Jane Bailey, “Reopening Law’s Gate: Public Interest Standing and Access to Justice”

Working Abstract

Canadian judges are outspoken advocates in the public dialogue that increasingly frames access to justice as a middle class problem and tends to focus on rule reforms for reducing the cost and delay of litigation, as well as pro bono initiatives. All of these are important components of understanding and comprehensively responding to the inaccessibility of justice. However, access to justice is not simply a middle class problem, nor is it likely to resolved solely through strong public stances taken outside of the courtroom. Inside the courtroom, judicial interpretation and application of the public interest standing discretion determines who will be allowed entrance through law’s gate and who will be excluded; with particular implications for members of marginalized groups. Interpretations like those in Canadian Council of Churches and CBA that take an unnecessarily atomistic and individuated approach to standing deepen the access to justice crisis by effectively foreclosing representative groups from bringing before the law grievances relating to legislation and government action that systemically exacerbate existing social vulnerabilities. In contrast, the public interest standing approach advocated in Chaoulli and reflected in Morgentaler and SWUAV contributes to resolving the access to justice crisis through realistic, contextual assessment of the social, emotional and economic circumstances that prevent many of those who are directly affected by impugned laws from individually mounting broad-based systemic challenges. Judges can make a difference in the access to justice crisis from inside the courtroom. Opening law’s gate through a contextualized application of the public interest standing discretion in a way that enables meaningful access for marginalized groups is one place to start.

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