Parens Patriae as a Basis for Provincial Standing in Judicial Review of Federal Decisions

Abstract

As a general rule, legal action can only be pursued by those who have a right infringed in a court that is able to remedy the infringement. Courts can remedy breaches of private rights and public rights. Typically, purely public rights can only be asserted in a court by the Attorney General. In a federal system, the role of the Attorney General as the parens patriae endowed with jurisdiction to assert public or sovereign rights in court on behalf of the nation-state is bifurcated. As such, courts must address the issue of standing when a regional government is relying on public rights to seek judicial review of federal decisions. In the United States, the courts have recognized that states should have special treatment with respect to standing where they are seeking to protect "quasi-sovereign" interests. Quasi-sovereign interests include the right of a state and its citizens to full and equal participation in the federation. Canadian courts have addressed this form of standing peripherally but not in any great detail. This article will examine the nature of the parens patriae form of standing in a federal system and examine whether this form of standing should be recognized by Canadian courts.