The Justice of Access: Who Should Have Standing to Challenge the Constitutional Adequacy of Legal Aid?

U.B.C. Law Review, Vol. 40, pp. 727-44, 2007

18 Pages Posted: 20 Aug 2011

See all articles by Lorne Sossin

Lorne Sossin

York University - Osgoode Hall Law School

Date Written: 2007

Abstract

In Canadian Bar Assn. v. British Columbia, the British Columbia Supreme Court dismissed a claim from the Canadian Bar Associated (CBA), which was seeking a declaration to recognize a constitutional right to legal aid in civil justice. The basis for the Court dismissing the claim was that the CBA lacked standing to bring the suit. In the analysis below, I argue that the Court misconstrued the test for public interest standing and failed to appreciate the role of Charter principles, including the principle of access to justice, in applying this test. The Court has created an artificial dichotomy between “individual” and “systemic” Charter litigation, the result of which will be to further erode access to justice in Charter cases involving social rights.

There is a certain uncomfortable irony in a case denying the right to lawyers to argue for better access to justice. An organization like the CBA is distinctly well-suited to argue for the access to justice rights on behalf of those unable to do so because the cost of civil justice is out of reach. In this comment, I explore how issues such as the constitutional right to legal aid ought to be raised by public interest groups and why judicial discretion in applying public interest standing should facilitate such litigation.

Keywords: Canadian Bar Assn v. British Columbia, constitutional right to legal aid, legal aid and civil justice, test for public interest standing

Suggested Citation

Sossin, Lorne, The Justice of Access: Who Should Have Standing to Challenge the Constitutional Adequacy of Legal Aid? (2007). U.B.C. Law Review, Vol. 40, pp. 727-44, 2007, Available at SSRN: https://ssrn.com/abstract=1911426

Lorne Sossin (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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