Affirming a Liberal Interpretation of Public Interest Standing for Constitutional Challenges

Earlier this month, the Ontario Court of Appeal affirmed a broad view of public interest standing in Alford v. Canada (Attorney General) when it reversed a trial level decision denying Alford standing to challenge as unconstitutional a particular provision of the National Security and Intelligence Committee of Parliamentarians Act.

Under section 8 of the Act, the mandate of the Committee is to review the national security and intelligence framework, relevant departmental activities and relevant matters referred by a minister. Section 10 provides that, with exceptions, members of the Committee must obtain appropriate security clearance and otherwise follow the regulated procedures and practices.

Section 11 prohibits the disclosure of information by members or former members of the Committee, as well as others, obtained through performance of their duties. Most importantly here, immunity based on parliamentary privilege does not apply to members or former members subject to proceedings resulting from contraventions of section 11 and statements made by them in parliament are admissible against them.

As stated by Newton J.A., the judge of first instance, Dr. Ryan Alford, a professor at Lakehead University, “argues that the removal of parliamentary privilege is a fundamental alteration of the powers of the Senate and House of Commons and, as such, s. 12 will only be legal if passed pursuant to the Constitution’s general amending formula” Justice Newton agreed with Canada’s contention that Dr. Alford lacked standing to bring the application.

Justice Newton relied on Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, a 2012 Supreme Court of Canada decision to find that Dr. Alford lacked standing. In Downtown Eastside Sex Workers, which involved a challenge to the prostitution provisions of the Criminal Code, the Supreme Court summarized the public interest standing requirements as follows:

The courts consider whether the case raises a serious justiciable issue, whether the party bringing the action has a real stake or a genuine interest in its outcome and whether, having regard to a number of factors, the proposed suit is a reasonable and effective means to bring the case to court: … The courts exercise this discretion to grant or refuse standing in a “liberal and generous manner” … (citations omitted, emphasis added) (para. 2)

In denying Professor Alford standing, Newton J.A. stated, quoting from Downtown Eastside Sex Workers, “Central to my conclusion is the fact that one of the underlying purposes of limiting standing is the ‘need for courts to have the benefit of contending points of view of the persons most directly affected by the issue’” (para. 15). Also relevant is “the potential impact of this application on the rights of others more directly affected” (para. 16), who could be prejudiced by consideration of the issues without a factual underpinning.

Justice Newton concluded that Professor Alford, while an expert, had “no real stake” in the matter. Justice Newton appeared to reject Professor Alford’s submission that those actually affected, those with a “real stake”, members of the committee, for example, could not challenge the legislation without exposing themselves to criminal liability, accepting the Crown’s argument that this was not the case.

The Court of Appeal held that factual context and the opportunity to consider the views of those directly affected were irrelevant considerations, since Professor Alford’s challenge was based on a point of law, “the constitutional competence of Parliament to pass legislation abridging Parliamentary privilege, without a constitutional amendment” (para. 3). The Court concludes:

Mr. Alford raises a serious issue, suitable for adjudication. He has demonstrated a genuine interest in this issue, having published on the topic and having participated in committee hearings relating to the legislation. The challenge he wishes to bring is a reasonable and effective way to bring the matter before the court. … There can be no concern that he is a busybody or that his interest is purely academic. He sees this challenge as an issue of public importance impacting on fundamental principles of democracy. (emphasis added) (para. 4)

The Court of Appeal’s decision in Alford reflects how the public interest standing rules have evolved since the public standing trilogy of Thorson, McNeil and Borowski first effectively recognized that individual citizens might gain standing to challenge legislation or administrative action, despite having no special or direct interest in the matter at issue. Although the basic premises remain the same, there has been a liberalization of the phrasing and application of the test set out in those cases.

There remains the view that there must be some limits on who may bring a challenge. Mr. Justice Cromwell, speaking for the Court in Downtown Eastside Sex Workers, explained the need for standing rules:

Of course it would be intolerable if everyone had standing to sue for everything, no matter how limited a personal stake they had in the matter. Limitations on standing are necessary in order to ensure that courts do not become hopelessly overburdened with marginal or redundant cases, to screen out the mere “busybody” litigant, to ensure that courts have the benefit of contending points of view of those most directly affected and to ensure that courts play their proper role within our democratic system of government…. (para. 1, citation omitted)

In Thorson v. Attorney General of Canada, in 1974, the Supreme Court granted Thorson standing as a taxpayer in a class action “not [because] the alleged waste of public funds alone … will support standing but rather the right of the citizenry to constitutional behaviour by Parliament where the issue in such behaviour is justiciable as a legal question” (p.163), even though he had not suffered any damage beyond that of other taxpayers from the Official Languages Act, the law he was challenging, along with appropriation legislation providing funding for the Act. In addition, Thorson had requested the attorney general to bring a reference to test the validity of the legislation, but was not successful, although Laskin J., speaking for the majority, expressed doubt that this was required as a precondition.

Justice Laskin stated, where all members of the public are affected alike, as in the present case, and there is a justiciable issue respecting the validity of legislation, “the 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 merits” (p.161) and “[t]he expansion of the declaratory action, now well‑established, would to me be at odds with a consequent denial of its effectiveness if the law will recognize no one with standing to sue in relation to an issue which is justiciable and which strikes directly at constitutional authority.” (p.162)

In Thorson, Laskin J. noted,

The substantive issue raised by the plaintiff’s action is a justiciable one; and, prima facie, it would be strange and, indeed, alarming, if there was no way in which a question of alleged excess of legislative power, a matter traditionally within the scope of the judicial process, could be made the subject of adjudication.” (p.145)

The need to address the overreaching of legislative authority runs throughout the public interest standing cases and is echoed in the Court of Appeal’s decision in Alford.

Thorson was followed by Nova Scotia Board of Cen­sors v. McNeil, in which the Court granted McNeil standing to challenge the Nova Scotia Theatres and Amusements Act, even though there were others (such as theatre owners) who would be directly affected by the decisions of the Board of Censors. However, their interest is not the same as that of the public; indeed, the legislation “strikes at the members of the public in one of its central aspects” because it affects the films that the public have the opportunity to see (p.271). (As in Thorson, McNeil had also requested that the attorney general refer the statute to the provincial appellate court for an opinion, but did not receive a response.)

In the 1981 decision of Minister of Justice (Can.) v. Borowski, the Supreme Court had articulated the test in this way: “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 to 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 in which the issue may be brought before the Court.” (emphasis added) (p.598)

Borowski challenged the exculpatory provisions under the abortion provisions (section 251) of the Criminal Code under the Canadian Bill of Rights. Because the provisions were exculpatory, it was unlikely that anyone else would challenge them, yet the provisions could not be immune from challenge. Borowski had long taken action to oppose abortion and have his concerns addressed without success and he had status as a taxpayer.

The third part of the test was fatal to the applicants in the 1992 Supreme Court case of Canadian Council of Churches v. Canada (Minister of Employment and Immigration). The Council of Churches, which had been active in helping refugees and in commenting on refugee policy, sought standing to challenge the Immigration Act, 1976 under the Canadian Charter of Rights and Freedoms because of 1989 amendments changing the definition of Convention Refugee. The case turned on whether there was an effective way to challenge the legislation other than through an action by the Council of Churches, which was not directly affected by it. The trial judge was concerned

there might be no other reasonable, effective or practical manner to bring the constitutional question before the Court. He was particularly disturbed that refugee claimants might be faced with a 72-hour removal order. In his view, such an order would not leave sufficient time for an applicant to attempt either to stay the proceedings or to obtain an injunction restraining the implementation removal order. (SCC)

MacGuigan J.A., speaking for a unanimous Federal Court of Appeal, “observed that the statute was regulatory in nature and individuals subject to its scheme had, by means of judicial review, already challenged the same provisions impugned by the Council. Thus there was a reasonable and effective alternative manner in which the issue could properly be brought before the Court.” (SCC)

Mr. Justice Cory, for the Supreme Court, spoke about “a generous and liberal approach” to standing, resulting from the enactment of the Charter: “If that were not done, Charter rights might be unenforced and Charter freedoms shackled. The Constitution Act, 1982 does not of course affect the discretion courts possess to grant standing to public litigants. What it does is entrench the fundamental right of the public to government in accordance with the law.”

Mr. Justice Cory pointed to the 1986 Supreme Court decision in Finlay v. Canada (Minister of Finance), in which public interest standing was extended to apply to challenges to administrative action, not only to legislation. Although it is important to ensure that legislative and administrative authority is kept within appropriate bounds, it is also important to ensure “the proper allocation of judicial resources”, accomplished “by limiting the granting of status to situations in which no directly affected individual might be expected to initiate litigation”. And, as LeDain J. said in Finlay, “the need to screen out the mere busybody” (Finlay, para. 32).

In Council of Churches, Cory J. framed the third requirement as “is there another reasonable and effective way to bring the issue before the court?”. Here, refugees had already brought claims raising similar issues to those raised by the Council of Churches. The time limits with which the trial judge was concerned are not really relevant because it takes longer than 72 hours to remove a refugee, there are few refugees who are removed and the Federal Court can issue injunctive relief if necessary. Furthermore, a group such as the Council of Churches can seek intervenor status in a case brought by a refugee. Thus

From the material presented, it is clear that individual claimants for refugee status, who have every right to challenge the legislation, have in fact done so. There are, therefore, other reasonable methods of bringing the matter before the Court. On this ground the applicant Council must fail. I would hasten to add that this should not be interpreted as a mechanistic application of a technical requirement. Rather it must be remembered that the basic purpose for allowing public interest standing is to ensure that legislation is not immunized from challenge. Here there is no such immunization as plaintiff refugee claimants are challenging the legislation. Thus the very rationale for the public interest litigation party disappears.

Former Chief Justice McLachlin indicated how liberal the view of public interest standing is in the 2018 decision of Delta Air Lines Inc. v. Lukács in which Dr. Lukács brought a complaint to the Canadian Transportation Agency that Delta discriminated against obese persons, although he was not personally affected by Delta’s policies. The Agency found that he did not have standing to bring the complaint because it “did not challenge the constitutionality of legislation or the illegal exercise of an administrative authority” (SCC, para. 5) The Agency applied the following test:

1. Is there a serious issue as to the validity of the legislation?
2. Is the party seeking public interest affected by the legislation or does the party have a genuine interest as a citizen in the validity of the legislation?
3. Is there another reasonable and effective manner in which the issue may be brought to the court?

The majority found that this was a test that could not realistically be met because Delta is a private company and that “[t]he imposition of a test that can never be met could not be what Parliament intended when it conferred a broad discretion on this administrative body to decide whether to hear complaints” (para. 17). Determining public interest standing requires “balancing the preservation of judicial resources with access to justice … The whole point is for the court to use its discretion, where appropriate, to allow more plaintiffs through the door” (para. 18, citations omitted).

The Court in various cases has emphasized that the standing rules reflect the importance of having various viewpoints represented. Even in its more flexible approach, there are limits to applying the third factor based on the use of judicial resources and “the need to ensure full and complete adversarial presentation: (Downtown Eastside Sex Workers, para. 49). This consideration led to the denial of public interest standing in the 2015 Supreme Court decision of R v. Kokopenace, in which the accused alleged that the jury roll did not adequately ensure the inclusion of on-reserve residents.

The accused, Clifford Kokopenace, an Aboriginal man from a reserve, raised several Charter challenges to the preparation of the jury roll, including under section 15. He made a claim in his personal capacity, which was rejected because he had not shown disadvantage, but also sought public interest standing “on behalf of Aboriginal on-reserve residents who were potential jurors”. The majority rejected his claim for standing because “[a]s an accused person, Mr. Kokopenace may have different, potentially conflicting interests from those of potential jurors. If a challenge is to be raised on their behalf, there must be an opportunity for their views to be represented.his interests” (para. 128).

Citing Canadian Council of Churches, Cromwell J. in Downtown Eastside Sex Workers identified the three indicia guiding the granting of public interest standing as follows: The courts consider whether the case raises a serious justiciable issue, whether the party bringing the action has a real stake or a genuine interest in its outcome and whether, having regard to a number of factors, the proposed suit is a reasonable and effective means to bring the case to court.….(emphasis added) (para. 2, citation omitted)

The third part of the test is more flexible than the framing in Borowski. There is a difference between there being no other reasonable and effective means to bring the case to court (for example, there is little likelihood that those affected by the legislation will want to challenge it) and in this applicant being one of several reasonable and effective means.

The former is a stricter standard, as Justice Cromwell notes. After stating that the cases have not always applied it strictly, including in Thorson and McNeil, the two cases preceding Borowski, he deliberately — and one might say “officially” — shifts the standard to wording that “better reflects the flexible, discretionary and purposive approach to public interest standing that underpins all of the Court’s decisions in this area” (Downtown Eastside Sex Workers, para. 44). The consideration of this test should be “practical and pragmatic” and take into account “the particular nature of the challenge” (para. 47)

But the significance of Downtown Eastside Sex Workers lies in how to treat the indicia: “whether the three factors which courts are to consider in deciding the standing issue are to be treated as a rigid checklist or as considerations to be taken into account and weighed in exercising judicial discretion in a way that serves the underlying purposes of the law of standing” (para. 3). The broader or more liberal view prevails:

interrelated factors that must be weighed in exercising judicial discretion to grant or deny standing. These factors, and especially the third one, should not be treated as hard and fast requirements or free-standing, independently operating tests. Rather, they should be assessed and weighed cumulatively, in light of the underlying purposes of limiting standing and applied in a flexible and generous manner that best serves those underlying purposes. (para. 20)

Justice Newton in Alford treated the requirements more restrictively than the more recent Supreme Court of Canada decisions appear to say they should be, even though he followed Downtown Eastside Sex Workers in emphasizing the need for a full articulation of the factual context, although he did not explain why it was needed in this case. The Court of Appeal’s decision, on the other hand, reflects the broad understanding of public interest standing that has developed over the past few years. It may be correct in dismissing the need for factual context and ensuring diverse points of view, but underlying the decision is the premise that citizens have the right to constitutionally valid processes. Better to permit someone considered to have expertise (not a mere busybody) to raise the challenge than to leave potentially unconstitutional legislation effectively immune from challenge.

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