In 1986, the Supreme Court of Canada cogently summarized various judicial
concerns relating to the expansion of public interest standing. In doing so, the Supreme
Court invited judges to engage in a purposive and functional enquiry in exercising their
discretion to grant access to public interest litigants. That enquiry should take account
of the broad social, political and legal factors that provide the backdrop to the
constitutional claim. However, both judges and commentators alike have failed to meet
this challenge. Instead, they have applied the principles of standing in an increasingly
categorical and abstract manner. To this end, they have employed the abstractly
defined, directly affected individual without considering who he or she is in the
particular circumstances, or what benefits he or she would bring to the litigation
process. This is of particular concern when our context is inequality. The increasing
abstraction of public interest standing jars discordantly with the purposive
interpretation of section 15(1) of the Charter, so that while equality is determined in a
contextual fashion, equal access is still conceived of in an abstract fashion. In
abstracting the directly affected individual out of relations of radical inequality, there
has been a presumption that we all, as individuals, have an equal opportunity (and
equal resources) to raise our constitutional concerns in the courts.
This presumption cannot be accepted. We need to inject some context into
standing. To do so, we must appreciate that inequality is a product of the distribution of
power in society, and that equality is to be furthered through multi-dimensionality and
respect for diversity. Armed with these insights, we must revisit the judicial concerns
that underpin the development of the public interest standing doctrine, and unpack their
meaning in a purposive fashion. When we do so, we will begin to appreciate that the
traditional resolution of these concerns actually serves to exclude disadvantaged
persons from enforcing their Charter rights and obscures the diffuse causality
characteristics of disadvantage. From the contextual perspective of social-inequality-as-power,
the concerns underpinning public interest standing actually promote judicial
access for the public interest organization that represents disadvantaged persons.
| Identifer | oai:union.ndltd.org:LACETR/oai:collectionscanada.gc.ca:BVAU.2429/12016 |
| Date | 05 1900 |
| Creators | Binch, Russell John |
| Source Sets | Library and Archives Canada ETDs Repository / Centre d'archives des thèses électroniques de Bibliothèque et Archives Canada |
| Language | English |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Relation | UBC Retrospective Theses Digitization Project [http://www.library.ubc.ca/archives/retro_theses/] |
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