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Access to Justice - Doctrinal Basis. British Columbia (Attorney General) v. Council of Canadians with Disabilities
In British Columbia (Attorney General) v. Council of Canadians with Disabilities (SCC, 2022) the Supreme Court of Canada espoused the principles of 'legality' and 'access to justice' as bases for an expansion of public interest law:[22] In its analysis, the Court of Appeal began by commenting on two principles that Downtown Eastside highlighted as important features of standing law: (i) the importance of courts upholding the legality principle — the idea that state action must conform to the Constitution and must not be immunized from judicial review — and (ii) the practical realities of providing access to justice for vulnerable and marginalized citizens who are broadly affected by legislation of questionable constitutional validity.
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[30] Courts must also consider the purposes that justify granting standing in their analyses (Downtown Eastside, at paras. 20, 23, 36, 39-43, 49-50 and 76). These purposes are twofold: (i) giving effect to the principle of legality and (ii) ensuring access to the courts, or more broadly, access to justice (paras. 20, 39-43 and 49). The goal, in every case, is to strike a meaningful balance between the purposes that favour granting standing and those that favour limiting it (para. 23).
[31] Downtown Eastside remains the governing authority. Courts should strive to balance all of the purposes in light of the circumstances and in the “wise application of judicial discretion” (para. 21). It follows that they should not, as a general rule, attach “particular weight” to any one purpose, including legality and access to justice. Legality and access to justice are important — indeed, they played a pivotal role in the development of public interest standing — but they are two of many concerns that inform the Downtown Eastside analysis.
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[33] The legality principle encompasses two ideas: (i) state action must conform to the law and (ii) there must be practical and effective ways to challenge the legality of state action (Downtown Eastside, at para. 31). Legality derives from the rule of law: “[i]f people cannot challenge government actions in court, individuals cannot hold the state to account — the government will be, or be seen to be, above the law” (Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31, at para. 40).
[34] Access to justice, like legality, is “fundamental to the rule of law” (Trial Lawyers, at para. 39). As Dickson C.J. put it, “[t]here cannot be a rule of law without access, otherwise the rule of law is replaced by a rule of men and women who decide who shall and who shall not have access to justice” (B.C.G.E.U. v. British Columbia (Attorney General), 1988 CanLII 3 (SCC), [1988] 2 S.C.R. 214, at p. 230).
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