment against the appellant solely based upon a fairly disputable point of procedure" can still be heard in courts today. 2 2 For a discussion of the nature of relator actions, see Law Reform Commission of British Columbia, Report on Civil Litigation in the Public Interest (Victoria: Queen's Printer for British Columbia, 1980) at 9-11. 2 3 See Grant v. St. Lawrence Seaway Authority, [1960] O.R. 298, 23 D.L.R. (2d) 252 at 255-56 (C.A.) and Rainy River Navigation v. Ontario and Minnesota Power (1914), 17 D.L.R. 850 at 852 (S.C. (A.D.)) for formulations of this test. The most famous formulation of this test was laid down by Buckley J. in Boyce v. Paddington Borough Council, [1903] 1 Ch. 109 at 114 (Ch.). 2 4 This is, obviously, no longer the case. As Strayer J. held in Antrim Yards v. Canada, [1991] 3 F.C. 459 at 477, (1991) 44 F.T.R. 299 (T.D.): "I do not understand the jurisprudence on standing to seek declarations of invalidity to require plaintiffs to wait until they are sued or prosecuted to impugn the statute under which such charges might be laid". 27 appropriateness of incorporating such rules into a distinct doctrinal context. The transplantation had the unfortunate consequence that should legislation or official action affect all in the same manner and to the same extent, no one would have standing to challenge its constitutional validity. It leads to the bizarre conclusion that the greater the number of people affected by state action - which for many is an indication of the importance of that action - the harder it will be to question the action's constitutionality. As Professor Craig indicates, this denial of access is indefensible. If the subject-matter of the case is otherwise appropriate for judicial resolution, and the application is timely or ripe, to exact a barrier of "no standing" would be to render many important areas of governmental activity immune from censure for no better reason than that they affect a large number of people. One might be forgiven for thinking that the common sense of the reasonable man would indicate the opposite conclusion; that the wide range of people affected is a positive reason for allowing a challenge by someone.26 The public nuisance rule transplanted by Smith survived unscathed in its new habitat for fifty years. However, just a decade before the enactment of the Charter, the standing doctrine was to be revolutionized by three decisions of the Supreme Court of Canada. In this trilogy of decisions, the Court reviewed the rationale underlying standing. If we were to plot the Smith decision upon our spectra, and compare its location with the thematic location of the 'standing trilogy', we would find that the This transplantation was made explicit in Cowan v. Canadian Broadcasting Corporation, [1966] 2 O.R. 309 at 311, 56 D.L.R. (2d) 578 (C.A.). "Therefore, in an action where it is alleged that a public or quasi-pub\ic body has exceeded or abused its authority in such a manner as to affect the public, whether a nuisance be involved or not, the right of the individual to bring the action will accrue as it accrues in cases of nuisance on proof that he is more particularly affected than other people" (emphasis added). 2 6 P.P. Craig, Administrative Law, 3d ed. (London: Sweet and Maxwell, 1994) at 513-14. A second common criticism lodged against the public nuisance rule is the role of the Attorney General in controlling access to the courts. Should no individual be exceptionally prejudiced by the state act, then the Attorney General's guardianship of the public interest is absolute, in that his decision not to bring proceedings cannot be questioned by the courts; Gouriet v. Union of Post Office Workers, [1978] A.C. 435 (H.L.). This power enables the Attorney General to immunize the state from judicial scrutiny in the name of political expediency. For further commentary see Ontario Law Reform Commission, Report on the Law of Standing (Toronto: Publication Services, 1989) at 40-51 and Commentary on the Law of Standing, supra n. 7 at 180-91. 28 Supreme Court of Canada's jurisprudence had moved towards the mode of fact-specific reasoning and the self-image of public constitutionalism. This journey across the spectra began when Mr. Thorson commenced an action claiming declarations that Parliament had no authority to enact the Official Languages Act,27 or to pass appropriations to fund its operation. Importantly, the Official Languages Act affected every person in the same manner and to the same degree. Mr. Thorson thus could not prove that he suffered any special damage or prejudice beyond that suffered by the public at large. Indeed, he possessed only the interest that the taxpayer and the citizen have in the constitutional validity of state acts. At first instance, Houlden J. applied the principles laid down in Smith to deny Thorson standing.28 He even justified the application of Smith with the same rationale put forward by Mignault J. fifty years earlier. "If every taxpayer could bring an action to test the validity of a statute that involved the expenditure of public money, it would in my view lead to grave inconvenience and public disorder". In the Supreme Court of 30 Canada, Judson J., dissenting, remarked that Houlden J.'s decision was sound. Unlike the minority who were concerned with how the private-resolution model would cope with the 'grave inconvenience and public disorder' of a flood of constitutional challenges, Laskin J. grounded his decision on the ideal of constitutionalism. "[I]t would be strange and, indeed, alarming, if there was no way in which a question of alleged exercise of legislative power, a matter traditionally within 31 the scope of the judicial process, could be made the subject of adjudication". Laskin J. noted that Parliament was unable to prevent the courts from reviewing the constitutionality of legislation. "Should [the judiciary] then foreclose themselves by 2 7 S.C. 1968-69, c. 54. 28 Thorson v. Attorney General of Canada, [1972] 1 O.R. 86, (1971) 22 D.L.R. (3d) 274 (H.C.J.) [hereinafter cited to O.R.]. 29 Ibid, at 90. 30 Thorson, supra n. 12 at 141. 31 Ibid, at 145. 29 drawing strict lines on standing, regardless of the nature of the legislation whose validity is questioned?"32 He answered this rhetorical question in the negative. The respect for constitutionalism mandates that a question of constitutionality should not be immunized from judicial review. However, such respect should not lead courts "to embrace the idea that anyone should be able to sue anybody at any time for anything".33 Rather, "the matter ... is one for the discretion of the Court, and relevant to this discretion is the nature of the legislation under attack".34 If legislation involves "prohibitions or restrictions on any class or classes of persons who would thus be particularly affected by its terms beyond any effect upon the public at large", then the issue of constitutionality can be properly addressed by those who find themselves in breach of the prohibitions. Therefore, the ruling in Smith survives where legislation creates a scheme that mandates compulsory behaviour enforced through penalties.36 Alternatively, where the legislation "creates no offences and imposes no penalties",37 where all members of the public are affected alike (so-called directory or declaratory legislation), then Smith should not be applied in such manner as to immunize any challenge to the legislation. "[T]he Court must be able to say that as between allowing a taxpayers' action and denying any standing at all when the Attorney General refuses to act, it may choose to hear the case on the • t „ 38 merits . As we have seen, Laskin J. explicitly stated that underlying this standing revolution was a new conception of the judicial function. In asserting that the important 32 Ibid, at 152. 3 3 "The Lessons of Liberalized Standing?", supra n. 6 at 197. 34 Thorson, supra n. 12 at 147. 35 Ibid, at 161. 3 6 "In such a situation, a mere taxpayer or other member of the public not directly affected by the legislation would have no standing to impugn it"; ibid, at 148. Laskin J. terms this kind of legislative enactment, 'regulatory legislation'; at 147. 37 Ibid, at 151. ™Ibid. at 161. 30 factor was whether state action was immunized, Laskin J. focused more on providing a system of review and control over governmental power and less on the need to redress harms suffered by specific individuals; The judiciary therefore became an institution the beneficiaries of which were the community at large, rather than the individual litigants appearing before them. A year later, the question of standing returned to the Supreme Court of Canada. In Thorson, Laskin J. had held that members of the public not directly affected by regulatory legislation had no standing to test its constitutional validity. This was better left to those "who may properly claim to be aggrieved or have a tenable ground upon which to challenge the validity of the legislation".39 In McNeil v. Nova Scotia Board of Censors, the Supreme Court of Canada was asked to clarify how one should measure the necessary direct effect.40 How do we know when a person is sufficiently proximate to the regulatory legislation and its effects so that she is better placed to test its constitutional validity? This is a question I find particularly fascinating (and one that has dogged the development of a sound public interest standing doctrine). In exploring the possible answers given by the Supreme Court of Canada, I hope you will forgive what may seem a small digression. Mr. McNeil was a resident and taxpayer in Nova Scotia who had become concerned about the wide powers held by the Nova Scotia Board of Censors. When the Board decided to prohibit the exhibition of the movie "Last Tango in Paris" he brought an action alleging that the establishment of a movie censorship regime41 constituted an 39 Ibid, at 147-48. 40 McNeil v. Nova Scotia Board of Censors, [1976] 2 S.C.R. 265, (1975) 55 D.L.R. (3d) 632 [hereinafter 'McNeil cited to S.C.R.]. 4 1 As created under the Theatres and Amusements Act, R.S.N.S. 1967, c. 304. 31 encroachment of the federal criminal!law power under section 91(27) of the Constitution Act, 1867.42 The difficulty with McNeil's claim was that, under Thorson, the statutory censorship regime constituted an example of regulatory legislation. Those directly regulated under this regime were theatre owners and cinematograph operators. However, they had not brought a challenge testing the validity of the regime that affected their livelihood. In light of the holding in Thorson that "a mere taxpayer or other member of the public not directly affected by the legislation would have no standing to impugn it",43 was McNeil to be denied standing in this case? Did a person have to be directly affected before being granted standing to impugn regulatory legislation, or was this merely a factor going to the exercise of the discretion located in the hands of the judiciary? Delivering judgment for a unanimous Supreme Court of Canada, Laskin C.J.C. held that the distinction between regulatory and declaratory legislation was not one that could control the granting of standing: especially in light of the reserve of discretion in the Court, and more especially because the word or the term "regulatory" is not a term of art, not one susceptible of an invariable meaning which would in all cases serve to distinguish those in which standing to a taxpayer or citizen would be granted and those in which it would not.44 Having deflated the importance of the distinction he earlier constructed in Thorson, Laskin C.J.C. went on to hold that "members of the Nova Scotia public are directly affected in what they may view in a Nova Scotia theatre, albeit there is a more direct effect on the business enterprises which are regulated by the legislation".45 This was Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5. Thorson, supra n. 12 at 148. McNeil, supra n. 40 at 269. Ibid, at 271. 32 enough "to support the claim of [McNeil] to have the discretion of the Court exercised in his favour to give him standing".46 Although the end result is simply stated, Laskin C.J.C.'s reasoning is more problematic. Indeed, it appears that his reasoning is capable of yielding two different interpretations. The first interpretation focuses on the last paragraph of the Court's judgment. In granting McNeil standing, Laskin C.J.C. highlights the fact "that there appears to be no other way, practically speaking, to subject the challenged Act to judicial review".47 Thus, the discretion of the court is underpinned by the desire not to immunize legislation from review. This interpretation provides a continuity with the general tenor of Laskin J.'s remarks in Thorson. Professor Kushner also favours this interpretation. [I]f standing had been denied to McNeil, no one else was likely to challenge the legislation. In McNeil, if standing had been denied to a member of the public the legislation would have stood without fear of attack since it was unlikely that the persons most directly affected would challenge the legislation 4 However, there exists a second interpretation of McNeil. This interpretation can be found in the following passage of the judgment. I think it is important to distinguish what I would term the administrative law features of so-called regulatory legislation and the constitutionality of such legislation. Its pith and substance, in the latter aspect, may very well disclose a purpose which would be served by its administrative features but would not be limited by them. Thus, the fact that certain persons or classes of persons, or certain activities in which persons engage may be subjected to compulsory regulation on pain of a penalty or other sanction does not always mean that the pith and substance of the legislation is to be determined only in that context, so as to make those regulated the only persons with a real stake in the validity of the legislation.49 46 Ibid. 47 Ibid. 1VIU. 4 8 Kushner, supra n. 4 at 154. 49 McNeil, supra n. 40 at 269. 33 This passage recognizes that state acts not only affect those directly regulated, but may also affect other individuals who were not the intended subjects of the enacted regulatory scheme. Those other individuals are likely to be affected in a distinct fashion, and in a way that is felt just as keenly as the effect upon the intended regulatees. The fact that there exist two distinct forms of 'direct effect' makes it difficult to rank the two affected groups in terms of their proximity to the impugned legislation. As Laskin C.J.C. later observed, "[t]he challenged legislation does not appear to me to be legislation directed only to the regulation of operators and film distributors. It strikes at the members of the public in one of its central aspects".50 The interests of both those regulated and the general public were affected by the regulation, but those interests were quite different - one relating to security of livelihood, the other relating to the freedom to immerse oneself in diverse forms of expression. McMahon J. appears to concur in this interpretation when he construed McNeil as a grant of standing "on the rationale that the interest of the Public was different from that of the exhibitors, who had not challenged [the legislation]. The only way in which the public interest in what was available in films could be advanced as a constitutional challenge was to give a member of the public standing".51 On this understanding of McNeil, the question of proximity is not to be calculated using some universally applicable equation, but is to be the subject of intense factual enquiry. The result is that the existence of persons directly regulated does not necessarily bar access to the courts for those representing other interests. The important question then becomes, on what basis do we choose which experience should ultimately be recited in the courts? Laskin C.J.C. believed that it should be the 'constitutional' experience. But what is a constitutional experience and in what ways is 5i)Ibid. at 271. 51 Minister of Education of Alberta v. St. Paul Public School District No. 2228, [1993] A.J. No. 1294 at para. 24 (Q.B.), online: QL (AJ) [hereinafter St. Paul Public School]. 34 this experience distinct from an administrative (or 'regulated') experience? Laskin C.J.C. did not say. In deflating the importance of one distinction on the ground that its terms were susceptible to definitional malleability, Laskin C.J.C. ironically imported another distinction, constructing this one from equally fluid, undefined terminology. These two interpretations of McNeil are not mutually exclusive and, indeed, both appeared to work together in persuading the Supreme Court of Canada that standing should be accorded to Mr. McNei l . However, in certain contexts, the two interpretations can pull in competing directions. Interestingly for our purposes, an example of this can be found in a case that dealt with an issue that has obvious interconnections with inequality. In Canadian Abortion Rights Action League v. Attorney General of Nova Scotia?2 the Canadian Abortion Rights Action League 53 (C.A.R.A.L.) challenged the constitutionality of the Medical Services Act which prohibited the performance of abortions outside an accredited hospital. The applicant was a public interest group that had been actively engaged "in its stated objects concerning women's rights "to safe, accessible abortions"."5 4 While the case was making its way through the judicial system, Dr. Morgentaler was charged with performing abortions at his freestanding clinic in Halifax, contrary to the provisions of the Act. He pledged that in his defence he would also challenge the constitutionality of the legislation. The question before the court was whether the proceedings brought against Morgentaler could constitute another reasonable and effective manner by which the issues could be subject to judicial review, so as to deny C.A.R.A.L . standing. Matthews J.A. (writing for the majority), noted that the cases decided by the Supreme Court of Canada were instances in which "[t]he courts were faced with the 52 Canadian Abortion Rights Action League v. Attorney General of Nova Scotia (1990), 96 N.S.R. (2d) 284, 69 D.L.R. (4 t h) 241 (S.C. (A.D)) [hereinafter C.A.R.A.L. cited to D.L.R.]. 5 3 S.N.S. 1989, c. 9. 54 C.A.R.A.L., supra n. 52 at 250. 35 situation where a justiciable issue apparently would unlikely be litigated unless the plaintiffs' action were permitted to proceed".55 His analysis was grounded in the first interpretation of McNeil; his focus was the possible immunization of state acts from judicial review. Matthews J.A. concluded that, as the charges brought against Dr. Morgentaler were to proceed, "the enactment will not "go unchallenged and unchallengeable"."56 On that basis he refused to grant C.A.R.A.L. public interest standing. In granting C.A.R.A.L. standing, Clarke C.J.N.S. emphasized the second interpretation of McNeil. Mr. McNeil was a representative of one group of obvious plaintiffs who came within the reach of the allegedly unconstitutional legislative enactment. He was a member of the public who was being denied the right to view a film because of an allegedly unconstitutional exercise of legislative power. So too with C.A.R.A.L. C.A.R.A.L. represents one group of obvious plaintiffs, that is, persons requiring a service outlined in the regulation. In this case, it is women seeking a medically insured abortion who, it is argued, are being denied access to same because of an alleged unconstitutional exercise of legislative power.57 Although Dr. Morgentaler was directly affected in his ability to provide abortions, the pith and substance of the legislation affected women's reproductive freedom. Both interests were directly affected in distinct ways, and as this distinctness made it impossible to rank their interests in a hierarchical fashion, Morgentaler's impending challenge was held not to deny a challenge brought by another group whose experience (and thus whose legal narrative) would be of a different order. As it was unlikely that women seeking an abortion would themselves challenge the legislation, C.A.R.A.L. CO was to be granted standing to speak on their behalf. 55 Ibid, at 252-53. 56 Ibid, at 257 quoting from Borowski v. Minister of Justice of Canada, [1981] 2 S.C.R. 575 at 580, 130 D.L.R. (3d) 588 [hereinafter Borowski cited to S.C.R.]. 57 C.A.R.A.L., ibid, at 244. 36 The last of the standing trilogy has either been praised for furthering "the liberal interpretation of the standing requirements",59 or criticized as being "a tentative, and perhaps unwitting, step towards the abandonment of standing as a screen to litigation".60 Both comments tend to obscure the central importance of Borowski. The last of the standing trilogy is a contradiction: the result is indeed liberal, but the seeds of limitation are sown in its reasoning. Indeed, its reasoning is ambiguous along both thematic spectra. Firstly, there is an uncertainty over the judicial role. "Chief Justice Laskin, the architect of the liberal interpretation dissents in Borowski and appears to have returned, at least in part, to the more traditional approach to standing which prevailed in the pre-Thorson cases" 6 1 There is also a tension as to which mode of judicial enquiry should be employed. Although Martland J.'s judgment is fact-specific, he concludes his enquiry by staking out the boundaries of the public interest standing doctrine in a way that heralds the elevation of abstraction as a means of application. Mr. Borowski sought a declaration that subsections 251(4), (5) and (6) of the Criminal Code62 permitting the procurement of miscarriage were invalid and inoperative in that they abridged the right to human life guaranteed in the Canadian Bill of Rights.63, As Mr. Borowski was neither a doctor nor a husband of a woman seeking an abortion, his only interest in the validity of the legislation was as a concerned citizen and taxpayer. He therefore had to ask the court to grant him public interest standing. In dissent, Laskin C.J.C. put forward the following proposition. 5 9 Kushner, supra n. 4 at 143. 6 0 "The Most Vexed Question", supra n. 2 at 308. 6 1 Kushner, supra n. 4 at 144. • •. 6 2R.S.C. 1970, c. C-34. 6 3 R.S.C. 1970, Appendix III, s. 1(a). Section 1(a) reads as follows: "It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely, the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law". 37 [A]s a general rule, it is not open to a person, simply because he is a citizen and a taxpayer or is either the one or the other, to invoke the jurisdiction of a competent court to obtain a ruling on the interpretation or application of legislation, or on its validity, when that person is not either directly affected by the legislation or is not threatened by sanctions for an alleged violation of the legislation.64 Once again, he made explicit the connections between the developing doctrine and the role of the judiciary in society. "The rationale of this policy is based on the purpose served by courts. They are dispute-resolving tribunals, established to determine contested rights or claims between or against persons".65 But this image grounded on the private dispute-resolution model appears to be distinctly at odds with his ruling in Thorson, a ruling that was interpreted by Martland J. for the majority as being decided on the basis "that the validity of the legislation raised a serious constitutional issue and there was no reasonable way to have its validity tested unless an individual citizen could proceed in the manner sought".66 Martland J.'s interpretation represents an extension of the trend towards the public ideal of constitutionalism. Simon Chester submits that Laskin C.J.C.'s "reformulation of the Court's two earlier decisions within the context of a general rule forbidding citizen suits is implausible" 6 7 However, Professor Bogart commented that implausibility should not be mistaken for invisibility, 68 in that the tenor of the Chief Justice's judgment could not be ignored. This observation was to find its echo in the Supreme Court a decade later. After reviewing the case law, Martland J. began with the task of characterizing the legislation. Was it regulatory or declaratory? Neither. It is exculpatory in nature. It provides that in certain specified circumstances conduct which otherwise would be criminal is permissible. It does not impose duties, but instead provides exemption Borowski, supra n. 56 at 578. 65 Ibid, at 579. 66 Ibid, at 594. 6 7 "The Most Vexed Question", supra n. 2 at 300. 6 i ! W.A. Bogart, "Developments in the Canadian Law of Standing" (1984) 3 Civil Justice Quarterly 339 at 346. 38 from criminal liability. That being so, it is difficult to find any class of person directly affected or exceptionally prejudiced by it who would have cause to attack the legislation.69 Martland J. then proceeded to dismiss any likely candidate, focusing specifically on the issues being raised and the factual circumstances of the potential parties. Doctors, hospitals and women desirous of obtaining an abortion would have little cause to challenge the legislation. A husband of a pregnant wife who desires to prevent an abortion would have potential cause to bring proceedings, but the likelihood of that potentiality being realized "is illusory. The progress of the pregnancy would not await the inevitable lengthy lapse of time involved in court proceedings leading to a final judgment".70 Thus, there existed "no reasonable way in which [the] issue can be brought to court unless proceedings are launched by some interested citizen".71 Martland J.'s reasoning is fact-specific. However, that specificity was to be threatened by his concluding remarks. In attempting to tie together the principles enunciated in the trilogy, Martland J. formulated a test for public interest standing. I interpret these cases as deciding that to establish status as a plaintiff in a suit seeking a declaration that legislation is invalid, if there is a serious issue as to its invalidity, a person need only show that he is affected by it directly or that he has a genuine interest as a citizen in the validity of the legislation and that there is no other reasonable and effective manner 72 in which the issue may be brought before the Court. The wording and positioning of this test appears to relay a certain rigidity - a rigidity that would crystallize out in later judgments. To my mind, it also implies the adoption of a certain distance from the factual matrix at issue. The potential now existed for later courts to focus exclusively upon the wording of the test itself, with no reference being made to the fact-specific enquiry that is the true legacy of the trilogy. 69 Borowski, supra n. 56 at 596. 70 Ibid, at 597. 71 Ibid. 72 Ibid, at 598.1 shall sometimes refer to this passage as the Borowski test. 39 The first opportunity the Supreme Court of Canada had to examine public interest standing under the Charter was in Canadian Council of Churches v. Minister of Employment and Immigration.13, All commentators appear agreed that the decision signalled "a shift from a liberal position to a more restrictive stance".74 While the Court did not overrule its previous decisions, its application of the test of public interest standing is restrictive and discouraging to the public interest litigant. Despite the ever increasing importance of Charter litigation in the development of social policy, for the first time in this series of decisions, the Court denied standing to the public interest litigant.75 The Canadian Council of Churches is a national umbrella organization that represents the interests of a broad group of member churches. The inter-Church Committee for Refugees (a forum within the umbrella organization with the specific mandate for co-ordinating church policies and actions related to the protection and resettlement of refugees) commenced an action challenging a number of amendments to the Immigration Act,16 alleging that the amendments violated refugee rights guaranteed under sections 7 and 15 of the Charter.11 The government contended that the Committee lacked the standing necessary to challenge the constitutional validity of the amendments. Giving judgment for a unanimous Supreme Court, Cory J. began by observing that the very existence of the Charter "does not of course affect the discretion courts 73 Canadian Council of Churches v. Minister of Employment and Immigration, [1992] 1 S.C.R. 236, 88 D.L.R. (4lh) 193 [hereinafter Council of Churches cited to S.C.R.]. 7 4 C.A.L. Caruana, A Neo-Conservative Approach to Standing in Charter of Rights Litigation (L.L.M., Osgoode Hall Law School 1995) [unpublished] at 29. 7 5 J. Ross, "Canadian Council of Churches v. The Queen: Public Interest Standing Takes a Back Seat" Case Comment (1992) 3 Constitutional Forum 100 at 100 [hereinafter "Public Interest Standing Takes a Back Seat"]. 7 6 1976, S.C. 1976-77, c. 52, as am. by S.C. 1988, c.35 and c.36. 7 7 Section 7 of the Charter reads as follows: "Everyone has the right to life, liberty and security of the person and the right no to be deprived thereof except in accordance with the principles of fundamental justice". 40 possess to grant standing to public litigants". He then offered two insights into the judicial role that were to resonate throughout the rest of his reasoning. Courts in Canada like those in other common law jurisdictions traditionally dealt with individuals ... Operating primarily, if not exclusively, in the traditional manner courts in most regions operate to capacity. Courts play an important role in our society. If they are to continue to do so care must be, taken to ensure that judicial resources are 79 not overextended. With these twin propositions - traditional private dispute-resolution and economical use of judicial resources - Cory J. proceeded to ask whether the test for public interest standing should be extended. His answer is neatly summarized in the following passage. The increasing recognition of the importance of public rights in our society confirms the need to extend the right to standing from the private law tradition which limited party status to those who possessed a private interest. In addition some extension of standing beyond the traditional parties accords with the provisions of the Constitution Act, 1982. However, I would stress that the recognition of the need to grant public interest standing in some circumstances does not amount to a blanket approval to grant standing to all who wish to litigate an issue. It is essential that a balance be struck between ensuring access to the courts and preserving judicial resources. It would be disastrous if the courts were allowed to become hopelessly overburdened as a result of the unnecessary proliferation of marginal or redundant suits brought by [...] well-meaning organizations pursuing their own particular cases certain in the knowledge that their cause is all important. It would be detrimental, if not devastating, to our system of justice and unfair to private litigants.80 What is perhaps most striking in this passage (and in the earlier twin propositions), is the explicit distancing from the value of constitutionalism proclaimed by Laskin J. in Thorson and affirmed by Martland J. in Borowski. Although that value is still important in the evolving standing doctrine, more emphasis appears to be placed on protecting the rights and interests of the private individual affected by state action. Council of Churches, supra n. 73 at 250. Ibid, at 248-49. Ibid, at 252. 41 As Professor Ross observes, "[t]he traditional form of private litigation is seen as the courts' primary occupation".81 Cory J. promoted the private individual from the periphery to the core of the court's constitutional role; the individual being employed, in effect, as the gatekeeper of constitutional adjudication, so that the activities of the private individual are of central importance in determining whether the public litigant should be granted standing. Indeed, it was whether there existed another reasonable and effective manner in which the issue could be brought before the courts that gave rise to "the real difficulty in this case",82 and it was on this issue that the Court declined to grant the Council of Churches standing. In finding that other means existed by which the legality of the amended Immigration Act could be tested, Cory J. remarked that "many refugee claimants can and have appealed administrative decisions under the statute. These actions have frequently been before the courts".83 Refugee claimants "were bringing 84 forward claims akin to those brought by the Council on a daily basis". Thus, the presence of private individual litigants within courtrooms across Canada was sufficient to deny the Council of Churches standing. At first sight this reasoning seems fact-specific, in that there has been an engagement with the specific factual matrix at issue. However, the analysis is slightly insensitive to the distinct claims that a specific factual matrix can generate. The Council of Churches was raising a constitutional challenge based upon the rights guaranteed under the Charter. The refugee claimants (according to Cory J.) were bringing administrative challenges, no doubt contending that the relevant authorities misapplied their discretion in individual cases. There is an important distinction 8 1 "Public Interest Standing Takes a Back Seat", supra n. 75 at 103. 82 Council of Churches, supra n. 73 at 254. 83 Ibid. 84 Ibid. 42 between these two forms of action - a distinction that will lead to two distinct narratives being promulgated in the courts. Administrative challenges usually presume that the basic framework which underpins the official discretion is valid. However, the validity of this basic framework was the particular issue being raised by the Council of Churches. As Professor Ross notes, "[r]ather than seeking out differences in perspective between this lawsuit and those likely to be commenced by private litigators, as in Borowski, such differences were ignored". Therefore, the granting of public interest standing depends upon whether there exists a directly affected individual litigating an issue that relates to a particular legal field, though the similarity need not extend to the factual matrix that has initiated the specific litigation, nor the remedial relief being sought.86 The directly affected individual is beginning to look a little abstract. The last judgment of the Supreme Court of Canada is the most challenging, mainly because the reasoning of the majority is so brief as to be almost non-existent. I am not sure I can say anything with any confidence about potential thematic trends that may be useful in our understanding of this case. Indeed, the only thing I can say with confidence is that the decision in Hy and Zel's affirmed the restrictive stance taken a year earlier in Council of Churches. Two corporations, against whom penal proceedings under Sunday closing legislation had been commenced,87 sought public interest standing in civil applications "Public Interest Standing Takes a Back Seat", supra n. 75 at 103. Professor Mclntyre has argued that it is not appropriate to "equate willingness to appeal the Refugee Board's adverse decision in one's immediate case with readiness to challenge the constitutionality of some or all of the Act. The former forestalls a removal order, costs less and does not challenge the state itself; S. Mclntyre, "Above and Beyond Equality Rights: Canadian Council of Churches v. The Queen" (1992) 12 Windsor Y.B. Access Just. 293 at 318. 8 6 A slightly odd proposition when one considers that the law of standing (and indeed the common law) has been driven by remedial particularity; see Commentary on the Law of Standing, supra n. 7 at 11 and 103-64. 87 Retail Business Holidays Act, R.S.O. 1980, c. 453, as am. by S.O. 1989, c. 3. 43 for declarations that the law violated sections 2(a) and 15 of the Charter. Major J., giving judgment for the majority, held that the corporations did not have standing to bring the applications. This was because there existed other means of bringing the issues before the Court - a factor that was held to lie "at the heart of the discretion to 89 grant public interest standing". Unfortunately, Major J. never once provides any detail or elaboration as to what these alternative means of access could be. And the vague hints and possibilities he does offer signal an alarming ambiguity over the purpose of the public interest standing doctrine. Major J. first comments that one of the corporate applicants relied on evidence filed in the criminal enforcement proceedings that had initiated the declaratory action.90 Is this meant to imply a concern that the application for a declaration constituted an abuse of process? After all, a declaratory action should not generally be used as a substitute for a trial ruling in a criminal case.91 But this rule is not to be applied in an absolute fashion. The fact that the enforcement proceedings were stayed and never brought to trial lends credence to L'Heureux-Dube J.'s assertion (in dissent) that there was agreement on all sides that the constitutional issues should be tested in this manner.92 It also seems unreasonable to deny the parties their chosen procedure, considering that the action had already proceeded to the Supreme Court of Canada and that the constitutional issues would unlikely be presented in a different 93 fashion whether the corporate entities were criminal defendants or civil applicants. 8 8 Section 2(a) of the Charter reads as follows: "Everyone has the following fundamental freedoms: freedom of conscience and religion". 89 Hy and Zel's v. Attorney General of Ontario, [1993] 3 S.C.R. 675 at 692, 107 D.L.R. (4lh) 634 [hereinafter Hy and Zel's cited to S.C.R.]. ™Ibid. at 692-93. 91 Kourtessis v. Minister of National Revenue, [1993] 2 S.C.R. 53, 102 D.L.R. (4lh) 456. 92 Hy and Zel's, supra n. 89 at 718. 9 3 As L'Heureux-Dube J. observed in dissent: "it would discredit the administration of justice to require the appellants to argue the merits of the case in still another proceeding which may yet end up at some later stage before this Court. Vast amounts of time, expense and effort have already been expended by the appellants in proceeding with this application; in my view, the Court should exercise its discretion to 44 Major J . then comments that the enforcement proceedings did not involve any retail employees and that the evidence filed in those proceedings would not have established whether the employees were entitled to standing.94 I am not sure what the first half of this observation is meant to imply, if anything. The whole purpose of public interest standing is to provide a means whereby concerned third parties can challenge the constitutional validity of state acts when those directly affected are not in a position to do so. In many situations, it will be beneficial to hear the experiences of those directly affected, and, for many such individuals, it may be less demanding to recite such experiences within litigation commenced by another party, than to initiate such litigation themselves. However, the mere absence of such personal involvement, without more, should not be sufficient to foreclose access for those seeking to vindicate third party rights. As to the second half of the observation, as we will see later,95 concerns relating to evidence are best resolved when considering whether there exists a 'serious issue'. If the statement discloses no evidence that a right guaranteed under the Charter has been infringed, then it is likely that the plaintiff has not raised a serious issue.96 The fact that a public interest litigant has failed to provide evidence of the infringement of a right does not go to the determination of the probability of whether a directly affected individual will test the constitutional validity of the legislation. Lack of evidence relating to the standing of the retail employees (being entities whose religious freedom guaranteed under the Charter is potentially affected) has no bearing on whether there exists a reasonable alternative means of access. The third suggestion of a more reasonable and effective manner of bringing this matter before the court was to be found in the second corporation's reliance on grant standing and dispose of the appeal on the merits, which, in any event, have been pleaded"; ibid, at 718-19. 94 Ibid, at 692. 9 5 See text accompanying notes 108-15. 96 Shane v. Canada (1998), F.T.R. 151 (T.D.). 4 5 evidence filed in a separate proceeding in which leave to appeal had been granted by the Supreme Court of Canada.97 Is Major J. implying that the relevant issues had already been fully presented and addressed in the history of this separate proceeding, such that the present Court was unwilling to give a repeat performance? But then such 98 concerns are tackled by the application of the doctrine of mootness, a conceptually distinct restraint mechanism that allows courts to decide not to decide cases that no longer disclose a concrete dispute. It is an mw-oriented restraint on adjudication. Standing, on the other hand, is concerned with gauging the qualities of the applicant in raising matters that are of general public importance. It is thus a personality-oriented restraint on adjudication. To confuse the two is a sign of conceptual carelessness. Next, Major J. summarizes the ruling in Borowski as being a grant of public interest standing on the basis that "no party directly affected could reasonably be expected to challenge the legislation".99 The intimation is that, in the present situation, the impugned state act did not discourage challenge by any directly affected party. This intimation constitutes a realization of the concerns I expressed earlier when analyzing the Borowski test. Although Major J. is perfectly content to adopt the wording of the Borowski test, he is less willing to engage with the lengthy fact-specific reasoning that is the true legacy of the trilogy. In Borowski, Martland J. undertook a thorough analysis as to whether theoretical alternative means of access could practically become actual lawsuits. After Hy and Zel's, such a fact-specific analysis is potentially threatened. The mere existence of directly affected persons, even if they have not commenced litigation, could be sufficient to bar public interest standing (a proposition that would, 97 Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada [1991] 3 S.C.R. x, (sub nom. Oshawa Group v. Attorney General of Ontario) 5 O.R. (3d) xii. The Ontario Court of Appeal had held that the legislation was valid in that it did not infringe s. 2(a); (1991) 2 O.R. (3d) 65, 78 D.L.R. (4th) 333 (C.A.). 9 8 See generally Borowski v. Attorney General of Canada, [1989] 1 S.C.R. 342, 57 D.L.R. (4th) 231; P.W. Hogg, Constitutional Law of Canada, looseleaf, vol. 2 (Toronto: Carswell, 1997) at 56-16ff. 99 Hy and Zel's, supra n. 89 at 693. 46 if taken to its logical conclusion, wholly eliminate public interest standing since its essence is the vindication of the rights of others). In dissent, L'Heureux-Dube J. commented upon the majority's disinclination to engage in a fact-specific analysis.100 Had they done so, they would have understood that individual retail employees could hardly be described as constituting a reasonable and effective alternative means of bringing the issues before the courts. In my view, it is important to recognize the practical difficulties and disincentives which face appellants in the position of the retail employees and to acknowledge that there may be no other reasonable and effective means of bringing their concerns before the court. Although most employees are unlikely to be charged under the Act, they are still affected by its provisions. However, such claimants may have little realistic possibility of bringing their concerns before the court except, as they have in this case, by joining the application of others who are able to bear the expense. As this Court had occasion to observe ... retail employees are a group that is largely unorganized and which comprises persons without significant political and economic power. As it is open to the court to exercise its discretion on standing, it is not inappropriate in my opinion, to examine the position of all of the parties involved as a whole and consider such factors as their respective ability to bring their concerns before the courts. In the present case, denial of standing to the corporate appellants will effectively also deny the retail employees the opportunity to assert their claims.101 Major J.'s parting shot is the observation that the lack of evidence relating to the potential infringement of the religious rights of the corporations themselves may suggest that questions of legislative compatibility with the Charter could have been tackled in other proceedings.102 This is the rancid icing on the stale cake. If you are challenging state action on the grounds that your own rights have been infringed, you are not a public interest litigant. You therefore do not need to prove that there exists no other reasonable and effective means by which the issue could be brought before the 100 "rj-jhe ability of other litigants to bring the issue before the court should not be interpreted as an automatic and inflexible bar to the exercise of the court's discretion to grant standing"; ibid, at 717. "" Ibid, at 722-23 (emphasis added). 1H2 Ibid, at 693. 47 court. Under section 24(1) of the Charter, the act of infringement or denial of your rights is all that must be proved to activate your entitlement to remedial relief. If you cannot prove that your rights have been infringed, then you cannot rely upon section 24(1). But this issue is conceptually distinct from public interest standing. And it is on this refrain that I will conclude this section. Hy and Z^el's has so little to do with the development of the public interest standing doctrine, that the only thematic labels I am tempted to apply, when we come to consider the mode of judicial enquiry, are 'incompetent' and 'inept'. For the sake of politeness, I will reserve judgment on what inferences we can draw from this case about the judicial role.103 1 0 3 The central issue for L'Heureux-Dube J. was whether "the rules recently developed by this Court as regards public interest litigants govern those litigants who fall squarely within the rule in Smith"; ibid, at 707. In other words, if the litigants experience 'exceptional prejudice', should they be entitled to standing as of right to litigate the constitutional validity of a law that affects them? Her answer is yes. "I would draw the conclusion that the rules of standing developed in Borowski should not be used to defeat the standing of a litigant who, by virtue of the exceptional prejudice and effect on his private rights, has always been entitled to challenge government actions"; at 716. Although the majority would not consider the extent to which Smith has survived the new discretionary test for public interest standing formulated in the trilogy, the weight of authority appears to accept L'Heureux-Dube J.'s interpretation. In many cases, the survival of Smith has been merely assumed rather than reasoned: see Costco Wholesale Canada v. British Columbia Association of Optometrists (1998), 157 D.L.R. (4lh) 725 at para. 14, 55 B.C.L.R. (2d) 253 (S.C.); Jacobi v. County of Newel No. 4 (1992), 136 A.R. 165 at paras. 7-9 (Q.B.). However, recent authority has not only assumed the issue, but has undertaken a meticulous review of the case law. After such an exercise, Jackson J.A. has found that "standing as of right remains a separate means of gaining access to the courts with a different threshold and rules than public interest-standing"; Great Canadian Superbar v. Liquor and Gaming Licensing Commission of Saskatchewan (1998), 157 D.L.R. (4th) 82 at 96, [1998] 7 W.W.R. 209 (Sask. C.A.) [hereinafter Canadian Superbar cited to D.L.R.]. The rules relating to exceptional prejudice should be considered first, and only if the applicant is not afforded standing under these rules should the court apply the discretionary test laid down in Borowski. This framework was affirmed by Dawson J. in Winik v. Wilson Estate (1999), 181 Sask. R. Ill at paras. 27-30, 28 E.T.R. (2d) 240 (Q.B.) [hereinafter Winik]. Authority also suggests that a corollary of the survival of Smith is the proposition that, if a litigant can show itself to be exceptionally prejudiced by state action, there is no need to go further and prove that there exists no reasonable alternative means of access. "It is evident that, strictly speaking, where litigants satisfy the criteria set out in the general rule for standing [under Smith], it is unnecessary to resort to the test set out in the trilogy"; Hy and Zel's, ibid, at 709. Jackson J.A.'s analysis appears to accord with this interpretation, even though at one point he does appear to concede that the tests laid down in Smith and the trilogy should be merged, so that alternative means of access would be relevant to "whether one claims "exceptional prejudice" in the Smith sense or asserts standing as a public interest litigant"; Canadian Superbar, ibid, at 93. In conclusion, Smith is still valid authority and should be employed as the general rule for standing in those situations where s. 24(1) of the Charter does not apply. The Borowski test is to be applied as a discretionary exception should the applicant be found not to have suffered exceptional prejudice. 48 The Borowski Test Defined Having drawn these two thematic axes and gleaned from the judgments of the Supreme Court of Canada the direction that the standing doctrine appears to be moving on both (towards abstraction as a mode of judicial enquiry and the need to protect the rights of the individual as a rationale for that enquiry), I wish to now turn to the individual elements of the test laid down in Borowski. It has been seen that when public interest standing is sought, consideration must be given to three aspects. First, is there a serious issue raised as to the invalidity of legislation in question? Second, has it been established that the plaintiff is directly affected by the legislation or if not does the plaintiff have a genuine interest in its validity? Third, is there another reasonable and effective way to bring the issue before the court?104 It has been the contention of many commentators that the criteria determining standing have not been sufficiently clarified.105 "[Although certain factors emerge from the judgments, they offer little guidance concerning the interaction of various factors or the respective weight to be attached to them".106 These criticisms have also found expression in lower court decisions. "A reading of the reported cases reveals that attempts to define the various terms which comprise the three-part test have been largely unhelpful".107 Be that as it may, the lower courts have begun to provide guidance as to how the elements of the Borowski test should be applied. Council of Churches, supra n. 73 at 253. 1 ( 1 5 D.J. Mullan & A.J. Roman, "Minister of Justice of Canada v. Borowski: The Extent of the Citizen's Right to Litigate the Lawfulness of Government Action" Case Comment (1984) 4 Windsor Y.B. Access Just. 303 at 332 [hereinafter "The Citizens' Rights to Litigate"]. 106 Commentary on the Law of Standing, supra n. 7 at 88-89. 107 Nolan v. Attorney General of Canada (1998), 14 C.P.C. (4th) 314 at para. 15 (Ont. Gen. Div.) [hereinafter Nolan]. 49 Serious Issue What will constitute a serious issue of invalidity is not easy to ascertain 108 with any precision from the case law. Soon after the Borowski judgment was handed down, Professors Mullan and Roman attempted to comprehend what was meant by the requirement that there be a serious issue. The requirement that there be a "serious issue" is one that is fraught with ambiguity. In one sense, it may mean no more than that the issue must be one involving serious consequences or be of general public importance ... Of more significance, in our view, however, is the extent to which the word "serious" also involves an assessment both of the merits of the plaintiff's case and of the justiciability of the issue raised.109 The ambiguity surrounding this element of the Borowski test appears to have been resolved. Lower courts have tended to address two issues: is the subject-matter of the litigation of general public importance and does the claim have any merit? It seems now to be settled law that the seriousness of the issues raised by a public interest applicant encompasses both the importance of the issues and the likelihood of their being resolved in favour of the applicant. Given the discretionary nature of public interest standing, and its concern to ensure that scarce public resources are not squandered and other litigants are not subjected to further delay, it seems appropriate that the merits of the claim should be taken into consideration. 0 And, as Quinn J. observed, "[a]ny issue that affects such a large number of people [in this instance, Aboriginal peoples that live in urban areas] is probably a serious issue. However, a finding of seriousness carries with it an assumption that the issue to be 0 Corporation of the Canadian Civil Liberties Association v. Attorney General of Canada (1998), 40 O.R. (3d) 489 at 514,161 D.L.R. (4lh) 225 (CA.) [hereinafter C.C.L.A. cited to O.R.]. 1 0 9 "The Citizen's Right to Litigate", supra n. 105 at 312-14. "" Sierra Club of Canada v. Minister of Finance of Canada, [1999] 2 F.C 211 at para. 38, 13 Admin. L.R. (3d) 280 (T.D.) [hereinafter Sierra Club). 50 litigated is capable of success. Thus, the issue must also represent a reasonable cause of action"."1 The test for ascertaining whether the statement of claim discloses a reasonable cause of action was laid down in Hunt v. Carey Canada. [A]ssuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, the plaintiff should not be "driven from the judgment seat". Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case.112 Of course, the distinction between a reasonable cause of action and a successful one may at times be difficult to draw. In C.C.L.A. this was a major point of contention among the judges. Writing for the majority, Charron J.A. argued that while the substantive merits of the application were relevant in determining whether to grant standing, she was not applying the rigorous scrutiny that accompanies the ultimate determination of the merits.113 In dissent, Abella J.A. accused the majority of "[fjocussing too emphatically on the merits at this stage".114 She claimed that Charron J.A. was using standing as a device to keep out unsuccessful claims rather than needless claimants. "A claimant entitled to standing may not ultimately be entitled to succeed on the claim itself, but that, it seems to me, is not a determinative argument against granting standing".115 Nolan, supra n. 107 at para. 15. Further authority for this point may be found in the judgment of Le Dain J. in Finlay v. Minister of Finance of Canada, [1986] 2 S.C.R. 607 at 636, 33 D.L.R. (4lh) 321. "The issues of standing and reasonable cause of action are obviously closely related, and ... tend in a case such as this to merge. Indeed, I question whether there is a true issue of reasonable cause of action distinguishable, as an alternative issue, from that of standing". 112 Hunt v. Carey Canada, [1990] 2 S.C.R. 959 at 980, 74 D.L.R. (4th) 321. 113 C.C.L.A., supra n. 108 at 515: "Of course, the consideration of the merits for the purpose of determining standing is not a determination of the ultimate merits of the case". wlbid. at 521. 115 Ibid, at 522. 51 Genuine Interest What precisely does a "genuine interest" in the validity of the legislation mean? Up to this point, there has been very little guidance from the courts in clarifying the meaning of this term.1 7 [H]ow, as a practical matter, is the genuineness of the plaintiff's interest to be determined? What are the criteria for genuineness? ... Clearly, if there is to be more than a token consideration of the genuineness of the plaintiff's interest, our courts must now be prepared for hotly-contested issues of fact to arise in the consideration of the plaintiff's interest ... The Supreme Court of Canada could hardly have discovered a less • 118 certain criterion for determining standing. The potential difficulty with the application of this test is that it may immunize unconstitutional conduct from judicial review "on the sole ground that the plaintiff's interest does not appear genuine to a panel of judges acting on almost inevitably incomplete and possibly random information".119 It is true that the courts have never elaborated, in a detailed fashion, upon the application of the 'genuine interest' test. However (or possibly because of this dearth of definition), the courts have rarely refused to grant standing for lack of genuine interest. Having said that, there have been hints. Dawson J. commented that "[fjo have a genuine interest it is not sufficient that one has turned one's mind to the law in question and is somewhat concerned that there is a conflict with the Charter or the Constitution. 116 Borowski mentions both those directly affected and those genuinely interested under the second limb of the three-part test. However, I am not sure whether the Borowski test actually applies to any person who could describe herself or himself as directly affected by state acts, at least in the context of the Charter. It obviously does not apply to those whose rights are denied or infringed as these right-holders have automatic access to the courts by virtue of s. 24(1) of the Charter. It also would appear not to apply to those exceptionally prejudiced by state acts who would be entitled to standing as of right by the application of the public nuisance rule in Smith, the vitality of which has been assumed by numerous lower court decisions. In light of this, I will merely refer to the issue of 'genuine interest', an issue that appears to have been the sole preoccupation of the courts when discussing the second limb. 117 Corporation of the Canadian Civil Liberties Association v. Attorney General of Canada (1990), 74 O.R. (2d) 609 at 616, 72 D.L.R. (4th) 742 (H.C.J.). 1 1 8 "The Citizen's Right to Litigate", supra n. 105 at 323-24. 119 Ibid, at 323. This quote comes at the end of a discussion about the legitimate application of a criterion testing an applicant's genuine interest if the foundational tenet of the standing doctrine is the ideal of constitutionalism. "In principle, if the case is justiciable, and the plaintiff meets whatever test the court posits ("directly affected", affected, citizen, taxpayer, etc.) the motives in bringing the case ought to be irrelevant"; ibid. 52 There must be more". Evans J. has .observed that in ascertaining whether the plaintiff has a genuine interest, the courts should look for parties that will effectively present the relevant issues. [0]ne function performed by the "genuine interest" requirement is to help to ensure that those granted public interest standing have an experience and expertise with respect to the underlying subject-matter of the litigation that will inform their written and oral submissions ... [There must be] a degree of involvement with the subject-matter of the application.1 2 1 This raises the question whether the public interest litigant must demonstrate a history of continued and passionate involvement with the issues at stake. In Coalition of Citizens for a Charter Challenge v\ Metropolitan Authority, the plaintiff was incorporated the day before it commenced an action for a declaration that proposals to develop waste incinerators in Nova Scotia, and particularly in the Halifax area, violated the public's sections 7 and 15 Charter rights. 1 2 2 The Authority submitted that should the court allow the litigation to proceed, it would be tantamount to allowing "any group to use this device to start an action". 1 2 3 However, Glube C.J.N.S. observed that the members of the Coalition were individuals and organizations that had been regularly involved in discussing the environmental concerns relating to incineration. "To force an individual in these circumstances to commence the action instead of a corporation on the basis that the latter has no history of participation or concern as a corporation would be wrong". 1 2 4 Winik, supra n. 103 at para. 33. 121 Sierra Club, supra n. 110 at paras. 52 & 55. 122 Coalition of Citizens for a Charter Challenge v. Metropolitan Authority (1993), 122 N.S.R. (2d) 1, 103 D.L.R. (4lh) 409 (S.C. (T.D.)) [hereinafter cited to D.L.R.]; rev'd on other grounds (1993) 125 N.S.R. (2d) 241, 108 D.L.R. (4th) 145 (S.C. (A.D.)). 123 Ibid. (S.C. (T.D.)) at 432. 124 Ibid, at 433. Authority for the contrary position - that the history of the organization qua organization is an important indication of genuine interest - can be found in Inshore Fishermen's Bonafide Defense Fund Association v. Attorney General of Canada (1994), 130 N.S.R. (2d) 121, 24 C.P.C. (3d) 108 (S.C. (T.D.)) [hereinafter Inshore Fishermen (T.D.)]; aff d (1994) 132 N.S.R. (2d) 370, 117 D.L.R. (4lh) 56 (S.C. (A.D.)) [hereinafter Inshore Fishermen (A.D.) cited to D.L.R]. Here, the organization was incorporated the same month it brought an action for remedial relief for alleged discrimination in the 53 Reasonable and Effective Alternative Means of Access At best, the court's assessment of whether persons directly affected are likely to challenge will be no more than a perhaps experienced hunch about the possibilities of litigation on a particular issue by persons not before the court. This is so since hard factual evidence which might permit a rational assessment of probability is impossible to obtain ... Moreover, even if the evidence were available, there remains the question of how much of a chance is [a] good enough chance and how this issue should be related to other variable factors such as the seriousness of the issue and the plaintiff's own demonstrated interest in 125 and length of association with the issue. In the lower courts, there has been a slight transition in the manner in which these questions have been answered. While reading these cases, I have formed the impression that in determining whether there existed any other reasonable and effective means by which the issue could be brought before the courts, earlier cases undertook a fact-specific enquiry. Sometimes they found that this alternative means of access existed; other times they did not. However, in later cases there seems to be a disinclination to engage in such an enquiry. In these cases, the directly affected individual is invoked with little elaboration as to who he is or why he has been summoned in the particular circumstances.126 In Friends of the Island v. Minister of Public Works, Reed J. believed that the appropriate way courts should engage with this element of the Borowski test was in a fact-specific fashion. " A party should not be denied standing merely because theoretically there are other ways of getting the issue before the court. The possibility allocation of catch and licences. Nunn J. was willing to concede that the organization representing inshore fishermen had an interest in the issues at stake. "I am not prepared [however] to accept that it has the degree of genuine interest to meet the second test. It is a new organization, just getting off its feet, and represents only a small minority of the total number of inshore fishermen"; Inshore Fishermen (T.D.), ibid, at para. 31. The issue of genuine interest was not dealt with on appeal. 1 2 5 "The Citizen's Right to Litigate", supra n. 105 at 329-30. 1 2 6 There is obviously no time-line that divides these two forms of judicial enquiry. However, I have attempted to distinguish those cases that have dealt with this issue into fact-specific modes or abstract-invocation modes of enquiry. When the mean average of the year judgment was given is calculated, the fact-specific cases were decided around the year 1993, whereas the mean of abstract-invocation cases falls in 1996. 54 of such actions being taken has to carry a reasonable degree of probability before standing should be refused on that basis".127 Likewise Dawson J. held that "[t]he nature of the citizen's interest, the nature of the issues to be examined, the availability of evidence, and the resources available to adequately deal with the issue" must all be considered in determining whether an alternative means of access exist.128 With these admonishments in mind, let us consider some of the array of cases that have dealt with the application of this limb of the Borowski test. In doing so, I will group the cases in four sets of categories (although this is by no means an exclusive categorization of the jurisprudence). A - Directly affected individual likely/unlikely to challenge state action: In St. Paul Public School, the plaintiffs challenged the way in which public funding for schools was calculated by the Province of Alberta, on the ground that the method of calculation violated the section 15(1) rights of students to equal educational opportunity because the amount of funding differed from geographical district to geographical district.129 The plaintiffs were 29 Boards of Trustees and therefore were entities incapable of holding section 15(1) rights. The Province argued that students and taxpayers were capable of raising the challenge to the fiscal policies themselves, and so there existed reasonable and alternative means of access. McMahon J. held that such an assertion, by itself, could not foreclose the granting of public interest standing. The proper question is whether the commencement of a single action -or thousands of actions by students and taxpayers - raising this constitutional challenge to a funding scheme to which they are mere intended beneficiaries and not parties; about which they would know 127 Friends of the Island v. Minister of Public Works, [1993] 2 F.C. 229 at 284, 102 D.L.R. (4lh) 696 (T.D.). 128 Winik, supra n. 103 at para. 38. m St. Paul Public School, supra n. 51. It was argued that this constituted a violation of an extended version of the right to equality under s. 15(1) because the educational opportunities open to a student were based on the fortuity of geographical district in which the student happened to reside. 55 little; and which they neither administer nor operate within, [would] be 130 a reasonable and effective manner to bring the issue forward. After engaging with these fact-specific enquiries, the judge concluded that this alternative means of access would be an unlikely occurrence. An unwillingness to engage in such a detailed analysis can be observed in Lexogest v. Attorney General of Manitoba}31 This was a challenge testing the validity of section 26 of Regulation 506132 promulgated under the Health Services Insurance Actm which provided that therapeutic abortions were not insured services unless performed by medical practitioners in hospitals. The plaintiffs operated a freestanding abortion clinic. In declining to grant the plaintiffs public interest standing, Scott C.J.M. simply stated that there was another more effective way to bring the issue before the court, "namely, to have the constitutional validity of the regulation determined on the initiative of the patients directly affected by it".134 The difficulty with this assumption (as to the likelihood that women seeking abortions will challenge state policies that infringe upon their ability to choose such services freely) is that most other courts that have dealt with legal issues surrounding abortion have rejected it. In a case with similar facts brought before the Supreme Court of Prince Edward Island, Jenkins J. expressly rejected the unthinking application of the directly affected individual in cases where the subject-matter was abortion. " [I]n all the circumstances of pregnancy and a decision regarding abortion, it is unreasonable to expect a woman to pursue Government's policy [as there were no hospitals in Prince Edward Island (P.E.I.) which performed abortions, the. government did not pay for any abortions performed in P.E.I. A factually-specific enquiry leads us to the 13H Ibid, at para. 48. mLexogest v. Attorney General of Manitoba (1993), 101 D.L.R. (4th) 523, 85 Man. R. (2d) 8 [hereinafter Lexogest cited to D.L.R.]. 132 Health Services Insurance Act Regulations, Man. Reg. 506/88R. 1 3 3 R.S.M. 1987, c. H35. 134 Lexogest, supra n. 131 at 544. 135 Morgentaler v. Minister of Health and Social Services (1994), 117 Nfld. & P.E.I.R. 181,112 D.L.R. (4,h) 756 (S.C. (T.D.)) [hereinafter cited to D.L.R.]. 56 conclusion that the government thus wanted to restrict the availability of abortions] and then carry out a court challenge within the very short time within which this all could be done. The Supreme Court of Canada expressed this viewpoint in R. y.-Morgentaler (1988), 44 D.L.R. (4th) 385, 37 C.C.C. (3d) 449, 1 S.C.R. 30. Further, the mere fact of pregnancy, let alone an unwanted pregnancy, inherently and unavoidably gives rise to stress and anguish, and that pregnancy termination is a decision of an intimate and private nature: R. v. Morgentaler (1988), at pp. 472-3 and 491.136 This enquiry is much more sensitive to the specific circumstances of the case and the consequences of its subject-matter. Perhaps the most blatant unquestioning application of the universal, but abstract, directly affected individual can be found in Algoma Action Committee v. Minister of Natural Resources.,137 In this case the plaintiff was a corporation that opposed a land claims settlement between the Mississaugi First Nation and the governments of Canada and Ontario. The settlement involved setting aside 40,000 acres of land in Ontario as reserve lands. The corporation argued that this contravened the public's section 7 rights. In declining to grant public interest standing, Stortini J. stated that "[t]here is a reasonable and effective manner in which the issue may be brought before the court. If any person is directly affected by the settlement agreement in issue, he or she may bring a personal action". This judgment proposes that alternative means of access should be determined by hypotheticals unthinkingly applied. This exists in obvious tension with those cases that posit that a factually-specific test should be used in determining whether there is a reasonable degree of probability that the directly affected individual can carry the issue forward. Ibid, at 763. [1995] O.J. No. 751 (Gen. Div.), online: QL (OJ). Ibid, at para. 17 (emphasis added). 57 B - Directly affected individual likely/unlikely to provide appropriate factual matrix: Sometimes there may be a reasonable likelihood that a directly affected individual will be able to challenge state action, but in the particular circumstances the public interest litigant may be best placed to provide the court with the appropriate factual matrix to enable it to carry out its proper adjudicative function. In Energy Probe v. Attorney General of Canada,139 several individuals and a well-known, non-profit organization, which actively participated in the development of energy programmes in Canada, brought an application for a declaration that numerous sections of the Nuclear Liability Act140 were unconstitutional as they allegedly violated the public's rights guaranteed under sections 7 and 15 of the Charter. The Act limits the liability of the operator of a nuclear facility to a maximum of $75 million for all claims arising out of a particular nuclear accident. Although there was an alternative means by which the issue could be brought before the court (future individual claimants who suffer harm caused by a nuclear incident and who cannot claim restitution because of the limiting provisions of the Act), that alternative would be no more reasonable or effective than granting standing to the public interest corporation. Carthy J.A. commented that if the corporation was not granted standing, "it would be a disservice to the purpose of the exception in effectively bringing significant issues before the court, by depriving one side of the litigation of the expertise and resources needed to assure effective presentation".141 [The corporation has] undoubted knowledge and expertise on the subject and both sides have the apparent resources to assure that every available factual and arguable point is put on the table. I cannot imagine ... that a future victim could in any circumstance bring facts or 139 Energy Probe v. Attorney General of Canada (1989), 68 O.R. (2d) 449, 58 D.L.R. (4,h) 513 (C.A.) [hereinafter Energy Probe cited to O.R.]. 1 4 0 R.S.C. 1985, c.N-28. 141 Energy Probe, supra n. 139 at 467. 58 arguments forward which would be more specific or germane to the issues than can these applicants.1 4 2 This approach was followed in Federated Anti-Poverty Groups of British Columbia v. Attorney General of British Columbia.14,3 This action sought to challenge the constitutional validity of Part 2 of the Guaranteed Available Income For Need Act,144 which vests in the Crown the rights of an individual to claim maintenance on their own behalf or for dependent children. The Federated Anti-Poverty Group is a collection of entities that gives advice to persons on welfare. In granting the Group public interest standing, Parrett J. emphasized the ability of the organization to provide the court with an effective factual matrix for its decision. In matters involving constitutional litigation it is necessary for the Court to obtain a full and complete presentation of the issues before it. A declaration by the Court with respect to the legislation has the possibility of impacting a large class of individuals who are subject to the legislation. Further, because of the particular concerns which F.A.P.G. [Federated Anti-Poverty Groups] has or represents, it is in an especially advantageous and perhaps unique position to illuminate some aspect or facet of the case which ought to be considered by the Court in reaching its decision but which, but for the intervention by the F.A.P.G., might not receive any attention or prominence given the somewhat narrow interests of the immediate parties to the dispute.1 4 5 C - Directly affected individual likely/unlikely to advance the same issues:146 In the determination of whether there exists another reasonable and effective manner by Ibid, at 468. Carthy J.A. concluded his analysis of standing as follows. "As has been observed before, the courts should be vigilant to assure that curious bystanders and busybodies do not take up its precious time with hypothetical questions. This it can do by critical analysis applied at an early stage, as in this instance. When I see serious individuals, such as the appellants in this case, presenting concerns that are of fundamental significance to all citizens, I have no hesitation in concluding that this is not an abuse of the public interest exception, but rather tends to serve it very well"; at 469. 143 Federated Anti-Poverty Groups of British Columbia v. Attorney General of British Columbia (1991), 70 B.C.L.R. (2d) 325 (S.C.) [hereinafter Federated Anti-Poverty Groups]. 1 4 4 R.S.B.C. 1979, c. 158. 145 Federated Anti-Poverty Groups, supra n. 143 at para. 75. The issue of constitutional litigation impacting upon a large number of people and what that means for the development of the public interest standing doctrine is an important topic that will be explored in more detail in chapter five of this paper. 1 4 6 This topic is of particular importance in constructing a contextual enquiry to public interest standing. Indeed, the question of whether the directly affected individual is likely to address the same issue as the public litigant is a critical consideration in our understanding of equality; see c. 5. 59 which the issue can be brought before the court, a fact-specific analysis demands that we should be sensitive as to what the issue actually is. An example of a case where the court was sensitive to the issues likely to be advocated by specific individuals can be found in Grant v. Attorney General of Canada.141 In this case, the plaintiffs, ex-Royal Canadian Mounted Police (R.C.M.P.) officers and members of the R.C.M.P. Veterans Association in Lethbridge, Alberta, brought an action to prohibit the Commissioner of the R.C.M.P. from allowing the wearing of religious symbols, such as turbans, on the basis that the wearing of such symbols would infringe the rights of the general public guaranteed under sections 2(a), 7 and 15 of the Charter. They argued that if R.C.M.P. officers were allowed to wear religious symbols, there would exist the ever-present threat of bias and the public would worry that police officers, when carrying out their duties, would be harder on those who are not members of the group to which the officer belongs, or easier on those who are members of the same religious group. The Attorney General argued that an existing member of the R.C.M.P. could bring such litigation, or that an aggrieved member of the public could take a complaint to the R.C.M.P. Public Complaints Commission. Reed J. rejected these submissions. It is most unlikely that a serving member of the R C M P would commence an action [because of] the potential repercussion for their careers which could arise as a result of challenging the Commissioner's decision. While members of the public can pursue a complaint before the Public Complaints Commission, if an officer acts in a biased or improper manner, the issue that the plaintiffs are raising is not of that nature. They are not alleging that any actual bias or improper action has occurred. They are alleging that a reasonable apprehension of bias wil l exist ... The plaintiffs' position is not directed to the personal integrity or professionalism of the existing officers; it is of a more abstract or general nature. They assert that once a religious symbol is allowed as part of the uniform, the appearance of impartiality is undermined.1 4 8 1 4 7 [1995] 1 F.C. 158, 81 F.T.R. 195 (T.D.) [hereinafter Grant (T.D.) cited to F.C.]. This decision was affirmed in the Federal Court of Appeal; (1995) 125 D.L.R. (4lh) 556, 184 N.R. 346. However, the issue of standing was not discussed. 148 Grant (T.D.), ibid, at 197-98. 60 This case can be contrasted with Northwest Territories Teachers' Association v. Commissioner of the Northwest Territories}49 In this case a teachers' association challenged amendments made to the Public Service Act150 that required disagreements arising during negotiations of new collective agreements to be referred to binding arbitration and, further, gave the Minister the right to change the terms of employment where there was no longer a collective agreement in effect. The association argued that the amendments infringed section 1(a) of the Canadian Bill of Rights. Richard J. declined to grant public interest standing. "[I]t is the teacher (or other individual public service employee) whose property interests are allegedly being deprived without due process, and there is nothing to prevent the individual employee or employees from asserting a legal challenge in the courts".151 However, the interests of the individual teacher are likely to be different from that of the association. Firstly, teachers are more likely to be concerned with the application and interpretation of the terms of the collective agreement than the (quasi-)constitutional validity of the intervening power of either an arbitrator or Minister. Secondly, the teachers and the association will be affected in distinct ways by the amendments, rendering the exercise of ranking their interests in a hierarchical fashion (so that the property interests of the individual teacher automatically denies standing to the association) problematic. The terms of employment of the teachers are regulated by the collective agreement and their interests are affected by the possibility of intervention to that extent. But the potential for intervention by an arbitrator or Minister weakens the status of the association as the collective bargaining agent for its members. Using the language of McNeil, one could say that the amendments strike at the association in one of its central aspects - securing 149 Northwest Territories Teachers' Association v. Commissioner of the Northwest Territories, [1997] N.W.T.R. 348, (1997) 153 D.L.R. (4lh) 80 [hereinafter Teachers' Association]. 1 5 0 R.S.N.W.T. 1988, c.P-16. 151 Teachers' Association, supra n. 149 at para. 32. 61 equitable terms of employment for its members through the collective bargaining process. D - Public interest litigant represents those directly affected: There is one judgment of the Supreme Court of Canada that I have not yet reviewed. In Conseil du Patronat du Quebec v. Attorney General of Quebec,152 the Conseil du Patronat brought an action challenging the provisions of the Labour Code,153 which prohibited the hiring of replacement workers during strike action, on the grounds that it violated certain rights under the Charter. The Conseil du Patronat is a non-profit organization formed to protect the economic, social and professional interests of 131 Quebec employers' federations and associations, and employed 15 non-unionized staff. The Attorney General argued that the Conseil should not be granted public interest standing as there existed other reasonable and effective means of bringing the issue before the court, namely an action by an employer with unionized employees (who would be bound by the Labour Code), or an association of employers within the meaning of section 1(c) of the Labour Code. The Supreme Court of Canada in a short oral judgment dismissed these submissions holding that "[w]e are all of the view that this appeal should be allowed, essentially for the reasons given by Chouinard J.A. of the Quebec Court of Appeal".154 The difficulty with this short judgment is that it is not at all clear upon what basis Chouinard J.A. granted the Conseil public interest standing.155 At one point in his judgment, Chouinard J.A. makes the following observation. "Since the Conseil du Patronat speaks for its members, surely it has just as much interest as each of its 1 5 2 [1991] 3 S.C.R. 685, (1992) 87 D.L.R. (4th) 287 [hereinafter Conseil du Patronat (S.C.C.) cited to S.C.R.]. ., 1 5 3 R.S.Q. 1977, c.C-27. ' ' 154 Conseil du Patronat (S.C.C), supra n. 152 at 685. 155 Conseil du Patronat du Quebec v. Attorney General of Quebec, [1988] R.J.Q. 1516, 55 D.L.R. (4lh) 523 (CA.) [hereinafter Conseil du Patronat (CA.) cited to D.L.R.]. 62 members does". Professor Bowal contends that the decision rests upon the notion of representation. Representative bodies (like the Conseil du Patronat) are usually under a legislative or contractual responsibility to represent their members. "That they are assigned or delegated the task of bringing and sustaining the action on behalf of the members is an answer to whether there is another reasonable and effective manner of doing it".157 Therefore, if an organization can prove that it has a mandate to represent the individual parties that are affected by state acts, it should be granted standing regardless of whether the affected individuals could challenge the legislation themselves. This interpretation was apparently accepted by the British Columbia Supreme 158 ' t 'i Court in Canadian Bar Association v. Attorney General of British Columbia. The Canadian Bar Association (C.B.A.) and the Law Society of British Columbia brought an application for a declaration that provisions of the British Columbia Social Services Tax Amendment Act,159 that purported to extend tax to the purchase of legal services if the purchaser resided or carried on business in the province, were invalid on the basis that they violated section 7 of the Charter. At issue was whether an alternative means of testing the validity of the Act existed. Although individual barristers and solicitors would be directly affected by the enforcement of the Act's provisions, Lysyk J . held that the action brought by the C.B.A. and the Law Society constituted an effective manner of presenting the relevant issues. Here, the Bar Association and the Law Society claim as members all barristers and solicitors engaged in the private practice of law in British Columbia, each of whom is or can expect to be directly affected by the impugned legislation ... 156 Ibid, at 528. 1 5 7 "Speaking up for Others", supra n. 5 at 923. 158 Canadian Bar Association v. Attorney General of British Columbia (1993), 101 D.L.R. (4th) 410, 14 C.R.R. (2d) 115 (B.C. S.C. (T.D.)) [hereinafter Canadian Bar Association cited to D.L.R.]. 1 5 9 S.B.C. 1992, c. 22. 63 There is room for debate concerning the scope of the principle upon which the Conseil du Patronat decision rests. However, to the extent that the Conseil drew upon the interest of its members, the claims to standing of the Bar Association and the Law Society in the present proceeding would seem to be at least as compelling. The Conseil represents many but not all employers in Quebec. The Bar Association and the Law Society represent all practising lawyers in British Columbia. I conclude that the Conseil du Patronat decision is not distinguishable in principle and that it governs the present proceeding. Accordingly, the petitioners will be accorded standing in this constitutional challenge.160 However, there are a number of difficulties with this interpretation of the Conseil du Patronat decision. The first difficulty is that the mere assertion that a body acts as a representative of those directly affected offers no clues as to how such representative status is to be proved, or the degree of representativeness an organization has to be endowed with.before it can challenge the constitutional validity of state acts on behalf of its directly affected individual members. There are varying claims to representative status, ranging from moral claims, through fiduciary claims, to contractual or legislative claims. And the manner in which we rank these forms of representation is likely to be specific to particular factual scenarios. It will not always be the case, for instance, that a legislative mandate to represent other individuals will be the most attractive form of representation. Another entity claiming some other form of representative status (for instance, a moral claim) may care more about the issues at stake, ultimately leading to a more satisfying resolution of the dispute. Indeed, it is not at all clear which of these forms of representative status was claimed by the Conseil du Patronat. Moisan J.A. commented that "nowhere did [the Conseil du Patronat] claim to have, by virtue of a legislative provision or otherwise, a mandate to represent or to negotiate for or on behalf of its federations, businesses and employers".161 160 Canadian Bar Association, supra n. 158 at 419. 161 Conseil du Patronat (C.A.), supra n. 155 at 533. 64 Later authority appears to have taken a more stringent approach to the question of representation. In Inshore Fishermen^ an organization was specifically formed to represent the interests of its members in relation to the regulatory initiatives promulgated by the Fisheries Minister that were in issue in the case. Its representative status would, to my mind, be no worse than the status of the Conseil du Patronat and yet there is no mention of such status, or its importance in determining whether to grant standing.162 Indeed, the Nova Scotia Supreme Court held that the actions for declarations brought by the organization could reasonably and effectively be brought by the individual inshore fishermen themselves.163 Likewise, assuming that the representative status of the Canadian Bar Association and the Law Society of British Columbia comes from a mixture of contract and state compulsion,164 how can we account for the decision in Teachers' Association where the employees' association was denied public interest standing,165 even though that organization had a representative mandate that blended statutory authority (which grants the union the exclusive rights to engage in collective bargaining with the employer) with the authority derived from the contractual nexus that existed among the employees and was made explicit in the union's constitution? The further difficulty with the ruling in Conseil du Patronat is the lack of any real impact it has made upon public interest standing jurisprudence. This is surprising considering the ramifications it could have for organizations claiming some form of representative status over directly affected individuals. It has only been followed the once - in Canadian Bar Association. Interestingly, no reference was made of the ruling in Council of Churches, even though the latter decision was handed down less than two Inshore Fishermen (A.D.), supra n. 124. Ibid, at 65-66. Legal Profession Act, S.B.C. 1998, c. 9. Teachers' Association, supra n. 149. 65 months after Conseil du Patronat. Professor Bowal contends that there is a conceptual distinction at play in these two cases that accounts for the fact that the Conseil was granted standing, while the Council was not. "[T]he Council was primarily established to represent the interests of churches, not refugees ... The distinction between an organization whose purpose includes serving directly-affected parties and one whose membership is also comprised of them may now be decisive to the issue of public law standing".166 Unfortunately, as we have seen, this does not account for the refusal to grant standing to the Inshore Fishermen's Bonafide Defense Fund Association nor the Northwest Territories Teachers' Association. Although Conseil du Patronat is Supreme Court of Canada authority, it appears to have fallen either into abeyance, disrepute or deep space. Burden of Proof The case law is not clear on this question either. In Council of Churches, Cory J. appears slightly equivocal on this point. The first time he notes the elements of the Borowski test, he observes that these are "conditions which a plaintiff must satisfy in order to be granted standing".167 In other words, the burden of proving that the conditions are met rests squarely on the applicant. Later, he holds that the granting of public interest standing is not required when "on a balance of probabilities, it can be shown that the measure will be subject to attack by a private litigant".168 This would appear to place the burden upon the defendant. Evans J. posed an interesting resolution to this issue in Sierra Club. In ordinary cases, a plaintiff or applicant has the burden of proving every aspect of her claim contested by the defendant. Likewise with standing. "[T]he applicant must satisfy the 1 6 6 "Speaking up for Others", supra n. 5 at 926 (emphasis in original). 167 Council of Churches, supra n. 73 at 250. mIbid. at 252. 66 Court on the balance of probabilities that there are no more appropriate persons who are reasonably likely to litigate the issue in dispute".169 Evans J. noted that this does have the unfortunate consequence of assigning to the applicant the difficult task of proving a negative.170 However, public interest standing is often determined in a motion to strike out the applicant's statement of claim without the proceedings moving to full trial. In motions to strike, "the moving party must prove that on the balance of probabilities the applicant has no fairly arguable case".171 Therefore, the moving parties must establish on the balance of probabilities that there are other reasonable and effective ways in 172 which the subject-matter of the application for judicial review may be litigated. In ordinary proceedings, the burden of proof rests on the applicant throughout. In motions to strike, the burden of proof rests on the defendant throughout. Conclusion Let us summarize some of the trends we have observed in this chapter, starting with the spectrum that spans the extremes of private dispute-resolution and the enforcement of public values, such as constitutionalism. The liberalization of the public standing doctrine undertaken by Laskin C.J.C. in Thorson and McNeil was explicitly grounded upon the 'right of the citizenry to constitutional behaviour'. However, in discussing Borowski, we noted that it was possible that two trends could emerge that would tend to pull in competing directions across the subjectif-objectif spectrum. The 169 Sierra Club, supra n. 110 at para. 85. 170 Ibid, at para. 84. 171 Ibid, at para. 86. 1 1 7 2 This distinction between a defendant's response to a plaintiffs application and the defendant initiating a motion to strike has not always been followed. In Nolan, where the proceedings had been initiated by a motion to strike, Quinn J. commented simply: "[o]f course, the applicants have the burden of satisfying the three-part test. They must do so on a balance of probabilities"; Nolan, supra n. 107 at para. 15. 67 majority extended the 'publicization' of the judicial role under the Constitution, while Laskin C.J.C. provided a different justification (or re-invented an old justification) for standing, one that emphasized the traditional importance of resolving disputes between persons directly affected. This traditional conception of the judicial role was the trend adopted a decade later under the Charter in Council of Churches. The 'individual's right' rather than the 'right of the citizenry' has once again become the dominant ideology in the conception of the judicial role. The other spectrum related to the modes of judicial reasoning in applying the principles of the standing doctrine. At one extreme is the mode of abstraction that tends to emphasize universally applicable norms whatever the factual circumstances at issue. At the other extreme is the mode of fact-specific reasoning, in which principle and fact are so intertwined that the development of doctrine and the manner in which it is applied in specific cases cannot be divorced. It is difficult to plot the judgments along this spectrum in a way that will render visible specific trends or patterns. However, an impressionistic observation tends to suggest that at all judicial levels there has been an increasing tendency to reason abstractly and an increasing disinclination to marry principle with fact. In doing so, judges have overlooked the real lessons that the standing trilogy had to teach. It is not the wording of the Borowski test that constitutes the true legacy of these cases. Rather, their importance is to be found in the willingness of the judges to engage in a thorough factual enquiry. What is most interesting is how these two spectra interrelate. In re-privatizing the judicial role, the Supreme Court of Canada invoked the private litigant - the individual whose rights and freedoms are directly affected by state action. In transforming the mode of judicial reasoning in public interest standing, the courts have become enamoured with the directly affected individual, applying him in an 68 increasingly abstract, factually-divorced manner. This thematic union suggests that the abstractly defined, directly affected individual is the key to our critical analysis. The courts have begun to unthinkingly recite and apply the abstract wording of the Borowski test, rather than the contextual reasoning of the Borowski judgment. I am worried by this emerging trend. As many commentators have observed, when our context is inequality, we may have to reconsider what we, at first, mistake as universal truths. In the next chapter, I will briefly illustrate how such universal truths have obscured our understanding of social inequality, and how the Supreme Court of Canada has begun to pierce the veil of abstraction in interpreting section 15(1) of the Charter. It is ironic that the Supreme Court has injected context into the task of defining equality under the Charter, but has relied on abstraction when defining equal access to the Charter. It is my belief that the purposive principles of constitutional equality shaped when defining substantive rights apply to the determination of standing to initiate litigation for the enforcement of those rights. Once I have elaborated upon the Supreme Court's interpretation of section 15(1), I will break away from the increasingly unhelpful categorical approach to standing and contextually examine the functions that underlie the restrictions on public interest standing. 69 Chapter Two The Social Inequality of the Abstract Individual In both its form and its method, then, the law promotes an image of itself as fair, dispassionate, disinterested, and - above all - just. In doing this, however, law presumes the existence of a particular kind of individual and a particular form of society. The subject of law is a universal, abstract person.1 Introduction Increasingly, the law of public interest standing has conceived us to be abstract individuals. The directly affected individual, no matter who he is or who other people believe him to be, is the guardian of the public interest, in that it is with recourse to his activities that we determine whether access should be granted to third parties (which, with a certain irony, we label 'public interest' litigants). As we have seen, this has had important implications for the conception of the judicial role. But it also has equally important implications for our understanding of our legal selves. Some judges and nearly all commentators have assumed that directly affected individuals come in one shape and size, that what it means to be directly affected is the same for all abstract persons. Therefore, they have assumed that their doctrines or their reforms apply, in the same fashion, to all. What this perspective fails to recognize is that such identical treatment is only valid if everyone is already the same. This identical treatment "abstracts individuals out of their concrete social relations of inequality and portrays them as formal equals". 1 E. Comack, "Theoretical Excursions" in E. Comack, ed., Locating Law: Race / Class / Gender Connections (Halifax: Fernwood, 1999) 19 at 23 (emphasis in original). 2 J. Bakan, "Constitutional Interpretation and Social Change: You Can't Always Get What You Want (Nor What You Need)" (1991) 70 Can. Bar Rev. 307 at 315. 70 Law has blinded justice to the reality that in society some people have power and others do not, and that the division of social power tends to correlate with certain personal characteristics. Further, those that have power tend to deflect further power towards themselves and away from the already powerless. The social reality is that we are living "in relations of radical inequality".3 These social power imbalances invert the ideal of identical treatment. By failing to acknowledge the social realities obscured by the medium of the abstract individual, identical treatment can accentuate inequality.4 In the context of the social disparities that define the lives of men and women, Professor Reaume makes the following observation. [M]en and women are exposed to different concrete social conditions and pressures, and consequently they have different life experiences ... In the face of these differences, male legislators and judges, by assuming a uniformity (according to male experience) that does not exist, create rules that disadvantage women by failing to take adequate account of women's different needs, interests and social experience. Meaningful reform, within this view, requires attention to the concrete circumstances of women's lives - our physical realities and the social conditions imposed upon us.5 It is my belief that the rules and suggested reforms of public interest standing, although apparently neutral (in that they are extended to all persons), assume a means of access that favours advantaged persons. To remedy this, it is my argument that we need to move beyond the abstractly defined individual and into the contextual reality of social groups. This understanding of equality has been integral to reforms proposed by writers commenting upon substantive constitutional law, but so far, it has been invisible in the standing literature. I therefore feel it important that time be taken to explore some general propositions about inequality as seen through the lens of social power. To this 3 Ibid, at 309. 4 This led Mclntyre J. in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 164, 56 D.L.R. (4lh) 1 [hereinafter Andrews cited to S.C.R.], to observe: "[i]t must be recognized at once, however, that every difference in treatment between individuals under the law will not necessarily result in inequality and, as well, that identical treatment may frequently produce serious inequality". 5 D.G. Reaume, "What's Distinctive about Feminist Analysis of Law? A Conceptual Analysis of Women's Exclusion from Law" (1996) 2 Legal Theory 265 at 279-80. 71 end, it is interesting to examine the Supreme Court of Canada's purposive interpretation of section 15(1) of the Canadian Charter of Rights and Freedoms.6 I believe that the contextual approach taken by the Supreme Court in defining equality under the Charter, should also inform our definition of equal access to the rights guaranteed under the Charter. Identical Treatment and Social-Power-as-Inequality As Mclntyre J. observed in Andrews: "[a]s embodied in s. 15(1) of the Charter, [equality] is an elusive concept and, more than any of the other rights and freedoms guaranteed in the Charter, it lacks precise definition".7 Nevertheless, the Supreme Court of Canada has attempted to pin down the concept of equality. For example, in Eaton v. Brent County Board of Education, Sopinka J. provided the following formulation. In Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at p. 169, Mclntyre J. stated that the "accommodation of differences ... is the essence of true equality". This emphasizes that the purpose of s. 15(1) of the Charter is not only to prevent discrimination by the attribution of stereotypical characteristics to individuals, but also to ameliorate the position of groups within Canadian society who have suffered disadvantage by exclusion from mainstream society as has been the case with disabled persons.8 In Eldridge v. Attorney General of British Columbia, La Forest J. also stressed the interdependence of the individual and the group in defining the purpose of the equality guarantee. In the case of s. 15(1), this Court has stressed that it serves two distinct but related purposes. First, it expresses a commitment - deeply 6 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter the Charter]. 7 Andrews, supra n. 4 at 164. 8 [1997] 1 S.C.R. 241 at para. 66, 31 O.R. (3d) 574 [hereinafter Eaton]. 72 ingrained in our social, political and legal culture - to the equal worth and human dignity of all persons. As Mclntyre J. remarked in Andrews, at p. 171, s. 15(1) "entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration".9 Secondly, it instantiates a desire to "rectify and prevent discrimination against particular groups "suffering social, political and legal disadvantage in our society"." 1 0 Commenting upon the various formulations and elaborations of the purpose of the section 15(1) equality guarantee, Iacobucci J. made the following observation. It may be said that the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.11 From this definition, we sense immediately that the recognition and implementation of equality is a fundamental democratic value. 1 2 It is a value that informs and pervades the very essence of Canadian society and what it means to be Canadian. This Canadian identity is harmed when "individuals and groups are marginalized, ignored or devalued, and is enhanced when laws recognize the place of all individuals and groups within Canadian society". 1 3 Let me begin with the following. The premise of our moral discourse, the evaluative standard of our moral inquiries, is the individual. The individual is "the ultimate locus of moral value in society. This means that we measure the worth of political action by reference to its impact on individual human beings and in light of 9 [1997] 3 S.C.R. 624 at para. 54, 151 D.L.R. (4lh) 577 [hereinafter Eldridge]. 10 Ibid, quoting from R v. Turpin [1989] 1 S.C.R. 1296 at 1333. " Law v. Minister of Employment and Immigration of Canada, [1999] 1 S.C.R. 497 at para. 51, 170 D.L.R. (4lh) 1 [hereinafter Law]. 1 2 Indeed, as Dickson J. famously asserted: "[a] free society is one which aims at equality with respect to the enjoyment of fundamental freedoms and I say this without any reliance upon s. 15 of the Charter. Freedom must surely be founded in respect for the inherent dignity and the inviolable rights of the human person"; R. v. Drug Mart [1985] 1 S.C.R. 295 at 336, 60 A.R. 1. 13 Law, supra n. 11 at para. 51. 73 what they take to be determinative of their well-being". However, there is nothing in this statement that disregards the constitutive demands and empowerments of social context, or, to put it another way, that disregards the fact that society has been constructed, and is maintained, along divisions of power. We can glimpse a sense of this from the definitions of equality provided by the Supreme Court of Canada. The situating of the moral locus of equality in the individual does not appear to exclude the comprehension that that individuality can only be made real by referring to individuals in their social, cultural and historical contexts. Indeed, Iacobucci J. recognized there was a need to forgo analysis founded upon abstract individualism in the context of equality. "Equality analysis under the Charter must be purposive and contextual".1 5 From the first decision on the interpretation of section 15(1), the Supreme Court of Canada has been aware that a contextual analysis must take into consideration the social reality that certain groups have been "lacking in political power and as such vulnerable to having their interests overlooked and their rights to equal concern and respect violated". 1 6 As Wilson J. remarked in Andrews, the determination of the issue of equality must be made not only "in the context of the law which is subject to challenge but rather in the context of the place of the group in the entire social, political and legal fabric of our society". 1 7 What is so important about social context in understanding the effects of inequality? Surely treating everyone the same will ultimately lead to equality? The problem with the concept of identical-treatment-as-equality is that it perpetuates the myth that all are equally capable of realizing their autonomy, that every person is as capable as the next to direct their life in accordance with their wishes, and, therefore, 1 4 D.G. Reaume, "The Social Construction of Women and the Possibility of Change: Unmodified Feminism Revisited", Book Review of Toward a Feminist Theory of the State by C.A. MacKinnon (1992) 5 C.J.W.L. 463 at 468 [hereinafter "The Social Construction of Women"]. 15 Law, supra n. 11 at para. 6. 16 Andrews, supra n. 4 at 152. 17 Ibid. 14 that existing social power relations are the product of choice and consent. Such a conclusion cannot be sustained. A model of identical-treatment-as-equality "assumes an ideal world where discrimination consists of isolated deviations from the norm rather than dealing with the real world whose starting point is a widespread historically determined imbalance".18 In the imagined ideal world of identical-treatment-as-equality, the isolated instances of discrimination can be remedied if the person suffering from the effects of the discrimination can emulate the norm of similarity which (because it is abstract and is applied in an identical fashion to all) is believed to be a 'neutral' and legitimate standard. If you cannot emulate the norm, then deviation from it is justified. After all, there must be a legitimate reason why you are unable to emulate a norm that applies in a neutral fashion to all. But if we are not already social equals, then the language of similarity and difference becomes problematic. If the reality is that there exist certain power disparities between certain groups of people, the deviations from the norm are justified not because some people are different, but because they are deviant. And what looked like an abstract and universal tool for measuring similarity is actually a "moral and philosophical position that derives from men's, not women's, experience of the world and from men's power to define the world".19 Through abstraction, the state has promoted the dominance of the white, heterosexual, able-bodied, male norm by privileging its form of power. The liberal state coercively and authoritatively constitutes the social order in the interest of men as a gender - through its legitimating norms, forms, relation to society, and substantive policies. The state's formal norms recapitulate the male point of view on the level of design. 1 8 H. Lessard, "The Idea of "Private": A Discussion of State Action Doctrine and Separate Sphere Ideology" in C L . Boyle et al., eds., Charterwatch: Reflections on Equality (Toronto: Carswell, 1986) 107 at 119. 1 9 F.R. Elliot, "The Family: Private Arena or Adjunct of the State?" (1988) 16 Journal of Law and Society 443 at 447. 2 0 CA. MacKinnon, Toward a Feminist Theory of the State (Cambridge, Mass.: Harvard University Press, 1989) at 162. 75 We need to move beyond the language of similarity and difference. We need to 21 understand that inequality is an "imagery of hierarchy, not just of difference". This imagery of hierarchy recasts the question of inequality as "a question of the distribution of power".22 "[M]en are as different from women as women are from men, but socially the sexes are not equally powerful. To be on top of a hierarchy is certainly different from being on the bottom".23 In order for this hierarchy to be understood, one needs to take a group perspective. In order to become aware of what lies at the root of inequality, one must discern the "conditions of inequality experienced by groups, and ... the imbalances in power among groups in society".24 By recognizing the social reality of groups - "the asymmetry of oppression and actual harm"25 - we come to realize why we must reject the false neutrality of identical treatment.26 White men are not a 'group lacking in political power and as such vulnerable to having their interests overlooked and their rights to equal concern and respect violated'. Rather, as members of a particular social group, they are equipped with the necessary social advantages and prerogatives to enable them to realize their autonomy and self-determination, and to do so with relative ease.27 2 1 C.A. MacKinnon, The Sexual Harassment of Working Women: A Case of Sex Discrimination (New Haven: Yale University Press, 1979) at 102. 2 2 C.A. MacKinnon, Feminism Unmodified: Discourses on Life and Law (Cambridge, Mass.: Harvard University Press, 1987) at 40 [hereinafter Feminism Unmodified]. 23 Ibid, at 42. 2 4 S. Day & G. Brodsky, "The Duty to Accommodate: Who Will Benefit?" (1996) 75 Can. Bar Rev. 433 at 461 [hereinafter "The Duty to Accommodate"]. 2 5 N.C. Sheppard, "The "I" in "It": Reflections on a Feminist Approach to Constitutional Theory" in R.F. Devlin, ed., Canadian Perspectives on Legal Theory (Toronto: Edmond Montgomery, 1991) 415 at 421. 26 "[Treating those who are unequal in terms of their access to power and resources as though they are the same allows economic and social disparities to persist, while an illusion of fairness is created"; N.C. Sheppard, "Equality, Ideology and Oppression: Women and the Canadian Charter of Rights and Freedoms" in C.L. Boyle et al., Charterwatch: Reflections on Equality (Toronto: Carswell, 1986) 195 at 198 [hereinafter "Equality, Ideology and Oppression"]. 2 7 Importantly, the emphasis upon hierarchy also allows us to understand why benefits possessed solely by disadvantaged members are not discriminatory, and why we thus must take a contextual approach in ascertaining whom the social fabric of our society has disadvantaged. "An ameliorative purpose or effect which accords with the purpose of s. 15(1) of the. Charter will likely not violate the human dignity of more advantaged individuals where the exclusion of these more advantaged individuals largely corresponds to the greater need [for assistance in realizing their 'dignity', i.e. their autonomy] experienced by the disadvantaged group being targeted by the legislation"; Law, supra n. 11 at para. 72. 7 6 This need for a contextual, group perspective in order to understand which individuals suffer from substantive inequality has been recognized by the courts. From the first case dealing with the interpretation of section 15(1), the Supreme Court of Canada has adopted a purposive approach and exhibited a welcome sensitivity to the nature of oppression.28 The need for social context also accounts for the definitions of equality laid down by Sopinka J. in, Eaton and La Forest J . in Eldridge. These definitions go some way to affirming the close interconnections between individual and group which become apparent when one analyzes inequality in a contextual fashion. Another example of the introduction of the social-power-as-inequality model in the reasoning of the Supreme Court can be found in Law, where Iacobucci J. held that various contextual factors could be taken into account in determining whether the impugned state action promotes the view that the individual is less capable or worthy of recognition or value. Probably the most compelling of these factors is the pre-existence of "disadvantage, vulnerability, stereotyping, or prejudice experienced by the 29 individual or group". [This factor is] relevant because, to the extent that the claimant is already subject to unfair circumstances or treatment in society by virtue of personal characteristics or circumstances, persons like him or her have often not been given equal concern, respect, and consideration. It is logical to conclude that, in most cases, further differential treatment wil l contribute to the perpetuation or promotion of their unfair social characterization, and will have a more severe impact upon them, since 30 they are already vulnerable. Although Iacobucci J. did not hold that this conclusion should be applied as a hard-and-fast rule, "[i]t will always be helpful to the claimant to be able to identify a pattern of discrimination against a class of persons with traits similar to the claimant, i.e., a 2 8 Canadian Disability Rights Council & Women's Legal Education and Action, Canadian Council of Churches v. Minister of Employment and Immigration (1991), [1992] 1 S.C.R. 236 (Interveners' Factum at para. 17) [hereinafter L.E.A.F. Factum]. 29 Law, supra n. 11 at para. 63. 77 group, of which the claimant may consider herself or himself to be a member".31 It is when we recognize that "inequality has more than an individual dimension, adversely affecting members of historically disadvantaged groups through systemic practices, policies and institutionalized barriers" that we can be in a better position to further the individual's realization of her self-determination.32 Instead of using the legal tool of the abstract individual in interpreting section 15(1), the Supreme Court of Canada has revealed a heightened sensitivity to group diversity and human differences. The identical-treatment-as-equality theorist stands up to defend his ideology. If I say 'people of colour are disadvantaged', a common response is a grudging acceptance that generally people of colour are found within the lower class structures of our society. However, the response then goes on to remind us of the important figures in our history who have been of colour, of the contributions they have made and the respect they have engendered. Or the response will point to those members of certain immigrant groups, who arrive penniless, but who propel themselves up the class hierarchy with effort, luck and skill. If they have been able to rise above their 'disadvantage', then how can I argue that 'people of colour' are burdened by inequality? Some white people are found within the lower class structures of society. Does that mean white people are burdened by inequality? Or does it mean that some white people and some people of colour alike are unfortunate victims of a capitalist fate - a fate that strikes in a neutral fashion regardless of the colour of a person's skin? If some individual members of disadvantaged groups can become 'successful', should Ibid, at para. 66. Although I agree with this proposition, I am slightly concerned that it may instrumentalize the relationship between the individual and the group. Although the individual has evaluative priority in our moral reasoning, her position within certain groups or social continua constitute an integral part of her personhood, of who she in fact is. It will always be helpful for a litigant to identify historic inequality against a group in terms of litigation strategy, but it will always be necessary for an individual to identify with those groups or continua for her well-being and dignity. 32 L.E.A.F. Factum, supra n. 28 at para. 15. 78 we be bothered that so many disadvantaged members cannot meet the standards of success? But who defines 'success' and who defines 'failure'? In reality ... virtually every quality that distinguishes men from women is already affirmatively compensated in this society. Men's physiology defines most sports, their needs define auto and health insurance coverage, their socially designed biographies define workplace expectations and successful career patterns, their perspectives and concerns define quality in scholarship, their experiences and obsessions define merit, their objectification of life defines art, their military service defines citizenship, their presence defines family, their inability to get along with each other - their wars and rulerships - defines history, their image defines god, and their genitals define sex. For each of their differences from women, what amounts to an affirmative action plan is in effect, otherwise known as the structure and values of 33 American society. Success and failure are determined with reference to the standards promulgated by the advantaged members of our society. Those individual disadvantaged members who can emulate the behaviour of the advantaged members are thus described as 'successful'. These standards of success have been promulgated by the few, formalized through abstraction, and held out as norms that govern the many. But such truths can only be understood as universal from a partial perspective. They are constructed from certain founding premises or deep-seated beliefs about the intrinsic superiority of certain characteristics. Although those premises purport to apply identically to all, the reality is that they are geared towards the interests and circumstances of advantaged members. The mere fact that some disadvantaged members can be accommodated within this model when they "emulate and adopt the standards, values, and characteristics of those who dominate in society",34 does not alter the fact that it is a standard founded on hierarchies of dominance, that there are "imbalances of power, or discourses of dominance, such as racism, ablebodyism and sexism, which result in a society being Feminism Unmodified, supra n. 22 at 36. "Equality, Ideology and Oppression", supra n. 26 at 223. 79 designed well for some and not for others". As Professor Pothier asks, are people "expected to act like men, like whites, like heterosexuals, like middle class, and/or like able bodied people? If people are expected to act as something they are not, they are either doomed to failure or are robbed of part of their identity".3 6 Such accommodation 37 merely patronizes the emulators and distrusts the deviants. Recent elaborations of disadvantage suffered by disabled persons have recognized the existence of social discourses that continually disentitle certain persons from participating as equals in the promulgation of social norms, those social norms then being used against them in determining whether they are entitled to rely on identical-treatment-as-equality. In Eaton, Sopinka J. observed that "exclusion from the mainstream of society results from the construction of a society based solely on 38 "mainstream" attributes to which disabled persons wil l never be able to gain access". Disabled people were disadvantaged when their voices were not heard in the construction of society. They are doubly disadvantaged when the attributes of that society are then used as a justification for their disadvantage. In Granovsky v. Minister of Employment and Immigration, Binnie J. held that it is often not the personal circumstances of the disabled person that make it difficult for him to participate in social institutions, but rather "the unarticulated, erroneous and unfair premise that only 39 persons without disabilities could, would or should participate in or use them". ' "The Duty to Accommodate", supra n. 24 at 462. 3 6 D. Pothier, "Miles to Go: Some Reflections on the Social Construction of Disability" (1992) 14 Dal. L.J. 526 at 534 [hereinafter "Personal Reflections on the Social Construction of Disability"]. 3 7 "The problem with accommodation, however, is that it implicitly accepts the prevailing norm as generally legitimate, even as it urges that "special circumstances" make the norm inappropriate for the particular individual or class seeking accommodation. In addition, it falls prey to the feminist critique of equality be labeling women as deviant from the norm, thus locating the difference in women"; CA. Littleton, "Rethinking Sexual Equality" (1987) 75 Cal. L. Rev. 1279 at 1314. 38 Eaton, supra n. 8 at para. 67. 39 Granovsky v. Minister of Employment and Immigration [2000] 1 S.C.R. 703 at para. 65, 186 D.L.R. (4lh) 1, (emphasis in original) quoting from M.D. Lepofsky, "A Report Card on the Charter's Guarantee of Equality to Persons with Disabilities after 10 Years: What Progress? What Prospects?" (1998) 7 N.J.C.L. 263 at 270 [hereinafter Granovsky]. 80 [M]any of the difficulties confronting persons with disabilities in everyday life do not flow ineluctably from the individual's condition at all but are located in the problematic response of society to that condition. A proper analysis necessitates unbundling the impairment from the reaction of society to the impairment, and a recognition that much discrimination is socially constructed ... Exclusion and marginalization are generally not created by the individual with disabilities but are created by the economic and social environment and, unfortunately, by the state itself.4 0 As Professor Pothier has concluded, disability is defined, understood and 'remedied' from an able-bodied perspective 4 1 This social construction "includes erroneous assumptions about capacity to perform that come from an able bodied frame of reference. It encompasses the failure to make possible or accept different ways of doing things. It reflects a preoccupation with "normalcy" that excludes the disabled person" 4 2 Why does the comprehension of this inequality in the promulgation of norms mandate a group perspective? The answer again resides in context. An abstract perspective assumes that all individuals have the same capacity to realize their autonomy, and that it was through such realization that the existing power relations and the existing social standards came into being. However, a contextual perspective illustrates how the organization of knowledge is "determined by power relations and not by individuals acting autonomously"43 - or, more exactly, knowledge has been determined by power relations that have denied many individuals (but not all) the capacity to act autonomously.44 There exists an obvious correlation between which groups are superior in the hierarchies of social power, and which members of society have been able to promulgate their definitions of autonomous living. As we have seen, 4,1 Ibid, at para. 30. 4 1 " Personal Reflections on the Social Construction of Disability", supra n. 36. 42 Ibid, at 526. 4 3 S. Razack, Canadian Feminism and the Law: The Women's Legal Education and Action Fund and the Pursuit of Equality (Toronto: Second Story Press, 1991) at 20 [hereinafter Canadian Feminism and the Law]. 4 4 I will look at the interaction of equality and autonomy in c. 4. 81 an emphasis on the abstract individual cannot provide a description of such hierarchies. Abstraction has led the courts to hold that the individual alone is "responsible for choices made, for effort invested and for outcomes achieved, be they successes or failures".45 The fact that the standard that determines what constitutes 'success' and 'failure' may not have been created by that particular individual's autonomous capacity is completely disregarded. The individual alone is not responsible for the construction of 'mainstream' standards, with recourse to which her success is plotted. However, does this mean that she becomes responsible for then deciding to comply with those standards in order to become successful? In other words, if disadvantaged persons choose to realize their autonomy through the emulation of standards laid down by an oppressive hierarchy, would that not satisfy my starting premise that our paramount concern in legal analysis is the interest of the individual? In conditions of systemic inequality, does the individual make an autonomous decision as to what is determinative of her well-being if she conforms to standards promulgated by groups to which she has no affiliation (especially when that lack of affiliation is centred on institutionalized hierarchies of dominance)? The answer to these questions is probably not. Through the perspective of social-power-as-inequality, the fact that certain individuals may be able to emulate the standards of others, does not necessarily mean that they have made a choice that exemplifies their capacity for autonomous decision-making. In conditions of systemic inequality, the choice for the disadvantaged individual is one between remaining disadvantaged, and emulating the life choices of advantaged members to the extent that the individual loses sight of the dignity of her individuality. As Professor Littleton observes, "[t]o the extent that women cannot or will not conform to socially male 4 5 M.E. Hawkesworth, "The Affirmative Action Debate and Conflicting Conceptions of Individuality" in D.C. Poff & W.J. Waluchow, eds., Business Ethics in Canada, 2d ed. (Scarborough: Prentice-Hall Canada, 1991)295 at 297. 82 forms of behavior, they are left out in the cold. To the extent they do or can conform, they do not achieve equality as women, but as social males". 4 6 To become successful, the woman must disown her femininity, the person of colour must pretend that he is white, the lesbian must return to the closet. Such 'choices' do not "promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society" 4 7 nor do they promote an individual's dignity. There is an intuitive union between 'choice' and ideas of freedom.4 8 Whether this union exists in the social reality within which the individual makes her choice must not be assumed, but must be examined from a contextual perspective of social power. "[I]t is impossible to hold to the view that the individual's conception of her own welfare must be accepted uncritically. The real issue is how to distinguish legitimate from illegitimate constraints on choice". 4 9 When I began this discussion I stressed that the relevant benefactors of a contextualised inquiry are real (not abstract) individuals, not groups as such. We are not discussing the dignity, or lack of it, which groups possess qua groups, but which individuals possess qua members of groups. This evaluative prioritization of the individual in our inquiry necessitates the development of a further aspect as to what equality entails, an aspect that problematizes the model of social-power-as-inequality. As Professor Iyer has shown, when we place people within certain groups, or categories, we tend to imply that people within the category "are relatively similar and, at the same time, collectively different from [those] outside the category. Therefore, placing elements in a category tends to suppress differences and emphasize similarities "Rethinking Sexual Equality", supra n. 37 at 1302 (emphasis in original). Law, supra n. 11 at para. 51. J. Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986) at 372. "The Social Construction of Women", supra n. 14 at 469. 83 among those elements". "Once a characteristic is created as intrinsic to a group, and becomes its identifier, it is regarded as wholly constitutive of that group's social identity".5 1 However, groups are not homogenous entities. Arising from social relations and processes ... group differences usually cut across one another. Especially in a large, complex and highly differentiated society, social groups are not themselves homogenous, but mirror in their own differentiations many other groups in the wider society. In American society today, for example, Blacks are not a simple, unified group with a common life. Like other racial and ethnic groups, they are differentiated by age, gender, class, sexuality, region and nationality, any of which in a given context may become salient group identity.52 Social groups not only mirror social differentiations found in wider society, they mirror and construct further imbalances of, social power that exist among the members of a group whose parameters are drawn by an isolated characteristic. I have heard it said that the successful entry of white women into the male world of work was done on the backs of black women. The amplification of the voice of white women has been achieved by the further silencing of black women. As the voice of white women gets louder, there is the danger that it may by the only one that can be heard. "[T]here is considerable risk that the description of female experiences wil l express only the realities of women from dominant groups". The fluid composition of social groups has led some commentators to suggest that what is a remedy for one member's disadvantage, may not be a remedy for others.54 This is because oppressions and inequalities may intersect and interrelate so as to "produce something unique and distinct for those subject to them". 5 5 The insight of ' N. Iyer, "Categorical Denials: Equality Rights and the Shaping of Social Identity" (1993) 19 Queen's L.J. 179 at 183 [hereinafter "Equality Rights and the Shaping of Social Identity"]. 51 Ibid, at 191. 5 2 I.M. Young, Justice and the Politics of Difference (Princeton: Princeton University Press, 1990) at 48. 53 Canadian Feminism and the Law, supra n. 43 at 24-25. 5 4 "Equality Rights and the Shaping of Social Identity", supra n. 50. 5 5 M. Eaton, "At the Intersection of Gender and Sexual Orientation: Toward Lesbian Jurisprudence" (1994) 3 South California Review of Law & Women's Studies 183 at 213. 84 this concept of intersectional oppression is that diverse social circumstances can sometimes make a difference, whether that be multiplicative or additive, and, at other times (perhaps), no difference at all. In other words, "the nature of the interaction between various oppressions is a complex and shifting one". 5 6 If different individuals experience inequality in different ways, can we legitimately rely on the specific experiences of certain individuals in formulating a theoretical model of inequality? Once again, the Supreme Court of Canada has provided some headway in the understanding of this aspect of inequality in its disability jurisprudence. The Court has recognized that disabled people as members of a group have been subjected to systemic inequality, but that that inequality "means vastly different things depending upon the individual and the context".57 Unfortunately, the Court's analysis seems to stop there. "It follows that disability, as a prohibited ground, differs from other enumerated grounds such as race or sex because there is no individual variation with respect to C O these grounds"." "Unlike gender or ethnic origin, which generally stamp each member of the class with a singular characteristic, disabilities vary in type, intensity and duration across the full range of personal physical or mental characteristics".59 I would disagree with the tenor of these comments. We have seen that attempts to presuppose both the homogeneity and the essentiality of black identity are troublesome. Women's experience of inequality is also complex. It has commonality, but it is not homogeneous because women's experience of inequality differs depending on their race, class, age, religion, marital status, sexual orientation, and disability. Depending upon which combination of groups women belong to, discrimination and inequality appear in different forms, and the perpetrators of it are different.6 ™Ibid. at 216. 57 Eaton, supra n. 8 at para. 69. 5S Ibid. 59 Granovsky, supra n. 39 at para. 27. 6 0 G. Brodsky & S. Day, Canadian Charter Equality Rights for Women: One Step Forward or Two Steps Back? (Ottawa: Canadian Advisory Council on the Status of Women, 1989) at 12. 85 As L'Heureux-Dube J. has observed (writing extra-judicially), there is a "danger of assuming that one woman may speak to the experience of a l l " . 6 1 Indeed, much has been written about the "folly and oppressive potential of assuming that women form a homogeneous category" 6 2 Women of colour have observed that the feminist writings of white women tend to 'essentialize', or homogenize, women's oppression in a way that "makes the participation of other women inessential to the production of the story".6 3 When white middle-class women have argued in court, it is from their own experiences as women that they have spoken, obscuring in the process the complexities of oppression as it is experienced by poor women and by women of colour. 6 4 By setting up gender as the only factor that determines women's oppression, those who suffer oppression based on the intersections between race and gender are marginalized and silenced. This marginalization and silencing caused by the construction of a 'universal' standard promulgated by few, but used as a reference to judge the many, may sound familiar. "[I]n the attempt to extract an essential female self and voice from the diversity of women's experience, the experiences of women perceived as "different" are ignored or treated as variations on the (white) norm."65 The essential feminist, keen to maintain her capacity to promulgate norms that favour her objectives, trivializes others who disagree, labelling them deviants who differ from a standard that applies to all within the group. It is an almost exact replica of the models of inequality that I constructed above. The only difference, perhaps, is that the white essential feminist's domination is more theoretical than the white essential male's social 6 1 C. L'Heureux-Dube, "Lecture: Conversations on Equality" (1999) 26 Man. L.J. 273 at 293. 62 Ibid. 6 3 E.V. Spelman, Inessential Woman: Problems of Exclusion in Feminist Thought (Boston: Beacon Press, 1988) at 159. : : 6 4 S. Razack, "Speaking for Ourselves: Feminist Jurisprudence and Minority Women" (1991) 4 C.J.W.L. 440 at 442. 6 5 A.P. Harris, "Race and Essentialism in Feminist Legal Theory" (1990) 42 Stan. L. Rev. 581 at 615 (emphasis added). 86 constructions. Where the feminist's domination stops being theoretical is when it "submerges the need for important social and legal reforms" 6 6 and "obscures the fact that women who are subject to sexism through and in addition to racism have concerns and priorities for change not only different from, but often in conflict with, those of white women". 6 7 Conclusion Let us summarize some of the important elements of the equality analysis I have (all too briefly) been constructing. Identical-treatment-as-equality is flawed by its obsession with the abstract individual and the consequent inability to look beyond the courtroom doors and perceive the reality that society is founded upon imbalances of power. These imbalances serve to keep certain sectors of Canadian society at the margins. The only way that we can dislodge the false neutrality of identical treatment and understand the effects of social inequality is to sensitize ourselves to the power that different groups in our society possess. We therefore need to inject some context (some fact-specificity) into the legal, abstractly-defined individual. In realigning our focus, we must be aware that membership within a group 'means vastly different things depending upon the individual and the context'. Simply because white woman has managed to be first in the litigation line does not mean that woman of colour will endorse her arguments, or ask for the same remedies that white woman believes will help alleviate her suffering. Locating the ability or competency to describe disadvantage in the personality of the 'disadvantaged-elite' is tantamount to saying that the disadvantage is uniform and that all who are stamped with a similar 6 6 M. Kline, "Race, Racism, and Feminist Legal Theory" (1989) 12 Harv. Women's L.J. 115 at 128. 61 Ibid, at Ul. 87 characteristic have the same experience and the same stories to tell. There may be a common thread to the narratives of oppression, but that thread is liable to be affected by race, disability, sexuality, age, gender and financial situation - to name but some. If there is some way that we can at least listen to these various narratives, as we jump from the fire of white, able-bodied, heterosexual, male-defined systemic inequality, we can stop ourselves from jumping into the frying pan of disadvantaged-elite systemic inequality. It is these twin propositions - a contextual analysis of social power and a contextual analysis of the diverse experiences we need to be aware of in describing the oppressive effects of social power - that should form the true analytical tools in offering reform strategies for public interest standing and access to public litigation. We cannot rely on the abstractly defined, directly affected individual, as he tends to obscure the social realities of inequality; When reading the case law on public interest standing under the Charter, I was struck by two recurring modes of analysis. Firstly, many courts were simply going through the motions of the Borowski test, without considering what the words actually meant in the context of the dispute. Secondly, many courts relied heavily upon the existence of the directly affected individual without justifying his presence or explaining why it would be beneficial that the litigation be initiated by him. M y concern over these modes of analysis was amplified by the fact that public interest litigants often invoke section 15(1), but that this made no difference to the analysis employed. This is not to say that all judges followed this approach. As we observed in chapter one, some lower court decisions have relied on fact-specific modes of reasoning in determining whether to grant public interest standing. However, I feel we need a fresh start in our analysis of standing. Rather than attempt to reconcile the case law, I believe that the abstract tendencies of judges in determining whether to grant public interest standing can best be resolved by re-examining the functions of the 88 public interest standing doctrine from a contextual perspective that is sensitive to social-power-as-inequality. This contextual perspective asks the following question. To what extent does an appreciation of the way social power oppresses certain groups of people, alter the inferences we draw from, or the importance we attach to these restrictions on public interest standing? 89 Chapter Three The Allocation of Scarce Judicial Resources Introduction In Finlay v. Minister of Finance of Canada, the first traditional judicial concern over the expansion of public interest standing listed by Le Dain J . was "the concern about the allocation of scarce judicial resources".1 Extending court access to a greater number of litigants would place an extra burden on already meagre judicial resources. A threat to a stable judicial economy is a threat that should be taken seriously. Having said that, it is a threat that should be scrutinized intensely. In order to secure a lasting remedy, we need more specifics about the mischief. In particular, from where does this mischief originate? If the threat is a flood of litigation, there is no point damming the stream when the adjoining river is almost bursting its banks. To what extent does the concern over maintaining a stable judicial economy operate so as to legitimately restrict access for public interest organizations representing the interests of disadvantaged groups? Now it could be argued that financial resources underpin our understanding of many procedural mechanisms and many of the various guises of the standing doctrine. However, I shall limit the discussion here to two potential threats to judicial resources -threats that may be exacerbated by public interest standing under the Canadian Charter of Rights and Freedoms. The first is the threat of numbers. Wi l l the courts be overwhelmed by a deluge of Charter litigation should they relax public interest standing, or do the substantial 1 Finlay v. Minister of Finance of Canada, [1986] 2 S.C.R. 607 at 631, 33 D.L.R. (4lh) 321. 2 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.ll [hereinafter the Charter]. 90 private costs of litigation deter the "constitutional contenders among the populace"? If the latter is the case, should we even bother developing a superimposed regulatory regime of standing? Do the substantial private costs of Charter litigation impact in the same fashion upon advantaged and disadvantaged groups in our society? The second threat is the threat of strategy. Public interest organizations are often described as strategic court players, manipulating and monopolizing resources in a way unparalleled by the hitherto opportunistic, one-off litigators. To what extent is this description accurate? If it is accurate, should we allow resources to be allocated to such strategists? Why the strategy in the first place? As we shall see, although these threats are present and real, they will not be exacerbated should we expand public interest standing to those organizations that represent disadvantaged persons. Indeed, when our context is inequality, the concern over the judicial economy may lead us to welcome the relaxation of public interest standing. The Threat of Numbers Litigation is not an easy business. "People are not keen to rush to the courts. It is in their interest to avoid the inconvenience and expense of litigation rather than to commence proceedings on trivial issues".4 As the Ontario Law Reform Commission has observed, "litigation presents the spectre of a lengthy, arduous ordeal, with an outcome that is uncertain. Consequently it is suggested that there is a strong impulse for individuals to avoid legal action".5 It has been argued that the cost of litigation (not only financial but emotional) for the average person constitutes a sufficiently high 3 Singh v. Minister of Citizenship and Immigration (1997), 123 F.T.R. 241 at para. 18, 37 Imm. L.R. (2d) 140 (T.D.). 4 I. Zamir, The Declaratory Judgment (London: Stevens & Sons, 1962) at 272. 5 Ontario Law Reform Commission, Report on the Law of Standing (Toronto: Publication Services, 1989) at 46 [hereinafter Report on Standing]. 91 access barrier in and of itself that protects judicial resources from being exhausted by a multiplicity of lawsuits. Therefore, there is no economic mischief that needs to be addressed by an evolving standing doctrine. One of the principal advocates of the idea that litigation itself stalls concerns over the allocation of scarce judicial resources is Professor Scott.6 He notes that litigation involves significant private costs, especially (as in cases brought under the Charter)1 when the suit is brought against an organ of the government. [Djespite the subsidization of court costs, the remaining private costs of litigation are quite sufficient to serve as an initial screening barrier of considerable height. When the 'floodgates' of litigation are opened to some new class of controversy by a decision, it is notable how rarely one can discern the flood the dissenters feared. The plaintiff (or the organization actually funding and conducting the litigation, if legal rules force the use of nominal plaintiffs) must feel strongly about the issue in question to pay the bills, and that both cuts down the flood and gives us at least a partial measure of his 'stake' in the outcome.8 People must feel strongly about issues before putting their money where their mouth is. That strength of feeling is, arguably, an indication that the issues will be presented in a determined and skilful manner. Such presentations are integral to the continuing development of the common law.9 If we were to content ourselves with the notion that significant private costs alone are able to act as a regulating device singling out those competent to litigate issues arising under the Charter, we would not need a superimposed regulatory regime of standing. Indeed, we would possess a regulatory system that would need little in the way of controversial application. Those who get 6 K.E. Scott, "Standing in the Supreme Court - A Functional Analysis" (1973) 86 Harv. L. Rev. 645 [hereinafter "Standing - A Functional Analysis"]. 7 Section 32(1) provides: "This Charter applies (a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province". 8 "Standing - A Functional Analysis", supra n. 6 at 673-74. 9 See introduction at text accompanying notes 40-44. 92 oyer the barriers litigation naturally constructs should be granted audience by the courts. Professor Craig summarizes the position advocated by Professor Scott in the following way. "Since significant costs do exist, what other barriers should be imposed or, put conversely, if the applicant is willing to bear the costs of the action why should he not be admitted to the courts?" 1 0 If the whole concept of litigation, by definition, means that the judiciary will rarely be bothered by a multiplicity of trivial suits, then judges need not be overly concerned with the allocation of scarce judicial resources. Every dollar spent, is a dollar well spent.11 Yet it would seem that the courts remain to be convinced. The need to guard against a multiplicity of trivial suits has long been the prime motivating force behind the development of the standing doctrine. As Sir Wil l iam Blackstone stated in his Commentaries: "it would be unreasonable to multiply suits, by giving every man a separate right of action, for what damnifies him in common only with the rest of his fellow subjects".12 This concern was made explicit in Smith v. Attorney General of Ontario, in which the Supreme Court of Canada superimposed the procedural, regulatory mechanisms of public nuisance law upon actions for constitutional declarations.13 The Supreme Court held that an individual "has no status to maintain an action restraining a wrongful violation of a public right unless he is exceptionally prejudiced by the wrongful act". 1 4 In reply to the plaintiff's contention that he should be granted standing to challenge legislation that made the distribution of liquor illegal (thereby restricting his liberty with the threat of prosecution), Duff J. advanced a 1 0 P.P. Craig, Administrative Law, 3d ed. (London: Sweet and Maxwell, 1994) at 512. 1 1 Some commentators have been greatly amused by the floodgates argument. Professor Johnson calls it "the sterile and hackneyed ... argument, that hobgoblin of some judicial minds, the fear that too many people will approach the court seeking justice!"; J.M. Johnson, "Locus Standi in Constitutional Cases after Thorson" Case Comment on Thorson v. Attorney General of Canada [1975] Public Law 137 at 152. 1 2 Sir W. Blackstone, Commentaries on the Laws of England, 15 ed., Book IV (London: T. Cadell and W. Davies, 1809) at 167. 13 Smith v. Attorney General of Ontario, [1924] S.C.R. 331, [1924] 3 D.L.R. 189 [hereinafter cited to S.C.R.]. 14 Ibid, at 572. 93 rationale grounded injudicial economy in justifying the adoption of the public nuisance rule. We think, however, that to accede to the appellant's contention upon this point would involve the consequence that virtually every resident of Ontario could maintain a similar action ... We think the recognition of such a principle would lead to grave inconvenience.15 As we have seen, this inconvenience and the possibility of 'public disorder' led Houlden J. to hold, 50 years later, that Mr. Thorson did not have standing to challenge the constitutionality of the Official Languages Act}6 a statute that did not exceptionally prejudice Mr. Thorson. 1 7 This concern was given short shrift by Laskin J. in the Supreme Court of Canada. I do not think that anything is added to the reasons for denying standing, if otherwise cogent, by reference to grave inconvenience and public disorder ... The Courts are quite able to control declaratory actions, both through discretion, by directing a stay, and by imposing costs; and, as a matter of experience, Macllreith v. Hart ... does not seem to have spawned any inordinate number of ratepayers' actions to challenge the legality of municipal expenditures.18 The courts already possess an armoury of procedural mechanisms to cull multiplying lawsuits, making it unnecessary and undesirable to invoke the regulatory mechanism of standing merely on the basis of a perceived flood of litigation.1 9 Another device that helps prevent litigious repetition is the operation of stare decisis. This doctrine is not, /etc*. 1 6 1968-69 (Can.), c. 54. 17 Thorson v. Attorney General of Canada, [1972] 1 O.R. 86, 22 D.L.R. (3d) 274 (H.C.J.). 18 Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138 at 145, 43 D.L.R. (3d) 1 [hereinafter Thorson]. Macllreith v. Hart (1907), 39 S.C.R. 657, granted ratepayers status to vindicate a public right to have municipal money lawfully appropriated on the basis that they otherwise would suffer damage peculiar to themselves qua ratepayers, by virtue of the increased rates they would have to pay to cover the illegal expenditures. Thus, a ratepayer would be granted standing even though he was not asserting a private right or suffered exceptional damage that distinguished him from the rest of the ratepayers affected. 1 9 For example, in British Columbia, the courts have authority under the Court Rules Act, R.S.B.C. 1996, c. 80 at s. 1 and, for instance, the Supreme Court Civil Rules B.C. Reg. 221/90, to consolidate actions, r. 5(8); to stay proceedings, r. 5(4); or bring a representative action, r. 5(11): "Where numerous persons have the same interest in a proceeding ... the proceeding may be commenced and, unless the court otherwise orders, continued by or against.one or more of them as representing all or as representing one or more of them". 9 4 by any means, a 'watertight' panacea against economic ills. Indeed, we would not want it to be. The flexibility of law to distinguish precedent, or simply ignore it, is a characteristic that is "essential to the maintenance of any legal system that has the 20 capability to change along with its external environment". However, its existence arguably increases the financial 'height' of the 'initial screening barrier' when litigants 21 conduct their prudential, cost/benefit analyses before embarking on litigation. This is all very well for setting the scene, but it could be argued that there is something unique about the Charter that makes it susceptible to the 'spawning of an inordinate number of challenges'. After all, Canadians seem to have bought into a rights-conscious discourse, and may be actively seeking the courts' attention to protect their rights from government censure. If this is so, then the doctrine of standing may legitimately be developed in such a way as to reflect the practical demands made on scarce judicial resources. If not, then we should look less towards the economy as a source of inspiration in developing the standing doctrine, and more towards other concerns and other mischiefs. Where should we look first for clues about possible Charter overload? The judiciary, perhaps. Unfortunately, the insights they provide regarding their caseload are few, often conflicting and rarely illuminating. In Grant v. Attorney General of Canada, the plaintiffs, deemed representative of citizens in western Canada, sought an order prohibiting the Commissioner of the Royal Canadian Mounted Police (R.C.M.P.) from permitting the wearing of religious symbols, such as the Khalia Sikh turban, as part of the R.C.M.P. uniform, and a declaration that the Commissioner's actions in this regard 2 0 M.V. Tushnet, "The Sociology of Article III: A Response to Professor Brilmayer" (1980) 93 Harv. L. Rev. 1698 at 1723. 2 1 The Ontario Law Reform Commission observes that the doctrine of stare decisis succeeded in persuading Mr. Thorson to abandon his action on the merits after a similar action (Jones v. Attorney General of New Brunswick [1975] 2 S.C.R. 182, 7 N.B.R. (2d) 526) was unsuccessful; Report on Standing, supra n. 4 at 48. 95 were unconstitutional.22 They were granted standing on the basis that they had established an interest in the Force's uniform, by virtue of western Canada's past and present special connection with the R.C.M.P. Reed J. had some comments to offer concerning public interest litigation in the Charter era. I recognize the concerns ... that granting standing to public interest groups may open the floodgates, to litigation, much of it perhaps trivial, which could potentially overburden available judicial resources. I note, however, that there has been no evidence of this occurring since the broadening of standing by the decision in Thorson and subsequent cases. I have some difficulty with the argument that granting standing in a case such as present could signal the opening of the floodgates so that the courts will be overburdened and scarce judicial resources inappropriately consumed. I would think that the costs of litigation alone would prevent that occurring, not to mention the psychological and emotional stress and frustration which would attend involvement in litigation. For similar reasons, I find it hard to accept that a host of trivial issues will be brought before the courts by public interest 23 groups. Thus, Reed J. concluded that the entrenchment of the Charter did not lower the private costs involved in initiating litigation.for Canadians and Canadian interest groups. Rights-consciousness cannot survive on discourse alone, but ultimately needs financial backing. A similar understanding of litigious activity was voiced by the minority in Hy and Zel's v. Attorney General of Ontario?4 In this case, two corporations, against whom penal proceedings under Sunday closing legislation had been commenced, sought standing in civil applications for declarations that the law violated sections 2(a) and 15 of the Charter. In the Supreme Court of Canada, Major J. , writing for the majority, held that the corporations did not have standing to bring their actions because there existed other reasonable means by which the constitutional issues could be 22 Grant v. Attorney General of Canada, [1995] 1 F.C. 158, 81 F.T.R. 195 (T.D.) [hereinafter cited to F.C.]. 23 Ibid, at 196-97. 2 4 [1993] 3 S.C.R. 675, 107 D.L.R. (4th) 634 [hereinafter cited to S.C.R.]. 96 brought before the Court. He did not offer any thoughts about the allocation of scarce judicial resources. However, in dissent, L'Heureux-Dube J. observed that concerns about floods of trivial suits being brought under the Charter may "in many cases be overstated and, in any event, are amenable to the control of the courts". 2 6 In the usual case, there are enough practical disincentives to litigants by reasons of costs and inconvenience to discourage those who have no real stake in the outcome of the litigation from engaging in frivolous lawsuits ... In view of these practical realities, care should be taken not to exaggerate the threat to the justice system by a more liberal approach to standing; indeed as Laskin J. suggested in Thorson, this concern should rarely provide the basis upon which to deny standing to an otherwise worthy plaintiff.27 In an administrative case, the Federal Court offered an interesting observation that I believe has important ramifications for our analysis under the Charter. In Sierra Club of Canada v. Minister of Finance of Canada, the respondent Minister brought a motion to strike out review proceedings concerning the applicability of the Canadian Environmental Assessment Act29 to the sale of two C.A.N.D.U. nuclear reactors to China on the ground that the applicant environmental organization lacked standing. Evans J. granted the applicant standing. In doing so, he was not so concerned about whether scarce judicial resources would be unduly exhausted in granting public interest standing. On the contrary, he was concerned that such resources would be wasted should he decline to grant standing. Evans J. believed that we should be wary not to encourage litigants to bring preliminary motions to test the validity of public interest 25 Ibid, at 692-93. 26 Ibid, at 705. 27 Ibid, at 712. A couple of years later, however, L'Heureux-Dube J. hinted that judges should be alert to the growing pressures on judicial resources generated by the Charter. In R.B. v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, 122 D.L.R. (4lh) 1, she observed that the automatic awarding of costs against the Attorney General would serve to augment the "growing number of Notices of Constitutional Questions [served upon the Attorney General of Ontario] every year"; at para. 162. This is arguably evidence that Canadians are becoming more litigious under the constitutional experiment of 1982. 2 8 [1999] 2 F.C. 211, 13 Admin. L.R. (3d) 280 (T.D.) [hereinafter Sierra Club]. 2 9 S.C. 1992, c. 37. 97 standing on the basis that this would add "unduly to the expense of the litigation and to the time taken to dispose of it". 3 0 Thus, concerns about the allocation of resources may actually legitimize the entitlement of organizations to standing once they have initiated public litigation, so as to discourage squandering resources on the adjudication of an undesirable multiplicity of preliminary motions that often follow the initiation of suits 31 by such entities. The concern over resources therefore cuts both ways. However, these comments have not been well received by all members of the judiciary. Perhaps the most explicit acknowledgment of the judicial concern over the allocation of scarce resources can be found in the decision of the Supreme Court of Canada in Canadian Council of Churches v. Minister of Employment and Immigration.7,2 In this case, Cory J. denied standing to the Canadian Council of Churches, which had expressed concerns about the refugee status determination process 33 contained within the amendments to the Immigration Act, 1976. As we have seen, Cory J. voiced his anxiety that the Canadian judiciary was on the verge of being swept away by a Charter litigation flood. Courts in Canada ... traditionally dealt with individuals. Operating primarily, if not exclusively, in the traditional manner courts in most regions operate to capacity. Courts play an important role in our society. If they are to continue to do so care must be taken to ensure that judicial resources are not overextended. This is a factor that will always have to be placed in the balance when consideration is given to extending standing.34 It is essential that a balance be struck between ensuring access to the courts and preserving judicial resources. It would be disastrous if the courts were allowed to become hopelessly overburdened as a result of ' Sierra Club, supra n. 28 at para. 89. 3 1 Professor Ross also argues that an emphasis on scarce judicial resources can serve to legitimate the granting of public interest standing. "[Cjoncerns about the economical use of judicial resources more likely favour the use of a single reference-type procedure as commenced by [public interest organizations], rather than a multitude of individual lawsuits"; J.M. Ross, "Standing in Charter Declaratory Actions" (1995) 33 Osgoode Hall L.J. 151 at 167 [hereinafter "Standing in Charter Actions"]. 3 2 [1992] 1 S.C.R. 236, 88 D.L.R. (4th) 193 [hereinafter Council of Churches cited to S.C.R.]. 3 3 S.C. 1976-77, c. 52 as am. by S.C. 1988, c. 31 and c. 36. 34 Council of Churches, supra n. 32 at 248-49. 98 the unnecessary proliferation of marginal or redundant suits brought by [...] well-meaning organizations pursuing their own particular cases certain in the knowledge that their cause is all important. The resurrection of concerns over maintaining a stable judicial economy in the development of the public interest standing doctrine has been criticized by Professor Ross. "The strong focus on protection of judicial resources against an unworthy flood of public interest litigation reflects a fear that was dismissed as unrealistic in Thorson"?6 "The court did not suggest that any flood of inappropriate public rights litigation was actually occurring and did not explain why it resurrected this fear, or why any flood could not be controlled by less extreme methods, than a barring of access to public interest plaintiffs".3 7 These are important criticisms. In this case, the Supreme Court of Canada appeared to engage in a volte-face over the desirability of granting public interest standing. To do so without offering any evidence for the change of heart is at best problematic, at worst dishonest. Professor Bowal has also attacked the re-emergence of judicial economics. He believes it to be a deficient mode of analysis in examining public law questions. The effective use of resources test does not advance the standing analysis. It is always open to assert that the court could better spend its time on other things. If this concern was permitted to control the negotiation of what cases are heard, courts would never feel moved to 38 grant standing in public interest cases. He further contends that attempting to remedy threats to judicial resources by 39 restricting public interest standing is "based upon a false economy". [T]o encourage multitudes of fragmented, personally-affected parties to navigate the waters of countless administrative and constitutional cases 35 Ibid, at 252. 3 6 J. Ross, "Canadian Council of Churches v. The Queen: Public Interest Standing Takes a Back Seat" Case Comment (1992) 3 Constitutional Forum 100 at 102. 3 7 "Standing in Charter Actions", supra n. 31 at 167. 3 8 P. Bowal, "Speaking up for Others: Locus Standi and Representative Bodies" (1994) 35 C. de D. 905 at 938. 99 to present the invalidity question while at the same time hurling the representative dossier out of court ... will not promote the most effective use of judicial resources. Public interest litigation is arguably among the most effective use of resources.40 Professor Ross comes to the same conclusion over the economic advantages of public interest litigation. "[Cjoncerns about the economical use of judicial resources more likely favour the use of a single reference-type procedure as commenced by the Council, rather than a multitude of individual lawsuits".4 1 These criticisms notwithstanding, the fact remains that seven judges of the highest court in the land articulated a perception that the Charter had the potential to generate an inordinate number of lawsuits and that, in light of this finding, the standing rules should not be expanded any further 4 2 Let us assume that scarce judicial resources are threatened by a potential or realized flood of Charter litigation 4 3 At this point it becomes important to inject some context in the analysis, so that we may ascertain the source of this flood in order to be able to allocate judicial resources in an equitable fashion. Voices must not only be heard, but they must be heard equally with others for their message to be given equal consideration. If the courts were to unthinkingly impose a procedural mechanism that Ibid, (emphasis in original). 4 1 "Standing in Charter Actions", supra n. 31 at 167. 4 2 Interestingly, this case was cited by Jackson J.A. in Great Canadian Superbar v. Liquor and Gaming Licensing Commission of Saskatchewan (1998), 157 D.L.R. (4th) 82 at 104, [1998] 7 W.W.R. 209 (Sask. C. A.), as authority for the proposition that "the floodgates argument is seen as an imperfect justification to withhold standing in most cases in light of the costs and aggravation of litigation". 4 3 An anecdotal example of the potential for such a flood can be found in Dr. Razack's study of the Women's Legal Education and Action Fund [hereinafter L.E.A.F.]. She observes that in its first three years of operation L.E.A.F.'s "caseload far exceeded capacity, and in 1989 L.E.A.F. had to limit its acceptance of intake calls to one day a week"; S. Razack, Canadian Feminism and the Law: The Women's Legal Education and Action Fund and the Pursuit of Equality (Toronto: Second Story Press, 1991) at 62 [hereinafter Canadian Feminism arid the Law]. Caruana comments that "the number of calls to L.E.A.F. shows that there does not appear to be an apathetic mood amongst Canadian women"; C.A.L. Caruana, A Neo-Conservative Approach to Standing in Charter of Rights Litigation (L.L.M., Osgoode Hall Law School 1995) [unpublished] at 107. He thus argues that the Charter experience has begun to exhaust judicial resources. As we shall see, this is only half the story. 1 0 0 fails to appreciate the circumstances and even the bare identities of the litigants appearing before them, then not only would the doctrine of standing evolve in an illegitimate fashion, but the substantive rights enshrined in the Charter would also. The implications of deciding whose voices get to be heard are greater than the already important task of making the courts truly open to all. "Questions of access are crucial because they determine who can make their voices heard in the courts and who can participate in shaping the interpretations of the new equality guarantees" 4 4 Professor Petter's marxist critique of Charter litigation is a good articulation of how questions of access and interpretation interrelate. If the issues raised in non-criminal Charter cases tend to represent the interests of those with economic resources in our society, the interpretation of rights will necessarily respond to and, over time, will reflect those interests ... The disproportionate attention that these interests command will shape the court's perception of the purpose of rights and, hence, will influence the court's interpretation of their meaning and scope.4 5 Professor Bogart adds a similar note of caution. How wil l the Charter reflect us? As we begin to discover an answer, as case upon case provides its own piece of the puzzle, it is vital that a broad array of voices be heard. Acknowledging only those that conform to established and conventional descriptions will shut out an array that can be valued, and will result in a fundamental document speaking only about some, and shaped by merely a selection of views of our society 4 6 A deeper analysis of litigious practices under the Charter may help the courts in formulating a standing doctrine that acknowledges concerns over the allocation of scarce judicial resources, but also allows all of us to participate equally in the 4 4 G. Brodsky & S. Day, Canadian Charter Equality Rights for Women: One Step Forward or Two Steps Back? (Ottawa: Canadian Advisory Council on the Status of Women, 1989) at 131 (emphasis added) [hereinafter Canadian Charter Equality Rights for Women]. 4 5 A. Petter, "The Politics of the Charter" (1986) 8 Supreme Court L.R. 473 at 487. 4 6 W.A. Bogart, "Standing and the Charter: Rights and Identity" in R.J. Sharpe, ed., Charter Litigation (Toronto: Butterworths, 1987) 1 at 26. 101 construction of an egalitarian society. The only way of doing so may be to expand public interest standing for those representing disadvantaged groups. In 1989, Gwen Brodsky and Shelagh Day consolidated and analysed the 591 decisions handed down at that time that considered the scope and interpretation of section 15 of the Charter. They found that out of those 591 decisions, 91 were actually initiated by disadvantaged persons themselves.47 Only nine of the 44 decisions that 48 raised sex as a ground of discrimination were made by or on behalf of women. The other 35 challenges were made by or on behalf of men. Thus, the equality guarantees were invoked to further the interests of the already advantaged. These findings underscore the seriousness of the problems of access. Corporations, criminally accused persons, [which tend to be men challenging the constitutionality of sexual offence provisions and procedures that serve to protect female victims, such as rape shields] and Attorneys General have good access to the courts; women and other disadvantaged groups do not. The figures also demonstrate clearly that women and other disadvantaged groups rarely have the luxury of choosing the timing or the context for making their equality arguments ... In a significant number of cases, equality guarantees are being used to attack the interests of disadvantaged groups, particularly women. A l l of these factors make it more difficult for disadvantaged groups to obtain from the courts the interpretations of section 15 that are necessary to their advancement and that reflect the larger purpose of the 49 guarantee. Dr Razack's study also supports the contention that the already advantaged members of society were using the Charter to consolidate their position. Although at times L.E.A.F. appears to be responsible for the deluge of Charter actions,5 0 "most of its cases ... were those in which L E A F acted as an intervener, defending women's Canadian Charter Equality Rights for Women, supra n. 44 at 117-19. Brodsky and Day define disadvantaged groups as follows. "We do not include within the term 'other disadvantaged groups' men claiming sex equality, because they are not disadvantaged, nor do we include individuals who are not members of disadvantaged groups, notwithstanding that any individual can be disadvantaged in an isolated circumstance"; at 7. Therefore, they define disadvantage from the perspective of social-power-as-inequality. 48 Ibid, at 44. 49 Ibid, at 119. 5" Razack observes that in the first three years of litigation, L.E.A.F. opened three hundred files; Canadian Feminism and the Law, supra n. 43 at 62. 102 interests in cases brought by men". 5 1 Public interest organizations representing the interests of disadvantaged people may be vocal, but their noises are usually defensive. Beth Symes, one of the founding members of L.E.A.F., reflected that women "have not occupied the field. Men have. We have been involved in damage control ... men have been popping up all over Canada in various courts challenging things that we as women fought to get". 5 2 The inferences drawn in the studies above mainly relied on litigation practices under the Charter in the period before the Supreme Court of Canada handed down its 53 judgment in Andrews v. Law Society of British Columbia. In this landmark decision, the Supreme Court offered a purposive-interpretation of section 15(1) that draws upon the contextual model of social-power-as-inequality. Advantaged members of our society may suffer isolated instances of discrimination. But by promulgating the paradigm of power, such advantaged members can never suffer systemic disadvantage, or the cruelty of subordination. In injecting some reality into legal abstraction, Andrews transformed the anti-discrimination norm into a contextualised disadvantage anti-norm. Thus, were the survey conducted by Gwen Brodsky and Shelagh Day to be extended to the present day, the results may show that an increasing proportion of section 15 litigants are members of disadvantaged groups. However, of the cases I have looked at on public interest standing from 1990 onwards, corporate entities and men were still using section 15 to challenge the constitutionality of legislation that allegedly affected their financial interests in half of the total number of cases that invoked the idea of equality. This is just one suggestion that the contextual lessons in Andrews have still to be learnt. 51 Ibid. 5 2 From a round table discussion conducted by Razack and quoted ibid, at 61. 5 3 [1989] 1 S.C.R. 143, 56 D.L.R. (4lh) 1 [hereinafter Andrews]. 103 Whether or not this is the true picture today, I believe that the early experience of Charter litigation offers an important insight. The facially neutral world of litigation is endemically biased towards the litigation efforts of the advantaged. This is because the costs and trauma that are part and parcel of litigation are more likely to foreclose access for disadvantaged members than advantaged members. Therefore, we need to be aware of the source of any flood of litigation, before we invoke traditional mechanisms of regulation that are blind to the social backdrop of disadvantage.54 Traditional, private standing rules favour the advantaged litigant. It is the advantaged litigant who will tend to possess the means necessary to litigate on an individual basis, or believe that his right is of such worth or magnitude that its infringement is worth litigating individually.55 In making the directly affected individual the gatekeeper of constitutional litigation, we are promoting the means of access that is, contextually speaking, open only to the already advantaged members of society. In employing the abstract standard of the directly affected individual, we are actually excluding those who are already excluded from social discourse. The already loud voice of the 5 4 This strategy could be drawn from some of the comments made by Cory J. in Council of Churches, particularly his repeated reminiscences about 'tradition'; supra n. 32. Even if we were to accept that the concerns over scarce resources were well-founded, his remarks obscure the fundamental question asked here - with which individuals did the courts traditionally deal? What interests were they putting before the courts? If those individuals are causing the courts to operate to capacity, thus ensuring a near-monopoly on the judicial elaboration of rights and interests, should we be seeking to favour public interest standing in order that the voices of less traditional plaintiffs can be heard? These are the difficult factors that will have to be placed in the balance when consideration is given to the question of standing. 5 5 S. Mclntyre, "Above and Beyond Equality Rights: Canadian Council of Churches v. The Queen" (1992) 12 Windsor Y.B. Access Just. 293 at 306 [hereinafter "Above and Beyond Equality Rights"]. The interaction between poverty and race or gender has been well documented. For instance, see F. Bird, et al., Report of the Royal Commission on the Status of Women in Canada (Ottawa: Information Canada, 1970); National Council of Welfare, Women and Poverty Revisited: A Report by the National Council of Welfare (Canada: National Council of Welfare, 1990); E. Abner, M.J. Mossman & E. Pickett, "No More than Simple Justice: Assessing the Royal Commission Report on Women, Poverty and the Family" (1990) 22 Ottawa L. Rev. 573; United States Commission on Civil Rights, Racial and Ethnic Tensions in American Communities: Poverty, Inequality, and Discrimination (Washington, D.C.: The Commission on Civil Rights, 1993) at c. 7-10; C. Hartman, ed., Double Exposure: Poverty & Race in America (Armonk, New York: M.E. Sharpe, 1997); MR. Rank, "The Racial Injustice of Poverty" (1999) 1 Washington University Journal of Law and Policy 95. Surprisingly, less appears to have been written about the obvious interaction between disability and poverty. However, see S. Treloar, The Relationship Between Poverty and Disability in Australia: Research Report (Canberra: Australian Government Publishing Service, 1977); J. Pokempner & D.E. Roberts, "Poverty, Welfare Reform, and the Meaning of Disability" (2001) 62 Ohio State Law Journal 426. For an interesting look at the possible intersections between sexuality and poverty, see E. Heinze, "Gay and Poor" (1995) 38 Howard Law Journal 433. 104 advantaged person is amplified by the standing rules, because this person is able to clothe himself in the characteristics of the abstractly defined, private litigant. The voice of the disadvantaged person is further silenced because she is less able to come to court in a private capacity. She therefore relies upon organizations that represent the group of which she is a member. But those organizations are denied access because they obviously cannot fit within the abstract definition of the resource-friendly litigant, and courts are too busy exercising their public interest standing discretion in a mechanistic fashion to be concerned about the contextual indicators that would otherwise make them sensitive to the fact that such organizations represent a much-needed point of entry into our courtrooms for the disadvantaged. Public interest organizations represent a necessary means of access for those persons who do not have sufficient personal resources to even begin squandering judicial resources. And yet, "[a]s a practical matter, nothing prevents the private litigant certain that his private cause is all-important from unfairly consuming scarce judicial resources through marginal or redundant lawsuits whether civil, criminal/or constitutional".56 In this Charter era, it would be illegitimate for the courts to grant access to certain sectors of our society, but refuse to hear others. Deciding who is entitled to the benefit of the court system is a critical policy issue. It is by no means self-evident that the present consumers deserve access to the courts either because of their financially advantaged position or because of the socio-legal circumstances that serve to reinforce that advantaged position in our society.57 "Above and Beyond Equality Rights", ibid, at 315 (emphasis in the original). Report on Standing, supra n. 4 at 47. 105 The Threat of Strategies Another version of the concern over the allocation of scarce judicial resources looks not to the number of litigants involved, but to the flood of strategic litigation and other reinforcing tactics that public interest litigants use to articulate, primarily, their causes and, incidentally, their cases. This version of the concern over the allocation of judicial resources blurs somewhat with the concern about the proper role of the courts in our total system of government. However, as public interest groups (such as L.E.A.F.) are usually the ones accredited with being sinister strategists forcing the courts to determine cases they are ill-suited to hear, and because examining the strategies public interest groups utilize in order to get their case (or cause) across goes some way to explaining why public interest litigants may be behind the resurrection of 58 concerns over the allocation of scarce judicial resources, I propose to make some brief comments at this juncture. Justice Brennan of the United States Supreme Court noted that interest group litigation had certain characteristics that differed from traditional private disputes. Interest group litigation, he argued, was "a form of political expression. Groups which find themselves unable to achieve their objectives through the ballot frequently turn to the courts". 5 9 This distinction between the private individual litigant and the publicly active litigant is also of interest to Professors Morton and Knopff. [I]nterest-group litigation differs from that of the individual litigant who employs constitutional arguments primarily as a means to protect his own liberty or other interests and for whom the broader social policy consequences of judicial opinions are unimportant. For systematic litigation groups, the reverse is true: the primary focus of their interventions is to change the meaning of constitutional rules and policy Council of Churches, supra n. 32 at 252. 59 National Association for the Advancement of Colored People v. Button, 371 U.S. 415 at 429, 83 S. Ct. 328 (1963). 106 outcomes shaped by those rules. The actual dispute becomes just a vehicle for pursuing the policy objective.60 They contend that groups which co-ordinate the systematic litigation of strategic test cases have increased dramatically in recent years, encouraged by the active policymaking role the judiciary have seen fit to burden themselves with under the Charter. Professors Morton and Knopff argue that these groups constitute an important element of a newly emerging 'Court Party'. 6 1 Professors Morton and Knopff raise a basic concern about the litigation practices of the Court Party, but voice that concern in two ways. The first relates to the ultimate result, the second to the modes of obtaining that result. The Court Party is interested in a policy-oriented use of judicial power. Whereas most Charter litigation is "opportunistic in nature",62 for the "systematic litigators of the Court Party ... the bottom-line outcome of the particular case is often secondary to the more general policy reasoning used to justify that outcome".6 3 Thus, the Court Party seeks to transform society and societal interactions through a forum whose functions were traditionally adjudicative, whose sole role was that of dispute resolution. I trust that this criticism does not support the proposition that courts, in no way, shape or form, do, or should, participate "along with other institutions in shaping the F.L. Morton & R. Knopff, The Charter Revolution and the Court Party (Ontario: Broadview Press, 2000) at 26 [hereinafter Charter Revolution]. 6 1 Professors Morton and Knopff have advanced their 'Court Party' thesis in a number of works. Of principal interest are Charter Revolution, ibid.; "Canada's Court Party" in A.A. Peacock, ed., Rethinking the Constitution: Perspectives on Canadian Constitutional Reform, Interpretation, and Theory (Ontario: Oxford University Press, 1996) 63 [hereinafter "Canada's Court Party"]; "The Supreme Court as the Vanguard of the Intelligentsia: The Charter Movement as Postmaterialist Politics" in J. Ajzenstat, ed., Canadian Constitutionalism: 1791-1991 (Ottawa: Canadian Study of Parliament Group, 1992) 57; Charter Politics (Toronto: Nelson, 1992). In Charter Politics, they define the Court Party as follows: "My "court party" we do not mean a party like the Liberals or the NDP. The court party, as some Charter sceptics perceive it, is more like a social movement. It embraces a constellation of interests, which like the court party of old, prefers the policy-making power of the less obviously democratic governmental institutions"; at 79. 62 Charter Revolution, supra n. 60 at 85. 107 life of [Canadian] community". It has long been recognized that dispute-resolution involves the judiciary in a form of political decision-making.6 5 Rather, the objection seeks to raise the question whether the manner in which the courts control access to Charter adjudication, affects the manner in which their role is to be conceived. Liberalizing access for those who are more concerned about reason than remedy, forces the court to turn its back on traditional dispute-resolution. The court of access is an individual-initiated check on government action. The court of strategy is a legislative moulder of the constitutional chaos. "Judicial intervention in the policy-making process is no longer ad hoc and sporadic, dependent upon the fortuitous collision of individual interests and government policy; it has become more systematic and continuous".6 6 Professors Morton and Knopff dislike this emerging institutional trend. In chapter one, we saw that the image projected by the judiciary was an important consideration taken into account by judges when shaping the standing doctrine. I wi l l return to the question of whether a redefinition of standing ultimately redefines the nature of the judicial role in the concluding remarks of this paper. I am more interested in the second objection raised by Professors Morton and Knopff. While traditional private litigants were ad hoc, one-off, opportunistic litigants, interest group litigants are strategists who lobby not only the courts, as an institution, but also the personnel that the courts rely heavily upon - academics, expert witnesses, 64 Beauregard v. The Queen, [1986] 2 S.C.R. 56 at 69, 30 D.L.R. (4m) 481. 6 5 "[J]udicial review is not simply a matter of measuring a statute against crisply defined constitutional provisions but, rather, a policy-making process, in which judges engage after the legislators have, for their part, made a choice"; A.M. Bickel, The Least Dangerous Branch, 2d ed. (New Haven: Yale University Press, 1986) at 36 (emphasis added). In this work, Professor Bickel argues that the courts must act rigorously on principle, else they will undermine the justifications for their power of constitutional review. In maintaining this rigour, the courts will at times refuse to hear cases so as to cushion the otherwise damaging clash between the courts and the legislature. In other words, the courts will sometimes take political decisions to stay out of the politics of constitutional review. To this end, the courts have developed a series of 'passive virtues', one of which is standing, which allow judges to politically ignore lawsuits that would otherwise detract from their legitimating authority - principle. "It follows that the techniques and allied devices for staying the Court's hand ... mark the point at which the Court gives the electoral institutions their head and itself stays out of politics and there is nothing paradoxical in finding that here is where the Court is most a political animal"; at 132. 6 6 "Canada's Court Party", supra n. 61 at 79. 108 even the individual judges themselves. Dr. Razack labels these interest group 68 litigation strategies as methods of "influencing the influencers". This influencing has many guises. Firstly, an interest group may attempt to cultivate judicial sympathies through strategic litigation. As Professor Brodie comments: "[b]y flooding the courts with cases, each of which asks the courts to make only a small step towards a group's final goal, litigation can "soften up" judicial attitudes towards future litigation". 6 9 The best example of such practice is probably that exercised by the National Association for the Advancement of Colored People (N.A.A.C.P.) in the United States. The N.A.A.C.P. brought test cases involving law and graduate schools in order to build up, incrementally, a body of favourable precedent which was subsequently applied in litigation involving its primary objective - "judicial rejection of the separate but equal 70 doctrine in the sphere of primary and secondary education". As well as flooding the courts, interest groups have also flooded the law 71 reviews, in an attempt to influence "the mindset of the legal profession". The appearance of a large number of articles simultaneously is designed to alert judges around the nation that there is growing support in legal circles for the position advanced ... Vose has credited part of the N A A C P ' s success to the ability to generate a large volume of favorable law review articles immediately prior to an issue's presentation in the Court. 7 2 Right from its inception, L.E.A.F. explicitly adopted a strategy to foster supportive legal scholarship. The 1984 report to the Canadian Advisory Council on the Status of 6 7 For example, see Charter Revolution, supra n. 60 at 137-47 where Professors Morton and Knopff criticize the extensive intermingling of the academic and political spheres as a "calculated component of Court Party strategy to maximize the political utility of Charter litigation"; at 138. 68 Canadian Feminism and the Law, supra n. 43 at 37. 6 9 I. Brodie, Interest Groups in Court: Beyond "Beyond the Political Disadvantage Theory" (Calgary: Research Unit for Socio-Legal Studies, University of Calgary, 1992) at 12 [hereinafter Interest Groups in Court]. 7 0 K. O'Connor, Women's Organizations' Use of the Courts (Lexington, Mass.: Lexington Books, 1980) at 3. 71 Interest Groups in Court, supra n. 68 at 12. 72 Women's Organizations' Use of the Courts, supra n. 70 at 26. The reference to Vose refers to C E . Vose, Constitutional Change: Amendment Politics and Supreme Court Litigation since 1900 (Lexington, Mass.: Lexington Books, 1972). 109 Women that led to the birth of L.E.A.F. emphasized the importance of activities beyond the courtroom doors. [A] critical component of [a policy-oriented litigation strategy] is to build a theory of equality which is accepted by academics, lawyers and the judiciary. Legal writing in respected law journals, presentations of papers at legal seminars, and participation in judges' training sessions are all means of disseminating and legitimating such theories of equality.73 Interest groups also make strategic recourse to the media. If an interest group can establish ties with the media, a loss in court can be converted into resources and leverage in the national political process. Although strategists may have some hope of obtaining a favorable decision, frequently they are equally interested in litigation as a means of enhancing the organization's credibility and attracting new adherents. Publicity generated by adjudication places its sponsor in the public eye and can provide a legitimate way for the organization to place its issue on the public agenda. If the interest group is in its formative stages, or enjoys only a limited membership, favorable or even sympathetic publicity can bolster intraorganizational loyalty, increase membership, and enhance political credibility even when litigation fails in the traditional sense.74 A l l of this stands in marked contrast to the private litigant for whom the particular dispute comes first, all his energy being geared toward making sure that that dispute succeeds there and then. One way in which this 'illegitimate' political lobbying (and the consequent drain on judicial resources) could be countered is by limiting tactical litigants' access to the courts through restricting standing and intervention. However, Professors Morton and Knopff contend that, encouraged by the Court Party's merry clique of academics, the Supreme Court of Canada has undertaken an important "procedural M.E. Atcheson, M. Eberts & B. Symes, Women and Legal Action (Ottawa: Canadian Advisory Council on the Status of Women, 1984) at 172. 74 Women's Organizations' Use of the Courts, supra n. 70 at 5. 110 revolution", giving the Court Party the freedom to push forward with its strategies. This allows public interest litigants to exhaust judicial resources for the primary purpose of gaining political resources. These criticisms appear potent. However, we begin to appreciate the difficulties in accepting this second objection when our time frame is extended beyond the last 20 years. As Professors Morton and Knopff themselves concede, the idea of a court party is nothing new to litigation. In the decades preceding the Great Depression, business elites in both Canada and the US successfully used litigation to slow the advent of the emergent welfare state. The proponents of laissez-faire economics turned to the courts to argue that many of the new regulatory and redistributive policies violated their freedom of contract or exceeded the legislative jurisdictions assigned by the federal division of powers. In short, business interests successfully defended their policy interests by cloaking them in legal garb. It turns out that the modem court parties in both Canada and the United States had earlier predecessors.76 And as Professor O'Connor recognizes, law review lobbying has gone on for more 77 than a hundred years. The strategies pursued by the individual corporations at the beginning of the twentieth century were very similar to those pursued by the interest groups at the end of the twentieth century. If legal forums have always been subjected to 'partisan polities', then the only real difference between the old court party and the 78 new Court Party is that the former could disguise itself as a traditional private litigant, whereas the latter is conspicuous as a public interest litigant. Law "not just 'for' but 79 • also 'by' individuals" is no guarantee that its pronouncements will be less political. So why do Professors Morton and Knopff argue that court party strategy is legitimate access, whereas Court Party strategy is illegitimate access? The only way I Charter Revolution, supra n. 60 at 53. 76 Ibid, at 29-30. 77 Women's Organizations' Use of the Courts, supra n. 70 at 26. 7 8 Other than the latter being labelled with threatening capital letters; see "Canada's Court Party", supra n. 61 at 81. 79 Ibid, at 73. I l l can make sense of this nonsensical statement, is by assuming that they prefer the substantive claims that the traditional court party is likely to raise. As this court party is more likely to be constituted by advantaged persons, it is less likely to ask the courts to consider whether the law should no longer perpetuate the controversial power disparities that have served to maintain their privileged social status. Professors Morton and Knopff celebrate a judicial review that is inherently conservative and traditional, a review process in which "many important constitutional questions might never be 80 addressed". When one of those important constitutional questions is substantive equality for disadvantaged groups, I fail to find anything to celebrate. Conclusion The concern over the judicial economy is a legitimate concern, but we need to be more specific as to the source of any threat to its stability. It would be rather strange if judges were to close the courtroom doors on those whose voices are so rarely heard inside. The question then becomes how should the standing doctrine be developed in light of the fact that minority groups are at present underrepresented in non-criminal Charter litigation. The resolution of such a question must bear in mind two factors. Firstly, traditional standing rules favour the private litigant. By virtue of the fact that Charter litigation, in and of itself, creates a substantial private cost access threshold 81 which few disadvantaged people who act alone wil l have the resources to overcome, private litigants are more likely to be advantaged litigants. There is evidence to suggest 80 Ibid, at 73. 8 1 An example of the prohibitive costs of litigation can be gleamed from Petter's analysis of the first judicial encounters with the provisions of the Charter. "The unsuccessful action brought by Operation Dismantle to have cruise missile testing declared unconstitutional cost that organization about $50,000 even though its lawyers worked for reduced fees and the litigation never progressed beyond preliminary issues"; "The Politics of the Charter", supra n. 45 at 481. This figure does not include the costs which Operation Dismantle was ordered to pay by the government. The decision of the Supreme Court of Canada can be found at Operation Dismantle v. R., [1985] 1 S.C.R. 441, 18 D.L.R. (4th) 481. 112 that these advantaged litigants have been (and possibly are still in the process of) flooding the courts with cases that invoke the equality provisions of the Charter. Because these litigants already possess more than their fair share of access to rights guaranteed under the Charter, they constitute the true threat to overextended judicial resources. However, disadvantaged litigants have to present their cases through different, and thus more controversial, media. This controversial difference casts unwarranted suspicion upon the public interest litigant fighting for equality, when, contextually, we should rather think of the organization representing disadvantaged persons as no different from the advantaged, private litigant. Secondly, any resolution must bear in mind that minority groups are fighting against a jurisprudential status quo shaped by the advantaged sectors of Canadian society, which legitimates their (the advantaged sectors) continuing access to the courts. When we observe this fight out of context, we may dismiss it as 'strategy' and set that in opposition to 'access'. Instead, we must ask - why the strategy? What is it that makes certain models of access contentious? Once we know the answer, then we can begin to deflate the unhelpful strategy/access dichotomy. 113 Chapter Four The Need to Screen Out the Mere Busybody Introduction In Finlay v. Minister of Finance of Canada, Le Dain J. grouped together the concern over scarce judicial resources and the need to screen out the busybody, contending that both concerns were addressed if the plaintiff raised a serious issue and could allege a genuine interest.11 have chosen, however, to separate out these rationales because I believe that modern formulations of the term 'busybody' have important implications for minority access to constitutional adjudication. Another reason for this separation is that the courts have begun to make noises that greater effort should be made to root out the busybody. Although the busybody rationale had lain dormant for many years, it appeared to be injected with new life in Canadian Council of Churches v. Minister of Employment and Immigration. It would be disastrous if the courts were allowed to become hopelessly overburdened as a result of the:unnecessary proliferation of marginal or redundant suits brought by [...] well-meaning organizations pursuing their own particular cases certain in the knowledge that their cause is all important. The re-emergence of the busybody rationale (at least in the commentary) has gained legitimacy by embracing one of our most intoxicating ideals - personal autonomy. In the ideological realm of autonomy painted by the commentators, the private litigant is the benevolent sovereign, the public interest litigant the trespasser, or the malevolent dictator. This is because the public litigant presumes that its own conceptions of the social good life are to be given absolute preference over those 1 Finlay v. Minister of Finance of Canada, [1986] 2 S.C.R. 607 at 633, 33 D.L.R. (4th) 321 [hereinafter Finlay]. 2 [1992] 1 S.C.R. 236 at 252, 88 D.L.R. (4th) 193 (emphasis added) [hereinafter Council of Churches]. 114 conceptions that we, as private individuals, harbour. In doing so, the public litigant denies the full articulation of our right as individuals to be accorded due respect as rational decision-makers. This idea has an immediate, intuitive appeal and has been labelled as "the greatest strength of the busybody limit". 3 I agree that according due respect to the private litigant's capacity as a rational decision-maker is important. Indeed, it is fundamental. However, that does not lead me to support the exclusion of the public interest litigant on the basis that it may be a mere busybody, particularly when that litigant is representing the interests of disadvantaged persons. As we shall see, the busybody rationale is grounded, and is thus intelligible, within the context of certain normative assumptions, that are then presumed to apply universally. The more we begin to question the attractiveness of such assumptions, the more we begin to appreciate that in certain circumstances "one man's 'busybody' may be another's saviour".4 However, this appreciation generates a new concern. How can we tell whether the public litigant has what it takes to be a 'saviour' rather than a 'busybody'? What tests should we apply to discover whether a public litigant that purports to further the interests and the autonomy of disadvantaged persons, actually possesses the requisite proximity to (or understanding of) those persons and their disadvantage, so that it may act as a true representative of them? Although concerns over the representative status of public interest organizations can be raised many times throughout this work, I believe they are particularly pertinent when discussing notions of autonomy. 3 C.A.L. Caruana, A Neo-Conservative Approach to Standing in Charter of Rights Litigation (L.L.M., Osgoode Hall Law School 1995) [unpublished] at 112 [hereinafter A Neo-Conservative Approach to Standing]. 4 Law Reform Commission of British Columbia, Report on Civil Litigation in the Public Interest (Victoria: Queen's Printer for British Columbia, 1980) at 61. 115 The Orthodox Formulation Before we explore notions of personal autonomy, I should briefly highlight the original formulation of the busybody rationale. This formulation contended that the discretionary grant of public interest standing should guard against litigation-addicts who simply initiate litigation for the adrenaline rush. As we have seen, the demands and practical costs of litigation would appear to encourage litigants initiating suits with no forethought - with no motivation to achieve a just result - to kick their habit.5 Professor Scott eloquently ridicules this formulation of the busybody rationale. "The idle, whimsical plaintiff, a dilettante who litigates for a lark, is a specter which haunts the legal literature, not the courtroom".6 However, I feel that Professor Scott may be guilty of overstating his case. True, the significant private costs associated with litigation act as a substantial access barrier which would tend to diminish the number of trivial suits brought before the courts. But that does not necessarily lead to the conclusion that there is no such thing as a busybody. Indeed, the Supreme Court of British Columbia has deemed certain persons to be 'troublesome litigants'.7 Importantly for our purposes, however, such persons are just as likely to be private litigants asserting their own interests and rights, as they are public litigants. "[I]t seems unlikely, given the usual disincentives to litigation, that plaintiffs would be particularly likely to rush into litigation concerning minor public wrongs but be more restrained with respect to minor private ones".8 Reed J. once commented that she found it hard to accept "that a host of trivial issues will be brought before the courts by public interest 5 See c. 3 and text accompanying notes 4-11. 6 K.E. Scott, "Standing in the Supreme Court - A Functional Analysis" (1973) 86 Harv. L. Rev. 645 at 674. 7 From discussions with Professors Bryden and Elliot, Faculty of Law at the University of British Columbia. 8 T.A. Cromwell, Locus Standi: A Commentary on the Law of Standing in Canada (Toronto: Carswell, 1986) at 179 [hereinafter Commentary on the Law of Standing]. 116 groups. I note that private interest litigation is not without its fair share of triviality at times".9 The Autonomy Formulation The formulation of the busybody rationale that has found favour with contemporary commentators asserts that a restrictive granting of public interest standing respects the decision-making capacity of individuals affected by state action. Professor Cromwell has argued that the standing doctrine should act as an epistemological device, enabling us to determine whose decision to sue or refrain from suing ought to bind other potential plaintiffs.1 0 This assertion begs the natural response - whose decision-making capacity should be employed as the ultimate, determinative gatekeeper of constitutional litigation? Cromwell's answer is that the decisions of "the plaintiff who is most directly and obviously interested" should be binding on others.11 If A ' s rights are infringed by B's actions, and A decides not to sue, then why should we grant C standing to commence proceedings against B arising out of B's infringement of A ' s rights? Professor Craig contends that our natural reaction would be that "if the person directly affected [A in our example] does not choose to challenge the act then no-one should be able to do so". 1 2 "[T]here may well be cases in which the interest which the law chooses to protect are content with the situation. If this is so a stranger should not be allowed to raise a possible cause of invalidity". 1 3 Professor Craig argues that the notion of ultra vires is relative and depends upon the response of those 'most 9 Grant v. Attorney General of Canada, [1995] 1 F.C. 158 at 197, 81 F.T.R. 195 (T.D.). I() Commentary on the Law of Standing, supra n. 8 at 171. 11 Ibid. This answer obviously closely conforms to the doctrinal promotion of the directly affected individual in the development of public interest standing, although the courts never explicitly grounded this promotion on the notion of personal autonomy; see c. 1. 1 2 P.P. Craig, Administrative Law, 3d ed. (London: Sweet and Maxwell, 1994) at 514. 13 Ibid, at 509. 117 directly and obviously interested' in the state action. There may be cases where the interests impinged upon are proximately related to the individual affected in a way that her choice whether to initiate litigation or not should be the only choice worth judicial consideration. The exclusion of the busybody amounts to nothing more than an answer to the rhetorical question, "If the obvious plaintiff does not wish to sue, why should anyone else be allowed to do so?" ... The general rule is one of deference to the decision of the more obvious plaintiff. [The busybody rationale] is not so much a matter of who may sue, but of who decides who may sue. 1 5 What Professors Craig and Cromwell thus appear to be implicitly acknowledging is the worth of personal autonomy, individual self-determination and critical self-definition.1 6 If the individual chooses not to sue, then a well-meaning, but bothersome, public interest organization should not be allowed to take up the cause. Otherwise that would belittle the rational decisions that the individual affected had made. We all nod assuredly. Self-determination. What can be wrong with that? If the obvious plaintiff does not wish to sue, why should anyone else be allowed to do so? Self-determination is important, I agree. But the banner-waving of such a politically-correct notion tends to obscure some important definitional issues. What do we ultimately mean by such ambiguous terms as autonomy and self-determination? How do we know when the individual affected has made an autonomous decision not to sue? Before we examine these issues in greater theoretical depth, it is interesting to contrast a debate that occurred 20 years ago between two American doctrinal scholars on the 1 4 In a similar vein, Professor Bogart contends that a plea that some illegality has occurred "would not by itself justify recognition. We are content that some breaches may go unrectified if the victims of those breaches are otherwise satisfied not to enforce their rights or to bargain them away through settlement"; W.A. Bogart, "Standing and the Charter: Rights and Identity" in R.J. Sharpe, ed., Charter Litigation (Toronto: Butterworths, 1987) 1 at 4. 15 Commentary on the Law of Standing, supra n. 8 at 171. 1 6 Although some commentators have attempted to delineate these terms, for the purposes of this chapter, the constructs are so similar that they will be used interchangeably. 118 issue of public interest standing. Their twists and turns make explicit some of the various underpinning normative assumptions their doctrinal enquiries relied upon. Professor Brilmayer threw down the gauntlet. She argued that standing should guarantee the realization of the affected parties' right to self-determination. The main thrust of her thesis was that "persons should not be able to assert the rights of others 1 Q even assuming they are good representatives". To hold otherwise would devalue the standing doctrine as an epistemological device. "To abandon [the standing doctrine] would be, in effect, to say that it is not important to find out who is personally affected and what their wishes are". 1 9 She acknowledged that this distrust of public interest advocacy stemmed from the value she attached to individualism. Individualist theories contend that the fundamental term of our association with each other is our respect for each individual's liberty to pursue her or his own interests. In so doing, individualism places considerable emphasis on non-intrusion in the moral evaluation of social interaction. Borrowing Aristotle's notion of autarkeia (self-sufficiency), Charles Taylor defines individualism as a theory that "affirms the self-sufficiency of man alone". 2 0 This emphasis on individual self-sufficiency was made explicit in the reforms that Professor Brilmayer proposed. She concluded that those who wished to protect the rights of underrepresented groups (which she termed 'third parties'), "should be attempting to involve those persons in the judicial process", rather than coercing people to accept a representative to act on their behalf, even if that would be in their best interests.21 In other words, we should be striving to make people more independent and less interdependent. 1 7 L. Brilmayer, "The Jurisprudence of Article Ul: Perspectives on the "Case and Controversy" Requirement" (1979) 93 Harv. L. Rev. 297 [hereinafter "The Jurisprudence of Article 1TJ"]. 18 Ibid, at 310 (emphasis added). 19 Ibid, at 314. 2 0 C. Taylor, "Atomism" in S. Avinari & A. de-Shalit, eds., Communitarianism and Individualism (Oxford: Oxford University Press, 1992) 29 at 32. 2 1 "The Jurisprudence of Article III", supra n. 17 at 321. 119 Professor Tushnet replied to Brilmayer's thesis a year later. Although he was mainly concerned with the practical realities of representative litigation, his response appeared to draw support from a non-individualist theoretical framework. He argued that representative litigants are more likely to succeed in litigation if they can draw upon the support of a "substantial, and substantially unified constituency".23 In other words, certain sectors of our society may find their self-determination furthered by those 'taking the lead in litigation' due to the empowering reciprocation of material and moral support that takes place between members of the constituency, and the constituency and its representatives. Indeed, if a minority litigant attempts to go to court without the supportive ties of the constituency, she may become discouraged from articulating her challenge.24 This non-individualist understanding of self-determination emphasizes the importance of interdependence - of ties of commonality - as the means of realizing personal autonomy. It seeks to comprehend the interrelationship of group interdependence and freedom. What these introductory comments demonstrate is that the mere assertion of the need to respect the self-determination and autonomous capacity of the individual does not bring to a close discussions about whether the public interest litigant has a legitimate role to play in adjudication. Autonomy, as an ideological construct, is capable of demanding both the restriction and extension of access for the public interest organization. If the invocation of autonomy is to be a meaningful addition to the literature on standing (and I think it should be), then we cannot rest on its mere invocation alone. We must make some sense of autonomy. We must add some context to the abstraction. 2 2 M.V. Tushnet, "The Sociology of Article III: A Response to Professor Brilmayer" (1980) 93 Harv. L. Rev. 1698. 2 3 Ibid, at 1717. 2 4 "[I]f the litigant is not honored in his or her hometown, it will be hard to sustain the interest in the suit"; ibid, at 1718. 120 Definitions of Autonomy As Professor Raz comments, "[t]he ruling idea behind personal autonomy is that people should make their own lives. The autonomous person is a (part) author of his own l i fe". 2 5 Concepts of autonomy, self-direction and self-determination are therefore important elements in our understanding of 'freedom'. However, beyond such statements, the notion of autonomy is capable of yielding to many different interpretations. One attempt to add greater concreteness to the ideal of personal autonomy contends that we are only acting autonomously if we are standing on our own two feet, isolated and protected from the threat of engulfment constituted by the collective or the community. We make our own decisions and we alone are responsible for them. Because I am separate from you, my ends, my life, my path, my goals are necessarily my own. Because I am separate, I am "autonomous".2 6 Every other discrete, separate individual - because he is the "other" - is a source of danger to me and a threat to my autonomy. I have reason to fear you solely by virtue of the fact that I am me and you are you. You are not me, so by definition my ends are not your ends.2 7 This notion of self-determination I shall term 'individualism'. It is a notion that has 28 guided the development of constitutional traditions for some time. It focuses on boundaries as the means of comprehending and securing values of autonomy. As Professor Nedelsky observes, "the image of protective boundaries as essential to the 29 integrity and autonomy of the self is.deep and pervasive in our culture". 2 5 J . Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986) at 369. 2 6 R. West, "Jurisprudence and Gender" (1988) 55 U. Chi. L. Rev. 1 at 5 (emphasis in original). 27 Ibid, at 7 (emphasis in original). 2 8 J. Nedelsky, "Law, Boundaries, and the Bounded Self in R. Post, ed., Law and the Order of Culture (Berkeley: University of California Press, 1991) 162 [hereinafter "The Bounded Self']. 29 Ibid, at 168. 121 An individualist understanding of autonomy presumes "the existence of a particular kind of individual and a particular form of society". 3 0 It generally presupposes "a detached, self-sufficient, independent or atomistic individual, primarily engaged in pursuing his self-interest; a being who is fundamentally egocentric, living in competition and in fear of other individuals". 3 1 It has been assumed that this notion of autonomy is valueless and objective - it is universal in that it applies an abstract understanding of personality. However, the individualist conception of autonomy depends upon particular philosophical ideas about human nature that have been promulgated and maintained in conditions of oppressive social power disparities. Casting autonomy in the language of competition is valid only if all members of society have the resources with which they can engage in the bargaining process. Casting autonomy in terms of 'boundary metaphors' is valid only if all members of society possess social advantages worth protecting through the construction of impermeable walls. Obviously, this is not the case. The common law has been informed and shaped by particular conceptions of fairness, freedom, and progress. The "neutral" rules of the game correspond to a particular vision of good society which gives advantages to some players over others in systematic, if not perfectly predictable ways ... Freeing ourselves from misleading categories and false choices opens up the possibility for individual autonomy in the context of collectivity. 2 Carol Gilligan's work has been pivotal in challenging this individualist notion of autonomy.33 She believed that women tended to reason differently from men. Instead 3 H E. Comack, "Theoretical Excursions" in E Comack, ed., Locating Law: Race / Class / Gender Connections (Halifax: Fern wood, 1999) 19 at 23. 3 1 S. Sevenhuijsen, Citizenship and the Ethics of Care: Feminist Considerations on Justice, Morality and Politics, trans. L. Savage (London: Routledge, 1998) at 12 (emphasis added) [hereinafter Citizenship and the Ethics of Care]. 3 2 J. Nedelsky, "Reconceiving Autonomy: Sources, Thoughts and Possibilities" in A.C. Hutchinson & L.J.M. Green, Law and the Community: The End of Individualism? (Toronto: Carswell, 1989) 219 at 232-33 [hereinafter "Reconceiving Autonomy"]. 3 3 C. Gilligan, In a Different Voice: Psychological Theory and Women's Development (Cambridge, Mass.: Harvard University Press, 1982). 122 of distancing herself from the problem, the female problem-solver would place herself within the dispute in order to examine the connection between and among disputants. One of her observations about this distinct form of reasoning was that women valued interdependence and connection over independence.34 Interdependence reconceives the definition of identity and selfhood and the mode by which that identity is autonomously expressed. Professor Sevenhuijsen terms this reconception 'the ethic of care'. This ethic asserts that it is through supporting and sustaining other persons' capacities for autonomous decision-making that we will ultimately support and sustain our own. In contrast to the atomistic view of human nature, the [ethic] of care posits the image of a 'relational self, a moral agent who is embedded in concrete relationships with other people and who acquires moral identity through interactive patterns of behaviour, perceptions and interpretations.35 By emphasizing the development of autonomy through connectivity and interaction, the ethic of care is grounded in the transformative potential of dialogue, "and on the ability to reach judgement through consideration of different perspectives".36 Rather than attempting to fit society within a universal, abstract template, the ethic of care reaches out to embrace different life experiences. Therefore, it goes some way towards respecting and promoting diversity and multi-dimensionality. It becomes an important ideological tool in the construction of a society in which all persons have a creative and positive role to play. The moral repertoire also needs to encompass notions of cooperation, intimacy and trust. Connection, compassion and affectivity should be recognized as important sources of moral reasoning ... [T]he principle of non-intrusion [which is the basis of individualist thinking] is unsatisfactory as a primary moral principle, because it precludes the possibility of dependent people's needs becoming the focus for moral deliberation ... Instead of taking as its premiss self-sufficient, atomistic Ibid, at 19-21. Citizenship and the Ethics of Care, supra n. 31 at 55. Ibid, at 114. 123 individuals, ethics should start from processes of connection and individuation.37 I believe that the adoption of an ethic of care does not entail the abandonment of the ideal of autonomy. Our deep attachment to freedom (whatever our ethics) "takes its meaning and value from the presupposition of our self-determining, self-making 38 nature: that is what freedom is for, the exercise of that capacity". Autonomy is a "goal which recognizes some true value of humanity, particularly, the honesty of 39 subjective self-knowledge and the power of self-determination". Nor should we devalue the important insight that respect for autonomy should play a vital part in the development of a sound public interest standing doctrine. However, if the idea of autonomy is not to act as a barrier to equality (and equal access) for disadvantaged groups, we need to understand how social power imbalances and autonomy interrelate. We need to reconceive autonomy so that we can combine "the claim of the constitutiveness of social relations with the value of self-determination".40 Professor Nedelsky has gone some way towards this reconceptualization. She emphasizes that "the capacity to find one's own law can develop only in the context of relations with others ... that nurture this capacity, and, second, that the "content" of one's own law is comprehensible only with reference to shared social norms, values, and concepts" 4 1 "To be autonomous a person must feel a sense of her own power (which does not mean power over others), and that feeling is only possible within a structure of relationships conducive to autonomy ... Autonomy is a capacity that exists only in the context of social relations that support it" 4 2 She argues that we must 31 Ibid, at 12. .. :•• 3 8 "Reconceiving Autonomy", supra n. 32 at 221. 3 9 S.G. Kupfer, "Autonomy and Community in Feminist Legal Thought" (1992) 22 Golden Gate University Law Review 583 at 592. 4 1 1 "Reconceiving Autonomy", supra n. 32 at 221. 41 Ibid, at 224. 42 Ibid, at 239. 124 reinterpret and reclaim autonomy from individualism. We must attempt to understand anew "what social forms, relationships and personal practices foster that capacity".43 Professor Nedelsky contends that individualism draws boundaries between the self and the collective. What these boundaries perpetuate is an ideology of competition and conflict - of them against us. It invites us to imagine "that the self to be protected is in some crucial sense insular, and that what is most important to the preservation of such a self is drawing boundaries around it that will protect it from invasion".44 She believes that this is a pathology, a paranoia that needs to be overcome. The way to do so is to recognize that interdependence is in fact an integral component of our ability to decide how to proceed in our own best interests. If we ask ourselves what actually enables people to be autonomous, the answer is not isolation, but relationships - with parents, teachers, friends, loved ones - that provide the support and guidance necessary for the development and experience of autonomy ... We see that dependence is not, as our tradition teaches, the antithesis of autonomy, but a literal precondition of "autonomy, and interdependence a constant component of autonomy 4 5 The autonomy I am talking about does remain an individual value, a value that takes its meaning from the recognition of (and respect for) the inherent individuality of each person. But it takes its meaning no less from the recognition that individuality cannot be conceived of in isolation from the social context in which that individuality comes into being. The value of autonomy will at some level be inseparable from the relations that make it possible; there will be a social component built into the meaning of autonomy.46 43 Ibid, at 223. 4 4 "The Bounded Self, supra n. 28 at 168-69. 4 5 "Reconceiving Autonomy", supra n. 32 at 225. 46 Ibid, at 251. There is debate about the extent to which this reconceptualization of autonomy as interdependence is an applicable model for both advantaged and disadvantaged groups in our society. Professor D'Aoust argues that her autonomous dependency on others as a disabled person is no different from the autonomous dependency that shapes the lives of able-bodied people. "We live in a complex and inter-dependent society where almost no one is self-sufficient. We cannot expect anyone to become totally independent when our lives are built on the interactions and responses of people to each other. Our individual lives cannot be isolated from the dynamic relationships of supply and demand, stimulus and response, need and service, production and consumption. We are all dependent"; V.D. D'Aoust, "Competency, Autonomy and Choice: On Being a Lesbian and Having Disabilities" (1994) 7 C.J.W.L. 564 at 567 [hereinafter "Competency, Autonomy and Choice"]. However, Professor West appears to suggest that men prefer to further their autonomy through the medium of isolated individualism. "[M]en can connect to other human life. Men can nurture life. Men can mother. Obviously, men can care, and 125 There have been a few interesting developments in the jurisprudence of the Supreme Court of Canada that have touched upon the interrelationship of the group and the individual in the furtherance of autonomy. When Cory J. formulated a definition of section 15(1) of the Canadian Charter of Rights and Freedoms,41 he held that equality 48 is concerned with "the realization of personal autonomy and self-determination". As we have seen, the Supreme Court has explicitly affirmed the close interconnections between individual and group when analyzing inequality in a contextual fashion. 4 9 By marrying the concepts of equality and autonomy, it is to be hoped that the courts wil l come to appreciate that the introduction of a group perspective in the promotion of self-determination will serve as a transformative paradigm for disadvantaged groups, rather than being conceived as entailing vulnerability and annihilation.5 0 It is also instructive to observe the manner in which autonomy has been conceived when the fundamental rights of freedom of expression and equality collide. 5 1 One example of such a collision can be found in the constitutional review of provisions that prohibit the wilful promotion of racial hatred. It has been argued that the greater emphasis accorded to the 'free market of ideas' in the United States assures individuals the ability to realize their autonomy by articulating their ideas as they see fit. This conception of expression as a bargainable commodity within a competitive ideological 52 market is rooted firmly within individualist notions of self-sufficiency. In demanding love, and support, and affirm life. Just as obviously, however, most men don't. One reason they don't, of course, is male privilege"; "Jurisprudence and Gender", supra n. 26 at 71. 4 7 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.ll [hereinafter the Charter]. 48 Law v. Minister of Employment and Immigration of Canada, [1999] 1 S.C.R. 497 at para. 53, 170 D.L.R. (4lh) 1. 4 9 See c. 2 and text accompanying notes 8-32. 50 Contra T. Hobbes, Leviathan, ed. by C.B. MacPherson (London: Penguin Books, 1968) at 183-84. 5 1 Freedom of expression is guaranteed under section 2(b) of the Charter: "Everyone has the following fundamental freedoms: freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication". 5 2 Individualism and contractarian thinking often flow from the same ideological source; see Citizenship and the Ethics of Care, supran. 31 at 11-12. 126 that each person act as "his own watchman for truth", the approach adopted in the United States seeks to respect the individual as an independent rational decision-maker.5 4 By contrast, in upholding the constitutionality of Canada's legislative prohibition against the promulgation of hate propaganda,55 Dickson C.J. adopted reasoning that was sensitive to the interrelationship of group and individual in the furtherance of autonomy.56 Although he recognized that the threat of criminal sanctions tended to inhibit the realization of autonomy for those individuals whose expression it limits, Dickson C.J. laid greater stress on the process of self-fulfillment that takes place within the context of supportive relationships. A person's sense of human dignity and belonging to the community at large is closely linked to the concern and respect accorded to the groups to which he or she belongs ... The derision, hostility and abuse encouraged by hate propaganda therefore have a severely negative impact on the individual's sense of self-worth and acceptance.57 [S]elf-autonomy stems in large part from one's ability to articulate and nurture an identity derived from membership in a cultural or religious 58 group. Dickson C.J. believed that these mutually supportive ties between individual autonomy and group membership constituted "a uniquely Canadian vision of a free and democratic society". 5 9 " Thomas v. Collins, 323 U.S. 516 at 545, 65 S. Ct. 315 (1945). 5 4 See further R. Leeper, "Keegstra and R.A.V.: A Comparative Analysis of the Canadian and U.S. approaches to Hate Speech Legislation" (2000) 5 Communication Law & Policy 295, especially at 313-15. 5 5 As laid out in the Criminal Code, R.S.C. 1985, c. C-46, s. 319(2). 56 R. v. Keegstra, [1990] 3 S.C.R. 697, 114 A.R. 81 [hereinafter cited to S.C.R.]. 57 Ibid, at 746. 5S Ibid, at 763. 59 Ibid, at 743. Professor Lipset has employed this unique Canadian vision in his thematic comparative research into the socio-historical traditions of Canada and the United States. "The American social structure and values foster an emphasis on competitive individualism ... By contrast, the somewhat greater strength in Canada of the belief that a person's life is not necessarily subject to his or her control can plausibly be said to contribute to a more positive view of class ... action"; S.M. Lipset, Continental Divide: The Values and Institutions of the United States and Canada (Canada: Canadian-American Committee, 1989) at 170. 127 The task of reconceiving autonomy serves to highlight the difficulties experienced in accepting unthinkingly the thesis expounded by Professors Craig and Cromwell. If autonomy is to be developed through social interaction, then the banner-waving of self-determination does not necessarily exclude interdependence and reliance on others. What does this mean when we transplant the ideology of autonomy-as-interdependence into the adjudicative realm? It could simply mean that the group financing of nominal plaintiffs in test cases is to be a welcomed mode of litigation. But what the reconception of autonomy-as-interdependence also implies is that according due respect to the rational capacities of individuals affected by the infringement of their Charter rights need not necessarily entail restricting judicial access to public interest organizations seeking standing. Indeed, we may positively encourage public interest organizations to litigate on behalf of an individual, if in doing so it is likely to further the interests of the individual affected. This positive encouragement of autonomy-as-interdependence becomes important when we begin to explore some practical obstacles to litigation that disadvantaged individuals affected by illegal state action may face. As we shall see, the new emphasis on interdependence as the means of furthering autonomy, transforms the busybody rationale into a shield that protects and reinforces the status of organizations representing disadvantaged persons. The Relationship Between Autonomy and the Capacity for it Having the ability to engage in autonomous decisionmaking does not guarantee that one will be able to implement or act on one's decisions. Social conditions can make that impossible ... To be an autonomous person, one must have a reasonable chance of acting on one's decisions.6 0 P. Smith, "Autonomy, Aspirations and Accomplishment: Some Steps and Barriers to Equality for Women" (1998) 9 Journal of Contemporary Legal Issues 257 at 275-76. 128 Professors Craig and Cromwell argued that the decision of the individual directly affected not to sue should usually be determinative of the question whether standing should be granted.61 If the individual directly affected is not heard to complain about state action, then his reaction is presumed to be one of contentment. The problem with this theory is that it can only be accepted once we abstract the individual directly affected from the context of oppression and dominance that characterizes social relations. Some people can exercise their autonomous capacity on a regular basis. Others struggle to do so. The fact that some find self-definition a relatively easy task, while others less so, is not because different people have differing amounts of autonomy. Rather, it is a consequence of the imbalance of social power. In the preceding section, I was ambiguous as to whether autonomy reconceived as interdependence was universally applicable, or whether it was an ideological construct that advantaged members would shun. The question is of general importance, but is not one I shall deal with here. This is because, regardless of the manner in which we define autonomy conceptually, there exist many practical obstacles for disadvantaged persons in using the courts to remedy their social inequality - practical obstacles that can only be overcome through supportive group ties and interdependence. These practical obstacles are an inherent consequence of litigation itself, even when that litigation is meant to benefit disadvantaged groups by correcting the systematic malfunctioning of the democratic process (for example, when that process persistently discounts the interests of those groups).62 These obstacles mandate the recognition that the autonomy of disadvantaged persons can only be furthered (in the adjudicative sphere) if they act interdependently. In applying the universal (but abstract) directly affected individual, 6 1 See above text accompanying notes 10-15. 6 2 This legitimating theory of judicial review - that the courts can intervene when legislative decision makers breach the duty to take into account the interests of all those that their decisions affect - is developed by J. Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, Mass.: Harvard University Press, 1980). The main principles are neatly summarized in W. Black, "Vriend, Rights and Democracy" (1996) 7 Constitutional Forum 126. 129 Professors Craig and Cromwell have not only misunderstood what autonomy actually means, they have misunderstood the degree to which certain disadvantaged persons can realize it.6 3 A - "1 would, but 1 can't afford to": As lawyers we are familiar with the notion that the "most basic tenet of any constitutional society is the shared belief that by virtue of being citizens of a state, all persons are equal in the eyes of the law". 6 4 But commentators seem to forget that equality under the law comes at a price. Litigation is an expensive occupation, and few are willing to commence proceedings. Simply because some individuals have the resources to exercise their capacity for autonomous decision-making before the courts, does not mean that we all have the same capacity to realize such self-direction.65 It cannot be said that we are realizing our true self-direction when we only have one •choice, that being to decline to pursue disputes through the courts. As Professor Raz observes, autonomy can only be exercised if the person has an "adequate range of options".6 6 Autonomy cannot be assumed in conditions of no, or little, choice. Inactivity, therefore, does not necessarily mean 6 3 The following is not meant to be exhaustive; neither does it apply universally for each disadvantaged group. Indeed, it may be difficult to determine which circumstances exist in each specific case, or as a general rule. 6 4 D.P. Franklin & M.J. Baun, "Introduction: Political Culture and Constitutionalism" in D. Franklin & M. Baun, eds., Political Culture and Constitutionalism: A Comparative Approach (Armonk, New York: M.E. Sharpe, 1995) 1 at 5. 6 5 For example, studies have shown that women continue to face a significantly higher risk of poverty than men. In 1970, the Report of the Royal Commission on the Status of Women in Canada (Ottawa: Information Canada, 1970) concluded that: "(a) probably, in total, more women than men are poor, (b) there are specific groups of women, such as sole support mothers who are extremely poor, and (c) while discrimination and lack of supporting social institutions cause hardship among women at all income levels, they cause greatest distress among women who are poor"; at 309. When the National Council of Welfare readdressed this issue in 1990, they found that little had changed; Women and Poverty Revisited: A Report by the National Council of Welfare (Canada: National Council of Welfare, 1990). It is interesting to note that in its 1970 report, the Royal Commission drew the correlation between poverty and autonomy advocated here. "Poverty is to be without money, but it is also to have little hope for better things. It is a feeling that one is unable to control one's destiny, that one is powerless in a society that respects power"; at 311. 66 The Morality of Freedom, supra n. 25 at 372. 130 c contentment. If I would litigate had my financial circumstances been other than they are, then my decision not to litigate is not determinative of the issue of the relativity of ultra vires. We cannot merely assume that an absence of vocal complaint can only mean a positive affirmation of the infringement of my Charter rights. Rather, there exists a whole host of possibilities and probabilities, resources permitting and time constraints prohibiting that serve to question whether we should accord due respect to individual inaction in all cases.6 8 B - "I would, but I fear the consequences": For the advantaged members of our society, autonomy and self-determination may well be akin to battle-cries. The individual voices his desire to 'stand up and be counted', a need to have his exploits 6 7 Professor D'Aoust argues this point not only in relation to financial resources, but also in terms of the array of factors that often serve to render access to the courts illusory. "The court system is so complex and inaccessible that very few women with disabilities ever become part of its process, despite being victimized by various acts and circumstances. The power imbalances are so institutionalized that even to get to court may be a victory. So the very few cases we know about are only a small indication of the need, the problem and the issues"; "Competency, Autonomy and Choice", supra n. 46 at 578. 6 8 There is a way of lowering the private screening costs of litigation without having recourse to public interest organizations - applying for legal aid. In the context of the Charter, the main source of such aid is channelled though the Court Challenges Program: a federally funded scheme that subsidizes challenges to federal law. However, "[m]any of the most important concerns of equality to disadvantaged groups arise in matters of provincial jurisdiction, for example, health and education. Equality cases in these areas would not be eligible for [legal aid]"; J. Mosoff, "Do the Orthodox Rules of Lawyering Permit the Public Interest Advocate to "Do the Right Thing?": A Case Study of HIV-infected Prisoners" (1992) 30 Alta. L. Rev. 1258 at 1264. This is because there exists no analogous scheme that funds Charter challenges to provincial acts. This creates problems of access in non-criminal cases, as civil matters tend to fall within the jurisdiction of the province; see s. 92(13) Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No.5. The possibility exists that civil aid would be available for civil cases that incidentally raise Charter issues. Lisa Addario has studied the efficacy of provincial civil legal aid schemes in broadening access to justice; L. Addario, Getting a Foot in the Door: Women, Civil Legal Aid and Access to Justice (Ottawa: Status of Women Canada, 1998). She found that the provision of legal aid services has continually failed to take the legal needs of women into account. "[T]he access to justice movement -and the poverty scholarship that reflected it - failed to differentiate clearly the compounding disadvantage experienced by low income people when differing forms of oppression intersected and multiplied ... The failure to take these factors into account has meant that legal aid programming continues to fall consistently short of meeting the needs of the constituency of low income women"; at 6-7. Specific problems that she identified included, the fact that "women did not easily understand the criteria used to assess their application for legal'aid and, for some women, the feelings of discomfort that can accompany this experience can be insurmountable"; at 22. Further, "[m]any ethnic, racial and linguistic minorities have little or no awareness of the services provided by legal aid"; at 11. Thus, legal aid is not, by any stretch of the imagination, a panacea to cure all autonomy ills. It merely adds another variable, and demands that another set of questions be asked in assessing whether autonomous choice has been exercised. The mere fact that people do not take advantage of such services does not necessarily impute an acceptance of their disadvantaged position. 131 and suffering recognized by his peers. But such boldness, such freedom to pronounce your presence to the world, may not be held to the same degree by members of certain disadvantaged groups. In order to fully understand the nature of the barriers to access which are imposed by a standing test based on individual harm, it is important to acknowledge that the circumstances of the disadvantaged include social, economic and physical vulnerability, isolation and fear of persons in authority or of sustained public visibility. Those conditions make it all the more difficult for them to think of confronting in litigation a governmental authority upon whose goodwill they may depend for income, chances of improvement, or even (in the case of refugees) their very lives. 6 9 As L.E.A.F. alluded to in the passage above, immigrants and refugees may be anxious about the possible reprisals, they may be subjected to should they bring an action against the government upon whose goodwill (so they may believe) their continued presence in the country depends. Again, inactivity does not necessarily mean contentment. The question whether there has been an exercise of autonomous capacity cannot be answered by examining merely whether the affected party initiates proceedings or not. Rather, this question must be placed in the context within which the inactivity occurred. In an extreme case, like that of refugees, the decision may ultimately rest on the choice of life over death. [A] choice between survival and death is no choice from our perspective (and we need not deny that [the refugees] may be very grateful that at least [they were] left this choice). A n adequate range of options must therefore meet an additional separate condition. For most of the time the choice should not be dominated by the need to protect the life one has. 7 0 6 9 Canadian Disability Rights Council & Women's Legal Education and Action, Canadian Council of Churches v. Minister of Employment and Immigration (1991), [1992] 1 S.C.R. 236 (Interveners' Factum at para. 48) [hereinafter L.E.A.F. Factum; when referring to the organizations in the following text, I will simply refer to Women's Legal Education and Action, hereinafter L.E.A.F.]. 7(1 The Morality of Freedom, supra n. 25 at 376. 132 To defer to the decision of the individual affected in such, and similar, circumstances is to empty the term 'self-determination' of all its intuitive appeal.7 1 Again, the absence of vocal complaint does not necessarily indicate a positive affirmation of the (otherwise) unconstitutional behaviour. When L.E.A.F intervened in Council of Churches, they argued that one of the advantages that public interest representation had to offer was the ability to advance the cause of the represented without the fear of consequences generated by self-identification. In order to obtain standing under the "private rights" test as presently interpreted, it is necessary for the individual to show that he or she possesses the characteristic of disadvantage relied upon. Self-identification, in itself, may pose significant risks. As well, individual members of disadvantaged groups who advance equality claims on behalf of the group may be subject to backlash based on bigotry toward the group as a whole. Group standing to reinforce the equality rights of the disadvantaged would reduce individual members' visibility and vulnerability to reprisal and would offer at the same time the support of others who share the same risks and collective interests. In this fashion, the sharing of the disadvantage and the actions taken together about that disadvantage can provide a positive, empowering experience. It includes the individual rather than excludes her.7 In providing an avenue which enables choice to be freely exercised on an equal footing with the advantaged battle-criers (and in providing a concrete example of the transformative potential of autonomy-as-interdependence), the public interest 73 organization is paying due respect to the aspirations of the individual. 7 1 These issues obviously do not apply solely in the context of immigration (though the consequences may be less severe than the loss of one's life). Gays and lesbians may not wish to risk reprisals from work colleagues and family should they seek to challenge state action in which they have to identify their otherwise closeted homosexuality. 72 L.E.A.F. Factum, supra n. 69 at para. 50. 7 3 In discussing a similar point raised during argument in League for Human Rights of B'Nai Brith Canada v. Minister of National Defence (1991), 4 C.R.R. (2d) 177, 44 F.T.R. 166 (T.D.), Caruana argues that the fear of reprisal "still fails because a simple solution would be to allow the use of fictitious names. For example, the famous American case of Roe v. Wade was an abortion challenge by "Jane Roe". Jane Roe did not exist but was rather a pseudonym for a woman named Norma McCorby"; A Neo-Conservative Approach to Standing, supra n. 3 at 123. The use of fictitious names may be of some utility in protecting disadvantaged people from potential reprisals meted out by the hands of society at large. They are less likely to afford the same degree of protection when the source of the potential reprisal is 133 C - "J am a socially constructed individual and as such I 'freely' choose not to sue": A methodological critique of individualism asserts that we live within societies that are thickly self-constitutive. To understand human behaviour, one must look toward the "pervasive influence of social conditions in shaping individual values and political arrangements".74 Social conditions define the parameters within which one may be autonomous, within which one may make free choices. Thus, it is wrong to divorce the individual from the social context that determines how that individual's individuality is to be expressed. One consequence of this line of thought is to suggest that the language of autonomy, understood as the language of individual choice, of responsibility for self, and of voluntary obligation, has achieved exaggerated importance both in modern politics and, by implication, in modem philosophy. We are not simply striving individuals, but also passive recipients of obligations which we neither seek nor control. 7 5 Professor Nedelsky makes a similar observation. [Feminist criticism has been directed at the individualist] vision of human beings as self-made and self-making men (my choice of pronoun is, of course, deliberate). The critics rightly insist that, of course, people are not self-made. We come info being in a social context that is literally constitutive of us. Some of our most essential characteristics, such as our capacity for language and the conceptual framework through which we see the world, are not made by us, but given to us ... through our interactions with others.76 your nearest-and-not-so-dearest. The employment of fictitious names may also be ineffective when a case generates publicity. The public's hunger to know the identities behind political intrigue and the journalist's instinct to uncover the truth behind deceptions (or sometimes, to 'uncover' the deceptions behind the truth) can create an unbearable pressure for information that a fictitious name may not be able to withstand. The implications of such investigative journalism do not simply exist within the time frame of the trial. Those who are in a position of dependency upon the state or others may still suffer reprisals once the litigation has been concluded and once any potential deterrence that contempt of court proceedings may offer has been dissipated. 7 4 M.J. Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982) at 11. 7 5 S. Mendus, "Strangers and Brothers: Liberalism, Socialism and the Concept of Autonomy" in D. Milligan & W.W. Miller, eds., Liberalism, Citizenship and Autonomy (Aldershot: Avebury, 1992) 3 at 8-9. 7 6 "Reconceiving Autonomy", supra n. 32 at 220. 134 Certain radical scholars have taken this insight one stage further in instances where there exists a gross disparity of social power. For example, Professor MacKinnon has argued that women are not merely thickly constituted by society. They are totally constituted by male societal norms. The perspective from the male5 standpoint enforces women's definition, encircles her body, circumlocutes her speech, and describes her life. The male perspective is systemic and hegemonic. Because it is the dominant point of view and defines rationality, women are pushed to see reality in its terms, although this denies their vantage point as women in that it contradicts at least some of their lived experience.77 Professor MacKinnon believes that the social construction of 'female' by men means that women's "complicity in their condition does not contradict its fundamental unacceptability if women have little choice but to become persons who then freely choose women's roles". 7 8 Thus, there exists no self to choose freely, apart from that which is socially determined to choose unfreely. "[W]omen, collectively oppressed under male domination, cannot freely choose their lives, even if they say their choices are freely made". 7 9 If we listen to women who do not wish to upset the oppressive, marginalizing status quo, then we are not according respect for the articulation of their rational decision-making, but rather to the irrational decision-making of men projected 80 through the gendered vessel. 7 7 C. MacKinnon, Toward a Feminist Theory of the State (Cambridge, Mass.: Harvard University Press, 1989) 114. Robin West is another proponent of the argument that women are so dominated by gender constructions that they cannot make free individual choices. Professor West feels that women "distinctively bear the mark of patriarchal power by denying rather than acting upon ... their pleasures and internalizing and identifying with rather than avoiding their pains ... if patriarchy has affirmatively created a social existence for women, it is one of objecthood, or otherhood, but most assuredly not of selfhood"; R. West, "Feminism, Critical Social Theory and Law" [1989] University of Chicago Legal Forum 59 at 87-89. 78 Toward a Feminist Theory of the State, ibid, at 124. 7 9 "Autonomy and Community in Feminist Legal Thought", supra n. 39 at 602. 8 0 "If women are socially defined such that female sexuality cannot be lived or spoken or felt or even somatically sensed apart from its enforced definition, so that it is its own lack, then there is no such thing as women as such; there are only walking embodiments of men's projected needs"; Toward a Feminist Theory of the State, supra n. 77 at 119. 135 I am slightly concerned that this radical critique runs the risk of "understating women's opportunities for social influence and social change". 8 1 Indeed, it may encourage scrutiny of women's personal choices and detract from women's ability to make meaningful individual decisions. Autonomy can be a transformative concept ... While the classic liberal concept of the individual does not seem full enough to account for women's differing vision for a society, the core values of autonomy (subjectivity, agency, self-determination) seem necessary for creation of freedom from subordination.83 However, this does not mean that we should disregard Professor MacKinnon's insights into how social construction limits the free choices that women can make. Indeed, M i l l (often seen as the founding father of modem liberalism) carefully examined the ways in which social conventions reinforced by law constrained and confined women within a certain mould. And as Professor D'Aoust reminds us, in a moving piece of self-reflection, it is not just women qua women-sole who suffer such fate. "As a lesbian, as a woman with disabilities, and as someone who could be seen as medically/legally incompetent, I have no choices". Society has excluded such disadvantaged persons from the multitudinous array of choices otherwise open to all, and thus has devalued their capacity for rational self-determination. As Professor Reaume observes, once the possibility of such constraints on choice is acknowledged, "it is impossible to hold to the view that the individual's conception of her own welfare 8 1 D.L. Rhode, Justice and Gender: Sex Discrimination and the Law (Cambridge, Mass.: Harvard University Press, 1989) at 85. 8 2 K. Abrams, "Ideology and Women's Choices" (1990) Georgia Law Review 761 at 779-83. 8 3 "Autonomy and Community in Feminist Legal Thought", supra n. 39 at 604. 8 4 J.S. Mill, "The Subjection of Women" in S. Collini, ed., On Liberty; with The Subjection of Women; and chapters on socialism (Cambridge: Cambridge University Press, 1989) 117. 8 5 "Competency, Autonomy and Choice", supra n. 46 at 573. 136 must be accepted uncritically. The real issue is how to distinguish legitimate from illegitimate constraints on choice." 8 6 Once again, our interpretation of the relativity of ultra vires has to be made in the context within which the decision not to sue was made. If it appears that the individual's choices are socially constructed in such a way that she must behave in a deferential manner to personal violations, it becomes difficult for the disadvantaged independent individual to exercise her personal autonomy in a way that breaks through the vicious hierarchies of subordination. The public interest organization can provide a pool of experiences, a means of dialogue, sharing and empowerment, thus fulfilling some of the characteristic elements of the ethic of care. The organization should thus be seen as a structure of relationships conducive to promoting the autonomy of disadvantaged persons. Therefore, such an organization may have a presumptive entitlement to test the validity of the issues that affect the directly affected but disadvantaged individual. The existence of any of these inhibiting circumstances may be difficult to prove or disprove (depending where the burden of proof lies). However, the important point to stress (if litigation is to be open to all and treat all equally) is that an abstractly defined individual waving the banner of autonomy-as-independence cannot guard judicial access when so many persons will be seeking to further their autonomy in interdependent ways. The affirmative relationships of support one can find in public interest organizations should give disadvantaged members the power to make S 6 D.G. Reaume, "The Social Construction of Women and the Possibility of Change: Unmodified Feminism Revisited", Book Review of Toward a Feminist Theory of the State by C.A. MacKinnon (1992) 5 C.J.W.L. 463 at 469. This is, of course, the real challenge when one adopts Professor MacKinnon's critique of radical social construction: what is an illegitimate constraint on choice as opposed to a legitimate one? I am not sure I know the answer and, in the interests of space, I certainly do not want to attempt to construct one here. However, what I do wish to re-emphasize is that the mere invocation of autonomy as a justification for a restrictive public interest standing doctrine tends to obscure these many difficult and concrete issues about what autonomy means in different people's lives. 137 autonomous decisions in the adjudicative sphere on an equal basis to those of individual advantaged members. As Evans J. observed in Sierra Club of Canada v. Minister of Finance of Canada, "members of vulnerable groups are, after all, often not in a position to defend their interests through litigation, and it is therefore quite appropriate that organizations that have an involvement with the issues should be allowed to litigate on their behalf'. 8 7 However, this inevitably raises the question: how do we know that the organization will act so as to give disadvantaged individuals the power to make autonomous decisions? If we are to positively encourage public interest organizations to litigate on behalf of an individual (because we believe that in doing so we are likely to further the interests of the individual affected), then how can we be sure that the organization will be committed to that task? " A representative organization ... bringing a case on behalf of its members generates concern about commonality of interest: how 88 • * representative is the organization of the membership". And when the organization deems to represent disadvantaged groups, we are concerned not only about the commonality of interest, but also whether the organization can be said to represent the diverse experiences of members of the group. How can we be sure that an organization is sensitive to the complex and diverse experiences of oppression of those it deems to represent, so as to promote the autonomy of all members in an effective manner? Should the representative status of an organization be the subject of judicial scrutiny in determining whether public interest standing is to be granted? Is such an enquiry amenable to judicial resolution? In the alternative, should representativeness be seen as a moral question to be resolved by the organization itself? These issues are important 87 Sierra Club of Canada v. Minister of Finance of Canada, [1999] 2 F.C. 211 at para. 53, 13 Admin. L.R. (3d) 280 (T.D.). , 8 8 P. Bowal, "Speaking up for Others: Locus Standi and Representative Bodies" (1994) 35 C. de D. 905 at 917 [hereinafter "Speaking up for Others"]. 138 areas of concern, and they permeate the entirety of this work. However, I feel best placed to deal with them at this juncture, having emphasized the constitutive and supportive ties that exist between disadvantaged individuals and the organizations that deem to represent them. If we are to take the critique of autonomy-as-interdependence seriously, we must make sure that those litigants we listen to are able to further the autonomy of all individuals that may be affected by proposed litigation. Questions of Representativeness For Professor Brilmayer, one of the crucial aspects of developing a sound public interest standing doctrine is the importance we attach to precedent. One of the great strengths of a restrictive public interest standing doctrine is that it prevents the results of litigation being imposed on directly affected individuals who are not before the courts. The binding effect of judicial pronouncements entails that we must be confident that we have the most representative of litigants before the courts. And there is no-one more representative than the directly affected individual. [0]ne of the best explanations of the case or controversy requirement [in Canadian law, this is comparable to a restrictive interpretation of public interest standing] may be the desire of the courts to ensure the accountability of representatives ... The case or controversy requirement guarantees that the individuals most affected by the challenged activity wil l have a role in the challenge. This guarantee should be seen as a minimal element of the legitimacy of a legal system which imposes legal burdens upon its members. At some point in the legal process affected 89 individuals should have their day in court. Although the critical insight Professor Brilmayer offers is of great importance, the conclusions she draws from it are disappointing. After all, litigation brought by a directly affected individual will have the same binding effect as litigation brought by a "The Jurisprudence of Article III", supra n. 17 at 310. 139 public litigant. But a person who is directly affected by an issue relating to the law of mortgages is never asked to prove whether he is an able representative of all those Canadians who have mortgages. And yet his lawsuit denies all these individuals who have mortgages their day in court. It is important never to lose sight of the fact that disputes brought by private individuals will often house 'public' values, interests that transcend the predilections of those bringing the challenge. "This is, after all, how law is produced". 9 0 It may seem inequitable "that persons may be forced to accept consequences without having participated in the process determining those consequences",91 but it happens all the time, regardless of whether litigation is brought by an individual or a group. "The hermetic, bipolar structure of litigation means that private actors moving within it are simply unaccountable to any larger constituency standing outside the courtroom". If, for example, the pecuniary or proprietary interests of one hundred people are damaged by an illegal act, and only one of them elects to bring proceedings, the remainder will be affected by the judgment to the same extent as if proceedings had been brought by a person lacking such an interest. Yet we do not question the standing [or the representativeness] of the party with a traditional legal interest.93 The unaccountability of the individual litigant to the larger constituency is of particular concern when that constituency is a disadvantaged group.9 4 An interesting 9 0 W.A. Bogart, "Understanding Standing, Chapter IV: Minister of Finance of Canada v. Finlay" Case Comment (1988) 10 Supreme Court L.R. 377 at 392. 9 1 Ontario Law Reform Commission, Report on the Law of Standing (Toronto: Publication Services, 1989) at 60. 9 2 A. Macklin, "Symes v. M.N.R.: Where Sex Meets Class" Case Comment (1992) 5 C.J.W.L. 498 at 516-17 [hereinafter "Where Sex Meets Class"]. ' '' 93 Report on Standing, supra n. 11 at 60. 9 4 For example, can we be certain that Nancy Rosenberg and Margaret Evans were truly representative of the lesbian and gay community when they challenged the definition of 'spouse' in the Income Tax Act, R.S.C. 1985 (5th Supp.), c. 1, s. 252(4) [hereinafter the Act], that limited entitlement to spousal pension benefits to partners of the opposite sex? See Rosenberg v. Attorney General of Canada (1998), 30 O.R. (3d) 577, 158 D.L.R. (4th) 664 (C.A.). It seemed obvious at the time that a litigation win for these two lesbians would act as a catalyst for the inclusion of lesbian and gay couples for all purposes under the Act. Indeed, this has occurred, so that the Act now applies on the same basis to same-sex couples as it does to married and heterosexual couples; Modernization of Benefits and Obligations Act, S.C. 2000, c. 12, s. 139(2). However, as Professor Young has ably demonstrated, "including lesbians and gay men as 140 case that appeared to question (albeit in a rather veiled fashion) the representative status of the individual initiating litigation was Symes v. Canada.95 In this case, a self-employed woman brought an action in which, inter alia, she alleged that the restricted scope of deductible expenses contemplated by section 18(1) of the Income Tax Act discriminated against her on the basis of her sex, 9 6 contrary to section 15(1) of the Charter. She argued that the total amount of her child-care expenses should be deductible as a business expense under section 18(1) on the basis that, had she not paid for child-care, she would not have been able to earn income from her business. The deductible expenses contemplated by section 18(1) are available only to the self-employed. However, specific provision, under section 63, had been made for parents (whether self-employed or as employees) to deduct child-care expenses up to a stipulated maximum per child. This deduction would have covered only 30% of the litigant's actual child-care expenses. The Supreme Court of Canada held that, although Ms. Symes had demonstrated how the issue of child-care had negatively affected women in employment terms, she had failed to prove that the burden of child-care expense was disproportionately placed upon women. 9 7 Therefore, she had not proved that there had been an infringement of the right to equality under the Charter. spouses for all purposes of the Act is highly problematic"; C.F.L. Young, "Spousal Status, Pension Benefits and Tax: Rosenberg v. Canada (Attorney General)" Case Commentary (1998) 6 Canadian Labour and Employment Law Journal 435 at 449. See also C.F.L. Young, "Taxing Times for Lesbians and Gay Men: Equality at What Cost?" (1994)T7T)al. L.J. 534 [hereinafter "Taxing Times for Lesbians and Gay Men"]. One problematic feature is that a failure to declare the fact that you are in a 'conjugal' relationship with a member of the same sex is an offence; Income Tax Act, s. 239(1 )(a). However, information provided to the Canada Customs and Revenue Agency is not kept completely confidential. This places lesbians and gay men who do not wish to identify themselves as such in an impossible position. "Either they will run the risk of their relationship becoming public knowledge, or if they are not prepared to do that, they will be committing an offence under the Act"; "Taxing Times for Lesbians and Gay Men", ibid, at 555. To the extent that such concerns can all be traced back to the decision in Rosenberg, are we content that the representative status of Ms. Rosenberg and Ms. Evans was never the subject of judicial scrutiny? 95 Symes v. Canada, [1993] 4 S.C.R. 695, 110 D.L.R. (4lh) 470 [hereinafter Symes]. 9 6 Section 18(1 )(a) provides as follows: "In computing the income of a taxpayer from a business or property no deduction shall be made in respect of an ouday or expense except to the extent that it was made or incurred by the taxpayer for the purpose of gaining or producing income from the business or property". Section 18(l)(h) provides that personal expenses are not to be counted as deductible expenses. 97 Symes, supra n. 95 at 765. 141 In seeking to reinforce his reasoning, Iaccobucci J. (writing for the majority) made repeated references to the economically privileged status of Ms. Symes in comparison with other women. "The appellant in this case belongs to a particular subgroup of women, namely, married women who are entrepreneurs. It is important to 98 realize that her evidentiary focus was skewed in this direction". "I note that no particular effort was made in this case to establish the circumstances of single mothers".9 9 "[Tjhere has been no attempt to involve the circumstances of low income Canadians in this Charter challenge". 1 0 0 Iaccobucci J. appeared unwilling to give judgment for the applicant when the discrimination she apparently suffered was not representative of the experiences of most women. He explicitly relied upon a commentary of the Federal Court of Appeal's decision written by Professor Mackl in . 1 0 1 She argued that the hazards of Ms. Symes' claim for women far exceeded the potential benefits. If Symes were to win her lawsuit, it would do "little to facilitate the entry into the paid workforce by women who wish or need to do so but whose child rearing responsibilities confine them to the home". Indeed, success for Symes could have had the effect of weakening calls for a comprehensive and accessible day care program that would benefit all women. This was because success for her may have created the false impression "that the problem has .been solved because a few businesswomen might be able to deduct their child care expenses". In dissent, L'Heureux-Dube J. 98 Ibid, at 765-66. "Ibid. "'" Ibid, at 768. These comments remind me of observations made by Professor Mclntyre. The directly affected individual "will put "a" contending viewpoint before the court. But in a heterogeneous world, it seems misguided to imagine any or all directly affected challengers could or would wish to put all contending issues before the court even if they had the resources to do so"; S. Mclntyre, "Above and Beyond Equality Rights: Canadian Council of Churches v. The Queen" (1992) 12 Windsor Y.B. Access Just. 293 at 308. "" "Where Sex Meets Class", supra n. 93. The decision of the Court of Appeal can be found at [1991] 3 F.C. 507, 127 N.R. 348. 1112 Ibid, at 515. 103 Ibid, at 515-16. Professor Young has commented that the consequences of the case could have gone beyond political rhetoric. "Since the government has acknowledged that funding for child-care is limited, success for Ms. Symes and a consequent diversion of existing funds (or a limited amount of new 142 disagreed that the ability of Symes to represent women as a group was a relevant factor in the determination of whether her right to equality had been infringed. "The fact that Ms. Symes may be a member of a more privileged economic class does not by itself invalidate her claim under s. 15 of the Charter. She is not to be held responsible for all possible discriminations in the income tax system". 1 0 4 Why the representative status of the individual litigant is never a matter of concern in granting private interest standing is an illuminating question. It brings to light many of the assumptions we have unwittingly adopted in thinking about the role of litigation and precedent. As Professor Chayes has argued, in a world dedicated to providing a framework for individual ordering, "the courts could be seen as an adjunct to private ordering, whose primary function was the resolution of disputes about the fair implications of individual transactions".105 This has allowed orthodoxy to assert that funding) to only the self-employed might have been inappropriate. It could have served to reinforce the inequitable division of the subsidy, to the detriment of those who are already economically or socially disadvantaged"; C.F.L. Young, "Equality, Freedom and Democracy: Tax Law and the Canadian Charter of Rights and Freedoms" in S. Bottomley & D. Kinley, eds., Commercial Law and Human Rights (Aldershot: Ashgate, forthcoming) at 7-8. 104 Symes, supra n. 95 at 825-26. It is interesting to ask ourselves whether we would be so concerned about the representative status of a public interest litigant deeming to represent disadvantaged persons, if that litigant was an individual rather than an Organization. In Finlay, supra n. 3, the litigant, a person in need whose sole financial support was the allowance he received under the Manitoba Social Allowances Act, R.S.M. 1987, c. S160, was granted public interest standing to challenge the legality of deductions from his assistance payments that Manitoba was making to permit recovery of overpayments. Finlay contended that the deductions were contrary to Manitoba's undertaking (under the Canada Assistance Plan, R.S.C., 1985, c. C-l [hereinafter C.A.P.]) to provide assistance to any person in need in a manner that takes into account that person's basic requirements. He sought a declaration that deductions from an individual's social assistance to permit recovery of overpayments violated C.A.P., and, as a consequence, that the federal portion of the cost-sharing payments were illegal. He also sought an injunction to stop those payments as long as the provincial system of assistance to persons in need failed to comply with the undertakings imposed by C.A.P. When public interest standing was granted, Finlay's representativeness of persons in need in Manitoba was never questioned. This is slightly disconcerting, considering that the remedy sought by Finlay would actually make those residents of Manitoba in need more needy, as it would serve to terminate the federal portion of assistance under C.A.P. I would speculate that Finlay's lawsuit was not well received by the community of which he was a member. And yet his ability to represent those who would be so adversely affected by his litigation was never considered. Indeed, it was only a matter of judicial consideration for the minority of the Supreme Court of Canada when the merits of the case were being argued. In holding that the deductions violated C.A.P., McLachlin J . refused to grant Finlay the relief he sought. "[A] blanket injunction against federal contributions to the cost of social assistance in Manitoba until the province complies with the minimum requirements of CAP is draconian and undesirable. It would cut off aid for a great many salutary programs, including child welfare"; Finlay v. Minister of Finance of Canada (No. 2), [1993] 1 S.C.R. 1080 at 1120, 101D.L.R. (4lh) 567. 1 0 5 A. Chayes, "The Role of Judges in Public Law Litigation" (1976) 89 Harv. L. Rev. 1281 at 1285. 143 litigation is a self-contained episode, even though it takes little critical reflection to be aware that such a picture has never been a truly valid description of civil litigation. However, the acceptance of this picture of adjudication has the consequence that any entity other than the individual who wishes to initiate litigation so as to aid the expression of shared values is to be treated with the suspicion its unconventionality apparently deserves. In its intervening factum in Council of Churches, L.E.A.F. gave some thought to what a test of representativeness would entail if standing were expanded to include the group representing disadvantaged persons. In order to have such standing, the group would have to be composed primarily of those characterized by historic and continuing social disadvantage, and have among its objects the promotion of their equality. In any particular case, the group must demonstrate a proximity of connection between the issues raised and the disadvantage(s) characterizing those for whom it speaks. 1 0 6 The demonstration of a group's proximity to the characteristic disadvantage suffered by members of the group is meant to address the issue of concreteness. Those groups whose interest in disadvantage is primarily abstract and academic are less likely to be granted standing. Although this attempt to elaborate upon the nexus of representation is rather opaque, it is interesting to briefly review the attempts that L.E.A.F. has made itself to demonstrate a 'proximity of connection' to the disadvantages characterizing those for 107 whom it speaks. In its early days, L.E.A.F. appeared to present an elitist front. "Because LEAF'S funding board and staff were white, middle class professional women, there was legitimate skepticism of LEAF'S ability to respond and incorporate 106 L.E.A.F. Factum, supra n. 69 at para. 75. 1 0 7 Although the focus of L.E.A.F.'s work is now centred on intervention rather than the initiation of litigation, the question of representativeness has always weighed heavily on L.E.A.F.'s conscience. Indeed, in light of the important contributions that interveners have made in the equality jurisprudence of the Supreme Court of Canada, representativeness is of crucial concern for interveners as well those organizations hoping to gain standing. 144 the interests and experiences of diverse women". For instance, in 1987, the National Organization of Immigrant and Visible Minority Women of Canada questioned L.E.A.F. 's ability and sensitivity to represent the interests and perspectives of immigrant and visible minority women whose mother tongue was neither English nor French. 1 0 9 L.E.A.F. 's homogeneity hampered existing relations between it and different feminist communities. How could it, therefore, bill itself as representative of all women's concerns, when its own board members were uniformly white, able-bodied and entrenched in the 'have' sectors of society? This homogeneous elitism was confirmed by the analytical domination of a 'sex-only' view of women's oppressions in L.E.A.F. 's early caseload. [T]he equality analysis that L E A F advanced in earlier cases tended to emphasize the unity of women's experiences of oppression and the primacy of gender as a determining factor in these experiences. As a consequence, it tended to downplay, or in some cases to completely disregard, the significance of issues of race, class, sexuality, and disability as defining factors in women's subordination.1 1 0 The essentialism that characterizes L.E.A.F. 's early days has to be understood in the context of the pressures and realities of litigation. The nature of the litigation process is such that often schedules and time constraints are extremely limiting. "This makes it difficult to engage in the kind of extensive consultation with women and women's organizations which is essential if the final product is to reflect women's 1 0 8 C. Mathen, "Introduction" in Women's Legal Education and Action Fund, Equality and the Charter: Ten Years of Feminist Advocacy before the Supreme Court of Canada (Canada: Edward Montgomery Publications, 1996) xv at xxi [hereinafter Feminist Advocacy before the Supreme Court]. 1 0 9 Recounted in S. Razack, Canadian Feminism and the Law: The Women's Legal Education and Action Fund and the Pursuit of Equality (Toronto: Second Story Press, 1991) at 57. Also Robert Hough observed that "groups such as the Congress of Black Women, the Disabled Network of Canada (DAWN) and the National Organization for Immigrants and Visible Minority Women openly criticized LEAF, claiming the organization was elitist and ignorant of their plight"; R. Hough, "The Rise of LEAF' (1991) 15(3) Can. Law. 36 at 39. "° A.S. Pellatt, "Equality Rights Litigation and Social Transformation: A Consideration of the Women's Legal Education and Action Fund's Intervention in Vriend v. R." (2000) 12 C.J.W.L. 117 at 132 [hereinafter "Equality Rights Litigation and Social Transformation"]. 145 diverse realities in a respectful and meaningful way". 1 1 1 Also, the strong negative conceptualizations of women prevailing, in the mid-1980s may have mandated the advocacy of less complex (and, therefore, rhetorically more 'powerful') arguments to overcome deeply ingrained misconceptions of oppression. Although it no doubt fully intended to be an organization with members drawn from all quarters of society, L.E.A.F. decided (partly out of necessity and partly out of strategy) to employ essentialist constructs of women as a countervailing force to the social constructs in place. Having gained credibility and sincerity, L.E.A.F. began to act upon the criticisms that had been made about its representative status. According to Carissima Mathen, L.E.A.F. adopted a three-fold response: organizational, theoretical, and experiential.1 1 2 Organizationally, L.E.A.F. adopted a Diversification Policy in 1990. 1 1 3 This policy commits L.E.A.F. to "actively pursuing a broad representation of women throughout the organization and governance processes; recognizing the importance of inclusiveness and accountability in its administration and governance processes; and selecting and litigating cases that will involve the greatest possible number and range of women". 1 1 4 Also, L.E.A.F. created new board positions to communicate with marginalized women and encouraged women with diverse backgrounds to attend L.E.A.F. 's public events.1 1 5 Theoretically, L.E.A.F. has attempted to incorporate into their legal work the conflicting insights that often accompany the recognition of women's difference. "A l l case proposals must address the potential impact of a case on different groups of women". 1 1 6 For example, L.E.A.F. 's intervention in Vriend v. 111 Feminist Advocacy before the Supreme Court, supra n. 108 at xxi. 112 Ibid. 1 1 3 Copy available from the National Office on request. 114 Feminist Advocacy before the Supreme Court, supra n. 108 at xxii. " 5 "The Rise of LEAF", supra n. 109 at 39. 116 Feminist Advocacy before the Supreme Court, supra n. 108 at xxii. 146 Alberta x l highlights how L.E.A.F. has attempted to reflect the complexity and diversity of lesbian experience, and the importance of building "an expansive, inclusive 1 1 8 "feminine" ethical base for equality rights jurisprudence". Finally, L.E.A.F. has "relied to an ever-increasing degree upon the insight and expertise of other women's organizations. In particular, L E A F has approached these organizations for assistance in forming the analysis around particular cases". 1 1 9 L.E.A.F. has formed many partnerships and often intervenes as a member of a coalition. In these three ways (organizational, theoretical, experiential), L.E.A.F. has taken note of the "varied ways in which the law actually operates in women's lives, which are not immediately apparent to those who make the arguments in court", 1 2 1 and thus has demonstrated an increasing proximity to (or understanding of) the disadvantages characterized by those for whom it speaks. Should the adoption of these inclusive strategies be another element structuring the exercise of the judicial discretion to grant public interest standing? In other words, is representativeness a moral question, a concern internal to the organization itself, or is it amenable to judicial scrutiny? Professor Bowal has argued that the addition of a test gauging an organization's representative status would be an 'unruly horse'. Messrs. Thorson, McNei l , Borowski and Finlay were not found to be in any way representative of taxpayers or citizens in their respective challenges to legislation, but ostensibly represented only private idiosyncratic interests. A motivated association, likewise, should not have to establish its credentials as to representativeness ... It would be a grievous miscalculation to devise a test where the extent of representativeness possessed by the organization is calibrated or scrutinized in each case. If some representativeness is demonstrated in 1 1 7 [1998] 1 S.C.R. 493, 212 A.R. 237. 1 1 8 "Equality Rights and Social Transformation", supra n. 110 at 146. 119 Feminist Advocacy before the Supreme Court, supra n. 108 at xxii. 1 2 0 To what extent does my analysis legitimate, or demand, that not only organizations, but coalitions of organizations be granted public interest standing in order that courts are made truly aware of the indivisibility and simultaneity of oppressions? 121 Feminist Advocacy before the Supreme Court, supra n. 108 at xxii. 147 order to establish «genuine interest», a court should not look further and deny standing on the basis that it could have been greater ... Evaluating the quality and quantity of representativeness wil l inexorably lead to impossible considerations about the age of the representative body, its objects, and formality. Normative judgments about what is «representat ive» or « n o t representative» can and will issues from all sides of any factual constellation. A representativeness test is also likely to be fraught with practical difficulties of proof. In the absence of reliable qualitative evidence, the exercise may quickly reduce to a nominally quantitative one that is subject to manipulation and arbitrary standards.12 Although I appreciate the concerns that Professor Bowal raises, I think he has overstated his case. As he acknowledges, the courts already attempt to evaluate the genuine interest of a public interest litigant in the subject matter of the litigation. When the litigant is an organization, the courts have attempted to estimate the quality and quantity of representativeness possessed by that organization. For example, in Canadian Abortion Rights Action League v. Attorney General of Nova Scotia, the Appeal Division of the Nova Scotia Supreme Court unanimously held that the public interest organization was genuinely interested in the issue of abortion. "[T]he appellant, over the years, has been actively engaged in its stated objects concerning women's rights to "safe, accessible abortions", including applying for and obtaining intervener status before the Supreme Court of Canada". 1 2 3 Evaluating the genuine interest of a public interest organization will usually involve a perusal of its activities. 1 2 4 This need for a demonstration of historical involvement in the subject matter of the litigation may "Speaking up for Others", supra n. 88 at 918-19. The fact that representativeness is an notion fraught with difficulties of proof is more pressing for my thesis than for Professor Bowal. For Professor Bowal, a representative body is one that is legally or contractually mandated to bring an action on behalf of economic interests, such as "liquor outlet licensees or expropriated landlords"; at 909-10. Obviously, organizations purporting to represent women, refugees, or other disadvantaged groups are not going to possess such a legally cognizable mandate. But who is to say that a moral mandate to represent such groups is less likely to serve the functions of the public interest standing doctrine? 123 Canadian Abortion Rights Action League v. Attorney General of Nova Scotia (1990), 96 N.S.R. (2d) 284, 69 D.L.R. (4lh) 241 at 249-50 (S.C. (A.D.)); aff g (1989) 93 N.S.R. (2d) 197, 63 D.L.R. (4th) 680 (S.C. (T.D.)). 1 2 4 See Inshore Fishermen's Bonafide Defense Fund Association v. Attorney General of Canada (1994), 130 N.S.R. (2d) 121, 24 C.P.C. (3d) 108 at 117 (S.C. (T.D.)); Nolan v. Attorney General of Canada (1998), 14 C.P.C. (4th) 314 at 322-23 (Ont. Gen. Div.). 148 pose difficulties for those organizations that are in their formative stages, but it is difficult to imagine how genuine interest (and the constituent element of representativeness therein) could otherwise be tested. Representativeness, in the end, will be part judicial scrutiny, part (and probably the bigger part) organizational conscience-searching. Where the balance lies is a matter of discretion. But the exercise of that discretion must be sensitive to the barriers impairing access to justice for individual members of socially disadvantaged groups. 1 2 6 Conclusion The autonomy thesis promulgated by Professors Craig and Cromwell is an important contribution to the standing scholarship. It forces us to appreciate that standing is not completely divorced from models of human association. However, Craig and Cromwell have not lived up to the promise. The declaration of autonomy begs the questions posed in this chapter: what exactly do we mean by 'autonomy', and how can disadvantaged persons practically realize their autonomy within the Unless it is not tested at all. But then form would win out over substance (or, to put it another way, abstractions would be more telling than context), and any organization could hurdle the access barrier of standing by a mere clause in their articles of association or constitution that describes their representative capacity. This could end up damaging access for the disadvantaged, in making it even easier for organizations representing advantaged interests to dominate court resources and shape the court's perception of the rights and freedoms guaranteed under the Charter. 1 2 6 Of course, we must not only important to clarify what is meant by 'representation'; we must also be sensitive to what 'disadvantage' is and by whom its effects are felt. We must continue to remind ourselves that disadvantage is a question of power and that inequality is the effect of the distribution of that power. Fortunately, our definition of disadvantage will largely correlate with the Supreme Court of Canada's interpretation of section 15(1) and the list of enumerated and analogous grounds of prohibited discrimination; See Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, 56 D.L.R. (4*) 1 [hereinafter Andrews cited to S.C.R.]; Eganv. Canada, [1995] 2 S.C.R. 513, 124 D.L.R. (4lh) 609. In Andrews, Wilson J. cautions against divorcing analyses of inequality from social reality. "I believe also that it is important to note that the range of discrete and insular minorities has changed and will continue to change with changing political and social circumstances ... It can be anticipated that the discrete and insular minorities of tomorrow will include groups not recognized as such today. It is consistent with the constitutional status of s. 15 that is be interpreted with sufficient flexibility to ensure the "unremitting protection" of equality rights in years to come"; at 152-53. I would contend that what tomorrow's interpretation of equality rights will need to ensure is a greater understanding of the intersectional nature of oppression; see Women's Legal Education and Action, Vriend v. Alberta (1997), [1998] 1 S.C.R. 493 (Intervener's Factum, especially at para. 33). 149 adjudicative system? I have argued that autonomy should be reconceived in an interdependent fashion. This prevents the doors of the courtroom from closing in the face of public interest organizations at the mere mention of self-determination. I have also argued that disadvantaged individuals face practical difficulties (in terms of cost, the fear of reprisals, or lack of choice) in realizing their personal autonomy in an independent fashion. Therefore, the mere invocation of the contentment of the abstractly defined individual should not be universally applied with no understanding of the ways in which social power has closed off access to the adjudicative forum - a forum that is meant to act as a guardian of the interests of the disadvantaged. We must reconceptualize autonomy, and comprehend the contextual relationship between autonomy and the capacity for it. When we do so, we are faced with the difficult question of representative status and how,we should go about measuring it. However, these questions are already being addressed both by the courts and the organizations themselves and both have begun to make tentative steps towards their successful resolution. Therefore, the invocation of self-determination (contra Craig and Cromwell) does little to hinder access for public interest organizations representing disadvantaged members of our society, and may, in fact, promote such access. 150 Chapter Five The Benefit of the Contending Points of View of Those Most Directly Affected and the Determination of Issues Introduction In Finlay v. Minister of Finance of Canada, the third traditional judicial concern over the expansion of public interest standing listed by Le Dain J. was that in the "determination of issues the courts should have the benefit of the contending points of view of those most directly affected by them".1 This concern obviously petitions judges to listen only to those 'directly affected' by the subject matter of the dispute. Unfortunately, the entreaty provides no guidance as to how we should begin to measure a litigant's proximity to the impending litigation. Nor does it provide any clue as to why we should even bother measuring that proximity in the first place. The fact that the concern is "addressed by the requirement affirmed in Borowski that there be no other reasonable and effective manner in which the issue may be brought before a court" does little to equip us with the means to resolve either question. As we saw earlier, the question of direct effect or proximity to state action is a complex one.3 There are many different methods by which we can measure such direct effect. One method would tend to solve the puzzle of proximity by plotting direct effect upon a universal scale. That scale would then be dropped onto the particular case from the height of abstraction with little regard to the factual and social context within which the issues are to be determined. By contrast, a method of measurement that was more 1 Finlay v. Minister of Finance of Canada, [1986] 2 S.C.R. 607 at 631, 33 D.L.R. (4*) 321 [hereinafter cited to S.C.R.]. 2 Ibid, at 633. The reference to Borowski refers to the third limb in Martland J.'s public interest standing test; Borowski v. Minister of Justice of Canada, [1981] 2 S.C.R. 575 at 598, 130 D.L.R. (3d) 588 [hereinafter Borowski cited to S.C.R.]. 3 See c. 1 at text accompanying notes 39-58. 151 fact-specific would appreciate that direct effect is a problematic concept in the public arena. Often there will be more than one interest affected by state action, and those interests will be affected in distinct ways making it difficult to rank them in a hierarchical fashion, or to plot their proximity upon a universal scale. Using this contextual, fact-specific method, the courts wil l have to sensitize themselves to the competing pressures that are often the characteristic feature of public litigation. When the issue to be determined is inequality, and when the courts are sensitive to the notion that inequality is a question of the imbalance of social power, then we may have to guard against the use of universal and abstract measurements of proximity. When our context is inequality, and when we place that inequality within the "entire social, political and legal fabric of our society",4 we may have to re-examine whether the 'contending points of view of those most directly affected' wil l truly benefit the court in its task of elucidating the issues to be determined. Those Most Directly Affected The exercise of measuring the litigant's proximity to the dispute has always been of central importance to the question of standing. One of the first measurements of proximity favoured those litigants who alleged that their proprietary or pecuniary interests had been infringed.5 However, the emphasis upon such traditional interests should no longer be determinative of questions of access under the Canadian Charter of Rights and Freedoms,6 especially where such access allows "the economically powerful and well-organized [to] enjoy advantages that threaten the enjoyment of 4 Andrews v. Law Society of British Columbia [1989] 1 S.C.R. 143 at 152, 56 D.L.R. (4th) 1. 5 Boyce v. Paddington Borough Council, [1903] 1 Ch. 109 at 114 (Ch.). 6 Canadian Charter of Rights and Freedoms; Part11 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter the Charter]. 152 individual expression by others". The law courts can no longer be the domain of a hegemonic elite. [I]t is vital that a range - a wide range - of interests be permitted to advance as diverse a spectrum of views as possible concerning the meaning of the Charter and the claims which are to be given identity. To insist on traditional legal interests as having the exclusive power to litigate is to ensure that the Charter speaks in that voice. This is why standing is so important in any discussion concerning the "nature" of the Charter.8 The courts have shaken off the property and pocket overtones that the standing doctrine once carried. But they still insist that there should preferably exist a nexus of proximity between the party litigating and the issue to be litigated.9 This may merely be a reiteration of the busybody rationale in either its orthodox (Professor Scott's "idle, whimsical plaintiff ') 1 0 or contemporary formulations (the autonomy theses of Professors Craig and Cromwell's autonomy theses).11 As we have seen, neither formulation necessarily prioritizes the private individual directly affected over the public interest litigant. However, industrious commentators have come up with an alternative explanation for the judicial preference to listen to 'those most directly affected'. "The courts exist and are structured to deal with disputes presented by adversaries".12 In order that the adversary system works effectively, there must be 7 W.A. Bogart, "Standing and the Charter: Rights and Identity" in R.J. Sharpe, ed., Charter Litigation (Toronto: Butterworths, 1987) 1 at 1. * Ibid, at 9. 9 The significance of that nexus should depend upon certain variables, one important variable being the remedy requested. As Ms. Blake observed, the remedy "will affect the significance a court will attach to certain facts. If damages are sought, the plaintiff must prove his entitlement. The focus is then on his injury. If a declaration is requested, the conduct of the defendant is more relevant than who the plaintiff will be"; S. Blake, "Standing to Litigate Constitutional Rights and Freedoms in Canada and the United States" (1984) 16 Ottawa L. Rev. 66 at 90. Although the courts are sensitive to this remedial variation, the plaintiffs proximity is still an important consideration in declarations. 1 0 See K.E. Scott, "Standing in the Supreme Court - A Functional Analysis" (1973) 86 Harv. L. Rev. 645 at 674, and c. 3 especially the text accompanying notes 6-11. 1 1 See P.P Craig, Administrative Law, 3d ed. (London: Sweet and Maxwell, 1994) 509-10, and T.A. Cromwell, Locus Standi: A Commentary on the Law of Standing in Canada (Toronto: Carswell, 1986) at 171 [hereinafter Commentary on the Law of Standing]. For my response, see c. 4. 12 Commentary on the Law of Standing, ibid, at 172. 153 skilled and determined advocacy. The requisite degree of zeal and competence is ensured by the proximity of direct effect. Self interest is seen as the motivating force that wil l ensure that the parties present their respective positions in the best possible light. The courts exist to resolve disputes that are presented in this way. If the motivation of self interest is absent, that is, if the dispute is not with respect to contested rights and obligations of the parties themselves, then this important circumstantial guarantee of diligent preparation and argument is lost.1 3 Some judges have voiced a similar rationale for litigant proximity. For instance, in Great Canadian Superbar v. Liquor and Gaming Licensing Commission of Saskatchewan, Jackson J.A. observed that when a court is asked to exercise its power to strike down legislation which is ultra vires the power of government, "it must be satisfied that the applicant is someone who can properly put the case which must be made. If a court does not have the right litigant, the principles of stare decisis and res judicata may result in error."1 4 The courts should only listen to those likely to do justice to the case (and, as a consequence, likely to keep the justice system on track) by presenting full and thoughtful argument and evidence. Orthodoxy informs us that directly affected individuals are more likely to fulfil this role by virtue of their motivation or, more cynically, their competitive greed. As Justice Brennan of the United States Supreme Court observed, access to the courts must be restricted to those who have a personal interest in the dispute if the courts are "to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions".15 13 Ibid, at 10. 14 Great Canadian Superbar v. Liquor and Gaming Licensing Commission of Saskatchewan (1998), 157 D.L.R. (4*) 82 at paras. 52-53, [1998] 7 W.W.R. 209 (Sask. CA.) [hereinafter Canadian Superbar). 15 Baker v. Carr, 369 U.S. 186 at 204, 82 S. Ct. 691 (1962). This quote raises an interesting question that has received an ambiguous reply from the courts. To what extent should the standing doctrine be used to ensure not only adverseness, but concrete adverseness? In other words, what is the interrelationship (if any) between the need to guard against deciding hypothetical disputes and public interest standing? In Borowski, supra n. 2 at 579, Laskin C.J.C. (dissenting) contended that ensuring concrete adverseness was 154 of central importance in developing (or reining in the development of) the public interest standing doctrine. "Courts do not normally deal with purely hypothetical matters where no concrete legal issues are involved, where there is no lis that engages their processes or where they are asked to answer questions in the abstract merely to satisfy a person's curiosity or perhaps his or her obsessiveness with a perceived injustice in the existing law". The need to safeguard against hypothetical disputes was likewise deemed an important consideration by Major J. in his refusal to grant standing in Hy and Zel's v. Attorney General of Ontario, [1993] 3 S.C.R. 675 at 694, 107 D.L.R. (4th) 634 [hereinafter Hy and Zel's cited to S.C.R.]. "[The Court's vigilance in guarding against hypothetical disputes] mirrors the Court's vigilance in ensuring that it hears the arguments of the parties most directly affected by a matter. In the absence of facts specific to the appellants, both the Court's ability to ensure that it hears from those most directly affected and that Charter issues are decided in a proper factual context are compromised". It is interesting to observe that while Laskin C.J.C. held that the presentation of a concrete dispute was of general importance to standing, Major J. explicitly incorporated this concern into the third limb of the Borowski test: whether there existed a more reasonable and effective means by which the issue could be brought come before the courts. In other words, there appears to be a judicial presumption that public interest litigants are more likely to initiate lawsuits grounded in hypotheticals. The question of the interrelationship between concreteness and standing was of concern to the Ontario Court of Appeal in Corporation of the Canadian Civil Liberties Association v. Attorney General of Canada (1998), 40 O.R. (3d) 489, 161 D.L.R. (4lh) 225 [hereinafter C.C.L.A. cited to O.R.]. In this case, the Canadian Civil Liberties Association (C.C.L.A.) brought an action challenging the constitutionality of provisions of the Canadian Security Intelligence Service Act that permitted the deployment of intrusive surveillance techniques; R.S.C. 1985, c. C-23, ss. 12, 21-26. Charron J.A. (for the majority) held that issues of evidence were interwoven at every stage of the standing analysis. "If one considers the rationales for imposing restrictions on standing which were identified by L'Heuereux-Dube J. [in Hy and Zel's, ibid, at 702-03], it would seem to me quite clear that the lack of a proper evidentiary basis would have a bearing on considerations such as "the proper allocation of judicial resources", "ensuring that issues are fully canvassed", "promoting the use of the judicial process to decide live disputes between parties as opposed to hypothetical ones" and determining "whether the full dimensions of the issue can be expected to be aired by the court"; at 501. However, in finding that the evidence relied upon disclosed no live cause of action, and therefore that the C.C.L.A. were not entitled to standing, Charron J.A.'s treatment of the evidence fell solely within the first limb of the Borowski test: whether a serious issue had been raised by the applicants; at 506-12. To the extent that the need to guard against hypothetical disputes should be a legitimate concern underpinning the development of the standing doctrine, it should be confined to considering whether a serious issue has been raised (which has been conflated with the question of whether a reasonable cause of action has been disclosed; see c. 1 and text accompanying notes 108-15). I do not believe it adds much to the consideration of whether there exists an alternative means of access. If a dispute is hypothetical when presented by a public interest litigant, it is unlikely to gain in concreteness when presented by a private individual. Indeed, we have already noted that the lower courts, in granting standing to public interest organizations, have often been impressed with the ability of those litigants to present the issue in its appropriate factual context; see c. 1 and text accompanying notes 139-45. While I do believe that issues should be 'firmly grounded iri the discipline of common law methodology', it is important to recall what that methodology has traditionally meant in Canada. "In this country we have long accepted that reference cases may be given to appellate courts for decision, even though the issues to be settled may not rest on a factual foundation. Indeed, some of the most important and controversial public questions of the past decade have been referred to the courts for determination in this manner"; Ontario Law Reform Commission, Report on the Law of Standing (Toronto: Publication Services, 1989) at 58 [hereinafter Report on Standing]. Also, when interpreting rights under the Charter, and in particular the equality provisions, it should be borne in mind that it may be difficult to draw a bright line between hypothetical disputes and live issues. Interests beyond the immediate disputants will be implicated in the interpretation of those rights and freedoms. This fact necessitates the construction of an extensive factual matrix. "[S]ince a Charter decision may affect a much more fundamental aspect of our jurisprudence and society, its impact should be assessed with reference to a broad review of experiences in making similar value choices and with as much information as possible about the context and effect of the legislation in issue"; B.G. Morgan, "Proof of Facts in Charter Litigation" in R.J. Sharpe, ed., Charter Litigation (Toronto: Butterworths, 1987) 159 at 163. It would be all too easy to dismiss these wider implications on the grounds that they were somehow 'hypothetical' to the task of resolving the immediate dispute. What looks like a hypothetical, abstractly defined issue from the top of a hierarchy of social oppression may, from the bottom, be a real live impediment to an individual's right to equal concern, respect and consideration. 155 Commentators have objected to, this assumed correlation for a variety of reasons. The most eloquent criticism was put forward by Professor Jaffe. 1 6 As we know, there are substantial costs and uncertainties inherent in litigation. The fact that a plaintiff not directly affected is willing to put her money where her mouth is may be a strong guarantee of her diligence and competence in presenting the relevant issue in its best possible light. [T]he very fact of investing money in a lawsuit from which one is to acquire no further monetary profit argues, to my mind, a quite exceptional kind of interest, and one peculiarly indicative of a desire to say all that can be said in the support of one's contention. From this, I would conclude that, insofar as the argument for a traditional plaintiff runs in terms of the need for effective advocacy, the argument is not persuasive.17 i Professor Cromwell has also criticized the assumption that proximity to the lawsuit wil l always lead to a better presentation of the issues therein. It seems then, that "interest" [i.e. proximity] is no guarantee of concreteness and vice versa. With respect to the parties doing justice to the case, there seems to be only a loose correlation between interest and this factor. A party with undoubted interest, even in the strictest sense (i.e., one whose contractual or tortious rights have been violated) may not have the means or the inclination to present the case diligently. Self-interest may be a circumstantial guarantee of diligence, but it is neither an infallible nor an exclusive one .... If interest is not the exclusive mark 18 of a good plaintiff, interest alone cannot select the best plaintiff. Professor Ross has argued that one's proximity to the issues raised in the litigation only helps set the scene by providing the 'who did what to whom' backdrop -the adjudicative facts that get the whole litigation-ball rolling. However, a Charter challenge is typically won or lost on the manner in which the court characterizes the L.L. Jaffe, "The Citizen as Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff (1968) 116 University of Pennsylvania Law Review 1033. 17 Ibid, at 1038. 18 Commentary on the Law of Standing, supra n. 11 at 173-74. 156 purpose and effects of the state action. Where evidence of purpose or effect is required (or to use Brian Morgan's terminology, where 'legislative facts' are required)20 the most appropriate form of evidence is to be found in statistical and social science materials woven together in a cogent and persuasive manner. "In a practical sense, it may be more likely that an organized public plaintiff with expertise about the 21 issue would have better access to such evidence". One can take Professor Ross's critique further. A public interest organization would, in many respects, be better placed than the individual litigant to provide, not only a legislative factual matrix, but also an adjudicative one. The individual directly affected can tell the court her personal story. She can present evidence relating to one particular application of the impugned statute. Yet such stories are not exhaustive of the public interest. The public interest is not a single, monolithic interest that can best be described by a specific personality. Indeed, rather than asking who is the better guardian of the public interest, we should really be considering who is most competent to present issues relating to public interests. Rather than there being a single public interest, it is obvious that major issues often attract competing, visions of the public interest, offered by different "publics", each with its own needs, perceptions and interests. Making a particular decision "in the public interest" does not simply involve finding something called public interest and applying it to a problem; it often requires developing a solution out of a complex web of conflicting, perhaps irreconcilable interests.22 1 9 J.M. Ross, "Standing in Charter Declaratory Actions" (1995) 33 Osgoode Hall L.J. 151 at 167-70 [hereinafter "Standing in Charter Actions"]. 2 0 "Proof of Facts in Charter Litigation", supra n. 15 at 163. 2 1 "Standing in Charter Actions", supra n. 19 at 168-69. For example, Abella J.A. (in dissent) held that the public interest organization litigating in C.C.L.A., supra n. 15 at 523, was the litigant best placed to raise the issues in an informed and comprehensive manner. "C.C.L.A. ... [has] devoted years of institutional and professional energy to ensuring that under the rubric of "threats to national security", covert surveillance is not a ruse for intelligence-gathering into lawful, constitutionally protected activities. No person or organization has greater expertise in the area or is better able to elucidate the relevant issues for the court". 22 Report on Standing, supra n. 15 at 42. An example of this 'complex web of conflicting, perhaps irreconcilable interests' in the standing jurisprudence can be found in the many competing interests at stake in Borowski, supra n. 2. The Supreme Court,of Canada recognized that abortion (a matter relating to the public interest) impacts upon women, their male partners, doctors, hospitals, and (physically if not legally) the foetus. But the issue impacts on each group in a different way and, importantly, there could 157 On the other hand, a public interest organization that represents people with a variety of personal experiences will be better placed to present evidence about many individuals and their experiences regarding the state action. They can thus construct a concrete factual matrix that aids the court's awareness of the varying public interests at stake. This may prevent the court from unfairly penalizing those who have not been able to participate in the litigation. The organization's lack of proximity may therefore actually promote the presentation of legislative and adjudicative facts in the best light possible rather than frustrating such a presentation. It is not that the individual litigant cannot see the wood for the trees. It is rather that his face is so close to the bark that all he can see is his tree. As Professor Ross notes, these lines of criticism illustrate that the "presentation of evidence about the general effect of a law obviously does not depend on the status of the plaintiff'. 2 4 Christopher Caruana highlights two further troubling aspects about the assumptions underlying the correlation of self-motivation and exemplary advocacy. He argues that the assumption of a correlation would be more plausible were self-motivation a constant factor throughout litigation. However, this is unlikely to be the case. Litigant interest will often wane even before the preliminary hurdles to litigation well be various sub-groups in existence within each of the broad groups for whom the issue of abortion means different things again. The freedom to choose abortion may be important to able-bodied women, but this freedom may impact differently on disabled women who may be forced to 'choose' abortion to save society from 'wasting' resources in helping their otherwise dependent children; T. Doe, "Difficult Choices? Women, Foetal Disability, and Equality Rights in Canada" (Seminar, Centre for Feminist Legal Studies at the University of British Columbia, 4 January 2001) [unpublished]. 2 3 As Parrett J. observed in Federated Anti-Poverty Groups of British Columbia v. Attorney General of British Columbia (1991), 70 B.C.L.R. (2d) 325 at para. 75 (S.C): "In matters involving constitutional litigation it is necessary for the Court to obtain a full and complete presentation of the issues before it. A declaration by the Court with respect to the legislation has the possibility of impacting a large class of individuals who are subject to the legislation. Further, because of the particular concerns which F.A.P.G. [the public interest organization, Federated Anti-Poverty Groups] has or represents, it is in an especially advantageous and perhaps unique position to illuminate some aspect or facet of the case which ought to be considered by the Court in reaching its decision but which, but for the intervention by the F.A.P.G., might not receive any attention or prominence given the somewhat narrow interests of the immediate parties to the dispute"; (emphasis added). 2 4 "Standing in Charter Actions", supra n. 19 at 168. 2 5 C.A.L. Caruana, A Neo-Conservative Approach to Standing in Charter of Rights Litigation (L.L.M., Osgoode Hall Law School 1995) [unpublished] at 112-13 [hereinafter A Neo-Conservative Approach to Standing]. 158 are overcome. The mounting expenses, the frustration and the risks are likely to lead the directly affected individual to settle or simply quit. In other cases, the government may wish to grant the claimant special status in order to make the problem go away without requiring the state to admit responsibility or be forced to engage in new policy initiatives. Many Charter litigants may find the advantages of an individual settlement overwhelming and irresistible, given the precariousness of their social position. The government may find strong inducement to compromise an individual case ... [so as to] avoid the determination of a constitutional issue. The discretionary nature of government action may allow it to compromise many individual cases in this manner without establishing a new norm or constitutional precedent.26 A public interest litigant would, arguably, be less affected by the frustration or vulnerability that attaches to litigation. Its motivation is likely to be constant throughout the litigation, which will aid the skilful and determined elucidation of the issues. The second troubling aspect Caruana highlights is that most directly affected litigants have very little understanding of what diligent preparation and competent adversarial argument entails, usually because such litigants have little understanding of their rights under the Charter. "[T]he diligence of the preparation wil l be dependent 2 6 Canadian Disability Rights Council & Women's Legal Education and Action, Canadian Council of Churches v. Minister of Employment and Immigration (1991), [1992] 1 S.C.R. 236 (Interveners' Factum at para. 51) [hereinafter L.E.A.F. Factum; when referring to the organizations in the following text, I will simply refer to Women's Legal Education and Action, hereinafter L.E.A.F.]. Professor Mosoff has recognized the discretionary nature of government action as one of the distinctive hazards of public interest litigation. "Special consideration needs to be given to litigation strategies where the representative plaintiff suffers a significant deprivation of liberty or is otherwise especially vulnerable at the hands of the defendant, as this places the plaintiff and the ongoing litigation in a particularly precarious position. For instance, where a plaintiff is incarcerated and the defendant is able to release the individual, the defendant may choose to release the person who is the plaintiff and then argue that the lawsuit before the court is moot. From the defendant's perspective, release of the particular person may be a better choice than the risk of a court decision that will result in a more general change"; J. Mosoff, "Do the Orthodox Rules of Lawyering Permit the Public Interest Advocate to "Do the Right Thing?": A Case Study of HIV-infected Prisoners" (1992) 30 Alta. L. Rev. 1258 at 1269. In the notes that accompany this passage, Professor Mosoff indicates that the creation of exceptions to immunize the general rule from constitutional attack is a recurring problem when challenging the constitutionality of immigration restrictions for persons with disabilities. For an overview of the mootness doctrine, see Borowski v. Attorney General of Canada, [1989] 1 S.C.R. 342, 57 D.L.R. (4lh) 231, and P.W. Hogg, Constitutional Law of Canada, looseleaf, vol. 2 (Toronto: Carswell, 1997) at 56 - 16 et seq. 159 upon the motivation and expertise of counsel, not that of the individual", and if self-27 interest counts for anything, it will "only ensure that the attorney is making progress". "On the contrary, a public interest group is much more likely not only to retain the 28 lawyer, but also to ensure that counsel presents arguments in a specific manner". Obviously, this will be doubly true where the public interest organization was expressly created to litigate issues that affect a certain group of people. A lot has been written about the assumed correlation between direct effect and the skilful presentation of the relevant issue in the best light possible. Many commentators are agreed that the public interest organization wil l often be better placed than the individual to present, firstly, a well-researched legislative factual matrix and, secondly (and of great importance in constitutional law), an adjudicative factual matrix that takes into consideration a variety of the many different public 29 interests that are infringed, impinged upon or affected by the state action. However, what the present commentary has tended to overlook or underdevelop is the insight that the specific context of the dispute may impact upon our intuitions about who should present what facts. If the final message is one of inequality as opposed to corporate security against search and seizure, should our measurements of proximity alter in light 30 of this? Or should the same rules of procedure apply rigidly to any form of Charter litigation? To what extent does procedural inflexibility obscure the presentation of the relevant issues in the best possible light? To what extent will taking into account 27 A Neo-Conservative Approach to Standing, supra n. 25 at 113. 28 Ibid. 2 9 Obviously, the factual matrix does not need to take into account all possible public interests. This would radically alter the fundamental competitiveness of the adversarial system, re-moulding it either in the image of the legislature (an entity which is entrusted with the obligation to take into consideration all public interests affected by proposed state action) or a forum for consensus-building. While either reform may offer certain attractions as a long-term strategy, they are obviously beyond the scope of this work. What is needed though is a factual matrix that takes into consideration a set of public interests linked by a degree of commonality. As we have seen, this is of particular importance in our understanding of inequality. 3 0 As Jackson J.A. observed in Canadian Superbar, supra n. 14 at 102, "[t]o decide whether there is another reasonable and effective way to challenge an unconstitutional law, it is appropriate to consider the nature of the right said to be infringed". 160 contextual factors moderate that inflexibility? I hope to shed some light upon these questions. However, in the interests of space, I wil l focus my analysis on the following question. If the issue brought before the court is one of inequality, does that modify the assumptions that have hitherto pronounced the self-interested individual as the party best placed to present the issues in the best possible way? The Issue to be Determined In chapter two, I summarized the manner in which I comprehend social inequality. I argued that inequality was to be understood as an "imagery of hierarchy, not just of difference",3 1 and that this imagery was created and is maintained through "imbalances in power among groups in society". In elaborating further, I concluded that inequality had to be looked at from two perspectives. One perspective focused upon the relative positions of different groups in our society in order to dislodge the false neutrality of identical treatment analyses. The other perspective focused upon the intersections of other personal characteristics that tend to problematize the adoption of a group vantage point. In order to fully comprehend the effects of inequality, we must be sensitive to both perspectives and attempt to find the means or method by which we can take both seriously. At the risk of further simplification I shall argue that inequality, at least for our purposes, is best conceived as being a complex of commonality and diversity. This complex tends to pull in two seemingly distinct directions at the same time - towards a group perspective and towards an array of individual perspectives. The tension makes 3 1 CA. MacKinnon, The Sexual Harassment of Working Women: A Case of Sex Discrimination (New Haven: Yale University Press, 1979) at 102. 3 2 S. Day & G. Brodsky, "The Duty to Accommodate: Who Will Benefit?" (1996) 75 Can. Bar Rev. 433 at 461. 161 it difficult for the courts to understand the effects of inequality and, importantly, makes it difficult to know whose description of those effects presents the issue of inequality in the best light possible. However, in employing the individual as the gatekeeper of constitutional adjudication (by prioritizing the 'directly affected' individual's perspective over that of the public interest organization), there exists the potential that both the commonality and the diversity of inequality will be obscured, resulting in a misleading presentation of the issues that truly affect disadvantaged persons. As L.E.A.F. has observed, to locate inequality "in each individual and her or his ability to cope with disadvantaging conditions, may well be to put that systemic disadvantage beyond detection and cure". A - Commonality and the Canadian Council of Churches Litigation: In examining how the commonality of inequality (the group perspective that dislodges the myth of false neutrality) may be obscured when the standing doctrine is applied universally and regardless of context, it is informative to look at the Federal Court of Appeal's decision in Canadian Council of Churches v. Minister of Employment and Immigration.34 The inter-Church Committee for Refugees (a forum within the umbrella organization of the Canadian Council of Churches with the specific mandate for co-ordinating church policies and actions related to the protection and resettlement of refugees) commenced an action challenging a number of amendments to the Immigration Act35 alleging that the amendments violated refugee rights guaranteed under sections 7 and 15 of the Charter. The government contended that the Committee lacked the standing necessary to challenge the constitutional validity of the amendments on the basis that there existed other reasonable and effective ways in 33 L.E.A.F. Factum, supra n. 26 at para. 48. 3 4 [1990] 2 F.C. 534, 68 D.L.R. (4lh) 197 (CA) [hereinafter Council of Churches (CA.) cited to F.C.]. 3 5 1976, S.C. 1976-77, c. 52, as am. by S.C. 1988, c.35 and c.36. 162 which the legislation's constitutionality could be tested. They argued that the legislation's validity could be tested by the individual refugees themselves commencing Charter challenges. Although, this contention was not accepted by the trial judge, who held that the Committee met the established criteria for public interest standing,36 the government's argument persuaded the Court of Appeal, and the decision of the trial judge was overturned. The Committee for Refugees argued before the Court of Appeal that its statement of claim, in attacking the validity of 81 amendments, constituted an integrated attack on legislative provisions interlocking in such a way as to lead to multiple, interrelated violations of refugees' Charter rights. As MacGuigan J.A. (writing for the Court) observed, the Committee contended that "the legislation needed to be dealt with in its totality because "it is fundamentally constitutionally flawed" ... [and] that its statement of claim constituted an internally integrated attack on the 37 legislation such as none of the directly affected parties would be able to mount". It is interesting to observe how MacGuigan J.A. responded to this argument. In assessing whether there existed a complex web of inequality that served to devalue refugee personality and maintain their marginalization in Canadian society, MacGuigan J.A. pulled the web apart and examined each strand in isolation. To determine whether the provisions interacted in such a way as to infringe refugees' rights, he believed that the validity of each provision should be dealt with in turn, and having done so, he quickly went on to conclude that the isolated circumstances of discrimination could be dealt with, one at a time, by the individual refugees themselves.38 The difficulty with this atomized form of inquiry is that it makes it harder to comprehend the complex interaction of forces that keep the disadvantaged at the fringes of society. In focussing 36 Canadian Council of Churches v. Canada, [1989] 3 F.C. 3, 27 F.T.R. 129 (T.D.). 37 Council of Churches (C.A.), supra n. 34 at 553-54. 3 S See ibid, at 558-59 for the Court's discussion of the Committee's statement of claim. 163 upon the particular individual's ability to cope with her disadvantaging conditions, the notion of inequality is 'privatized', making it easier to analyze the issue through the dichotomy of 'sameness / difference' rather than through the hierarchies of dominance and subordination.39 The inequality can thus be dismissed or obscured as a statistical aberration, a one off, an extreme. And the remedy provided is more likely to address the particular circumstances of the directly affected refugee (especially when that refugee can emulate the standards promulgated by advantaged members of society), and less likely to address the pervasive dynamics of inequality (those dynamics having been dismissed through the invocation of difference). "Even a series of such individual cases, producing solutions for exceptional individuals, would not address the general exclusion of [refugees] embodied in the law". 4 0 Therefore, the gains made by the individual on the basis of an individualized claim are more likely to reinforce the advantaged standard that serves to marginalize disadvantaged persons (through the accommodation of the individual into the 'mainstream'), than to generate the understanding that the standard applied is 'mainstream' only because it has been constructed by (and promulgated through) the mindsets of the powerful and the relatively few. To break down the Committee's interrelated statement into a series of distinct, atomized allegations that Charter rights had been violated, illustrates that we wil l never truly appreciate the vast social disparities embedded in institutional power relations, disparities that have established particularly strong roots in the context of immigration. As L.E.A.F. contended, "the 3 9 See c. 2 and text accompanying notes 33-45. Abella J. observed (writing extrajudicially) that systemic disadvantage should not be approached from "the perspective of the perpetrator and the single victim" as this may obscure and legitimize the systems and practices (the hierarchies of oppression and dominance) we customarily and unwittingly adopt that are actually disadvantaging in effect; R.S. Abella, Report of the Commission on Equality in Employment (Ottawa: Supply and Services Canada, 1984) at 9. The individual becomes the subject of the legal examination, which becomes a determination of whether she is similar enough to be reconciled to existing 'mainstream' institutions, or different enough to justify the exclusion from those institutions. The fact that the institutions are 'mainstream' at all is never made the subject of legal enquiry. 40 L.E.A.F. Factum, supra n. 26 at para. 55. 164 assumption that a series of randomly-timed challenges to various provisions can effectively put before the Court the issues proposed to be canvassed by [the inter-Church Committee for Refugees], with a comparable evidentiary base" is a dangerous assumption to make. 4 1 The atomized, abstract inquiry of MacGuigan J .A. - like the abstract analysis of identical treatment - has the potential to sanitize the real issues and concerns. B - Diversity, Co-operative Enquiry and the Discursive Truth: Let us now turn to the diversity of inequality. As we know, the directly affected individual is the standard by which we determine whether public interest litigants should be granted standing. The difficulty in employing this standard is that it assumes the existence of a unitary perspective in issues relating to the public interest and especially in issues of inequality. We observed earlier that the public interest is not a single, monolithic interest, but rather "a complex web of conflicting, perhaps irreconcilable interests".42 As Professor Mclntyre has contended, it is difficult to rationalize how this 'complex web' is best guarded by a specific personality. The self-interested public challenger [our directly affected individual], in other words, wil l put " a " contending viewpoint before the court. But in a heterogeneous world, it seems misguided to imagine any or all directly affected challengers could or would wish to put all contending issues before the court even if they-had the resources to do so 4 3 41 Ibid, at para. 66. 42 Report on Standing, supra n. 15 at 42. 4 3 S. Mclntyre, "Above and Beyond Equality Rights: Canadian Council of Churches v. The Queen" (1992) 12 Windsor Y.B. Access Just. 293 at 308. Professor Bogart raises the same concern. "It is no answer to say that ... other interests will necessarily be represented as those most traditionally affected fight to vindicate their injuries. Sometimes they will, but sometimes they will not. An attractive offer of settlement can make all issues disappear. Even if the matter is fully litigated, those most traditionally affected will understandably pick and choose and mold the facts and issues to present the case in the way best suited to their self-interested viewpoint"; W.A. Bogart, "Understanding Standing, Chapter IV: Minister of Finance of Canada v. Finlay" Case Comment (1988) 10 Supreme Court L.R. 377 at 395 (emphasis in original). 165 Our understanding of inequality must take into account the fact that disadvantage impacts upon different people in differing ways, and that the same words or acts can be construed differently depending upon the circumstances of the individual affected. "[A]ny attempt to describe the effects of disadvantage wil l, of necessity, address different circumstances and situations, because legislation affects different disadvantaged persons in different ways depending upon their circumstances".4 4 By locating the inequality in the individual, we run the risk of obscuring the "indivisibility and simultaneity of oppressions",45 taking the experiences of the disadvantaged-elite as our definitive statement and yardstick of inequality. So how do we begin to make the 'indivisibility and simultaneity of oppressions' transparent? Our equality analysis must be "rooted in an understanding of the diversity of human experience and a consciousness of the richness, and limitations, of one's own experience".4 6 And how best to realize our own limitations? By listening to the diverse stories experienced and relayed by those around us. Narrative, the sharing of human experiences, can inform law so as to make it more humane and more responsive to human attitudes and behavior. Stories operate within the confines of the law and legal reasoning to challenge the dominant mindset and present new ways of viewing the world. 4 7 48 If "different realities may give different meanings to the same words", then we must be committed to listen and learn from those whose life experiences are different from L.E.A.F. Factum, supra n. 26 at para. 86. 4 5 S. Razack, Canadian Feminism and the Law: The Women's Legal Education and Action Fund and the Pursuit of Equality (Toronto: Second Story Press, 1991)at 133. 4 6 N.C. Sheppard, "The "I" in "It": Reflections on a Feminist Approach to Constitutional Theory" in R.F. Devlin, ed., Canadian Perspectives on Legal Theory (Toronto: Edmond Montgomery, 1991) 415 at 417 [hereinafter "A Feminist Approach to Constitutional Theory"]. 4 7 J. Amoah, "Narrative: The Road to Black Feminist Theory" (1997) 12 Berkeley Women's Law Review 84 at 87. 4 8 "A Feminist Approach to Constitutional Theory", supra n. 46 at 417. 166 our own. We have "a primary obligation to each other: not to undermine each others' sense of reality for the sake of expediency".4 9 This discursive strategy has made equality theorists aware that denying, silencing or ignoring the differences among women "in the name of a new "universal woman" is just as partial and biased in favour of women from dominant cultures and classes as the "universal man" feminists critique". 5 0 What we must now seek is to develop an increased sensitivity on the part of judges that the effects of inequality are diverse, and that a "mechanical, categorical, or category-based, approach to equality ... obscures the complexity of social identity in ways that are damaging both to particular rights claimants, and to the larger goal of redressing relations of inequality".5 1 "[Tjhrough diversity, we can influence the process of judicial deliberation and develop a new perception of judicial impartiality which acknowledges difference in a manner which is committed to equality".5 2 Thus, the best way of ensuring that diverse experiences are fully realized by the courts is through discourse. Rather than assuming what constitutes truth, we should be willing to listen to and learn from the experiences of others. To this end, I was 53 interested to read a principle of communitarian politics advocated by Henry Tarn. Let me state at this juncture that I share feminist concerns about the oppressive potentials that communitarian theories harbour. Historically, communities held a unified conception of the social good life by excluding certain people. Today, communities tend still to define disadvantaged groups in terms of an identity that others created for D. Riley, "Am I that Name?": Feminism and the Category of "Women" in History (Minneapolis: University of Minnesota Press, 1988) at 16. 5 0 "A Feminist Approach to Constitutional Theory", supra n. 46 at 417. 5 1 N. Iyer, "Categorical Denials: Equality Rights and the Shaping of Social Identity" (1993) 19 Queen's L.J. 179 at 181. 5 2 C. L'Heureux-Dube, "Lecture: Conversations on Equality" (1999) 26 Man. L.J. 273 at 293. 5 3 H. Tarn, Communitarianism: A New Agenda for Politics and Citizenship (Basingstoke: MacMillan Press, 1998) [hereinafter A New Agenda for Politics]. 167 them. This reinforces and legitimates marginalizing power structures. Bearing these comments in mind, I believe that his co-operative principle may still provide a useful vantage point from which we can comprehend the effects of inequality without perpetuating them. Henry Tam labels this principle, "the principle of co-operative enquiry". 5 5 Co-operative enquiry seeks to answer the problem of how claims about what should be believed are to be judged. The communitarian principle of co-operative enquiry requires that any claim to truth be judged to be valid only if informed participants deliberating together under conditions of co-operative enquiry would accept that claim. No individual can, in isolation from the independent cross-checking of evidence and reasoning which can only be carried out by other people, legitimately declare any claim to be indisputably true.56 To put it another way, no individual (even one truly disadvantaged) has the monopoly on truth. No individual can legitimately declare any claim to be indisputably true when the context is inequality, because the ramifications of what constitutes truth from one individual perspective may well be false from the myriad of other individual perspectives of those affected by the same state action. And the slow but steady addition of individual perspectives through individualized attacks on legislation is likely to "fail to reflect all of the different ways in which a limitation or exclusion can disadvantage a group". 5 7 There is no single, objective truth that we can turn to in order to understand inequality. Rather there are many truths, many narratives. And each deserves a chance to be heard. 5 4 "Yet feminists are wary of communitarianism. Put simply, they have been aghast at communitarianism's preferred institutions - variously, post-colonial America, the medieval kingdom, the Greek polis, the family and the church. Once the moral values promoted by communitarianism are given content in this way, it is apparent that citizenship rights are the membership badge of communities whose norms and practices have been inimical to women's interests and hostile to feminist politics"; E. Kingdom, "Citizenship Rights, Gender and Politics of Difference" in E.A. Christodoulidis, ed., Communitarianism and Citizenship (Aldershot: Ashgate, 1998) 103 at 103. 55 A New Agenda for Politics, supra n. 53 at 13. 56 Ibid, (emphasis added). 57 L.E.A.F. Factum, supra n. 26 at para. 53. 168 The critique of diversity appears to favour the admittance of public interest groups. This is because such groups arguably possess the resources and opportunities to discuss how the litigation would affect the various interests of the many people they represent, thus allowing them to present the relevant issue in the light of the wide social, political and legal factors at play. Initially, such a conclusion seems perverse. After all, orthodoxy intimates that public interest organizations are unwarranted meddlers in other people's affairs. But this intimation rests upon two individualist assumptions. The first is that autonomy means the power to stand on our two feet, defending ourselves from the bullying tactics of others. But it is through interdependence, not independence, that we can truly comprehend the "values and co demands [that] come from within each person". The second assumption is that litigation should not affect the interests of others - that the paradigmatic instance of litigation and public adjudication is a "contest between two individuals, or at least two unitary interests, diametrically opposed, to be decided on a winner-takes-all basis", 5 9 and that "the lawsuit is a self-contained episode". 6 0 However (as we saw in the discussion on representation),61 although these features of an adjudicative system have been central to our understanding and our analysis of law, "our traditional conception of adjudication and the assumptions upon which it is based provide an increasingly unhelpful, indeed misleading framework for assessing either the workability or the legitimacy of the roles of judge and court". 6 2 The mere fact that an individual is the entity that has initiated the litigation, is no guarantee that the litigation wil l not affect J. Nedelsky, "Reconceiving Autonomy: Sources, Thoughts and Possibilities" in A.C. Hutchinson & L.J.M. Green, Law and the Community: The End of Individualism? (Toronto: Carswell, 1989) 219 at 223. 5 9 A. Chayes, "The Role of the Judge in Public Law Litigation" (1976) 89 Harv. L. Rev. 1281 at 1282. 60 Ibid, at 1283 (emphasis in original). 6 1 See c. 4 and text accompanying notes 89-105. 6 2 "The Role of the Judge in Public Law Litigation", supra n. 59 at 1282. 169 others. Indeed, the very existence of the law as a promulgator of social norms relies on this very fact. If this is correct (and there is no reason to doubt it), then all who initiate litigation under the Charter are intermeddling in other people's affairs. The rich disabled person is a busybody in the affairs of the poor disabled person; the out gay man is a busybody in the affairs of the closeted; the socially aware woman is a busybody in the affairs of the woman complicit in contemporary social constructs. I do not doubt that relying on the rich, the active, the aware may provide hints as to how the violation of Charter rights affects all those branded by a particular mark of disadvantage. However, when we appreciate the multifaceted state of inequality, then we begin to wonder whether the public interest organization is less of a busybody than the individual litigant - even if that litigant is directly affected. If the public interest litigant is committed to canvassing a broad range of perspectives in its deliberations, if it is committed to listening to a broad range of narratives in its litigation strategies, then it can offer the court not only a factual matrix, but many factual matrices in an attempt to sensitize the court to the many different ways that state action impacts upon the different members that together make up the disadvantaged group. This wil l bring the court that much closer to comprehending the objective truth of inequality and of Charter infringements. As Tarn suggests, the more we deliberate together in choosing whether and how to litigate, the truer our claim will be. Conclusion I have argued that the orthodox assumptions as to who is best placed to present the relevant issue in its best possible light may have to be reconceived when the relevant issue is one of inequality. Recent commentary has criticized the correlation 170 drawn between litigant-proximity and the needs of the adversary system. I think that many of these criticisms have been valuable additions to the literature on standing. However, they all assume that the public interest standing doctrine is to be applied universally with no attention being paid to the potential ramifications that the particular issue to be determined may have. I believe that this omission is problematic. If inequality is the issue that the parties seek to present, the model of inequality-as-social-power can transform the way we measure, and the emphasis we place on litigant-proximity. Drawing on my analysis of inequality in chapter two, I have argued that inequality can be understood as a complex of commonality and diversity. These elements can best be presented by the public interest organization. The assumption that the directly affected individual is the best gatekeeper of constitutional adjudication can only be accepted when that individual is abstracted from the reality of social inequality. When we add the necessary context, we learn that we should employ the public interest organization representing the interests of the disadvantaged instead. 171 Conclusions Contextual Functions and Judicial Reconceptions Anglo-Saxon law is transactional, highly individualistic, concerned with an atomistic justice incapable of responding to the claims and demands of collectivity, and resistant to change. Such law was developed and has evolved in an essentially individualistic society to deal with situations involving the private right/duty pattern. It cannot possibly meet the challenge raised by these new concerns for the social rights and collective claims of the underprivileged. What we therefore need to do is fashion new strategies - in fact, evolve a new jurisprudence - and find a new policy of collectivity as a backdrop to our efforts. We have to devise new procedures which would make it easier for the disadvantaged to use the legal process.1 Contextual Functions In recent years, judges and commentators alike have tended to examine and apply the public interest standing doctrine in a mechanistic fashion, divorcing the elements of the test formulated in Borowski v. Minister of Justice of Canada from the social, political and legal environment that informs the specific dispute and our understanding of it. This mechanistic interpretation has been furthered by employing the directly affected individual as the gatekeeper of constitutional adjudication. In developing the public interest standing doctrine, recourse is had to the activities (both real and presumed) of the directly affected individual. Yet little attention is paid to that individual's identity and little explanation is given as to why (in the context of the 1 P.N. Bhagwati, "Judicial Activism and Public Interest Litigation" (1983) 23 Colum. J. TransnatT L. 561 at 570. 2 Borowski v. Minister of Justice of Canada, [1981] 2 S.C.R. 575 at 598, 130 D.L.R. (3d) 588 [hereinafter Borowski]. 172 specific dispute) his or her activities, experiences or reactions are to be used in determining whether third parties, including public interest organizations, should be granted judicial access. I have argued that this categorical, mechanistic approach to standing is problematic. The discretion to grant public interest standing should instead be exercised in a contextual, fact-specific fashion. We should advocate an approach whereby courts "look beneath the rules governing standing and consider the rationale as it applies to the facts of a particular case".3 This is not a new approach. Indeed, the true legacy of Borowski is not the test that can be found at the end of Martland J.'s judgment, but the preceding analysis of whether theoretical alternative means of access could become actual lawsuits when the broader context of the dispute was considered. Further, in Finlay v. Minister of Finance of Canada,4 the Supreme Court of Canada appeared to invite judges to distance themselves from abstract applications of the standing doctrine and adopt a functional approach - an approach that constantly revisits the underlying concerns arising out of any proposed extension of the scope of public interest standing and asks whether, and to what extent, those concerns exist in the context of the proposed litigation. Some judges have responded to this invitation. Too many have not. As a matter of doctrine, therefore, the legitimacy of grounding public interest standing upon the abstractly defined, directly affected individual is to be questioned. However, the adoption of a mechanistic approach founded upon the directly affected individual is not only doctrinally doubtful. When our analysis centres upon the Canadian Charter of Rights and Freedoms,5 it is also socially and morally unattractive. Questions of access are crucial in that they determine who can participate in shaping 3 Hy and Zel's v. Attorney General of Ontario, [1993] 3 S.C.R. 675 at 706, 107 D.L.R. (4th) 634. 4 Finlay v. Minister of Finance of Canada, [1986] 2 S.C.R. 607, 33 D.L.R. (4th) 321 [hereinafter Finlay]. 5 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter the Charter]. 173 the interpretations of the rights and freedoms guaranteed under the Charter. The Charter, as a fundamental document (believed to be constitutive and reflective of Canadian identity), must not speak only about some people, or be shaped by a mere selection of views. This is particularly relevant when the guarantee to be interpreted is the right to equality. In the construction of an egalitarian society, the disadvantaged must have an equal opportunity to raise their concerns. If the preoccupation with abstract applications of standing constitutes a serious limitation on judicial access for disadvantaged persons, then we need to rethink the inferences that have traditionally been drawn from the functions that underlie the development of the doctrine.6 It is interesting to observe that the preoccupation with abstraction jars discordantly with the contextual, purposive interpretation of section 15(1) of the Charter. In interpreting the right to equality, the Supreme Court of Canada has comprehended that abstract definitions of personhood have tended to obscure the reality of our diversity - the fact that we are exposed to different concrete social conditions and pressures - such that identical treatment may frequently produce serious inequality. The Supreme Court has understood that inequality is a product of social power and has moved away from discourse based upon the ideology of sameness/difference, embracing the imagery of hierarchies of oppression. It is ironic that the Supreme Court of Canada has contextually defined the equality guarantees under the Charter, but has relied upon abstraction when defining what constitutes equal access under the Charter. If we are to make sure that all voices are to be heard in developing the contextual interpretation of equality, we must also contextually interpret 6 "As a result of these restrictive interpretations, the very persons intended to benefit from the Charter lack the means to enforce its guarantees, a lack which compounds and exacerbates the effects of their exclusion from the legislative process. To deny access to justice to persons who are the most fragile, most marginalized, most isolated and most frightened is a profound denial of the equality before the law which underlies all of the Charter's guarantees, and is an essential foundation of the rule of law in a democratic society"; Canadian Disability Rights Council & Women's Legal Education and Action, Canadian Council of Churches v. Minister of Employment and Immigration (1991), [1992] 1 S.C.R. 236 (Interveners' Factum at para. 51). 174 equal access. To this end, I revisited the traditional concerns over the expansion of public interest standing formulated in Finlay, but this time I began to weave into the functional analysis some of the elements of the model of inequality-as-social-power. Having done this, I found that the traditional concerns do not deny judicial access to public interest organizations that represent disadvantaged persons, but actually serve to legitimize such access. The first traditional judicial concern over the expansion of public interest standing listed in Finlay is the 'concern about the allocation of scarce judicial resources'. This is an important concern. The judicial economy is very fragile and we must guard against threats to its stability. However, in order to do so, we should scrutinize closely the sources of any economic mischief. Threats to the stability of our judicial economy are more likely to originate from the advantaged, individual litigant, certain that his private cause is all-important. Such litigants have the resources to initiate personal litigation to protect their interests. The disadvantaged individual is more likely to rely upon the public interest organization to advocate her interests. However, when our mode of reasoning is abstract, and our mechanistic application is founded upon the directly affected individual, the law will treat the disadvantaged individual's reliance upon the representative organization with suspicion and wil l , wrongly, infer that this unconventionality is the reason behind the ever-looming recession. In a similar vein, the unconventionality of group litigation raises concerns over whether it is appropriate to allocate judicial resources to those organizations hoping to gain strategic leverage in the broader political process. Some commentators have contended that litigation strategies employed by public interest organizations radically (and tragically) invert the traditional opportunistic nature of judicial review -175 a mechanism that was used not only 'for' the individual, but 'by' the individual. However, the mere fact that a private individual initiates litigation does not make that litigation 'strategy-free'. Indeed, history teaches us that advantaged litigants have made good use of the abstract, directly affected individual to invalidate legislation that would otherwise have promoted the interests of the disadvantaged. The second traditional judicial concern over the expansion of public interest standing listed in Finlay is 'the need to screen out the mere busybody'. In recent commentary, this concern has gained legitimacy and rhetorical potency by embracing one of our most intoxicating ideals - personal autonomy. Commentators have contended that if a public interest organization initiates litigation when a directly affected individual does not, this infringes upon the individual's rational decision not to sue. The public interest litigant thus acts in a manner disrespectful of the individual's autonomous capacity. This assertion relies upon independence as a means of furthering self-determination. However, this model has been criticized by feminists who believe that disadvantaged individuals are more likely to realize their autonomy in an interdependent, or interactive fashion.9 Indeed, this reconceived model of autonomy-as-interdependence is the only one that makes sense when we examine the practical obstacles that are inherent consequences of the litigation process. The expense, the fear of reprisals, and the lack of choice that disadvantaged individuals are faced with, can only be overcome through the affirmative relationships of support that can be found in public interest organizations. It is this interdependence that gives disadvantaged 7 F.L. Morton & R. Knopff, The Charter Revolution and the Court Party (Ontario: Broadview Press, 2000); R. Knopff & F.L. Morton, "Canada's Court Party" in A.A. Peacock, ed., Rethinking the Constitution: Perspectives on Canadian Constitutional Reform, Interpretation, and Theory (Ontario: Oxford University Press, 1996) 63. 8 P.P. Craig, Administrative Law, 3d ed. (London: Sweet and Maxwell, 1994) at 509-14; T.A. Cromwell, Locus Standi: A Commentary on the Law of Standing in Canada (Toronto: Carswell, 1986) at 171. 9 J. Nedelsky, "Law, Boundaries, and the Bounded Self in R. Post, ed., Law and the Order of Culture (Berkeley: University of California Press, 1991) 162; J. Nedelsky, "Reconceiving Autonomy: Sources, Thoughts and Possibilities" in A.C. Hutchinson & L.J.M. Green, Law and the Community: The End of Individualism? (Toronto: Carswell, 1989) 219. 176 members of our society the power and freedom to make autonomous decisions in the adjudicative sphere on an equal basis with advantaged members. The third traditional judicial concern over the expansion of public interest standing listed in Finlay is that in the 'determination of issues the courts should have the benefit of the contending points of view of those most directly affected by them'. Orthodoxy suggests that directly affected Individuals are better placed to present issues skilfully and accurately because they have the requisite degree of self-interest and competitive motivation. Many commentators have doubted whether this presumption is valid in all cases. When our context is inequality, I have argued that we should think twice before adopting this correlation. When we understand that inequality is the product of social power, we become sensitive to two interrelated, though often competing, perspectives. The first perspective I have termed 'commonality'. It dislodges the myth that we live in an ideal world where instances of discrimination are isolated deviations from the otherwise perfect norm. It takes us beyond the model of equality-as-identical-treatment, forcing us to recognize that not all groups are equally powerful. However, it is very easy to lose sight of this asymmetrical perspective when questions of access are determined with reference to the abstract, directly affected individual. The presentation of inequality from the atomized perspective of the private individual can obscure the imbalances in power among groups in society. The second perspective I have termed 'diversity'. It reminds us that disadvantage impacts upon different people in differing ways. We should thus be wary of assuming that one individual may speak to the experience of all. However, the presumption that the directly affected individual always presents issues in their best light, obscures the complexities of oppression experienced by other members of the group, particularly by those for whom inequality has an intersectional dimension. The public interest 177 organization is better placed to present both perspectives in an illuminating and skilful manner. A functional approach to standing demands that the discretion to grant public interest standing be exercised in a manner that is sensitive to the social context of the dispute. When our context is inequality, I believe that this discretion should be structured in a manner that takes into account the factors above, factors that have been inspired by the model of inequality-as-social-power. This minority conception of standing provides a level platform upon which we can all participate in shaping the interpretation of rights and freedoms guaranteed to all under the Charter. Judicial (Re-)Conceptualization The fourth traditional judicial concern over the expansion of public interest standing listed by Le Dain J. in Finlay was "the concern about the proper role of the courts and their constitutional relationship to the other branches of government".10 We have observed that the judicial desire to project an appropriate judicial image in our constitutional democracy has informed the development of the public interest standing doctrine in the Supreme Court of Canada." It has also received explicit attention in the lower courts. In refusing to grant public interest standing to the public interest organization in Canadian Abortion Rights Action League v. Attorney General of Nova Scotia, Nunn J. commented that any further expansion of standing could have far-reaching constitutional implications. While the Supreme Court of Canada has expanded the law respecting who may commence public interest litigation, it has not opened the door wide for any interest group to commence public interest litigation challenging the constitutionality of any legislation passed in this 10 Finlay, supra n. 4 at 631. " See c. 1 and text accompanying notes 27-81. 178 country. To do so would create endless litigation, throughout each level of superior court, ultimately ending in the Supreme Court of Canada itself, and, in my opinion, would result in a dramatic change in our democratic system of government. If any interest group could, on its own, come directly to court seeking a declaration as to the constitutionality of any legislation affecting its interest, then all interest groups in this country, and there are many, would be in a position of "watch-dog" over the Acts of Parliament and the provincial legislatures with right of challenge.12 On the other hand, in granting public interest standing to the public interest 13 organization in Sierra Club of Canada v. Minister of Finance of Canada, Evans J. seemed unconcerned about the potential constitutional implications should such organizations be encouraged to act as 'watch-dogs' over the legislature. Indeed, he appeared to welcome this implication. "[A]n important reason for the extension of public interest standing beyond the Attorney General has been to protect the constitutional precepts of the rule of law and democratic accountability".1 4 In chapter one, I constructed a spectrum of judicial self-conceptualization inspired by the comparative work on standing by Professor Thio. 1 5 At one end of the spectrum lies the juridiction de droit objectif in which the judiciary actively confine the other organs of government within their powers in the interest of the community for whose benefit the law is enacted. At this extreme, the public interest organization is entitled as of right to raise issues that affect third party rights or the ideal of constitutionalism. At the other end of the spectrum lies the juridiction de droit subjectif in which the judiciary actively confine their own role to the protection of rights as and when the individual brings their infringement to the attention of the courts. "[It] places 12 Canadian Abortion Rights Action League v. Attorney General of Nova Scotia (1989), 93 N.S.R. (2d) 197, 63 D.L.R. (4th) 680 at 685 (S.C. (T.D.)). The decision was affirmed on appeal; (1990), 96 N.S.R. (2d) 284, 69 D.L.R. (4*) 241 (S.C. (A.D.)). 1 3 [1999] 2 F.C. 211,13 Admin. L.R. (3d) 280 (T.D.). 14 Ibid, at para. 54. 1 5 S.M. Thio, Locus Standi and Judicial Review (Singapore: Singapore University Press, 1971). See c. 1 and text accompanying notes 10-13. 179 the individual and not the public at the heart of the system". At this extreme, the public interest organization has no role to play, and therefore access will always be denied. I have not entered fully into the debate about the legitimate role of our courts, mainly because the debate is reaching saturation point, important though it is. However, I do feel that it would be useful to conclude this work by indicating where my proposals lie on the objectif-subjectif spectrum of standing. "The most basic tenet of any constitutional society is the shared belief that by virtue of being citizens of a state, all persons are equal in the eyes of the law". 1 7 The objective of equality, one of the fundamentals of a democratic society, cannot be furthered in an abstract fashion. The objective of equality cannot be furthered without equal access to justice. Without access to courts to assert rights, citizens cannot be said to be truly equal. The objective of equal access cannot be furthered in an abstract fashion, nor in a fashion that relies upon identical treatment. "It was a wise man who 18 said that there is no greater inequality than the equal treatment of unequals". Equality therefore mandates that the principles of standing be applied contextually and in a distinct fashion when the litigant is representing the disadvantaged, so that the judiciary may fulfil their role of protecting the rights of all individuals and fulfil the demands imposed upon them by the rule of law. From the perspective of abstraction, the extension of public interest standing looks like a movement towards the juridiction de droit objectif. However, from the perspective of context and of inequality-as-social-power, the extension of public interest standing for those organizations that represent the disadvantaged is actually a movement towards the juridiction de droit subjectif for it gives the excluded and the dispossessed a comparable stake in the judicial process 1 6 B. Hough, "A Re-examination of the Case for a Locus Standi Rule in Public Law" (1997) 28 Cambrian Law Review 83 at 87. 1 7 D.P. Franklin & M.J. 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