This case is about the ability of public interest organizations to challenge unconstitutional laws on behalf of community members who experience barriers to bringing their own cases.
The Council of Canadians with Disabilities (“CCD”) and two individuals challenged the constitutionality of the Mental Health Act (“the Act”) on the basis that it stripped people who are involuntarily detained under the Act of any participation in their treatment. The stakes in the case were high— BC’s mental health regime is the most regressive in Canada when it comes to recognizing the human rights of people with mental health disabilities. Moreover, people who are forcibly treated can be traumatized by the experience and delay or avoid seeking mental health care again in the future.
As the case entered its second year, the two individuals were no longer able or willing to continue their involvement in the case. The Province of BC applied to dismiss the case before trial on the basis that CCD did not meet the test for public interest standing, which would allow it to continue the case on its own. The BC Supreme Court agreed with the Province’s arguments and dismissed the case.
CCD successfully appealed the BC Supreme Court’s decision to the BC Court of Appeal. In ordering a new hearing for the question of CCD’s standing, the Court of Appeal confirmed that courts must be flexible and generous when applying the public interest standing test.
In April of 2021, the Province was granted leave to appeal by the Supreme Court of Canada. The Supreme Court of Canada will hear the appeal in November of 2021.
West Coast LEAF’s Involvement
In April of 2019, West Coast LEAF was granted intervenor status by the BC Court of Appeal. We argued that public interest organizations play a critical role in supporting access to justice for their community members. Constitutional litigation is costly, complex, and can take years to resolve. For people who experience high levels of marginalization and oppression, participating in such resource-intensive litigation may be unrealistic. In those situations, public interest organizations must be able to use public interest standing to ensure that unconstitutional laws do not go unchallenged.
In July of 2021, West Coast LEAF was granted intervenor status by the Supreme Court of Canada to make substantially similar arguments to its arguments before the BC Court of Appeal. Moreover, we will argue that since modern Charter litigation already requires extensive evidence from expert witnesses and witnesses with lived experience, this evidentiary record can make up for the absence of an individual plaintiff’s experiences.
The Supreme Court of Canada will hear the appeal in its 2022 winter session.