Prof. Anna Lund publishes new research on public interest standing tests

Associate Professor Anna Lund of the University of Alberta Faculty of Law has published new research on how the public interest standing test should be applied when a litigant challenges legislation that has not yet been invoked.

The article, titled “Navigating the Interplay Amongst Public Interest Standing, Prematurity, Abuse of Process, and Facts and Evidence,” appears in inaugural issue of the Toronto Metropolitan University Law Review, a new peer-reviewed journal published through the Lincoln Alexander School of Law at the recently renamed Toronto Metropolitan University.

In the article, Lund examines when parties should be allowed to challenge laws in cases involving legislative chill — where the impugned laws are so overly-broad that they make one hesitant or fearful to exercise their Charter rights and freedoms.

Lund specifically examines the recent decision of Alberta Union of Public Employees v Alberta, where a union was denied standing to challenge Alberta’s Critical Infrastructure Defence Act. The legislation imposed fines and the risk of imprisonment on people who entered onto “critical infrastructure” without lawful right, justification or excuse. The definition of critical infrastructure was broad and the union argued that their members were fearful to take part in leafleting and picketing, because they did not want to violate the law.

Lund describes the case as a problematic precedent because of how the court narrowed the test for public interest standing by connecting it to other legal concepts like prematurity and abuse of process.

"Restrictive approaches to standing prematurely shut down important debates and weaken protection for Charter rights and freedoms,” writes Lund. “In cases where legislation is challenged because of its chilling effect on Charter Rights, a restrictive approach can immunize that legislation from review."

Lund goes on to offer readers advice on how to navigate these concepts to ensure litigants can use the courts to protect democratic practices and institutions when legislators enact laws that threaten them.