C. Declaratory Proceedings, Standing, Advance Costs, and Mootness

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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A private citizen is not entitled to direct a reference but may, in certain specific situations, bring what is known as a declaratory action in which no relief or remedy is sought other than an order of a court that a statute is contrary to the constitution. Canadian courts, like other common law courts, are wary of declaratory proceedings and have established certain rules of standing that must be met. Rules of standing are thought to be necessary to avoid a flood of litigation, to conserve

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judicial resources and limit judicial power, and to ensure that constitutional disputes arise in the usual adversarial setting where only interested parties motivated to present strong arguments are represented.

Ordinarily, a citizen must indicate a specific legal interest or right that is threatened by the statute challenged; however, the Canadian courts have also carved out generous exceptions to the rules of standing and have said that the courts have a discretion to permit a declaratory suit to proceed even where the plaintiff does not present the usual specific legal right or interest.20According generous standing facilitates the legality principle "that state action should conform to the Constitution and statutory authority and that there must be practical and effective ways to challenge the legality of state action."21There are three factors to consider. First, the citizen must demonstrate that the case raises a serious legal issue. Second, it must be shown that the citizen has some genuine interest in bringing the proceeding. Third, there must be no other reasonable or effective way to bring the issue before the court. Certain statutes do not specify penalties or other sanctions, or, if they do, it is unlikely that those who are subjected to such penalties or sanctions would challenge the statute. In these situations, a private citizen who lacks the usual special interest will be permitted to bring a declaratory proceeding. The underlying rationale to this exception to the standing rules is that no statute should be immune from judicial review.

Despite this relaxed approach, the Supreme Court denied public-interest standing to an interest group seeking to challenge the constitutionality of refugee procedures on the basis that individual refugee applicants were in a better position to bring challenges in individual cases.22However, a more receptive approach was taken in Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society,23where the Court upheld the standing of an association of sex-trade workers to challenge the constitutional validity of Criminal Code provisions dealing with prostitution. Justice Cromwell, writing

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for the Court, reformulated the third factor as "whether the proposed suit is, in all the circumstances . . . a reasonable and effective means to bring the challenge to the court."24Matters that bear upon this factor include the capacity, expertise, and resources of the plaintiff to bring the suit in an appropriate...

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