We are seeking to allow the appeal in favor of the Attorney General and reverse the ruling of the BC Court of Appeal. While we agree with the general reasoning of the Appeal’s court as it sets out the legal analysis for the public interest standing and the first Borowski factor, we submit that the Appeal’s court erred in interfering with the discretion of the trial judge. More specifically, the CCD being denied a public interest standing is well within the discretion of the trial judge and the judge’s discretion is defensible on the grounds of the distribution of federal powers. We are particularly worried about judicial overreach and activism that encroaches on the powers of the legislature and creates inefficiencies in the judiciary.

I want to start by looking at the BC Court of Appeal’s analysis of the rationale behind the public interest standing and Borowski. The Appeal’s court correctly notes that courts have used their discretion to generously grant public interest standing while respecting concerns about overburdening courts. The main balancing considerations are between fairness on one hand (i.e., access to justice for the vulnerable and marginalized) and efficiency on the other (i.e., screening out “busybody” litigants). In this case, we are concerned with questions of justiciability, or, in terms of the first Borowski factor, whether there is a “serious justiciable issue.”

The question of justiciability, the Appeal’s court identifies, quoting Lorne Sossin, is “if a subject-matter is held to be suitable for judicial determination, it is said to be justiciable; if a subject-matter is held not to be suitable for judicial determination, it is said to be non-justiciable.” We are not arguing that this matter in itself is not suitable for judicial determination, but we are arguing that this matter in its factual matrix–namely, its use of the public interest standing doctrine–is not suitable for judicial determination.

Our argument relies on a closer look at both Downtown Eastside and Canadian Bar Association. The trial judge’s reliance on Canadian Bar Association (instead of Thompson) is well within the trial judge’s appropriate discretion. We must appreciate that judicial discretion is holistic and reasonable people may disagree with the outcome. The CCD may disagree with the assessment of the fact that, say, third parties may materially advance an identical claim. However, this disagreement fails to appreciate, say, efficiency concerns or the strength of the Charter claim as a whole, which go into the final discretionary deliberations of the trial judge. Considerations of efficiency or being selective about Charter claims is not unreasonable, nor is it arbitrary; rather, it is well within the discretion of the trial judge.

We also agree with Justice Cromwell in Downton Eastside and the Appeal court’s characterization [“that courts should not refuse to determine an issue on the basis that it would be better addressed by the legislative or executive branches of government simply because it arises in a policy context or has policy implications.”] (para 92) Indeed, our position is not that the issue in this case is of a policy nature and therefore ipso facto must go to the legislature; rather, we are arguing that the one may reasonably come to the conclusion that the issues in this case could be more effectively dealt with outside of the courts (viz., in the legislature.)

Of course, the discretion of the trial judge is not unfettered, especially when it comes to constitutional rights. We also agree that the impugned provisions are problematic and need to be addressed. We are not claiming that it is frivolous or that the CCD are busybodies, but rather that considerations of efficiency must be taken seriously as they are also considerations for facilitating access to justice. Where we disagree with the Appeal court is that the CCD and the public interest standing doctrine ought not to be the tools to address the issues of the impugned provisions. This could open the floodgates to social activist groups swarming the courts instead of going through the proper legislative channels for change in a democracy.

In conclusion, we submit that the BC Court of Appeal failed to appreciate the trial judge’s concern for efficiency, and the Appeal court erred in interfering with the trial judge’s reasonable discretion. We appreciate that persons with mental disabilities may find the justice system particularly uncomfortable, but we urge the court to respect the trial judge’s discretion and the considerations for the possibility that the public interest standing doctrine may burden the courts and present further access to justice issues. Subject to any questions, these are my submissions. Thank you, Justices.