Role of Legality and Access to Justice in Developing Public Interest Standing Sample Clauses

Role of Legality and Access to Justice in Developing Public Interest Standing. [37] Legality and access to justice are woven throughout the history of public interest standing. In Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138, for example, the Court relied primarily on the principle of legality to recognize the judicial discretion to grant public interest standing (p. 163). In that case, the Court granted a litigant standing to challenge a law that did not directly affect him, reasoning that a constitutional question should not “be immunized from judicial review by denying standing to anyone to challenge the impugned statute” (p. 145). [38] Legality was again at issue in Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265, a case in which the Court granted standing even though it would have been possible for someone more directly affected by the law to initiate private litigation. In that case, the Court permitted a newspaper editor — a member of the public — to challenge censorial powers granted to an administrative body. Theatre owners and operators were more directly affected by the legislation than the general 2022 SCC 27 (CanLII) public, but the Court reasoned that challenges from those individuals were unlikely. Since there was “no other way, practically speaking, to subject the challenged Act to judicial review,” the Court granted a member of the public standing to seek a declaration that the legislation was constitutionally invalid (p. 271). [39] Access to justice featured alongside the principle of legality in Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607, this Court’s first post-Charter case on public interest standing. There, the Court granted standing and emphasized “the importance in a federal state that there be some access to the courts to challenge the constitutionality of legislation” (p. 627). It also observed that the rationale behind discretionary standing was the public interest in maintaining respect for “the limits of statutory authority” (pp. 631-32). [40] Finally, in Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236, this Court relied on legality to deny public interest standing. The Court underscored “the fundamental right of the public to government in accordance with the law” and acknowledged that the “whole purpose” of public interest standing is “to prevent the immunization of legislation or public acts from any challenge” (pp. 250 and 252). Because the measure had already been “subject to attack” by private litigants, ...
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