In a decision released on August 26, 2020, the BC Court of Appeal unanimously found that courts must remain flexible and generous about allowing public interest organizations like West Coast LEAF to challenge unconstitutional laws on behalf of community members. This decision recognizes the practical realities of providing meaningful access to justice to all people, including those who face social and economic barriers to bringing forward their own cases.
The stakes in this appeal were high. This week’s decision overturns the lower court’s ruling that the Council of Canadians with Disabilities (“CCD”) could not—as the sole plaintiff—continue a Charter challenge to BC’s Mental Health Act. CCD had brought the challenge on behalf of people with mental health disabilities who are subjected to involuntary detention and treatment, a group that experiences extreme oppression and repression in our society. The CCD sought to defend the rights of these individuals to participate as much as possible in decisions about their own health care.
As interveners, we submitted that organizations like CCD and West Coast LEAF can facilitate access to justice for community members who lack money, status, and privileged access to the legal system. When public interest organizations are barred from bringing litigation on behalf of community members, unjust and unconstitutional laws may go unchallenged.
In 2011, we intervened in a case before the Supreme Court of Canada about the ability of the Downtown Eastside Sex Workers United Against Violence to defend the human rights of sex workers. The Supreme Court of Canada’s decision established a flexible and generous approach to deciding when public interest organizations have the “standing” to bring Charter challenges.
Despite the Court of Appeal’s recognition that the lower court erred in how it applied the test for public interest standing, CCD is now left to go back to the BC Supreme Court and again demonstrate that it should be permitted to take the case to trial.
Having to go to court to fight this battle again is just one example of the one-step-forward two-steps-back battle we face in fighting for human rights and justice for community members. While this decision articulates a progressive vision of access to justice, we know that cases like this ultimately take time and resources away from the human rights violations at the root of public interest litigation—and delays justice for those who need it the most.